033 05 Robinson Mediation Advocacy

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					                       Copyright (c) 1998 Baylor University

  Contending With Wolves in Sheep's Clothing: A Cautiously Cooperative
                   Approach to Mediation Advocacy

                 50 Baylor L. Rev. 963 (1998) [Footnotes Omitted]

Peter Robinson, Associate Director of The Straus Institute for Dispute
Resolution and Assistant Professor at Pepperdine University School of Law.

  I. Introduction

   The advocate in a mediation faces the dilemma of fighting for a client's best
interests within a process designed to conciliate and peacefully resolve conflict.
The appropriate resolution of this dilemma is complicated by the uncertainty of
the techniques and strategies that will be used by the opposing parties. All parties
involved in a mediation are likely to seek settlement terms that are in their
respective best interest. However, it is uncertain whether they will seek those
terms through cooperative or competitive means. This Article examines both
competitive and cooperative advocacy techniques available in mediation and
recommends that the use [*964] of such techniques must vary depending on the
behaviors of the opposing parties and, in some instances, the mediator.

   Mediation is facilitated negotiation. In mediation the parties retain the decision
making authority and thus participate as negotiators in the mediation. Existing
literature on negotiation advocacy provides helpful insights for a discussion of
effective mediation advocacy.

   Commentators have discussed effective advocacy during legal negotiations
from a variety of perspectives. <=2> n1 Generally, the negotiation literature
distinguishes two approaches to negotiation: the competitive and the cooperative.
<=3> n2 Strategically choosing between these approaches is also essential for
effective advocacy in a mediation. The mediation advocate should balance
between competitive and cooperative strategies not only in her relationship with
the mediation adversary, but also with the mediator.

   Part II of this Article reviews the characteristics and nature of the cooperative
and competitive approaches to negotiating. Part III discusses when competitive
and cooperative negotiation behaviors are appropriate. Part IV argues that the
same tension between competition and cooperation is present in mediations and
that mediation advocates should be "cautiously cooperative"--that is, willing to
make cooperative gestures to enhance the likelihood of settlement, but equally
committed to reciprocating his opponent's competitive behavior. Part V applies
the cautiously cooperative advocacy strategy at a variety of crossroads in a
mediation and considers the advantages and disadvantages of specific competitive
and cooperative behaviors.

   This Article gives attorneys and other advocates an awareness of the
competitive and cooperative advocacy techniques available within a mediation
and suggestions for when to use them. An awareness of the strategic advantages
and disadvantages of these approaches allows the professional advocate to more
effectively represent a client within a [*965] mediation. Making conscious
strategic decisions allows an advocate a more flexible approach to mediation. In
turn, a balanced and flexible approach to mediation allows the advocate to take
advantage of the conciliatory nature of mediation, while preventing the
exploitation of a cooperative approach by a more competitive opponent. <=4>

  II. Competitive and Cooperative Negotiation Styles

   Advocates generally adopt either a competitive or cooperative approach when
negotiating. <=5> n4 The competitive strategy involves making large demands,
providing few concessions, and challenging the opponent's positions and
conclusions. <=6> n5 Conversely, a cooperative approach focuses on seeking
to understand both parties' objectives and finding creative solutions that maximize
the outcome for both sides. <=7> n6 Both styles are legitimate methods of
reaching agreement. <=8> n7 Research indicates that competitive negotiators
generally achieve better results, but are also more likely to fail to reach
agreement. <=9> n8 Cooperative negotiators are more likely to reach an
agreement, but may not maximize all potential gains for a client in a given [*966]
negotiation. <=10> n9 A survey of attorneys found that a greater percentage of
cooperative negotiators were deemed by their peers to be effective. <=11> n10

   Negotiators are sometimes motivated to adopt a competitive strategy in order to
"win" a negotiation. <=12> n11 The competitive motive arises from a
perception that the objective of the negotiation is to allocate a finite sum between
the negotiators. <=13> n12 The assumption is that the parties are involved in a
"zero sum" situation--one in which the only way for one side's outcome to
improve is at the other side's expense. <=14> n13 If the negotiator wants as
large an allocation of the sum as possible, he must compete vigorously with his
opponent. <=15> n14

