Here’s a short excerpt:

As a litigator and counselor I almost (though not quite) always recommend mediation at some point during the process. A majority of the time, the infusion of the mediator’s perspective results in a settlement if not that same day, then later. In those rare cases where mediation has not resulted in a settlement, the process has been worthwhile.

In general, my experience with construction mediation is quite positive. Without going into many of the details (for more on my thoughts, check out the ADR Page at Construction Law Musings), mediation allows the flexibility and freedom for business people to make business decisions that result in a more satisfactory result than the lost time, expense and uncertainty of litigation.

For the whole post check it out here.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

The Supreme Court of Virginia Building, adjacent to Capitol Square in Richmond, Virginia (Photo credit: Wikipedia)

If you’ve been reading Construction Law Musings lately you know that I’ve been on a bit of a mediation kick.  I’ve recently been certified by the Virginia Supreme Court and have had a few mediations lately.  I’ve discussed the mediation process from the perspective of the advocate and that of the mediator.  Of course, most, if not all, of these musings have discussed successful mediations.  By successful, I mean those that result in a settlement and an end to the hostilities/litigation.

Of course, some mediations do not result in an agreement.  Sometimes the parties truly work for a full day (or more) in an attempt to reach a settlement with the help of a very capable mediator and simply cannot make that last jump to bridge the gap.  Usually, these “unsuccessful” (and I use quotes around this term for a reason that will be come clear later) mediations end up this way despite (as opposed to because of) the genuine desire of the parties to reach a settlement.

While it would be easy to write off these seemingly unsuccessful days as being a waste of time and money (and therefore discourage the use of mediation in the future), I encourage you not to do so.  I say this because despite the lack of an agreement at the end of the day, much can be gained simply by participating in the mediation process.

For a construction litigator like me, information and proper case evaluation are key.  Participating in the mediation process with a mediator that knows your particular field of practice can give you and your client more of both.  While holed up at a law office or other venue and participating in the give and take of mediation you get to look the other side and their counsel in the eye.  This can give you a read on who you are dealing with (if you haven’t dealt with that counsel before).

You also get some informal discovery into what the other side may think are the strengths and weaknesses of your case (and possibly of their own).  While a mediator will not pass on information that you and your client wish to keep confidential (and this information even where passed remains confidential and not subject to discovery), often times certain information is passed on in hopes of settlement that can give you a read on where the case may go.  As they say, more information is better than less.

Furthermore, you can get information from the mediator.  Particularly where you hire a mediator experienced in your field of practice (in my case construction law), he or she can give you insight into the areas of possible weakness and strength in your case.  Having a third party impart this wisdom long before a judge or jury decides to make its opinion known can be invaluable.

Finally, the process can sometimes lead to a settlement after the fact.  After the parties get a chance to look again at their positions post-mediation they may very well be in a better frame of mind for settlement.

As I’ve stated on many occasions, settlement is often the best business decision in a construction dispute.  Generally, the parties did not anticipate the time and cost of litigation.  This time and money is usually paid to an attorney who will help to resolve the dispute (whether in court or otherwise) and not used to further the business objectives of the construction companies involved.

In short, aside from the clear carrot of settlement being achieved through mediation, the benefits of mediation (regardless of outcome) make it a great option in most, if not all construction cases.  Having seen these many benefits from both an advocate’s and a mediator’s perspective, I’m jumping into the mediation game with both feet as a construction mediator.

Please contact me with any questions about the process or if you would like to have a mediator who knows construction law and truly wishes to assist construction professionals to resolve their disputes.

Please join the conversation with a comment below.  Also, I encourage you to subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

With my new foray into the world as a mediator, I am of course looking for all of the practical guidance that I can get.  While the satisfaction of helping people resolve their disputes will be a reward in itself, I would like to make this a larger part of my construction counseling practice.  Vickie’s new book gives great practical advice on everything from various techniques of mediation (facilitative, evaluative and the like) to ways to make money as a mediator.

Where her prior book gave great anecdotes and stories to illustrate conflict resolution in a more general sense, her new “Dummies” book is focused exclusively on the practice of mediation.  Like the other books in the “Dummies” series, it starts with a great overview and outline of the various chapters and moves forward in a manner that allows a reader like me to read it cover to cover or to find just what I’m looking for.  As a newly minted mediator, the book gives me a great perspective on the future possibilities as well as giving real life ideas that I may not have thought of.    I recommend it for anyone dipping a toe into the mediator pool.

