Peter W. Benner
Several months ago I published here a column entitled “Think Different About Business Disputes”, borrowing the “Think Different” tag from innovators Steve Jobs and Apple. That article recognized that
Thinking different is hard. It can be risky. Yet, tremendous opportunity and positive results, at much lower cost, can come from redirecting the focus of both counsel’s and the client’s attention early in the case toward direct interactions to explore mutual interests and means of achieving them, in parallel to adversary processes… There is room—and a need—for this kind of “disruptive resolution innovation” in the way business cases are litigated.
This article is a follow up, to identify seven specific means of implementing or practicing the “think different” approach, which can apply to all types of cases.Consider them “Seven Habits of Highly Effective Litigators” that can have a positive impact on the cost and outcomes of cases and can improve a litigator’s own caseload management. After all, the litigator’s job, as a zealous advocate, is to get the best result for her/his client at the lowest cost. These are some “habits” to help get there.
- Mediate early in the case.Engaging a mediator early in a case is a practice thatremains vastly underutilized, despite the substantial upside and essentially no risk. We know that at least 95 percent of civil cases will settle, often late in the game or on the eve of trial. That’s the time when productive solutions no longer may be available, and all you are looking to do is get out of the case without risking a trial. By mediating early, you can:
- Explore and identify means to a favorable settlement before the dispute escalates, positions harden and the case takes on a life of its own. Dispute escalation and entrenchment of positions are the greatest, and most avoidable, causes of excessive cost and barriers to constructive settlement.
- Even without a settlement, productively narrow and focus the dispute to that which is really at stake;
- Identify mutual interests that can “expand the pie” and set the stage for later settlement.
Litigators are almost universally skeptical of early mediation and see risks of “blind” settlements and truncated discovery. While not all cases are suitable, so many are–far more than are currently afforded the opportunity. The perceived risks can be managed and, with the right process, are outweighed by the benefits of much lower cost and better outcomes. Investment in early mediation can be recovered many times over.
When I suggest this idea, there can be several reasons for pushback: Proposing mediation early risks appearing “weak” and too eager to settle. Or, the client is interested in taking a hard line and making a strong statement before getting to the table. Or, discovery is required to make sure that all facts are on the table. Those concerns miss the point of early mediation well done with a mediator who can assist in breaking the ice and getting at what the parties are most interested in accomplishing, positioning the case for positive resolution or on a track that leads to the most efficient and effective process.
The tide will shift because early mediation just works, and, when they use it, attorneys and clients alike discover a vehicle that improves client satisfaction and leads to repeat business. If you consciously practice only one of these seven “habits”, practice this one. Then, the others will fall into place more readily.
- Act with the knowledge that conflict often is about differences in perception. Humans see the same things differently. One core principle of conflict theory, which can be translated directly into practice, is to understand and act with the knowledge that resolution of a dispute can be about reconciling those different perceptions. Negotiation and mediation arenot about “giving in” or making concessions. Rather, an initial focus on how and why the parties see the same facts and law so differently can reveal paths to resolution that otherwise would go undiscovered. A negotiator who operates within this framework can control the conversation.For a graphic demonstration of this idea, see the “spinning dancer illusion” at http://math-fail.com/2011/04/the-spinning-dancer-illusion.html. One person will see the image of the dancer spinning clockwise, and others will see the same dancer spinning counterclockwise. Only a few will perceive both directions. It comes down to how our brains process differently the same information.
- Focus the mediator on the optimal resolution for your client. Mediation need not be a “one off” event to convince the mediator of the strength of your legal claim; the best mediations are a process that focuses on what is needed to reach the best outcome. Use the mediation brief and confidential phone conversation with the mediator to assist the mediator in structuring the process in a manner that keeps your client’s optimal resolution front and center—such that the process addresses from the beginning how to overcome the barriers to reaching that outcome.
- Keep in mind what is really at stake for all parties. Such awareness is a way to keep interests in the forefront. It opens the negotiation to more creative approaches than retaining the focus on the strength of respective legal and factual positions. It’s not that the law and facts don’t matter; clearly they do. What can get lost, however, in the assertion of positions is what resolution options work best for the client—what s/he really wants to accomplish from the dispute.
- Use creativity and brainstorming as resolution tools. This subject deserves an article unto itself. From my perspective as a mediator, I find that lawyers often come to the process with single-minded views of how to settle the case. The most effective advocates in mediation, instead, approach the process openly and are prepared to generate and listen to creative solutions as the negotiation unfolds (which can work even when the case is “just about money”). This is a powerful advocacy skill.
- Out think the opposition by putting yourself in their shoes. This works every time, and can be very disarming. Even go so far as to use empathy as a negotiation strategy (a subject for another day). Roger Fisher, co-author of Getting to Yes spent the rest of his career encouraging lawyers to cast aside their own perspectives and biases and out think the counter party by imagining you were the other party. This is very hard work. Yet, insights and ideas will surface to serve your client and find mutual gain that simply would not occur to you otherwise.
- Never give up. Consider impasse not as a problem but as an opportunity for the most effective lawyering and as an opening to distinguish your work. If settlement is in your client’s interests, do what is necessary (and use the mediator in that setting) to keep the adversary engaged on your terms. It can be done. Focus on (a) what specifically are the current barriers to settlement and (b) what needs to be done to move beyond those barriers.
These are quick summaries of seven ideas, which, if transformed into habits, really can improve a litigator’s advocacy. Having represented clients in litigation for over 30 years, I recognize that’s the goal. As a mediator, I have come to understand that there are under appreciated ways to get to that goal—to Think Different—that will pay off handsomely for you and your client.