Recently, I posted blogs on the necessity of “dancing” and on “difficult people”. This past week, both topics collided in a mediation! What an experience!

            The matter was a simple automobile accident in which defendant admitted liability. So, I thought to myself prior to the mediation (and after reading the briefs), this should be easy – just going back and forth between the parties trading monetary amounts as damages – medical expenses, pain and suffering, miscellaneous expenses, etc.

            I was wrong! The plaintiff’s attorney turned out to be impolite and a bully. After introducing myself, I outlined the facts and issues as I understood them from her brief, asking if I understood the facts and issues correctly. She said I did. I asked both the attorney and the plaintiff if either would like to share anything with me. Both said “no”. I asked the plaintiff’s attorney what monetary amount did she wished to demand. She responded that as she had obtained a default judgment (that had later been set aside), the defense was aware of the amount, and so she was waiting for a response. When I asked again, she then gave me an amount (which turned out to be higher than the default judgment amount).

            I then met with the defendant’s insurance adjuster and counsel and conveyed the demand. Noting that the amount now sought was higher than the default judgment, defense counsel provided me with a counter-proposal which I took back to plaintiff’s counsel.

            When I conveyed it to the plaintiff’s attorney, she rejected it, noting that the amount proposed was less than the actual alleged medical expenses. I asked for a counter-demand. The plaintiff’s attorney then informed me that her initial demand was a “take it or leave it” demand. (In essence, she did not want to “dance”.) I told her I would convey this to the defense.

            After meeting with the defendant’s insurance adjuster  and her counsel for a bit, they decided neither to bid against themselves nor to accede to plaintiff’s counsel’s bullying tactics. So, they requested that I go back and convey that they were not prepared to pay the amount demanded. I did and also mentioned that the defense would be willing to entertain a demand for a lesser amount, but was not prepared at this time to pay the requested amount.

            At this point, plaintiff’s counsel was in a dilemma: Does she walk out of the mediation in light of her “take it or leave it” demand or does she stay and lose credibility?

            Suddenly, the plaintiff’s attorney wanted to meet with defense counsel. She did not want to leave and lose the opportunity to settle a case. In doing so, she lost credibility, all leverage and got out bullied or out maneuvered.

            However, in the meeting with defense counsel, plaintiff’s attorney continued to be rude which, thankfully, both defense counsel and I ignored. Neither of us took the bait by responding to her belittling comments. She finally made a demand for an amount that was approximately the same as the amount of the default judgment. When  I asked her to explain the amount, i.e. what were each of the sub-totals (i.e., medical expenses, pain and suffering, miscellaneous expenses etc.) and how had she arrived at each subtotal, her demeanor changed – being forced to engage her “right” brain by analyzing each subtotal and explaining it, her “left” brain or bullying side disengaged. Not only did it help me understand the case from plaintiff’s perspective, it also helped defense counsel to understand the basis for the demand, and thus   be able to explain it to her client – the insurance adjuster – and allow them to justify and document their counter-proposal in the file for audit purposes. The entire tenor of the mediation changed when I asked for the factual basis behind the total amount demanded. It went from emotional to analytical. While plaintiff’s counsel was rude to me once or twice more, I continued to ignore it.

            But, at the end, the bully became meek and accepted the amount that the insurance company was willing to offer even though it was less than her second demand. Miraculously, the matter settled.

            There are two morals here: (1) when negotiating, do not make the initial demand a “take it or leave it” one as it requires either walking out (which is not what one wants to do), or losing face and leverage; and (2) if someone is being “difficult”, do not accede to it, or take the bait, but rather meet it head on and/or ignore it. More importantly, force the “bully” to “analyze” the issues or facts thereby switching to her “right” brain and away from the “left” brain!

            Real life certainly does add flavor to what articles and trainers talk about!

            . . .Just something to think about! 

            Routinely, most local rules of court require that persons with the ultimate authority to settle a matter be physically present at a court settlement conference or mediation. While it does not take much thought to understand the rationale behind this requirement, it may take a bit more thought to appreciate the consequences of not honoring it. I mediated the consequences of not abiding by this requirement the other day.