That’s not to say that I don’t think it will help the seasoned mediator (or litigator for that matter).  Many of the tips point out impasse breaking strategies aside from locking the parties in a room until they agree.  Many of these tips give some great “outside the box” ideas to get the most recalcitrant parties to see the value of a settlement.  The more “arrows” in the quiver of any mediator (new or old), the better in my thinking.

In short, if you are at all interested in mediation from either the advocate’s or the mediator’s perspective there is something in this book that will help you out.

Please join the conversation with a comment below.  Also, I encourage you to subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Construction Law Musings, we welcome back Vickie Pynchon for a (record?) 5th time. Vickie (@mediatesuccess) mediates with ADR Services, Inc. in Los Angeles, arbitrates for the American Arbitration Association and is the co-founder of She Negotiates Consulting and Training (http://shenegotiates.com).  Victoria has authored two books – The Grownups’ ABCs of Conflict Resolution and Success as a Mediator for Dummies (I personally recommend both). She is the “Dear Abby” of negotiation at The Daily Muse and write a thrice-weekly column at Forbes entitled “She Negotiates” (http://blogs.forbes.com/shenegotiates).

When Christopher graciously offered me his blog for a day to write about my new book – Success as a Mediator for Dummies – my first thought was that only mediators, not attorneys, were my market. Looking over the book now that it is published, I realize it contains a plethora of settlement and negotiation strategies and tactics that I badly needed to know and deploy throughout a twenty-five year commercial litigation career.

I also realized that I’d let Ury and Fisher’s seminal negotiation book, Getting to Yes, sit on my bookshelf unread for twenty years because I never wanted to settle. I wanted to win. The desire to win is what got me up every morning. I knew ninety percent of my cases would settle, but I believed they’d settle only if I made it abundantly clear to my opponents that they wouldn’t want to try their case against me. I believed settlement was all and only about power.

Now I know that settlement is only partially about power. It’s also about influence, relationship, and negotiation strategy and tactics.

When lawyers come to mediation with a recent courtroom success in their back pockets, they often ask me why they should settle when they’re winning, I invariably say “because tomorrow you’ll be losing.”

They know the truth in that.

But to settle, attorneys need to feel that they’re winning. Their clients, too, need to believe they’ve prevailed, not for the “game” aspect of the process, but because they sought a lawyer out in the first case because they were suffering from an injustice.

And if I can’t help lawyers help their clients experience some rough justice, I’m not doing my job.

If you find something useful in the small excerpt of my book below, I highly recommend it to Christopher’s lawyer readers. If you can make yourself a great negotiator – which is not hard once you learn the techniques – you can more consistently and dependably deliver justice to your clients.

So, below, is an excerpt from Chapter 13, Breaking Through Impasse. I hope you find it useful.

Lawyers who are highly skilled at discovering information through depositions, or examinations before trial, know the value of open-ended who, what, where, when and why questions. When it comes to understanding their own clients motivations or those of their opponents, they do not often ask any questions about what’s motivating the parties to the dispute.

In my new book, Success as a Mediator for Dummies, I give a two examples of the way in which the simple question why? broke impasse and resolved the disputes.

Stuck at Five Figures

The first case was a medical malpractice case brought by the widower of a woman who died at a dialysis center. He was adamant that he could not settle the suit for less than six figures. The insurance carrier was adamant that it would not go above $50,000. At this point, many mediators suggest a mediator’s proposal or ask the parties for a hypothetical bracket, i.e., if the Plaintiff comes below $100,000 would you be willing to put more than $50,000 on the table?

In my practice, I try to exhaust every option for helping the parties come to a solution they believe to be “fair” before I put my thumb on the scale of their potential resolution.

In the cases that follow, I simply asked Why?

Q. “Why do you want at least six figures in settlement of your malpractice suit against the dialysis center where your wife died?”

A. “Because I told my attorney when I hired him that I’d read in the paper about a veterinarian who paid $25,000 for the death of a dog. That’s what the dialysis center offered me not to file suit. A dog! If the insurance carrier pays anything less than $100,000, they’ll be treating my wife no better than a dog.”

