One of the more memorable movie lines is from Forrest Gump (1994) when Gump comments “My momma always said, “Life was like a box of chocolates. You never know what you’re gonna to get.” ”

            Mediations are like that, too; as a mediator, I never know what to expect. I say this because I had two mediations  recently that turned out far differently than I expected. Both involved automobiles. In the first, the plaintiff – I will call her Jane Doe –purchased a used vehicle from a dealership – I will call it ABC Dealership – which sold both new and used cars. Ms. Doe had a continuous problem with steering – it was quite difficult to turn the steering wheel and when she did so, it whined. She took it back to the dealership seven (7) times for repair. . . and it was still not fixed. Believing that enough is enough, she sued. Under the particular statute involved, she was entitled to diminished value i.e. the difference in the value of the vehicle as represented (i.e. without the steering wheel problem) and the vehicle as it was in actuality (i.e. with the steering wheel problem). This sum probably amounted to a few thousand dollars. But, at the mediation, the owner of the dealership proposed an “out of the box” solution to take her car in a generous trade-in, for a new vehicle (that has a generous manufacturer’s warranty) at a reduced price, giving plaintiff incentives and the best financing obtainable in light of Ms. Doe’s credit. While no doubt, ABC Dealership will probably make some money on this deal (i.e. What’s In It For Me!), it will probably cost the dealership more than the few thousand in cash representing the diminution in value. It will also engender goodwill as it is far more than what the statute requires. Clearly, the owner of ABC Dealership was looking for a way to resolve this matter to plaintiff’s satisfaction – one that would not leave a bad taste in Ms. Doe’s mouth.

            In contrast was my other mediation – again involving an automobile. The plaintiff – whom I will call Sally Roe – leased a vehicle for three years. During that period, she brought it to the dealership for different things; one  or two of her complaints were at issue twice. At the end of the lease, she decided to purchase the vehicle. Soon thereafter, she brought the vehicle into the dealership once more to have other issues resolved. At this point, the vehicle was outside of the manufacturer’s warranty and so Ms. Roe did not bring it to the dealership anymore. Approximately 18 months after she purchased the vehicle at the end of the lease, she sued the manufacturer claiming the car to be a “lemon”, alleging defects that were complained of to the dealer once or perhaps twice, years ago.

            Part of my job as a mediator is to provide doses of reality and to manage expectations. So, I discussed the jury instructions that would be used at trial and the fact that a jury may question her credibility and/or motivation since she voluntarily purchased the vehicle at the end of the lease. (i.e. If the vehicle was so bad, why didn’t she simply walk away from it at the end of the lease?)

            My doses fell on deaf ears. Evidently, her attorney had counseled her that this was a good case to take to trial, and if the manufacturer was not willing to repurchase the vehicle, then the matter should be left for a judge and jury to decide. Thus, when I proposed the manufacturer’s cash offer to Ms. Roe, her response was simply that it was time to go to trial, and the mediation was over. She would not counter or negotiate for anything less than a repurchase.

            Two strange mediations, neither ending the way my training and experience would have led me to believe.

            The teachable moment is so obvious that it sometimes escapes me: Mediation is “like a box of chocolates, you never know what you’re gonna get.” Or, be flexible and ready to go with the flow!

            . . .Just something to think about.

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            The January 2012 issue of the California Lawyer contains an article about tattoos in court. As the blurb intrigued me, I read the article, entitled “Tattoos as Evidence” by Ryan Lozar (pp 37-39) (Tattoos as Evidence ) in which the author discusses the existence of a tattoo on a criminal defendant as potentially biasing a jury:

It’s a fact of life that people make snap judgments about each other’s character based on discretionary aspects of physical appearance. . . . This is especially true when it comes to tattoos, whose bearers-depending on the nature of the tattoo itself – may be viewed as seedy, provocative, or downright dangerous. The consequences of such judgments can be serious for a tattooed criminal defendant. . . . (Id. at p. 37).

            The author goes on to describe how in a race-related murder trial in Florida, the court granted the defendant’s motion to have the state pay for a make-up artist to come each day before court to cover up a swastika and barbed wire tattooed onto his head. The court agreed with his counsel that such a tattoo was likely to offend, intimidate and/or frighten jurors to the point of losing their objectivity. (Id. at p. 37).

