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Get Your Kryptonite Ready

Most of us have heard of the concept of a strawman argument. Those are the fallacious arguments you can knock over because they distort the premise to make the proponent’s point. A strawman argument might concentrate on something that hasn’t or will never happen or use circular reasoning (our expert is correct because this expert is renown and therefore cannot be wrong.)

In contrast, steelman arguments present the strongest version of your opponent’s case. It is your job to thoroughly investigate your case so you can learn every one of those arguments and figure out the best way to deal with them. Too often attorney and claims people succumb to confirmation bias where they only look at evidence that supports their own position.

Steelman – not Strawman
Whether in negotiation or at trial, in order to get the best result, you must be thoroughly prepared. If you do not take seriously the need for preparation before mediation, you will not be able to settle or to get the best deal. Preparation is not limited to lining up your own arguments. It also includes conceiving your opponent’s strongest arguments and how you will meet them, a technique called steelmanning.

Ideally, you would set up a mock negotiation to force yourself to argue your opponent’s position against another person on your team. Another option is to brainstorm all the possible arguments your opponent could come up with and write each possible argument at the top of a separate page. You’re so smart and know your case so well, you are likely to come up with some that the other side didn’t even know they had. Good! Then—rationally—come up with all the arguments against those positions. This might even require >gasp< legal research. Return to your notes and on each page write the details of how to respond to the position outlined at the top of the page. Remember you are preparing a possible response; don’t mention these issues at the actual negotiation if your opponent hasn’t raised them.

When you have thoroughly explored all the possible arguments against and in support of your case, you are ready for mediation.

When Does Negotiation End?

More than 95% of all cases settle. Sometimes cases don’t settle at mediation, but shortly thereafter as participants spend more time thinking about their litigation prospects. Unfortunately, there is a number of cases which do not settle until just before trial, at the courthouse steps both figuratively and sometimes literally. You will get the best result when you view negotiation as a continuous process.
 
Before Litigation
Some litigation professionals don’t like to “show their hand.”  This can be a mistake.

For claimants, it’s wise to provide adequate support in your initial demand letter. Claimants who make a demand without adequate backup guarantee themselves a lengthy and expensive litigation. If your opponent sees you as making a mere nuisance claim, they are unlikely to spend enough time working up their case to foster early settlement. If you must file promptly because of an imminent deadline, let the defense know you are still open to early negotiation.

On the other hand, knee-jerk defense pleadings and motions may unnecessarily waste money by ignoring settlement opportunities.

During Litigation
Just because your jurisdiction has a timetable for mediation and settlement conferences doesn’t mean you can’t negotiate settlement at other stages.

Negotiations are often fruitful while dispositive motions are pending. Don’t just file away discovery responses for review at a later date. Spend time analyzing how they affect case evaluation now. Many cases settle at the conclusion of a deposition. When I was an active litigator, I started trials of some cases which ended up settling before conclusion.

Immediately after trial, but before the time for post-trial motions and appeals has lapsed, is an excellent time to settle; both sides have solid feedback at this point of how the case plays out. Many appellate courts have mediation programs to allow even the most intransigent parties to come to agreement at this stage.

If the parties agree, you can convene a mediation in any phase of the claim. It just takes a phone call or an email to get some available time slots with your favorite mediator.

You’re in a Community
Practitioners within a practice area run into each other again and again. Your life will be much easier if you can get along with your opposite number. If you act like a jerk, you can’t expect any favors when you are the one in need.

Keeping in mind that your case is likely to eventually settle, congenially let your opponent know that you are always willing to discuss settlement at any stage of this claim– or the next one. Seen in that light, the negotiation process never ends.

‘Twas the Night before Mediation

(c) Teddy Snyder SnyderMediations.com

‘Twas the night before mediation
And all through the firm
Not a creature was stirring,
Not even a worm

But then one lawyer
Asleep on a couch
Shot up, hit his head
And said with an “Ouch”

Oh my, I’ve got
That mediation tomorrow
I didn’t do a brief
Much, much to my sorrow

Then what to his exhausted eyes should appear
But Mediator Snyder with news of good cheer

You don’t need it fancy
You don’t need it long
Just give me some clues
So the time’s not spent wrong

Just send me an “e”
It’s all confidential
Tell me the issues
What’s the dollar potential?

With that she was gone
The lawyer banged out a brief
He’d be ready tomorrow
Oh what a relief.

This holiday season
When your time seems too short
Turn to mediation
And stay out of court.

Happy Holidays!