Q. “Why will $100,000 make you feel like justice has been done, though? Why do you envision yourself being satisfied with that figure?”

A. “Well, I’d like to make myself a photo studio. I used to be a professional photographer, but that was 40 years ago. Now that I’m retired and a widow, I need something productive to do. After paying attorneys’ fees and expenses, I’d receive only $57,000, and I’m told that I’ll have to pay taxes on that, so it’ll all boil down to the price of that dog — $25,000 in my pocket. That’s the absolute minimum amount I’d need to set up my photo studio. It may also allow me to contribute to my granddaughter’s university fees. If I can’t help her out with tuition, I’m afraid she’s going to drop out.”

After I learned what this man wanted to do with his settlement, we made numerous calculations to determine whether he could achieve his desires for less. But we needn’t have bothered.

Something about his concern for his granddaughter and his plans to make a better life for himself softened the insurance carrier to pay him $100,000 for his loss. She stopped feeling as though he was just trying to get money out of her pocket. His story moved her.

She realized he had similar desires to her own. “I worry about my own daughter,” she told me. “I had an ample college fund, but then the recession hit, my husband left me, and I had to invade her savings account to pay the mortgage or I would have lost the house.

Finding and Resolving the Justice Issues

Most attorneys assume they know why their client wants to sue —money. And for an attorney who works in the world of rights and remedies, that assumption is fine.

For mediators, however, that same assumption is toxic. People don’t really go to lawyers or mediators to get money. It’s not an economic system. It’s the justice system.

People seek justice when they believe they’ve been wronged. Perhaps they want money, but they usually want more than that — to express outrage, get revenge, teach wrongdoers a lesson, or make sure that nobody else suffers this same injustice. Asking Why? helps you determine what the parties really want.

When the time comes to settle a case, clients want to know that

*          They’re not being taken advantage of.

*          They’re not getting less than the defendant is willing to pay or paying more than the plaintiff would accept.

*          They’re making the decision. (Nobody’s holding a gun to their head.)

In the first example, emotion played a large role in the settlement.  Diagnostic questions work equally well in “pure money” cases, however, as they do in cases that are obviously emotional – family law, injury cases, employment disputes and the like.

That’s what a dispute about the reimbursement of an overpayment by an insurance carrier to a physician looked like – it was just about money.

The two sides were stuck at a number I considered odd: $107,500 exactly.

The defendant physician thought the insurance carrier (owned by doctors) was trying to chisel him. He saw no reason why he had to repay them the $250,000 they’d negligently credited to his account. He was willing to pay some of it back, but more than $50,000 seemed wrong to him.

After hours of bargaining, I pulled the insurance carrier and its attorney aside and asked, “Why $107,500 exactly?”

In this case, the question Why? revealed one of the greatest contributors to impasse — the hidden constraint tying one of the party’s hands. “We settled another case exactly like this one,” said the insurance carrier.

“We overpaid a lot of doctors, including some who are on our board of directors. In our settlement agreement with one of them, we promised that we wouldn’t settle with anyone else for less than 43 percent of the total we overpaid. In this case, that’s $107,500. We genuinely can’t go under that number or we’d be in breach of contract.”

“May I tell that to the plaintiff?” I asked. “I believe it will help break impasse.”

Sure enough, as soon as the physician found out that a principle of basic fairness (everyone in the same situation should be treated the same) was underlying the offer, the justice issue underlying the money issue evaporated, and the case settled . . . for exactly $107,500.

Many of my fellow “Boomer” lawyers lament that everyone demands a mediator these days. “Why can’t we just settle it between ourselves like we used to in the ‘old days’” they ask. The answer to the question is, you can settle it like you did in the old days. Learn what your mediator knows, couple it with your deep understanding of the conflict, pick up the phone, and suggest a settlement meeting. After, of course, you pick up and read a copy of my new book!

As always Vickie and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

A simple statistical mediation model. (Photo credit: Wikipedia)

I have been a big advocate for mediation as a method of resolving construction disputes for quite a while here at Construction Law Musings.  As an advocate, I have participated in numerous mediations and have seen the effect that a good mediator can have in bringing the parties together to resolve their business dispute.  Seeing this made me want to be one of those mediators.