            There is no doubt that tattoos are a much more serious matter in a criminal matter than a civil one. The criminal defendant has much more at stake than does a civil plaintiff or a civil defendant. But, a tattooed civil plaintiff  or defendant still impacts the jury, and impacts the other party who is deciding what to do about settling the matter.

            I have conducted a few mediations in which either the plaintiff or defendant has tattoos – sometimes small, sometimes not so small. In such instances, I have, at times, taken his/her counsel aside and pointed out that the tattoos may give the wrong impression to a jury. While the response I often receive is that if the matter does go to trial, the party will wear long sleeves or other clothing to hide the tattoos, my comments are not lost on counsel; if counsel has not already had that conversation with her client, she proceeds to do so during the mediation.

            It is wrong to make snap judgments; but, as the author of this article notes, we all do: it is a fact of life! It is “appearance bias” about which I have previously blogged. But this time, it is quite specific: tattoos. We all have opinions about them, and probably strong ones: very much in favor or very much against. And, our views are probably generational. While the World War II and baby boomer generations are most likely to be against tattoos, the Generation X’ers and the “Y” Generation most likely think they are “cool” and see nothing wrong with them!

            So, I guess the point here is that “beauty is in the eyes of the beholder.” If you are a baby boomer or older person like me, be cognizant of your appearance bias against tattoos. Try not to make a snap judgment about the person simply by the tattoo being displayed. And, . . . if you are the person wearing the tattoo, be aware that everyone does not think tattoos are cool;  quite the contrary – they may be biased against you simply because of your tattoo! Opportunities may be lost simply because of the art being worn on your body!

            Tattoos and bias! A fact of life.

            . . .Just something to think about!

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            Although the general consensus among neutrals is that the parties to a dispute should attend the mediation in person, at the same time, I have successfully mediated disputes in which one or more or all involved have attended by telephone. Indeed, I have conducted several mediations solely via telephone with success: the cases settled.

            Yet, I recently had two mediations in which one of the parties attended by telephone and because of that fact, the matter did not settle. I believe the lack of resolution had a lot to do with the attitude or mindset of the party attending by telephone and my inability to change it with a “reality check” precisely because it was by telephone. Let me explain.

            In the first one, a “lemon law” mediation, the plaintiff attended by telephone. The vehicle had been leased, and the lease had ended so that the vehicle had already been turned in. Yet, the plaintiff was seeking the return of all of her lease payments and down payment (approximately $20,000) because the air conditioning had a musty odor for which it was brought in for repair about four (4) times over a three-year period. Because plaintiff was appearing by telephone, I could not sit with her face-to-face and discuss the various realities of this matter; neither could her attorney. Neither of us could provide a meaningful “reality check”. Consequently, the “realities” got lost “in translation” so to speak. Would a judge or jury really award the return of all monies paid due to the musty A/C odor complained of 4 times over 36 months? (Despite the odor, plaintiff did drive the vehicle almost all of the miles allotted under the lease.) In the lingo of Section 1793.22 of the California’s Song-Beverly Consumer Warranty  Act  (Section 1793.22 ), is this a ”nonconformity” that “substantially” impairs the use, value or safety of the vehicle, to the point of requiring repayment of all monies? While the manufacturer was willing to pay some money to settle the matter (i.e. on a diminution in value basis), it was not willing to return all of the lease payments. Some conversations are difficult to have by telephone, and this was clearly one of them.

            The second involved a motorcycle that was supposedly a “lemon”. This time, it was the defendant manufacturer who was appearing by telephone. Prior to the mediation, the manufacturer took pains to try to settle the case, but plaintiff’s counsel had been non-responsive. This lack of response left a bad taste in the manufacturer’s mouth.

            At the mediation, a different plaintiff’s attorney appeared explaining that a re-structuring had occurred within the firm, she was now counsel, would be handling the case to its conclusion, and would be responsive. For the first hour of the mediation, plaintiff’s counsel worked with the manufacturer’s counsel in assessing what plaintiff’s actual damages would be (the motorcycle had been totally destroyed shortly after suit had been filed, and the insurance company paid for the loss!) and was very realistic and practical in her assessment.