            It was an employment dispute. Present at the mediation were; (1) the attorney for the defendant; (2) the attorney for plaintiff; and (3) the plaintiff. Both counsel were young associate attorneys, practicing law for less than three years. Both had partners at their respective law firms to whom they answered and who were monitoring the negotiations during the mediation. Further, no representative of the corporate defendant was personally present; I was told the representative was available by telephone.

            After discussing the facts and issues of the case for a little while, the plaintiff’s attorney  conveyed his initial demand to me. However, it was approximately more than twice as much as his previous demand to defense counsel. (For example, if plaintiff’s previous demand was $20, his new demand was $50). When I tried to warn him that this strategy would not go over well, he resisted, insisting I convey it.

            I did, and it was not at all well received. Defense counsel refused to make a counteroffer. So, I held a joint session with both counsel in an attempt to discuss “real” amounts. Slowly, it came to light that plaintiff’s counsel was negotiating as he was instructed to do so by the partner back in the office and was only able to accept a certain amount if it was within a certain range. However, the defense attorney believed that range to be unrealistically high and had already rejected what his client believed to be an excessive demand. Nevertheless, defense counsel had been instructed to keep within that range (even though previously rejected.)

            When I attempted to discuss damages in terms of hypotheticals (e.g. if defense counsel is able to obtain authority to offer $30, will plaintiff accept it?), I quickly found that this tactic was fruitless. Since the amounts were not within the range given to plaintiff’s attorney by his boss, he could make no commitment. Instead, he wanted defense counsel to make a firm offer that he could then discuss with his boss by telephone. However, defense counsel did not “want to go out on a limb” to obtain this increased authority, if it was not going to be ultimately accepted by plaintiff. Each was waiting for the other to make a firm commitment that they could then take back to their supervising partners for approval.

            At this point, I felt like either Vladmir or Estragon waiting for Godot (Waiting for Godot by Samuel Beckett), since each attorney was waiting on the other to make the first move and neither could do so because of the instructions they were given by their respective supervising partners.

            Needless to say, the matter did not settle. The sad part is that both counsel wanted to settle the matter and clearly recognized that the matter should be settled rather than tried. But their negotiations were not their own: they were mere puppets.

            It was a frustrating experience not only for the attorneys and plaintiff but for me as well. There was nothing I could do to help them settle the case as the parties with the authority to settle simply were not there! I was mediating with empty chairs. There was nothing in my toolbox that could help me other than to tell them to go home and keep negotiating via their supervising partners.

            So – this is why the courts require those persons with the ultimate settlement authority to be physically present at a mediation. Without them, the mediation is fruitless: we are simply waiting for Godot.

            . . .Just something to think about.

             In June 2011, I wrote a blog entitled The “Right” Brain discussing how to mediate disputes with high conflict people aka “difficult” people.

            The other weekend, I attended the California State Bar Convention. There, my colleague Steve G. Mehta Esq. presented a seminar entitled “Dealing with Difficult Clients and Opposing Counsel: Successful Strategies and Tactics.” (Dealing With Difficult Clients ) As Mr. Mehta had only one hour to get to the heart of the matter, he provided excellent practical advice.

            Initially, Mr. Mehta states that there are six types of people of whom to be wary. Although he discusses them in terms of being clients in an attorney-client relationship, their personality types apply with equal force not only to friendships but to life in general:

1. Angry or hostile – This person is hostile and angry towards everyone and will get only worse with time. One not only dreads dealing with this person, but  may even become angry after dealing with this person!
2. Vengeful or jealous – This person will claim that “it is not about money – it is about principle,” possibly to the point of being irrational.
3. Obsessed – This person has only one thing on her mind: the dispute at hand – the injury and ways to remedy it. She will be constantly calling you, e-mailing, etc. to make sure you have all of the information and then some!
4. Emotionally needy – This person is often emotionally fragile and insecure, is probably in a co-dependent relationship and is attempting to develop as co-dependent relationship with you.
5. Dishonest – This person will lie to you either by not telling you everything (i.e. omission) or telling you the wrong thing (i.e. deceit).
6. Unresponsive – This person wants the appearance of having an attorney who is providing advice but does not really want the advice. Rather, the person wants you to “rubber stamp” her actions and will reject your advice if it is contrary to what she wants to do. In truth, she has hired you (or befriended you) for “appearances” because “circumstances” require it.