Because of my true belief that most construction disputes are at heart a zero sum game (meaning that every dollar paid to someone outside of those directly involved in a construction dispute is one that subtracts from the bottom line), and that therefore settlement is usually the best option, I decided to go through training as a mediator.  I have discussed my various thoughts throughout this process.  The training, and in particular the co-mediations with a mentor, have been eye opening, and have only strengthened my belief in mediation as a dispute resolution tool.

Well, the training and mentor-ship was long, but I have reached the end.  Just today, I received a packet from the Virginia Supreme Court confirming my certification as a Virginia General District Court Mediator.  This certification allows me to work with some local courts to help parties resolve their differences without having to go through the arduous trial process.  Of course, this does not preclude me from performing private mediations for construction folks seeking to have their disputes resolved short of trial.

In short, I am excited to announce that I am now an “official” mediator with certain courts in the Commonwealth of Virginia.  Let me know how I can help you resolve your disputes.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Image via Wikipedia

As I posted quite a while ago, I have been going through the Virginia Supreme Court mediation certification training.  Part of that training is a series of co-mediations where I get to essentially mediate a dispute with the supervision of a trained and experienced mentor helping smooth the edges.  This past week, I was able to act as a mediator for a dispute and take it from start to finish (albeit with “training wheels”).

This was the first time that I was able to start with explaining the process (confidential, mediator there to facilitate, etc.) and move through the process to the drafting of a final agreement.  While I’d been through the training process and observed mediations before (in both a passive and active role), this experience was an eye opener.  The parties were emotional about the facts and issues between them, but were willing to listen when I spoke.  There were points during the process where it looked as if one or both sides would walk.  However, in the end, the initial instinct of the parties that mediation would be better than awaiting a trial date won over and an agreement was reached.  While it was the definition of compromise (neither party was totally happy), the parties walked out with a plan and an answer that they came up with.

During the points of conflict, I had to take off my advocacy hat, take a deep breath, and work hard not to confront either party with what I firmly believe to be true, i. e. that any mediated agreement is likely to be more satisfactory to both of the parties than any court result.  Trying to swallow the construction litigator and advocate that I’ve been trained to let run free was and will continue to be a difficult thing.  However, as a construction attorney representing one side in numerous ultimately successful mediations, I knew that pushing through the somewhat exhausting process was the best way to go.  This knowledge helped me to let the parties speak, and occasionally vent, secure in the knowledge that none of what was said in that room would see the light of day.

At the end, I could tell that the parties were grateful for the efforts that I (and my mentor in the process) made on their behalf.  The presence of a mediator helped them to keep on track and focus on the future, not the past.  Both sides seemed to feel that they’d had a voice in the process and some control of the final outcome.  Control that they would not have had in Court.

My takeaway from this experience is that now, more than ever, I am an advocate for the mediation process.  Looking at this process from another perspective made me realize that parties which chose mediation are usually ready to come to a solution, even if getting there is not a straight line and may involve some angst.  Facilitating, instead of advocating, opened my eyes to the strength of the process, i. e. that control which is absent in arbitration or trial.  Helping parties craft a solution was very gratifying and I hope to spend more time in mediation, both as an attorney and as a mediator.

I would love to hear your thoughts on mediation.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Image via Wikipedia

In May of last year, we discussed an opinion in U.S. ex rel. Thyssenkrupp Safway Inc. v. Tessa Structures LLC.  If you recall, this case involves a three way payment dispute between a supplier, Thyssenkrupp, a subcontractor, Tessa Structures, and a general contractor, Vista Contracting.  As discussed in the prior post, Thyssenkrupp did not get paid on a federal project and filed a Miller Act bond claim against all of the appropriate parties and a breach of contract claim against Tessa Structures.  Tessa Structures then cross claimed against Vista Contracting for indemnification and contribution.  Vista Contracting moved for a stay pending mediation and/or arbitration of the cross claim.

Of course, the contract between Vista Contracting and Tessa Structures required mediation between subcontractor and contractor in one place and arbitration of any claim relating to the subcontract.  In the opinion (U.S. ex rel. Thyssenkrupp Safway Inc. v. Tessa Structures LLC) the U. S. District Court for the Eastern District of Virginia in Alexandria considered the interaction of the two seemingly contradictory clauses.  In doing so, the Court considered other courts’ opinions as to the application of the Federal Arbitration Act to mandatory mediation clauses.  After running through these opinions, the Court eventually determined that there was no need to talk about these distinctions given the broad nature of the arbitration provision of the contract.

