Recently, I had a sexual harassment employment mediation. Prior to the mediation and based on the briefs, I figured it was going to be either a very short mediation (i.e., the case would not settle) or a very long one (i.e. the case would either settle or almost settle). The facts of the alleged harassment set out in plaintiff counsel’s brief were diametrically opposed to those set out by defense counsel.

When I first mentioned this tension between the briefs to plaintiff’s counsel, her response was “What do you expect? Of course, the defendant is going to deny it!”

When I explained the tension to defense counsel, she queried me on it. In response and figuring it was best if she could read it for herself, I requested and gained permission from plaintiff’s counsel to share her brief with defense counsel. Upon reading the brief, defense counsel reciprocated by sharing her brief with plaintiff’s counsel. Now, each party could see the tension created by the divergent stories.

A few moments later, while I was still in separate session with the defense, plaintiff’s counsel let it be known that she wanted to speak with defense counsel and me apart from the clients.

What then transpired was refreshing! Plaintiff’s counsel went through the several issues of the case, being extremely candid in terms of how a jury might view each issue and the credibility of the particular witness on each issue. In a very co-operative (as opposed to competitive) manner, she dissected the case, discussing the probabilities of success and failure for each side on each issue. Defense counsel, being quite receptive to this discussion, responded positively to this approach.

After having this “frank” discussion of how this matter would probably play out at trial, the subsequent negotiations over a settlement amount were easy: the parties agreed on a compromise after 3-4 rounds of negotiations.

Afterwards, I decided to visit my colleague’s Linda Bulmash’s website to see what negotiation tips she had to offer. Surprisingly, they were right on point. As she explains:

“…Studies indicate the most successful and effective legal negotiators share the following common characteristics…:

    1. Experienced, thoroughly prepared on facts and law;
    2. Realistic, rational and analytical;
    3. Credible, ethical and trustworthy;
    4. Creative, versatile and adaptable;
    5. Perceptive and able to read opponent’s cues;
    6. Poised and appropriately responsive but not reactive;
    7. Effective trial attorney. “

(Tips for May 21-27, 2012)

The plaintiff’s attorney was quite realistic, rational and analytical. She had had many trials and so she had won some and lost some. She was well versed in what juries would do and how they would react. She knew that while she had to be an advocate for her client, she also had to be realistic and objectively analytical; it would not be productive for her to “posture” with defense counsel at mediation for if the case did not settle, she would have to “prove” her “posturing” at trial. She was experienced, knew her client’s version of the facts and knew her employment law. After reading the defendant’s brief with its quite divergent facts, she, obviously, was sufficiently perceptive to initiate a frank responsive discussion- neither a diatribe nor “reactive”- with opposing counsel regarding the strengths and weaknesses of the case from each side’s viewpoint, and most importantly, based on her trial experience- how a jury would view it and react to it.

Consequently, what could have been a quite contentious mediation with a lot of posturing and denial became a quite easy case to resolve.

So, the moral of my tale: leave the “posturing” at home. When you must negotiate- be realistic. It is far easier to be candid within the privacy and confidentiality confines of a mediation then to have to prove the “posturing” before a jury.

….Just something to think about!

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