   The classic competitive negotiator begins with demands that are more extreme
than her opponent is likely to accept. <=16> n15 This extreme opening offer
allows the negotiator to explore the other side's willingness to accept the solution
preferred by the competitive negotiator. <=17> n16 If that solution is not
acceptable or the other side also adopts a competitive strategy, it may respond
with an equally extreme opening position. <=18> n17 The advocates attempt to
manage the expectations of their opponents, thus influencing their perceptions of
the value of the case. <=19> n18 Eventually, agreement is reached through a
series of reluctant concessions. <=20> n19 The size of the concessions will
depend on each side's determination, flexibility, and desire to settle the dispute.
<=21> n20

   Alternatively, negotiators can choose to adopt a cooperative strategy in
negotiation. The cooperative motive arises from a perception that the objective of
a negotiation is to explore the synergistic possibilities that could [*967] evolve
from a combined effort. <=22> n21 The assumption is that the cooperative
relationship can increase the sum total involved. The potential value of a case
would be limited only by how well the parties understand each other's needs and
resources. <=23> n22 The negotiator's purpose is to create value rather than
acquire an allocation of a finite resource in a zero-sum game. <=24> n23

   The classic cooperative negotiation approach begins by establishing trust and
good will between the negotiators. <=25> n24 Such a positive relationship is
not an end in itself nor is it meant to suggest an accommodation in which either
side abandons its goals as a gift to the other. <=26> n25 Rather, the relationship
enhances the negotiator's effectiveness at the second task in the cooperative
model-sharing her own interests and learning of her opponent's underlying
interests. <=27> n26 Interests are classically defined as intangible needs and
dimensions of the conflict. <=28> n27 Sharing and learning this type of
information empowers the participants to explore how the interests of both
negotiators can be significantly accomplished through a creative solution. <=29>
n28 The cooperative negotiator sees the dispute as a problem to be solved, not a
contest to be won. <=30> n29

   Classifying negotiating approaches as either cooperative or competitive is
simplistic, but it creates a framework for the analysis of negotiation. By
classifying various actions within this framework, one can better understand both
the approach one's opponent is using and how to properly respond within the

  III. Balancing Cooperative and Competitive Strategies Within Negotiation

   There are many opportunities within most negotiations for an advocate to make
strategic decisions. While the cooperative and competitive [*968] approaches
provide a clear contrast, the complexity of negotiation arises from the fact that
negotiators can benefit from using both approaches. <=31> n30 To accomplish
the best result, the negotiator must usually plan to use each of these styles at the
appropriate moments. <=32> n31

  One approach to analyzing the tension between cooperation and competition in
negotiation can be found in "game theory." <=33> n32 Game theory examines
negotiation behavior on its simplest and most basic level. The classic tool used by
game theorists is the "Prisoner's Dilemma." <=34> n33 The Prisoner's
Dilemma is a game in which two "prisoners"--the negotiators--choose whether to
cooperate or compete with one another without knowing what their counterpart
will choose. <=35> n34 The payoff to the parties varies depending on both
their own choice and that of their opponent. <=36> n35 If both parties
cooperate with one another, they each receive an equal and nominal punishment.
<=37> n36 If both parties compete, they each receive an equal and significant
punishment. <=38> n37 However, if one party competes while the other party
is still cooperating, then the competing party receives no punishment while her
opponent receives a monumental punishment. <=39> n38

   This game clearly illustrates the problem of balancing cooperative and
competitive strategies within negotiation. As long as both parties cooperate, they
both stand to receive steady, moderate gains. <=40> n39 However, by
continuing to cooperate, a party is left vulnerable to a competitive strategy by the
other side, which results in a significant benefit being conferred on the other side
at the cooperative party's loss. <=41> n40 Defecting quickly limits the
opponent's gain and allows the potential for large rewards if the opponent is
trusting. <=42> n41 Of course, while such benefits are obvious in a game that
lasts [*969] a single round of competition, in a game that lasts longer, the long
term effect of competitive behavior is not beneficial. <=43> n42 Both parties
will be competitive in future rounds, resulting in a less desirable outcome for both
sides than if they had chosen to cooperate. <=44> n43

   Game theory studies applying this form of analysis to negotiations suggest that
the most successful approach is to maintain flexibility. <=45> n44 Negotiators
should adopt as cooperative a strategy as the other side will reciprocate, but be
prepared to respond with competitive techniques if the other negotiator initiates a
more competitive strategy. <=46> n45 This approach is designed to maximize
results while preventing the competitive opponent from exploiting the negotiator.
<=47> n46 This "cautiously cooperative" approach, based on the theoretical
model, can also be utilized in real life negotiations. <=48> n47

