As published in The Chicago Daily Law Bulletin
Your opponent is much harder to beat — when you won’t see him and you won’t meet him.
This column is the first of two about the importance of using mediation to meet with your opponent. Today I’ll explain why you should take advantage of the opportunity to meet. In my next column, I’ll describe how “break-in” meetings in mediation should work.
Your opponent is much harder to beat — when you won’t see him and you won’t meet him.
This column is the first of two about the importance of using mediation to meet with your opponent. Today I’ll explain why you should take advantage of the opportunity to meet. In my next column, I’ll describe how “break-in” meetings in mediation should work.
It astonishes me that parties fight so hard to avoid meetings. In many, many mediations, meetings become very important ways to move forward.
The way we typically do our mediations is like the old game of telephone. One side tells the mediator what to say. The mediator then tells the other side. So much communication gets lost along the way!
The mediator cannot possibly convey the message exactly as the other side intended. The tone and the nuances of argument are never the same. The body language and even the look in their eyes cannot be communicated in this indirect way. And there is always the chance the mediator gets it wrong and is not exactly conveying the message given.
To all of you poker players out there: Do you do better actually seeing your opponent, or would it be just the same if each player were behind a curtain, in a separate room or on the internet?
There are a number of reasons why meeting your opponent in person can be very useful.
First, meeting with an opponent gives you the opportunity to size them up. How serious are they? Are they bluffing? How far are they going to push this?
Second, it shows you what they think and how they think. If a certain issue is a sticking point for them, whether valid or not, you learn what you are going to need to convince them in order to settle the case.
Third, if the case isn’t going to settle, you learn what they are going to talk about at trial and you hear the thoughts, words and phrases they will probably use, which helps you prepare. How are you going to deal with it?
Fourth, maybe — just maybe, however completely unlikely — there is some eensy-weensy truth in what they are saying.
Maybe you should re-evaluate your position. Maybe you should reformat your argument. Maybe you need to drop a theory or a witness or a document. Maybe you need to admit something you are not going to be able to prove. Maybe you need to re-evaluate your settlement position.
Fifth, maybe, just maybe, after seeing and hearing from you, the other side will learn the weakness in its position. Whether they admit it there and then, maybe the other side will go back to their room and think about what you said. Maybe the other side will see they had something wrong. Maybe the deposition didn’t say what they thought it did. Maybe the case law is different. Maybe side two simply didn’t understand what you were trying to say.
That brings us to the way face-to-face meetings in mediation usually begin: opening statements.
Most lawyers and parties hate opening statements. That makes sense. It’s just more pressure on the lawyers who are walking a tightrope between impressing their clients and trying to get the case settled.
It might feel like an opening statement in a trial, which is often nerve-wracking. It can be very counterproductive because it can be a big turn-off to the other side and even make your own client dig in harder. If a party has strong emotions and shows anger or resentment, that can send the mediation spinning off in a bad direction.
When I was a trial lawyer mediating my own cases, the great Fred Lane convinced me that openings were important. Since becoming a private mediator, I’ve come to realize that they are — they just don’t have to be at the opening.
In my next column, I’ll discuss the details of how “break-in” meetings in mediation work.
In the meantime, go see “The Defiant Ones,” a fantastic 1958 movie where Tony Curtis and Sidney Poitier are escaped cons handcuffed together. They hate each other and get nowhere until they learn to minimally work together.
Legal disputes are a little like that, too. Ultimately, battles are won and disputes are settled together, not in the comfort and privacy of your well-appointed office.
The way we typically do our mediations is like the old game of telephone. One side tells the mediator what to say. The mediator then tells the other side. So much communication gets lost along the way!
The mediator cannot possibly convey the message exactly as the other side intended. The tone and the nuances of argument are never the same. The body language and even the look in their eyes cannot be communicated in this indirect way. And there is always the chance the mediator gets it wrong and is not exactly conveying the message given.
To all of you poker players out there: Do you do better actually seeing your opponent, or would it be just the same if each player were behind a curtain, in a separate room or on the internet?
There are a number of reasons why meeting your opponent in person can be very useful.
First, meeting with an opponent gives you the opportunity to size them up. How serious are they? Are they bluffing? How far are they going to push this?
Second, it shows you what they think and how they think. If a certain issue is a sticking point for them, whether valid or not, you learn what you are going to need to convince them in order to settle the case.
Third, if the case isn’t going to settle, you learn what they are going to talk about at trial and you hear the thoughts, words and phrases they will probably use, which helps you prepare. How are you going to deal with it?
Fourth, maybe — just maybe, however completely unlikely — there is some eensy-weensy truth in what they are saying.
Maybe you should re-evaluate your position. Maybe you should reformat your argument. Maybe you need to drop a theory or a witness or a document. Maybe you need to admit something you are not going to be able to prove. Maybe you need to re-evaluate your settlement position.
Fifth, maybe, just maybe, after seeing and hearing from you, the other side will learn the weakness in its position. Whether they admit it there and then, maybe the other side will go back to their room and think about what you said. Maybe the other side will see they had something wrong. Maybe the deposition didn’t say what they thought it did. Maybe the case law is different. Maybe side two simply didn’t understand what you were trying to say.
That brings us to the way face-to-face meetings in mediation usually begin: opening statements.
Most lawyers and parties hate opening statements. That makes sense. It’s just more pressure on the lawyers who are walking a tightrope between impressing their clients and trying to get the case settled.
It might feel like an opening statement in a trial, which is often nerve-wracking. It can be very counterproductive because it can be a big turn-off to the other side and even make your own client dig in harder. If a party has strong emotions and shows anger or resentment, that can send the mediation spinning off in a bad direction.
When I was a trial lawyer mediating my own cases, the great Fred Lane convinced me that openings were important. Since becoming a private mediator, I’ve come to realize that they are — they just don’t have to be at the opening.
In my next column, I’ll discuss the details of how “break-in” meetings in mediation work.
In the meantime, go see “The Defiant Ones,” a fantastic 1958 movie where Tony Curtis and Sidney Poitier are escaped cons handcuffed together. They hate each other and get nowhere until they learn to minimally work together.
Legal disputes are a little like that, too. Ultimately, battles are won and disputes are settled together, not in the comfort and privacy of your well-appointed office.