Victoria Pynchon responds again in our ongoing conversation.

First, a comment on one of her later posts. She quotes an article in California Lawyer in which a litigator advises parties lobby the devil out of mediators prior to the mediation because:

If the other side convinces the mediator that you will accept a lesser result than advertised, your chance of success will plummet (and you may end up facing a very unhappy client). On the other hand, if you convince the mediator that your adversary is willing to give more to settle than is on the table, you may well be on the way to having a successful outcome and a satisfied client.

A rhetorical question: if you have a solid bottom line, and engage appropriate negotiation tactics, does it matter what the mediator thinks?

Under standard business theory, the answer is "no." You and the opposing party are either in the zone of potential agreement, where your client will be "happy" with the result, or you aren’t. Once in that zone, the question is money on the table — which should be covered by your negotiation tactics.

But the real answer is: maybe it shouldn’t, but it does.

Here’s part of the proof, from Victoria’s other post:

This very morning I failed to settle a very small case that is poised to become a very big case with cross-actions for legal malpractice and malicious prosecution. 

The delta between the Plaintiff’s final demand and the defendant’s final offer?   


Even her offer to donate half of that amount failed to seal the deal. For an amount that, in all but the smallest soft tissue case, would be considered trivial and unworth the cost and burden of litigating.

Here’s my thought why: both sides were already well beyond their "bottom lines." It’s no secret that, perhaps excepting where a precise, provable monetary sum is at stake, there really aren’t any true bottom lines. There’s always room to move, and a strong mediator — or someone successfully using those social influence ‘tricks’ I worried about — can push one side or the other beyond what they thought was their bottom line into deeper (or more shallow) waters.

But once you’re in that deep, and you’ve cast aside what you thought was your rational, economic decision, then everything else matters more, heightening the importance of vindication and the like.

Such heightened non-economic demands increase the likelihood of failure, since, obviously, those demands are the type least likely to be satisfied by tossing around different numbers.

Victoria provides a great summary of some of the key negotiation theory findings:

[D]espite everything I’ve now said about litigants behaving irrationally, as I’ve written elsewhere in greater detail, Harvard negotiation gurus Deepak Malhotra and Max H. Bazerman suggest that negotiators too often confuse hidden interests and constraints with irrationality.  The mistakes and solutions when this is the case?  

Mistake No. 1: They are Not Irrational; They Have Hidden Interests — find out what they are and you may well be able to resolve the dispute and settle the litigation without putting any more money on the table or making any further concessions;

Mistake No. 2: They are Not Irrational; They Have Hidden Constraints — keep one ear to the ground for hidden constraints, explore them with the mediator, opposing counsel or the opposing party; often those constraints can be problem-solved away;

Mistake No. 3: They are Not Irrational; They Are Uninformed — listen and respond; respond and listen.  You will find that EACH of you is uninformed about something that will likely make a genuine difference in the manner in which the litigation is resolved.

All true. The question is: how do I open up the hidden interests, constraints and ignorance without sacrificing my client’s interests?

Obviously, Victoria’s interests here are a little different from mine. While I’m sure she’d rather not be a driving force behind a settlement that one of the parties later seriously regretted, her interest is more in resolving the conflict than getting the best result for one of the parties.

Fact is, when I try to inquire into hidden interests, constraints or ignorance, I usually get a brick wall, and in truth I can understand that. If opposing counsel tries to get in my head, well, I’ll argue my position in the case relentlessly, give them my number for settling it, and leave it at that.

Anything else would be perceived as weakness — is there any doubt the author of that first article I quoted would interpret my attempt to find "hidden constraints" as a sign of weakness? And if he saw a sign of weakness, correct or not, it would make it harder for me to convince him or the mediator that the numbers I’m demanding are legitimate.

I’ll address all of this material more in our continuing conversation. My primary conclusion for now is: if a plaintiff wants to participate in mediation without sacrificing their interests, they must demand, prior to participation, a tender from the defendants of the plaintiffs’ bottom-line. At that point, we’re not talking about where the ZOPA is — we’re talking about the money on the table.

My question back to Victoria is: how do I get there in a routine fashion? I’ve had such sessions plenty of times before, but I’ve never been able to create the circumstances for them, except by creating the circumstances for a strong case at trial.

Some defense lawyers see those circumstances for what they are and propose mediation prior to the eve of trial. Others tell me how tenuous and frivolous my case is up until jury selection. Is it worth my effort to encourage the former over the latter? Should I continue to search for the unicorn?