   Admittedly, game theory does not account for all of the "real world"
considerations surrounding a negotiation. <=49> n48 In the Prisoner's
Dilemma, each party receives "points" of equal value. Real negotiators give and
take a variety of negotiating points that may or may not be valued equally by both
sides. <=50> n49 In the game, a time frame is imposed on the participants. In
reality, time pressure is felt differently by the parties to a negotiation. Participants
in the game can only evaluate their opponent's likely move by the previous
choices the opponent has made. Parties in a negotiation are usually free to discuss
options before committing to a particular strategy.

   While game theory does not translate directly to real negotiations, the basic
conclusions this form of analysis draws are important. <=51> n50 The [*970]
theoretical model tends to reflect real life results. A cautiously cooperative
approach should assist in maximizing results in a negotiation. <=52> n51 Short
term benefits may be gained by the competitive negotiator, but a lengthy
negotiation requires sustained cooperation in order to maximize the benefits to
both parties. <=53> n52 Thus, balancing cooperative and competitive styles in
the context of the specific situation generally provides an effective strategy for a

  IV. Negotiation Within Mediation

   Advocates in a mediation must negotiate. <=54> n53 In mediation, a neutral
third party intervenes in the dispute, but the neutral party's job is not to render
judgement on the case. <=55> n54 Rather, the neutral party assists the parties
in reaching an agreement amongst themselves. <=56> n55 While some
mediators may share their own opinion of a case, such statements are not binding
conclusions, but rather are intended to help persuade the parties to reach an
agreement. <=57> n56 Since the parties make the decisions in a mediation,
each party has the responsibility of participating as a negotiator in the mediation
process. <=58> n57 The mediation will resolve the dispute only when the
parties can agree to terms of resolution. <=59> n58

    If the participants in a mediation relate to each other as negotiators, then the
strategic uses of cooperative and competitive strategies discussed above should
apply to mediation advocacy. There is a danger that a party to a mediation may
enter the process with an excessively cooperative attitude because most perceive
mediation as a mutual effort to accomplish a settlement. <=60> n59 The avowed
purpose of mediation is to move beyond the "winner and loser" dynamics of
litigation and explore mutually acceptable [*971] options for parties in conflict.
<=61> n60 For this reason, parties often presume that their opponents are
participating in the mediation in good faith. <=62> n61 Clients generally
expect that a mediation will be successful in resolving the dispute, rather than
generating an unnecessary pre-trial expense. <=63> n62 The mediator
contributes to this dynamic by encouraging the parties to trust her and the
mediation process. <=64> n63

  A problem with this trusting approach is that one side may suggest or agree to
mediation in order to take advantage of the appearance of a cooperative venue.
While the venue may be an opportunity for cooperation, that opportunity is
merely an illusion if either participant disguises a competitive strategy with a
cooperative style. <=65> n64 The effective mediation advocate must guard
against these "wolves in sheep's clothing." The cautiously cooperative approach
balances an advocate's cooperative behavior, designed to accomplish a mutually
beneficial resolution of the dispute, with the necessity to guard against
exploitation by a competitive opponent. <=66> n65 It allows the advocate to
maximize mediation's opportunity to accomplish agreement without becoming
unnecessarily vulnerable to an opponent. Additionally, since many mediations
occur between parties that have continuing relationships, the cautiously
cooperative approach fosters an environment that can maintain the goodwill
between the two sides. Competition is a response, rather than a rule, and the party
using this approach will not create discord in the ongoing relationship unless

   In addition to negotiating with the opponent, a participant in mediation
frequently negotiates with the mediator. The mediator seeks to influence all
participants to take steps helpful to reaching an agreement. <=67> n66 While a
mediator does not have a stake in the specific settlement in a mediation, the
mediator does have a stake in finding a settlement. <=68> n67 Recognizing this
motivation in the mediator is important when evaluating her behavior. The
[*972] mediator's methods of influencing settlement vary widely. <=69> n68
Mediators have no power to order participants to make a concession, make an
apology, or admit responsibility. <=70> n69 Participation in mediation is
voluntary, <=71> n70 and a party can remove herself from the process at any
time. <=72> n71 The mediator/advocate relationship is also a negotiation. The
mediation advocate must recognize that he is also negotiating with the mediator
and consciously balance cooperation and competition tactics within that