In short, the Court determined that the broad language (i. e. any claim) required a stay despite Tessa Structures making the argument that its claim could not be determined until after the Court determined the validity and value of Thyssenkrupp’s claim.  The Court, as Virginia state and federal courts are want to do, looked at the plain language of the agreement and tossed this seemingly logical and practical issue aside.

The takeaway?  Look at dispute resolution provisions in your construction contracts very carefully. I have discussed arbitration clauses in the past and only like them in the right circumstances.  In this case, Tessa Structures got caught in a practical bind by moving forward with the broad mandatory arbitration language in its contract.  These clauses will be enforced, an properly so in most instances.  Should you, as a contractor or subcontractor, find yourself faced with such a provision, an experienced construction attorney can assist you in negotiating a more equitable clause.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Image via Wikipedia

I have stated on many occasions here at Musings that mediation is a great solution in many, if not most, construction cases. As a construction lawyer, there are very few cases in which I do not at least broach the subject of mediation with my client and likely with opposing counsel.  When wearing my advocate/counselor at law hat, I find that mediation is a great way to allow construction professionals to see a possible business solution to their legal problem.

A neutral third party set of eyes on the problem can in many instances reveal what in many cases their attorney has been saying all along: namely that litigation in the construction world is often a zero sum game with collection issues even in the event of total victory or destruction of the other side in court.  Add that to the fact that, at least here in the central Virginia area, construction contractors and subcontractors (when the problem is posed the correct way) would rather deal with the problem and retain the relationship than go to court and risk destroying a long term relationship with a valued source of money or good work, and mediation is almost a no-brainer.

Because of my experience with mediation from the advocate’s side of the table, I decided to look into becoming a mediator myself.  As many of my loyal readers (thank you) have heard, I am currently going through the Virginia Supreme Court mediation certification process.  After a bit of a hiatus, I have gotten into the co-mediation portion of the certification requirements.  This last step toward certification in certain of Virginia’s courts involves my teaming with an experienced mediator for the purpose of both actively participating and learning the trade.  As always this has been enlightening.

Even more than the scenarios I went through during training, these real world experiences have opened my eyes to the fact that in many instances the problem that we construction attorneys see between the parties are not really those that are driving the dispute.  Where we see contractual clauses to be argued in Court, the parties see real world, sometimes emotion filled, issues that may have nothing to do with the “legal problem.”

Admittedly, at times I have to really think before I speak as a mediator.  I have to tell myself that I can’t jump across the table and let the parties know how irrelevant the past relationship is to the present dispute.  I have to sit back and be a guide and let the parties take the conversation where they want it to go.  Finding the line between gentle reminders of the stakes and actively moving the parties to the outcome that I believe to be the “right” one is difficult for me as a fledgling mediator.

However, by accomplishing the facilitative role of a mediator, the parties can almost always get to the heart of the matter.  After each co-mediation or exercise in this training, I look back and realize that most people don’t think like lawyers.  The “heart of the matter” may not, and likely often isn’t, the words on a contract (though I cannot emphasize enough the need for a good construction contract).  Often the flashpoint for litigation is found in an interpersonal encounter having little or nothing to do with the contracts that we lawyers love to discuss.  Once this issue (or issues) see the light of day, the rest moves relatively quickly.

Seeing the way that parties can generally come to an acceptable (if far from ideal) solution to a problem without the “help” of a court that can only decide who wins is both refreshing and enlightening.  Having the experience as a mediator and the insight gained in facilitating the parties’ agreed resolution can only help me properly counsel my clients towards a business like resolution to disputes.

In summation, after my first of these co-mediations I am even more convinced that mediation should at least be an option in almost every construction (or other civil litigation) case.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday, Musings has a real treat. Victoria Pynchon mediates and arbitrates complex commercial litigation, including multi-party construction disputes, for ADR Services, Inc. in Los Angeles, California. She blogs about negotiation at the Settle It Now Negotiation Blog and about the mediation and arbitration of intellectual property disputes at the IP ADR Blog. You can also follow her on Twitter here.