            Obviously, one person may contain more than one of these traits and thus be more than simply difficult to deal with. . . she will be very, very difficult to deal with.

            So what do you do? How do you deal with these people? Mr. Mehta suggests that first – you need to look within yourself to see if you are part of the problem. Are you overreacting? What are your “hot” buttons and has this person pushed them? Are you misinterpreting, or misunderstanding what this person has said or done? Are you mis-communicating with each other?  Is this person solely the only difficult person in the situation or is your bad mood contributing to the situation?

            The second thing is to remember that we each have the instinct to “fight or flight.” Our brains are hardwired with this rudimentary response. Instinctively, when we are attacked – even verbally – our gut reaction is either to fight back or to flee the scene. Instead – we need to  suppress this instinct by hitting our internal “pause” button. Stop. Take some breaths. Count to ten! Find the urge to use the restroom or go outside – in order to buy time to digest what has just happened and think clearly and rationally about what to do about it and how to respond. As I said in my previous blog – both you and the difficult person have to switch from your “left” (emotional) brain to your “right” (logical) brain to successfully deal with the difficult situation        

            And – as Mr. Mehta points out  – you do not have to win. Analyze the situation – is it really worth the fight? The more you argue, the more both you and the other person will become entrenched in your respective positions. You can acknowledge what a person is saying without accepting it or agreeing with it. Sometimes, it is best just to let it go and move on to the more important stuff in life.

            Further, Mr. Mehta notes that a good way to deal with difficult people is to use active listening skills: actually listen – truly and really listen to what the other person is saying, ignoring all distractions including your mobile phone. Try to understand her viewpoint and its basis. Ask open-ended questions and reframe or restate what she has said to make sure you got it right. Then, try to blend with her by using behaviors such as mirroring – that will increase the rapport and trust between the two of you. Try to connect with her. Once you have built up this rapport and trust with the person, you can then hopefully “control” the relationship or at least, the situation confronting you.

            This is a lot to digest and think about. But something tells me that this strategy will work; that using these tips will make dealing with “difficult” people at lot easier!

            . . .Just something to think about!

  If you enjoy this blog, and want to receive it weekly via RSS Feed, click here:http://www.pgpmediation.com/feed/http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

           Somewhere in my mediation training, I was introduced to the American Bar Association’s Model Standards of Conduct For Mediators (“Model Standards”). While these Model Standards are not the “law”, they are principles that should guide my actions as a mediator.

            The very first standard is entitled “Self-Determination”.

            Subpart A, in part, states:

“A mediator shall conduct a mediation based on the principles of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision       in which each party makes free and informed choices as to process and outcome. . . .”

            The more interesting subpart is B:

 “A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.”

             I raise this issue of self-determination because recently, I have mediated some matters in which a party and/or counsel has asked me what would I do? The counsel or party was not asking for a mediator’s proposal but simply for my opinion on what she ought to do. Take the offer? Make a counter-proposal? Or, what?

            My usual response is that I have no opinion. I explain that while counsel/party has been involved in this dispute for quite a long time,  I have been involved for only a matter of hours and so do not know enough to have an opinion. Moreover, to quote a old saying, “I do not have a dog in this hunt”, that is, it is not my dispute. The outcome does not affect me; the implications of any decision have no bearing on me.

            No doubt, my response frustrates a lot of people because while everyone enjoys autonomy and the ability to make their own decisions, at the same time, they look to “authority” figures (i.e. the mediator) and will tend to obey them. People also want to be liked and will tend to do what others are doing. (See, Robert B. Cialdini, Influence: The Psychology of Persuasion). In sum, the principle of self-determination in the Model Standards creates a tension with the psyches of individuals.

            My colleague and friend, Marie Simpson, PhD devoted her June 21, 2011 Two Minute Training Tip to the theme of letting the parties make their own decision. Entitled “The Decision Is Entirely Yours,” (This Week) Dr. Simpson notes that, in essence, some folks are such control freaks or are so competitive to the point that they do not know “. . .when to stop persuading, [and] to put resolution before winning or being right.” Similarly, she notes, some mediators are such control freaks that they too, do not know, when to stop talking and to be quiet and allow the parties to work out the deal, and to prioritize for themselves, what is and is not important. Again, they (ie, the mediators) forget they are “new” to the deal and so do not know all of the intricacies: what may seem important to the mediator may, in fact, be irrelevant to the parties due to other considerations.