  V. Illustration of the Cautiously Cooperative Mediation Advocacy Strategy

   The discussion above proposes a conceptual strategy which balances
competitive and cooperative mediation advocacy behavior in an effort to
maximize a mediation's opportunity to reach a satisfactory settlement while
minimizing the likelihood of one of the parties being exploited. This Part will
illustrate the application of the cautiously cooperative strategy to a variety of
situations in a mediation. The result will be practical advice for handling a
number of sensitive advocacy dilemmas in a mediation.

  A. Arranging for the Mediation

   The cautiously cooperative mediation advocacy strategy should first be applied
when arranging for a mediation. The advocate considering a mediation has a
variety of strategic issues to manage, including who should propose the mediation
and how to do so. Additionally, the advocate must also consider what terms and
conditions should accompany the agreement to mediate. How these issues should
be handled may vary depending upon the degree of acceptance of mediation in a
particular geographic area or practice specialty area. For example, in states where
mediation is more commonplace, such as Florida, Texas, and California, <=73>
n72 and in practice [*973] areas where mediation is more common, such as
construction and employment disputes, <=74> n73 it would probably be
harmless to simply call one's opponent and inquire whether they are willing to
refer the matter to mediation. In contrast, in geographic areas and practice
specialty areas where mediation is not commonplace, the appearance of being
eager to mediate could be interpreted as a sign of a "lack of confidence" in one's
case. <=75> n74 Thus, a cautiously cooperative strategy is especially important
for advocates in areas where either the geographic area or practice specialty
makes an interest in initiating a mediation subject to misinterpretation.

    The need to create positive momentum towards settlement causes the
cautiously cooperative advocate to be willing to raise the question of whether a
particular case should be referred to mediation. Otherwise, cases in which both
advocates desire mediation would never be referred because both advocates
would be reluctant to initiate it. While an advocate should be willing to be the first
to explore mediation, the cautiously cooperative strategy would suggest that the
advocate be intentionally vague about the terms and conditions of the mediation
in the event that it becomes necessary to become more competitive. For example,
if the initial inquiry about the propriety of mediation for a case is met with a
demeaning comment regarding an alleged weakness in the case, the initiating
advocate can rehabilitate his credibility by suggesting a mediator who is a highly
regarded legal authority on the subject matter of the dispute. This would imply
that the initiating advocate is confident as to the legal strength of his case. The
initiating advocate is eager for a prominent, qualified legal authority to react to his
factual and legal theories and expects the mediator to confirm his evaluation of
the case. Note that the terms and conditions of the agreement to mediate need not
embrace such bravado should the other advocate assume a more cooperative
attitude about the invitation to mediate.

   An advocate can use additional measures to reduce the potential for stigma
when suggesting mediation. If a client or law firm makes it a matter of policy to
explore early settlement through mediation in every dispute, then the exploration
about mediation will be seen as part of the standard procedure for that lawyer's
handling of cases and would not carry any specific significance for the case at
hand. <=76> n75 Alternatively, the mediator [*974] or mediation
organization could contact the other party to determine her interest in mediating.
<=77> n76 If the other party is skeptical, the advocate can explain that she
referred the matter to the mediator as a matter of policy or courtesy, and that she
is only marginally interested in mediation herself.

  B. First Impressions on the Opposition

   In many instances, the mediation will be the first occasion to make an in-person
impression on opposing counsel and her client. <=78> n77 The dilemma
between competition and cooperation is readily apparent in the initial stages of a
mediation. A mediation advocate may wish to start competitively in an effort to
intimidate the other side or to demonstrate resolve about the matter. In contrast,
the cooperative mediation advocate seeks to gain credibility and create
momentum for settlement by appearing to be reasonable.

   The application of the cautiously cooperative strategy would cause the advocate
to err on the side of more cooperative behaviors in the mediation's initial stage.
This "cooperative bias" in the initial stage is essential to impress upon the
opponent that you are serious about settling the case and are not participating in
the mediation in bad faith. Remember that the opponent may suspect your
motives and thus may be assessing your initial behavior to determine how much
effort and energy she is willing to invest in the mediation. By beginning more
cooperatively, an advocate will enhance the likelihood of a reciprocal response
from the adversary and the likelihood that an agreement will be accomplished at
the mediation.