Update:  Victoria has started a new Commercial ADR Blog, please check it out.

1. Leave the Decision-Makers at Home

A mediation – particularly a multi-party construction mediation – is more drama than law; more character than rights; and more emotion than reason. Mediation, like trial, requires the lawyers to restore the texture, dimensionality, morality and personality back into the dispute that we lawyers flatten for the purpose of satisfying the law’s requirement that we litigate only the “relevant” facts necessary to satisfy legal “forms of action.”

On game day, it’s not the mediator, but the parties themselves who must decide who is bluffing and who is not; what allocation of responsibility among the parties feels fair; whose claims of poverty or freedom from liability have the ring of truth; and, which parties have deeper pockets or greater negotiation flexibility than their attorneys have claimed.

Just as you wouldn’t want your jury to “call in” their verdict, you don’t want the mediation decision-makers miles away from the mediation table when the cards are being played. Remember that people seek out lawyers only when they feel they have suffered an injustice. Righting that wrong requires more than money or dismissal. It requires the belief that you, the attorney, have gotten your client the very best deal possible in light of the facts finally revealed, the personalities involved and the hard realities faced.

2. Leave Early Because the Other Parties are Acting in Bad Faith

“Americans” (and I use the term loosely for anyone, citizen or not, who buys retail) become uncomfortable after two or three bargaining “moves,” i.e., offer, counter-offer, counter-counter, “see you in Court!”

Until the mediator tells you she is convinced the parties will never reach agreement, the potential for a mutually beneficial settlement continues to exist. As I often say, “as long as your opponent is moving in your direction and you have the authority to move in theirs, the negotiation should continue. Unless you’ve hired a disreputable or simply unreliable mediator, don’t ignore her suggestion that a little patience with the process might result in a big reward for your client. If you are concerned that your movement will set a ceiling or floor without resulting in a deal by day’s end, your mediator should be suggesting bracketed or hypothetical offers and counters. What you should never do is pack up your litigation bag in frustration while the mediator still has tricks up her sleeve.

3. Refuse to Permit Your Client to Talk to Their Opponent.

To everything there is a season . . .

Rigidly adhering to any mediation format (separate caucuses or joint sessions only, for instance) reduces your ability to strategically use whispered confidences in the hallway; candid conversations between counsel without their clients; meetings between the mediator and a difficult party; discussions between the mediator and one or more of the attorneys without their clients; and, meetings between the disputants in complete privacy.

There are dozens of different permutations and combinations of attorney-client-mediator dyads, triads and the like. Each different relationship draws out of us someone slightly different. Depending upon our “audience,” we are more or less comfortable, deferential, authoritative, subject to persuasion or persuasive.

During the course of the mediation, your neutral studies these dynamics and should be making suggestions about which parties can most effectively be discussing which aspects of every proposed deal. Not only should you carefully attend to mediator suggestions about party and attorney dynamics, you should alert your mediator to dynamics of which you’re aware that might be helpful in deploying personality resources on game day.

4. Let the Mediator Bully the Parties

A mediator who is bullying you or your client to settle simply hasn’t gotten the knack of asking questions and creating opportunities. She’s still too used to wielding power. If it’s important enough to spend your day mediating, it’s important enough to tell the mediator that you do not want her bullying any of the parties.

I was co-mediating the final day of a construction dispute with twenty-five to thirty parties when my colleague lost his cool. By two in the morning, a single sub-contractor was holding all parties hostage to his refusal to settle even though he was alone in having achieved all but complete victory – the Plaintiff having agreed to exchange mutual releases to settle with him. Nevertheless, the sub adamantly refused to give up his right to bring a malicious prosecution action against the Plaintiff.

“He needs a woman’s touch,” my co-mediator suggested.

Male or female, someone needed to learn why this single defendant had become so intractable. A bit of questioning revealed that early in the litigation, the sub’s attorney had inadvisably assured his client that he could win a malicious prosecution suit. Counsel was not about to back down now, particularly after he’d been harangued by my colleague in front of his client. I was all but certain the sub had no intention of spending further money litigating the case. Why was he clinging to his right to sue? The three of us talked for 45-minutes while the rest of the parties waited. I don’t know what it was in that conversation that revealed the problem to me. I only know that at some point I realized that the sub could not justify the money he’d paid his counsel unless he emerged from the litigation victorious.