            Unfortunately, when defense counsel conveyed the demand to her client – the manufacturer – it balked. It had the bad taste in its mouth which it was unwilling or unable to put aside. It could not abide by the adage “that was then, this is now.” It kept circling back to the non-responsiveness of prior plaintiff’s counsel and wanted to retaliate by making a minimal counteroffer to present plaintiff’s counsel who was trying to be very realistic about the value of the case! Needless to say, the matter did not settle.

            Again, had the manufacturer’s representative been present, I could have sat face-to-face and implored her to let go of the past and focus on the present. I could have had a “reality check” conversation. Instead, it was another one of those difficult conversations that do not go well by telephone. The manufacturer’s representative simply cannot vent in a telephone call the way she could have done to me in person. Also, a personal “mea culpa” from plaintiff’s counsel may have helped, but again, the telephone impeded that process.

            So, I guess the moral of my tale is that while mediating by telephone may be easy and practical, depending upon the surrounding circumstances, it may not be conducive to reaching a settlement. (The very much needed “reality check” may not be possible!) When someone suggests trying to resolve a dispute by telephone, think long and hard whether all of the factors exist to make it likely to be successful.

            . . .Just something to think about!

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           What makes or breaks a successful mediation? Your mindset; that is, how you approach it. Like athletes before an event, one must “visualize” the process of mediation and its successful outcome. Create a mental (if not actual) checklist of the pertinent facts and issues and think about alternative ways to resolve each issue. Become mentally primed for mediation before you even walk in the door. One of my colleagues likens mediation to a chess game: think about the moves you want to make and the alternatives.

            Mediation is a process. It takes time and the active involvement of each party. Walk in with a positive attitude; “we will resolve this!” Remember, the old adage: “where there is a will, there is a way!” Do not go in with a closed mind but, to the contrary keep a very open mind. Be willing to explore options and even consider ones that at first may seem “off the wall”. Those “off the wall” options may lead or brainstorm to other options that are more workable. One trainer once told me that there are two parts to our brains; the brainstorming part and the analytical part. The trainer suggested that in order to come up with solutions, we need to simply brainstorm, turning off our critical thinking part until we are finished brainstorming. Then and only then, do we start to analyze or critique the ideas we just came up with.  While this  sounds  simplistic, if not corny, it actually works; brainstorm first, and then analyze!

            One key to remember is that each party does live with the results of the mediation. So, while you may have others attending the mediation with you and/or advising you, it is your dispute.  You are the one who must live with the results. Make sure you can do so.

            Consequently, consider only realistic options. Do not take extreme or outrageous positions as they will only thwart the mediation process, not enhance it. Mediation should be viewed as a “win-win” process, not as a zero-sum game (“I win, you lose”). This is accomplished only by   being realistic in your expectations and in your demands.

            In sum, don’t simply demand on a “take it or leave it” or “all or nothing” basis; negotiate, be willing to compromise and to put time and effort into the process. Mediation is an old fashioned process amidst our world of fast moving, rapid (if not immediate) results  technology. We may be able to send an e-mail around the world in nanoseconds but mediation is antiquated. It takes time – often lots of it. Be patient. It is a psychological, mental and emotional process through which each participant must travel by giving and taking and compromising. Much of it is psychological: each party must come to believe that she has “earned” the result attained and this can be done only by the process of “give and take” ( i.e., the negotiation “dance”). It is often said that a “good” settlement is a compromise in which one party believes she has not received enough and the opposing party believes she has given too much. But, the key is that both parties have compromised and not stuck hard and fast or rock solid to their respective positions. Each has taken the time and made the effort to see the dispute from the other party’s perspective and with that new view in mind, compromises so that each “wins” a little in the settlement.

            Mediation is all about attitude: if you walk in, wanting to resolve your dispute, chances are, you will!

            . . .Just something to think about!

              First and foremost, I want to wish each of you a very healthy, happy, prosperous and peaceful New Year. To obtain that peace and a peaceful resolution to all of your disputes, may I suggest something different and oxymoronic: trust. That is right, “trust”. Why?  Because, a lot of disputes (and lawsuits) arise because the parties no longer trust the other: an aura of distrust now exists.  Ironically, to resolve the dispute (and lawsuit), the parties, to some degree, must be willing to trust each other, what each says to the other, and what each agrees to do. Without some modicum of trust, the matter will never be settled.  

