The Negotiating DilemmaBy Charles B. Parselle Published 28 January, 2014
Life poses dilemma for all living creatures. It is the same dilemma for everyone involved in a dispute. The dilemma is how to win without getting killed. The word “killed” is used here metaphorically, but anyone who has faced an adverse jury verdict knows that it feels like death. Mediation is an effective solution to this dilemma.
It is painful to lose. But the alternative, which is to settle, can be extremely unpalatable, and furthermore, it can be unacceptable to a client who believes, wrongly, that he/she is on the winning side of a righteous and profitable suit.
An attorney’s duty is to provide staunch adversarial representation. A trial is a “take no prisoners” affair, in which the attorney must maximize every factual, legal, evidentiary and procedural advantage, and neutralize or minimize every weakness in the case, in order to win for the client. However, most cases that are filed (19 out of 20) never reach trial. Cases that do not succumb to demurrer, inertia, or summary judgment, mostly settle.
Settlement occurs through negotiation. Negotiation is not a “take no prisoners” affair. It requires a different attitude of mind and a different approach.
The attitude of a trial attorney is “win or die in the attempt.” There are no fine lines to walk. The attitude of a successful negotiator must be more subtle. It is all about walking fine lines. The negotiator must hold, simultaneously, the attitude that she is willing to go to trial and the attitude that she is willing to make concessions in order to settle. The negotiator must hold out for maximum advantage, while recognizing that she has already sacrificed the chance for maximum advantage in return for the chance of settlement.
Because of the tension inherent in the negotiating situation, it is inevitably stressful. There are several problems with the process of negotiation.
First, a negotiation is difficult to begin, because it is perceived as being perceived as weakness. Because of this, negotiations are delayed. The commonest time to begin is when the court orders the matter to mediation, and even then, parties are often not psychologically ready.
Secondly, as Mark Antony said to the crowd: “You are not stones, but men.” Men and women nearly always react emotionally in a negotiating situation. I would like to collect $1 for every time an attorney has called his opponent an “##@&^.” The parties often come to a negotiation with unexpressed bitterness towards their opponent, and what they perceive as low-ball offers are like salt rubbed in the wound.
Thirdly, once an overture or an offer has been rebuffed, the negotiating process often stalls and no one is willing to start it again. Time goes by, expenses mount up, the client calculates what has been spent compared what is now being offered, the whole thing becomes more and more difficult. The courts then step in, with mandatory mediations, mandatory settlement conferences, but the court cannot mandate that the parties settle. They have a constitutional right to their day in court.
Fourthly, a settlement means a result which is also satisfactory to the opponent. But for some people, the sense of victory depends on the perception that the other party lost. In some people, the desire for revenge is potent and implacable.
The difficulties inherent in negotiation are greatly eased by the presence of a mediator. First, if you are reluctant to take the first step, call in a mediator and have him or her make the call for you.
Secondly, the inevitable emotional reactions which occur in a negotiation can be fully expressed yet channeled harmlessly, and often with unmistakable relief, in the direction of the mediator.
Thirdly, the rejections and rebuffs and posturing which are a part of negotiation need not, and usually do not, result in complete breakdown where a mediator is present to ameliorate their effects. And this means that the negotiation can proceed. Finally, there is the desire for revenge; if the desire to make the other side lose is greater than the party’s perception of his or her own self interest, there is no remedy, it is the green-eyed monster which will engulf and devour any hope of rational settlement.
Every dispute has a subjective and an objective component. Attorneys are retained because they can view a case or a dispute more objectively than their clients. Clients rely on their attorneys to perform this function for them. But attorneys are bound by their clients’ wishes, and are bound to view the dispute from their client’s perspective.
However capable may be the attorney in objectively analyzing the case, they have no choice but to defer to the client and to represent the client’s desires in the matter. The presence of a mediator, entirely impartial, gives the attorney space in which to separate the subjective from the objective components of the dispute, and over the course of a few hours to develop a solution that works for the client and for the other side as well.
Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford University’s Honor School of Jurisprudence and is a member of the English bar, then joined the California Bar in 1983. A prolific author and sought-after mediator, he is the author of the book, "The Complete Mediator."Article picture: Portrait of Churchill by Ambrose McEvoy (1878–1927. Source: Wikipedia
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