On June 4, 2024, the Dispute Resolution and Civil Litigation sections of the Massachusetts Bar Association (MBA) sponsored a remote program titled “Overcoming Barriers to Settlement: Negotiation Skills for Civil Litigators and Mediators in Mediation.” The CLE was moderated by Mark Mason, retired Superior Court judge and founder of Mason Mediation LLC, and included a distinguished panel of mediators and lawyers: David Hoffman, John H. Watson Jr. Lecturer on Law at Harvard Law School and founding member of the Boston Law Collaborative; Brian Jerome, a longtime mediator and arbitrator with his own firm, Massachusetts Dispute Resolution Services, and former co-chair of the Dispute Resolution Section Council; Eric Finnemore, of counsel to the firm Wilchins Cosentino & Novins LLP and former chair of the Civil Litigation Section Council of the MBA; and Michael Leard, a partner in Nutter law firm’s litigation department who serves on the MBA’s Civil Litigation Section Council and as a trustee of the Massachusetts Bar Foundation.
Introduction
I have selected only the highlights of this 1.5-hour program, and the voluminous program materials and full recording are available from the MBA.
See https://www.massbar.org/events/cle-program?productId=9419&kitId=9423&view=month. The panelists addressed how they would handle a variety of issues arising under two hypothetical cases, one a personal injury matter, the other a family business succession dispute. The two mediators addressed their own best practices as well as their observations of best practices for advocates in a mediation. The two lawyers — one playing the role of plaintiff’s counsel, the other playing the role of defense counsel — offered their perspectives on how to prepare their clients for the mediation, including trying to manage their expectations, and how to assist the mediator in finding creative ways to settle the dispute, including expanding the pie.
Key takeaways
Picking the Mediator: The lawyer panelists of course agreed that this was the important first step. But they cautioned that because this is a voluntary process, unlike arbitration, parties should try to be reasonably accommodating and not insist to the death on their own choice, looking to the interests of their client as well as considering whether giving a little “win” to the other side might pay dividends later when the need for compromise arises.
Joint Sessions with Opening Statements: The consensus was that joint sessions and opening statements are less favored currently, especially where the parties have been in litigation or negotiating for some time and have no need to rehash their differences. Also, the panelists cautioned that typical trial-like opening statements pose the risk of inflaming the opposite party and setting back the mediation before it starts. However, the parties may believe that there are strategic reasons for an opening statement — to demonstrate a party’s credibility where it has not yet been deposed or in the case where there’s been a change of party representatives or counsel who may need to be educated about the merits of the other party’s case. Alternatively, the mediators suggested an opening session in which only the lawyers participated. As to the wisdom of showing a “day in the life” video during opening statements, the mediators were not opposed so long as the video was provided to defense counsel
prior to the start of mediation to allow them to discuss it with their client in order to avoid last-minute surprise.
Last-Minute Offers and Counter-Offers, or No Counter-Offer to a Last-Minute Offer: The panelists concurred that last-minute offers or counter-offers, or no counter, were risky and at the extreme might lead one party to cancel the mediation. As with everything counsel and their clients do prior to and during the mediation, there must be a strategic, well-thought-out reason for such a move. If this happens during the mediation, the mediator can counsel the opposing party that this is the “normal game” and not to give up on the process, whereas making the same move prior to the mediation poses greater risks. The mediators suggested that this issue be discussed in the pre-mediation meeting.
Obstacles to a successful mediation
Where one party insists on a win-win scenario, e.g., revenge vs. solution, the mediator’s task is made more difficult unless the party and its lawyer agree to back off competitive bargaining and embrace interest-based bargaining. See the seminal negotiation treatise Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher, William L. Ury and Bruce Patton, 2d ed. (Harper Collins, 1992) [first published in 1981] and its progeny.
Confirmation bias.
Conflicts between the lawyer and their client, or the lawyer and adjuster.
Mistrust by either party of the other, or mistrust of the mediator.
Reactive devaluation, e.g., “your demand is so high” or “your response is so low that we won’t respond.”
Inadequate information because the dispute is not yet in litigation or is in the early stages of litigation where discovery has not yet commenced.
Parties not fully considering whether they have a best alternative to a negotiated agreement (BATNA), e.g., litigation with its high costs and stress/time loss to all parties as well as significant delay.
The Mediator’s Toolbox To Overcome Obstacles To A Successful Mediation:
Use metaphors to describe the dispute (a picture is worth a thousand words).
Try to have the parties fix on the problem, not the people.
Where emotions run high, allow venting, but also help the parties get past their emotions. An example is a dispute involving a minor where the mediator met with the minor, her parents and grandparents, or other members of her “team” to flesh out the different sets of expectations and try to help them agree to a reasonable settlement plan.
Where there’s a lack of or disparity in information about each party’s case, recommend that the parties consider limited discovery on key issues.
Advise the parties to look through the windshield not the rearview mirror (i.e., look to a solution rather than dwelling on the past, whether past statements or offers, positions in litigation, etc.).
Take a break when a cooling-off period is needed.
Ask the parties to put themselves in the other party’s shoes.
Try out hypothetical proposals with each party to see if there’s buy-in.
Range-bargain (“would you consider a settlement in the range of x-y?”).
Reframe the dispute in ways that offer each party a potential path to settlement.
Look to the parties to come up with creative ways to fairly divide or even expand the pie.
Set deadlines.
Remind the parties that this is a voluntary process.
Where the parties have widely differing views on the value of their case/defense, bring in a retired judge or other neutral knowledgeable about the area of law, and about the local judges/juries and customs and practices, to provide a case evaluation. Or arrange non-binding arbitration on a key issue.
Where the value of property or a business is at issue and the parties have retained experts whose valuations are far apart, encourage the parties to retain a third expert to meet with the other two experts to attempt to agree on a fair price or price range.
Where an insurer is involved, remind them of the Massachusetts laws regarding bad faith practices by an insurer as well as M.G.L. c. 93A’s prohibition on unfair trade practices (of course only where such potential claim/defense has merit).
Make a mediator’s proposal, with the parties’ consent, that represents the mediator’s own “prediction” of how the dispute is likely to be resolved. This tool is typically used when they are close but still can’t reach agreement and will only be adopted if both parties separately agree.
Practice tenacity: “I will use my best efforts to continue the mediation progress for however long it takes until the parties reach a fair settlement.”
Once an agreement is reached, assist the parties in adding necessary contingencies to the settlement, e.g., the sale of a key asset must be at least for $x; identify tax and other liens that must be satisfied before closing; and develop a process and guidelines for managing an ongoing business that is transferred to one of the parties as a result of the agreement.
Conclusion
This program was very valuable to the attendees because it challenged the panelists, all experienced lawyers or mediators, to apply their experience to mediating common issues under two typical hypothetical fact patterns, in the process dropping wonderful practice tips and other pearls of wisdom. Along with the excellent accompanying materials, in the author’s somewhat biased opinion, this was a well-spent hour and a half of continuing education in the increasingly important field of non-binding dispute resolution.
Kenneth A. Reich is a lawyer with a concentration in environmental law, energy law, commercial leasing and civil litigation. www.kennethreichlaw.com. Reich is a mediator, arbitrator and case evaluator with CMMA Dispute Resolution Services. https://www.cmmaadr.com/. He is an appointed member of the Massachusetts Bar Association’s Dispute Resolution Section Council and has organized or served as a moderator for a number of the council’s educational programs.