             Recently,  my colleague Linda Bulmash suggested ways to build up trust during a negotiation so that those negotiations will succeed. In her Negotiation Tips for November 2011 (Vol. IV, No. 10, Los Angeles County Bar Association), Ms. Bulmash pointed out that it is important to start building trust prior to the negotiations, as well as at the outset of the negotiations. As we are beginning a new  year, perhaps we should think about new ways ( i.e., using “trust”) to resolve disputes. Ms. Bulmash suggests five guidelines to build and maintain trust.

“1. Make maximum use of networks. We seldom have the ability to choose who we negotiate with but that doesn’t mean your network of professionals, colleagues and friends can’t help you assess your negotiating partner. With the advent of e-mail and social networking sites, there are many ways to check out your counterpart. The more you know about them, the better your chance of building rapport and the less chance you will fall into traps.”

“2. Build rapport before negotiating. Research in social science has proven that people respond positively to and more readily trust people that are similar to them and will respond to actions with similar actions. The more you know about your counterpart before you meet them, the more likely you are to find a common bridge that builds trust. And the reciprocal nature of trust underscores the value of building that rapport.”

“3. Set an appropriate “trust default”. The above is not to suggest that if you do these things both sides will implicitly trust each other. You have to calibrate how much to trust someone. One way to reduce the odds of betrayal is to begin the negotiation talks with a frank discussion of the ground rules of the negotiation as well as your basic beliefs about trust. Indicate that you take a cautious approach to building trust and it will develop over time. Ask them to agree with you that you will both act in a trustworthy way. This may seem axiomatic but actually stating this puts the issue squarely at the forefront of the negotiation and makes it more difficult for someone to violate the agreement. Of course that mean you have to do the same.”

“4. Win their trust. Most of us have to tendency to immediately devalue the other side’s concessions (reactive devaluation). Therefore, one way to win their trust is to carefully label each of your most important concessions. After making the concession, let them know the relative “cost” of these concessions to your side. They won’t reciprocate with a concession if they don’t know that you gave something that you value to them.”

 “5. Build trust by listening and acknowledging. The other side has to feel they are being treated fairly for them to trust and cooperate with you. Their satisfaction with the deal comes more from feeling they are being treated fairly than from the objective value. So be modest about what you are getting and compliment them on their achievements.”

            The first two suggestions remind me of the Chinese term “guanxi” – the art of building relationships. Doing business in China is all about relationships. One must build a personal relationship so that doing business is personal. As explained by Michelle Dammon Loyalka in her article “The Art of Chinese Relationships” Bloomsberg Businessweek (January 6, 2006):

““You have to spend a lot of time there building relationships. “. . .So that first contract is very expensive to make.” While the standard American approach is to get straight down to business, in China  the focus is first on forging a more personal relationship. “It’s a very different style of doing business.” “. . .Probably your first meeting you wouldn’t mention business at all.””

            In short – all business is personal. We could learn this valuable tip from the Chinese.

            The second suggestion also reminds me of the principle of “Liking” discussed by Robert Cialdini, Ph.D in his book, Influence – The Psychology of Persuasion (1984). In sum, people are easily persuaded by people that they like. If a person likes you, what you say to her will more likely influence her. It is through socializing that this “liking” comes about!

            The third suggestion relates to setting realistic expectations about the process of negotiation. By setting the ground rules and defining the playing field, no party will be mislead about the process of or how the negotiations will proceed and thus will not feel misled or betrayed.

            The fourth suggestion is based on another principle in Dr. Cialdini’s book: the principle of reciprocity which is that people tend to or feel obliged to return a favor. That is, if one party makes a concession, the other party will feel obliged to return the favor and so make a reciprocal concession. As this reciprocity continues, the parties’ demands and offers get closer and closer together until  they both agree on the same thing and settle their differences. Reciprocity can be powerful!

            The last suggestion is tried and true and a basic tenet of any negotiation: really and truly listen to what the other party is saying and reframe and acknowledge what the other party is saying so that the other party knows she is being heard and understood. As one of my early trainers explained to me: one can acknowledge another’s position without agreeing with it. This is an important concept that if followed, can build the trust and rapport needed to resolve a dispute.

            In sum. . . disputes are all about personal relationships, and trust – losing it and regaining it.  In 2012,  think about “trust” as your mantra for the coming year. 

            . . .Just something to think about!