  Examples of cooperative behaviors in the initial stages of a mediation include:

  a) arriving early;

  b) warmly greeting opposing counsel and opposing counsel's client;

  c) expressing genuine empathy for the difficulties experienced by opposing
counsel's client;

  d) expressing apology for the mutual frustration in not being able to reach an
agreement and acknowledging that sometimes reasonable people will disagree;

   e) crafting the opening presentation at the mediation to emphasize being a
reasonable person and seeking a reasonable outcome for this dispute;

  f) specifically omitting comments that may insult or offend the opponent from
what will be the opening statement and closing argument at trial; and

  g) apologizing for those aspects of the presentation that will be difficult for the
other side to accept as part of your view of this case.

   The more congenial negotiator seeks to use the beginning of the mediation to
enhance his credibility and charismatic influence with opposing counsel's client
and possibly even opposing counsel herself. <=79> n78 Attorneys sometimes
explain to their clients that mediation is necessary because the opposing counsel is
unreasonable and difficult to work with. Thus, an attorney who begins the
mediation in a reasonable and amicable manner could cause opposing counsel's
client to ask whether it is her attorney who is the one who is unreasonable and
difficult to work with. Since it is the opposing client who is the ultimate decision
maker, making a good first impression on her could go a long way towards
establishing the credibility of your view of the case.

  While the cautiously cooperative strategy creates an initial cooperative
advocacy bias, it recognizes that such behaviors could be misinterpreted. The
cautiously cooperative advocate must gauge the behavior of her adversary and
recognize when her adversary is adopting a more competitive strategy.

   The competitive response focuses on the reality that the opposing counsel and
client will immediately begin "sizing up" the resolve and courtroom capabilities
of their mediation opponent. If opposing counsel or her client sense weakness in
either category, they will be more confident in their evaluation of the case.
<=80> n79 The opposition's assessments will be continually evolving, but the
competitive mediation advocate seeks to take advantage of the importance of first

  The competitive mediation advocate will:

  a) avoid social pleasantries by arriving late or talking on her cellular phone
until the mediator begins the session; [*976]

  b) demean opposing counsel and opposing counsel's client in her greetings;

  c) express frustration that this mediation would not have been necessary had the
other side been reasonable;

  d) offer gratuitous insults about the abilities and character of opposing counsel
and/or opposing counsel's client;

  e) describe recent similar cases in which he accomplished an outstanding result;

   f) proceed to deliver a well-prepared combination of trial opening statement
and closing argument without regard for how those statements may alienate and
offend their adversary. <=81> n80

  These behaviors will irritate and offend opposing counsel and opposing
counsel's client, but the mediation advocate with a competitive strategy believes
he has gained a psychological advantage by demonstrating resolve.

   The cautiously cooperative strategy encourages the advocate to seek to create
"settlement momentum" by starting cooperatively, but also mandates that the
advocate protect his eventual results in a mediation by mirroring his opponent's
competitive behavior. The cautiously cooperative mediation advocate should
begin with the cooperative behaviors described above, but be prepared to respond
in kind if the adversary exhibits the competitive behaviors.

  C. Determining the Depth of Disclosure
   The approach in competitive negotiations is to predict what will happen if the
case goes to trial and, thus, discuss a financial settlement in the "shadow of the
law." <=82> n81 The competitive negotiation is almost always focused around
an exclusively monetary settlement. <=83> n82 This type of negotiation
usually consists of arguing over competing legal theories, admissibility of the
legally relevant facts associated with those theories, and jury sympathies about the
case. <=84> n83 A mediation advocate may choose a [*977] narrowly
focused mediation dialogue if she has an extremely strong legal case or there are
reasons not to disclose the broader type of information.