            In short, it is not always about winning: it is about resolving disputes. . . on terms with which the parties are comfortable and can accept.

            It is all about self-determination. . . and I definitely do not have a dog in that hunt!

            . . .Just something to think about.

  If you enjoy this blog, and want to receive it weekly via RSS Feed, click here:http://www.pgpmediation.com/feed/http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button

             Recently, I conducted a mediation that never really got started. Why? Because coming into the mediation, plaintiffs and their counsel did not understand the status of their case, or exactly where matters stood procedurally. Thus, while plaintiffs believed they could bargain from a position of strength, on a “take it or leave it“ basis, defense counsel were telling me otherwise.

            The matter involved the wage and hour laws of California. Plaintiffs, who had been parking valets, for the defendant employer, alleged that they had not been paid overtime, were not allowed to take meals and rest breaks and were not being given the tips proffered by customers, but that the employer was keeping this money.

            To obtain all of these monies allegedly owed, plaintiffs filed their complaint with the Labor Commissioner of the State of California. That entity entered an award in favor of one plaintiff but against the other plaintiff.

            The defendant employer – believing that the hearing officer in the Labor Commissioner’s office misunderstood or misconstrued the evidence – appealed the adverse decision in favor of the one plaintiff who received an award.  By statute, this appeal is heard by a superior court judge de novo, i.e. anew. That is, the superior court is not merely deciding whether the Labor Commissioner erred, but rather, is hearing the case as though it had never been heard or tried before the Labor Commissioner. The Superior Court  makes its own determinations independent of what the Labor Commissioner determined.

            At the same time, plaintiffs filed a separate civil action in Superior Court for these same claims – overtime, meal and rest breaks and tips. In light of the pending appeal, the defendant employer filed a motion to dismiss which, for the most part, the trial court granted.

            At this point, plaintiffs discussed  filing an amended complaint but did not file a motion with the court seeking permission to do so.

            At the last hearing before the Court – which is now hearing both the civil action and also the appeal from the Labor Commissioner – the Court set both the hearing date in July for the appeal and a trial date in 2012 in the civil action. The Court also set a briefing schedule for the appeal.

            At the mediation, it soon became apparent that plaintiffs’ counsel was under the impression that the hearing date in July was for something other than the de novo appeal of the Labor Commissioner’s determinations.  As told to me by defense counsel, what plaintiffs’ counsel had submitted in compliance with the briefing schedule did not discuss the Labor Commissioner’s  order but something else.

            Further, both counsel and plaintiffs did not appreciate that since the appeal was de novo, they could not assume they were entitled to all sums found by the Labor Commissioner to be due. That is, they could not insist – on a “take it or leave it” basis – that they be paid the Labor Commissioner’s award or else the mediation was over!

            In truth, according to defense counsel, Plaintiffs would not be negotiating from a position of strength; leverage was not on Plaintiffs’ side.

            All of the above came to light in the first few moments of the mediation. Needless to say, the mediation ended abruptly; plaintiffs’ counsel terminated the mediation upon realizing that she had a lot of work to do to try to oppose the appeal at this late date. Not surprisingly, neither plaintiffs nor their counsel were able to change their mindset about their case on such little notice. They needed time to go back to regroup and to process the information they learned at the mediation.

            So, the morale of the tale is simple: understand your own case – both its facts and where it is in the procedural quagmire – before walking into mediation. Otherwise, you may find yourself negotiating from a false sense of strength, attempting to invoke leverage that you do not have. Obviously, this will not lead to a resolution.

            . . .Just something to think about!

            If you enjoy this blog, and want to receive it weekly via RSS Feed, click here:http://www.pgpmediation.com/feed/http://www.pgpmediation.com/feed/ or via FeedBurner email subscription, then enter your email address under the word “Subscribe” to the above right and click on the “Subscribe” button