“You know,” I finally said, “you’re the only defendant who actually won here.”

“How do you figure that?” asked the sub, eyeing me with suspicion.

“Everyone else, no matter how unlikely their potential liability, had to pay the Plaintiffs to be released from the case. Your attorney is the only attorney who negotiated a settlement for nothing. He won! And the case promptly (and finally) settled.

Remember that settlement is not about power or authority. It’s about influence and you cannot influence another human being by bullying him. You can only influence him by asking questions, listening carefully to the answers, and responding to the need he is expressing. Not only will hectoring fail to produce the desired result, it will usually trap the bullied party into a position he has no actual desire to maintain. Restrain the pit-bulls and release the attentive questioners. Theirs is the Kingdom of Resolution.

6. Negotiate in the Nano- and strato- spheres.

Spending a significant amount of time negotiating numbers that are far out of the range of potential agreement is not only a waste of everyone’s valuable time, it strains the parties’ patience and often results in impasse even when their “zones of potential agreement” overlap.

The party with the courage to step up to the line of potential impasse is the party who will gain the bargaining advantage. Study after study has demonstrated that the negotiator who makes the first reasonable offer is the party who will “anchor” the negotiation in his favor, not only at the moment the offer is made, but throughout the negotiation.

These few mediation pointers may seem obvious in the way a carefully crafted line of cross-examination seems inevitable. But as anyone who’s ever tried a case, or mediated a complex construction dispute knows, a successful outcome requires rigorous planning, enormous patience, and years of practice.

Choose your mediator carefully and orchestrate your bargaining moves as carefully as you would stage your jury trial. With the right neutral and the right parties at the right time, not only will your case settle, but the settlement you achieve can feel like victory.

Please join the conversation by commenting below or subscribe to keep up with this and other Guest Post Friday posts.

UPDATE: Vickie has been kind enough to discuss this post in another of her insightful articles at her Settle It Now Negotiation Blog.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Are you a lawyer, real estate pro, contractor, or just a person negotiating his or her way through life?  If you didn’t answer “yes” to this question, I would be surprised.  We don’t all think of ourselves as negotiators or mediators, but any attorney or individual who has to work through any situation of conflict (whether a crowded parking lot, an employment review or request for a raise) “negotiates” multiple times a day.  As they often say, acknowledgment is the first step to enlightenment (or something like that!).

When I was sent a copy of  A is for Asshole: The Grownups’ ABC’s of Conflict Resolution by its author, my good friend, fellow attorney, and mediator extraordinaire Victoria Pynchon (@vickiepynchon on Twitter), I was flattered.  When she asked me to write a “blurb” for inclusion in the book, I was floored.

A reading of this advanced copy (and the published version with its great illustrations), gave even a seasoned construction attorney, former psychology major at Duke University, and mediation advocate some thoughts to chew on.  Vickie takes a “primer” type approach to the vast field of psychological and practical factors that create conflict in our lives.  Her approach to this serious subject (one that permeates my construction practice on a regular basis) uses day to day situations (whether the above-mentioned crowded parking lot or a harried mom dealing with a sibling argument after the fact) to illustrate concepts in a way that makes the reader (in this case me) smile and have multiple “AHA!” moments.

The use of an “ABC” type structure of short chapters and concrete examples that make you smile (or sometimes blush) from the kinship you feel with the subject of that chapter, whether “L is for Lawyer” or “F is for Friend” makes the advice and insight concrete in a way that frankly surprised me in its candor and digestibility.  The book really does break down what could be a dull subject discussed in a psychology or sociology class into an enjoyable read.  With each page, I either thought “I know that guy” or “Wow, am I like that?” I’m sure you will have the same reaction.  The insights from this great book can only help in my day to day construction law practice.

If you haven’t gathered by now, I like the book and recommend it to lawyers and anyone who wants insight into dealing with the many characters and situations that we all encounter on a daily basis.  I could not say it better than Jay Jay French of Twisted Sister did in his blurb for the book:

After reading Victoria Pynchon’s book- – I really now understand the meaning of We’re Not Gonna Take It- – this book rocks!

Update:  You can now get this great book on the Kindle!

Please join the conversation with a comment below.  Also, I encourage you to subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.