Mediation and Lawyers: The Disconnect

I’m seeing a disconnect between what the best negotiation professors are advocating as well as what’s being taught to current law students about mediation versus what’s actually taking place in front of me in many civil litigation mediations.

Current teaching. Law students are being taught the following skills:

encouraging clients to speak during the mediation
establishing a problem-solving relationship with the other side, if possible
recognizing the other side’s interests and trying to satisfy them when possible, given their client’s interests
taking initiative to convert the other team into problem-solvers
generating a range of legal and non-legal options to meet client’s interests, as well as interests of other side
evaluating and selecting options based on interests as well as objective criteria
actively encouraging development of creative ideas

Current literature. The best negotiation professors also stress these skills:

Collaboration
Cooperation
Positive attitudes

See, Babcock & Laschever, Ask for It; Craver, Effective Legal Negotiation and Settlement; Craver, The Intelligent Negotiator; Fisher & Ury, Getting to Yes; Fisher & Shapiro, Beyond Reason; Goldberg, Sander, Rogers & Cole, Dispute Resolution; Lax & Sebenius, 3D Negotiation; Malhotra & Bazerman, Negotiation Genius; and, Ury, Getting Past No, to name a few.

Current practice. There are lawyers and clients who use the approaches and skills outlined above. In my experience, however, lawyers and clients who believe that hard, distributive, and sometimes punitive, bargaining is the best way to negotiate vastly outnumber the collaborative and cooperative ones.

What the advocates of collaborative bargaining point out, however, is that even when hard bargaining is effective, often it leaves value on the table that could have been claimed, but wasn’t, by the negotiator using a hard bargaining approach. Bottom line: the client loses out.

So here’s my question: How do we, as dispute resolution professionals, encourage the hard bargainers that a take-no-prisoners attitude is not in their clients’ best interests? I’d appreciate your comments. Some days, I despair!

San Francisco mediator Nancy Hudgins blogs regularly at www.hudginsmediation.com/blog.

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Comment by Andre Jackson on May 16, 2012 at 1:43am: Hi Nancy,

That’s a very good question, isn’t it? How to encourage a hard, distributive bargainer to be more collaborative?

When I thought about your question I thought about the prisoners’ dilemma that is often cited in the literature (http://en.wikipedia.org/wiki/Prisoner's_dilemma). I remember an experiment at Creighton where we were all put to the test to see which choice we would make, and most of us chose a distributive approach. Why? Because we did not want to be taken advantage of in case the other party was not collaborative! It was too much of a risk.

How can we reduce the perceived risk in the other party? Can we make the other party trust us to a degree that they would not worry they were being taken advantage of? I read the following the other day in “Getting Together – Building Relationships As We Negotiate” (Roger Fisher, Scott Brown; 1988), in chapter 7 “Reliability”, which is interesting:

“It is in my interest to be trusted. If I am worthy of your trust – whether or not you are worthy of mine – my conduct will generate fewer disputes. If I do not deceive you, you will have less reason to get angry with me and deceive me in return. If I am reliable, and you know it, my words will have a greater power to influence you. You will give more weight to my factual statements and more weight to my promises. You will be less suspicious, and we will be better able to deal well with disputes” (page 111).

The authors go on to instruct the reader to be predictable, to be clear, to take promises seriously (“the easiest way to enhance our reputation for credibility is to make fewer promises”) and to be honest (“honesty does not require full disclosure. It does, however, require a clear indication of areas about which full disclosure should not be expected and an explanation of why it is not appropriate”).

What do you think about that? Unconditional constructiveness?

Andre

Comment by John C. Turley on May 17, 2012 at 9:21pm: Andre:

It is great to hear from you! I agree with your comments. Within the State of Michigan dispute resolution centers(DRCs), we focus on facilitative mediation. The process requires the mediators to be non-manipulative, as difficult as this may be sometimes. Our executive directors keep track of the case results and outcomes;however, the focus is on the process and not on competitive score tracking. The state compiles the overall DRC statistics, but this is in keeping with the general accounting and reporting methods of state government. Further, our Governor supports ADR within state government because of the strong cost savings vs. litigation. Some lawyers are passive aggressive with an eye toward job security and avoiding change.

I know that a few attorneys use an "adversarial approach" to mediation. Their client billing hours are down, so many attorneys migrate toward ADR with the assumption that an experienced lawyer or retired judge is a superior mediator. I am generalizing;however, I notice a tendency to stick with their courtroom style rather than be more facilitative. Many cases are awarded through the good old boy network in my part of the world. So, I believe that we can put the clients' interests first by focusing on the process in a non-manipulative way and avoiding many of the agent provocateur methods as described by Ms.Hudgins. I remain an evangelist of Bernie Mayer by playing the role of ally, strategist, coach, and organizer in a non-manipulative way. It seems to work for me and my co-mediators. Although we do not focus on keeping score, our success rate is very high, perhaps because we stick to the process and listen to the positions of both sides while practicing what we were taught at Creighton with allowance for the real world and life in the big city.

Thanks for your insightful post.

Cordially,

JCT