“Although lawyers know that most cases will eventually settle – often only after a process that takes too long and costs too much – they often feel powerless to steer clients towards a more productive path.” (John Lande, Lawyering with Planned Early Negotiation: How You can Get Good Results for Clients and Make Money, American Bar Association, 2011.)
A “Prison of Fear” is created when attorneys worry that suggesting early negotiation will make them look weak; when they are so concerned that the other side will not negotiate in good faith that they shy away from making the first move; when they are worried that an early settlement may leave money on the table; when they begin with extreme and unreasonable positions in order to look tough and show their clients that they will fight for them, which in turn may lead their negotiating partner to doubt that an early settlement is possible – or worse, do long-term damage to their professional relationship.
Get Out of Jail Free?
I have written and spoken about the Washington State Bar Association’s (WSBA) Escalating Cost of Civil Litigation (ECCL) Taskforce before. As of a few days ago, the WSBA Board of Governors approved the Taskforce report, including requiring mediation in superior court cases before completing discovery, and recommending other alternative dispute resolution practices. Next, the Supreme Court will be asked to offer guidance on whether to implement rule changes.
While the practical ramifications of this development are not yet clear, what is apparent is that we are moving towards mandated early dispute resolution. As such, this may be an opportunity to get out of jail free – or at least to break out of the Prison of Fear – while also making clients happier.
Early Negotiation and Mediation
In negotiation, as in mediation, preparation is the key to success.
Cases should be assessed early and often, to determine whether there are potential openings for negotiation and settlement, while keeping the client fully informed of the risks and benefits of taking advantage of such openings. Attorneys can eliminate protracted, frustrating, and expensive discovery battles by communicating with each other and engaging in a planned exchange of information. If attorneys find themselves deadlocked over discovery or otherwise unable to communicate with each other effectively, a mediator may be able to assist in helping them in formulating a plan that will meet all sides’ discovery needs, without the need for judicial intervention or the expense of appointing a discovery master.
For example, have you considered calling your favorite mediator to assist in streamlining discovery, to help you hash out the contentious details of a confidentiality agreement, or to otherwise simplify a case that is causing you frustration and wasted energy?
Attorneys have come to view mediation as a settlement conference after informal negotiations have failed. As such, they usually come to the mediation table shortly before trial, with the singular purpose of resolving the case in its entirety. By this time, there is often a complete lack of trust in “the other side” and its motives.
In my conversations with plaintiffs’ attorneys, defense attorneys, and insurance professionals, it is abundantly clear that – more often than not – all of them have similar and mutually compatible interests as the litigation process unfolds. Trained mediators are uniquely positioned to bridge any gaps and help all parties satisfy their interests at all stages of that process.
So next time, consider using your favorite mediator to help you and your negotiating partner earlier in the process. You may be surprised at the results.