   In contrast, a mediation advocate may elect to implement the cooperative
model of negotiation. The classic cooperative approach to negotiation necessitates
an open agenda that considers extra-legal concerns in expectation that a broader
base of information may suggest a greater array of possible solutions. <=85>
n84 The ability to structure settlements not based entirely, or at all, on a dollar
amount is one of the possible benefits of a more cooperative approach to
mediation. <=86> n85 This approach requires an exploration of information
that may be legally inadmissible, such as the client's motives, goals, principles,
values, humiliation, and other feelings arising out of the conflict and the
relationship. <=87> n86 Thus, information about future dreams and aspirations,
how the plaintiff plans to utilize a cash settlement, and the client's emotional
attachment or investment in the dispute could become critical information.
Anecdotes abound in which significant progress toward settlement occurred at a
mediation by letting a client vent, extracting an apology, creating a structured
settlement to provide for predictable future expenses, or providing in kind
compensation based on this type of broader discussion. <=88> n87

   The cautiously cooperative advocate should generally push for a broader
conversation resembling the cooperative model. Such an approach will give the
advocate more options when bargaining. However, the cautiously cooperative
mediation advocate should monitor whether such broad disclosures are beginning
to create an imbalance in information. If so, the cautiously cooperative response
must insist on an equal sharing of information from the adversary. If a
competitive adversary is less than forthcoming, the cautiously cooperative
advocate should refuse further broad disclosures. [*978]

  D. The Degree of Posturing in Opening Offers

   When used skillfully, the opening offer can be the most significant opportunity
to manage the other side's expectations. <=89> n88 The first number on the
table is the first point of reference regarding acceptable outcomes. This first point
of reference sometimes has a magnetic effect, pulling the other side's opening
offer, and range of acceptable solutions, toward the first number on the table.
<=90> n89
   Mediation advocates wrestle with the tension between the competitive or
cooperative approaches when deciding how much to exaggerate the initial
demand. The initial offer could be a genuine "bottom line, take-it-orleave-it"
ultimatum. <=91> n90 A slightly more competitive approach would be for the
initial offer to be a reasonable number, but one which the negotiator is willing to
enhance slightly. <=92> n91 A more competitive option is a barely credible
initial offer that the negotiator expects to significantly improve before a deal is
consummated. <=93> n92 The most competitive option is an initial offer so
extreme that it becomes insulting or offensive. <=94> n93

   The cautiously cooperative mediation strategy would suggest that a mediation
advocate should seek to be cooperative in the opening offer, but only if the
advocate believes that the opposing advocate will reciprocate. This assessment of
an opponent's strategy is difficult. The cautiously cooperative advocate can use
the mediator to resolve this dilemma by sharing her cooperative opening offer
with the mediator in confidence, and instructing the mediator not to reveal that
offer unless the opponent's offer falls within a pre-determined range that would
also reflect a cooperative [*979] strategy. <=95> n94 Remember, the
"wolves in sheep's clothing" concern requires an advocate to open with a more
competitive approach if that technique is employed by an opponent. <=96> n95

  E. Making Concessions

   The first concession at the mediation can provide a strategic opportunity similar
to the opening offer in a negotiation. <=97> n96 If the negotiations are
originating in the mediation, the "first concession" will consist of making the
opening offer. Usually, however, opening offers are exchanged and negotiations
conducted prior to the mediation. When the negotiators approach impasse, they
agree to seek a resolution through mediation. <=98> n97 Even though the
mediation continues the same negotiation, there is a sense of beginning a
distinctive process. <=99> n98 This "second [*980] beginning" in the
negotiation provides an opportunity to reapply strategies regarding opening offers.
<=100> n99

   As negotiations begin again in earnest in the context of the mediation, the
psychological manipulation strategy in opening offers can apply in making the
first concession from the premediation impasse. <=101> n100 For example,
wrongful termination settlement negotiations may begin with a demand of
$200,000 and a response of $20,000. Negotiations prior to the mediation reach
impasse at $80,000 and $40,000. The first negotiator to make a $4000 concession
at the mediation may psychologically influence his opponent (and the mediator)
to think that the resolution at the mediation, if any, will be skewed toward the first
negotiator's opening position.

   The advocate's competitive or cooperative strategy will be manifest in her view
of the sequence and timing of moves in the mediation. Competitive mediation
advocates assume that there may be considerable posturing in the early stages of a
mediation. <=102> n101 They know that rushing the timing and the size of
concessions will create a disadvantageous situation; one negotiator's offer may
still be significantly postured while the other [*981] negotiator's offer is
becoming reasonable. <=103> n102 This can result in viewing the mediation as
a war of wills where the more patient player in the game of "chicken" prevails.
<=104> n103

  Experienced mediation advocates know that there are usually a series of
concessions in a mediation. <=105> n104 This series of concessions serves the
purpose of convincing the other side that it has acquired the best possible result.
<=106> n105 In contrast, some people interpret a quick acceptance of an
opening, or early offer, as a signal that they could have acquired a better bargain.
<=107> n106 Therefore, the experienced advocate should consider whether the
other party needs a series of concessions at the mediation. <=108> n107

   In a sense, many mediation advocates expect a modified law of physics that
each and every concession should be matched by an equal and opposite
concession. <=109> n108 The matching concession may not be dollar for
dollar because the two negotiators may have differing degrees of flexibility.
<=110> n109 This might be especially true in personal injury litigation where
the plaintiff's bar frequently exaggerates its opening offers while many defense
lawyers have a modicum of reasonableness in their opening offers for fear of
insurance commissioners and claims of bad faith for first party cases. <=111>
n110 In any event, the cautiously cooperative advocate examines [*982] her
opponent's concessions to determine whether they are mirroring her efforts to
reach a reasonable compromise. <=112> n111 If the other side's concessions
are determined to be wanting, the cautiously cooperative advocate must become
more patient and embrace her opponent's perceived stingy strategy regarding the
amount of the next concession. <=113> n112

  This phenomenon explains why mediations sometimes turn into marathon
sessions lasting into the wee hours of the morning. Overly aggressive mediation
advocates hope that they never have to approach their real bottom line; if
necessary they will do so only when there has been a mutual wearing down. If
mediation has a defined time parameter, such as three hours, the aggressive
mediation advocate continues to position and posture for at least the first two
hours and fifty-five minutes. <=114> n113

  F. Closing

   The final area of potential application of the cautiously cooperative strategy is
in the closing stage of a mediation. The closing stage is that period of negotiation
after the creative brainstorming and negotiation posturing have been exhausted
and the parties must decide whether to embrace a creative solution, make a final
gesture to close the difference between final offers, or terminate the mediation
without an agreement. The mediator's role as advocate for a resolution frequently
becomes accentuated during this stage of the mediation. <=115> n114

   Mediators often become more actively involved in the negotiations during the
closing stage, pushing the parties towards resolution. <=116> n115 The
cautiously cooperative advocate will pay extra attention to the mediator in the
closing stage. The experienced mediation advocate will anticipate the mediator's
final push in the closing stage. The cautiously cooperative [*983] strategy
requires the mediation advocate to be willing to "do his part" towards closing the
final gap or implementing a creative outcome, but only if such a willingness is
also evident from the other advocate.

   An advocate who is too cooperative runs the risk that, after she "does her part"
to accomplish a final agreement, a recalcitrant opponent may demand an
additional compromise. <=117> n116 In contrast, an overly competitive
advocate runs the risk of losing an acceptable potential agreement at a mediation
by refusing to "do her part" in the final closing stage. <=118> n117 The
cautiously cooperative strategy is designed to maximize the likelihood of reaching
agreement while minimizing the likelihood of an unpreferred result.

   In the closing stage, the cautiously cooperative advocate can condition her final
gesture on a reciprocal gesture from her opponent. She could do so openly in a
joint session or by authorizing the mediator to disclose a conditional offer, such as
"Smith is willing to split the difference if you are." A more cautious technique is
to tell the mediator that you are willing to split the difference, but to require the
mediator to hold that offer in confidence unless she can extract the same offer
from the other side. A variation on this theme is to suggest the mediator propose
specific terms (that you would agree to) as a final agreement. If the other side
agrees, the cautiously cooperative advocate agrees also to consummate the deal. If
the other side refuses, so does the cautiously cooperative advocate, which allows
her to preserve her postured bargaining position.

  VI. Conclusion

   The advocate desiring to settle a case at a mediation faces a dilemma. The
likelihood of reaching an agreement will be enhanced if she is more cooperative
and reasonable. However, her interest in settling the case is tempered by her
determination to accomplish a good result and her concern [*984] that the
opposing advocate either may not have the same determination to reach an
agreement or will seek to take advantage of a perception of excessive eagerness to
settle. The reality of bad faith participation at mediation and the potential for
exploitation by such bad faith participants should be of great concern to mediation
advocates. This internal conflict creates complexity and confusion for the
mediation advocate. The cautiously cooperative advocacy approach can be an
effective way to manage this challenge.

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