Commentary: What litigators can learn from mediators

Journal Record, The (Oklahoma City),  May 17, 2007  by Dick Dahl

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Litigators and mediators are not exactly birds of a feather.

Although both deal with conflict resolution, they have radically different notions about what constitutes a successful outcome and how to go about achieving it.

The litigator defines success as total victory for his client - often at the expense of the opposing party. The mediator considers a successful outcome one in which everyone is satisfied.

So what can the trial lawyer learn from the mediator? A lot, says Jeffrey Krivis, a mediator in Encino, Calif.

His new book - Improvisational Negotiation: A Mediator's Stories of Conflict About Love, Money, Anger - and the Strategies that Resolved Them - describes a variety of negotiation techniques for breaking up logjams in disputes. Using actual cases from his 17- year mediation career, Krivis discusses how understanding the emotions and hidden goals behind a dispute can help parties reach a solution they are both satisfied with.

Not only can these skills help lawyers prepare for trial and settlement negotiations, they can also improve their day-to-day client relations.

"We lawyers are trained to be judgmental," said Krivis. "It's important to be judgmental, but if you let that get in the way of understanding and listening, you miss out on certain key information that helps you move a case forward."

Krivis believes that trial lawyers have already developed some of these listening skills from watching closely for jurors' body language and other cues that might help guide their arguments.

He said the key in negotiation is to "listen for the unstated."

"Some of these listening techniques come from neurolinguistic programming. You're looking for audio, visual and kinesthetic (emotional) signs," he said, referring to the way different people prefer to receive and process information. "Is this person somebody who responds to their emotions? Or do they respond better by hearing something or seeing something? When you start noticing these things, you're able to manage that negotiation through responding to their sensitivity signs."

Krivis says the clues can be in a person's speech - "I hear what you're saying," or "I see where you're coming from," or "That doesn't feel right to me."

Looking deeper

Krivis' book is filled with stories from his own experience as a mediator over the last 17 years, presented to provide lessons for practicing lawyers.

One case study involves a telecommunications employee who sued his employer after he was laid off. The man had worked for the company for 20 years, and took the termination particularly hard.

Krivis said the company prepared for the mediation as though they were going to trial, creating PowerPoints and assembling data. But in talking to the former employee, Krivis determined that the man would not respond to legal arguments because the issue was an emotional one for him.

When Krivis talked with the man in more detail, he learned that he had lost his parents as a boy. In recent years, he had spent every Thanksgiving with his co-workers, so the company had become like a family to him. To this man, being fired was much more than losing a job - he was losing his family.

Krivis explained that to the employer, who then changed course and talked to the man about maintaining a connection to the company. The result was a two-year consultancy deal that satisfied both sides.

The lesson here, according to Krivis, is that it's essential to allow people to tell their story. Not only does this help release the emotional intensity that can stand in the way of negotiations, it also gives you a better understanding of what motivates the other side.

Benefits for everyday practice

While lawyers might benefit from these techniques in preparation for trial, Krivis thinks they also can gain an advantage from them in more everyday matters.

"Virtually everything is a negotiation. In situations with clients, there's always that tension between 'What am I going to give?' and 'What am I going to take?' This is true whether it involves a retainer agreement, when you're going to meet with the client, or how much work you're going to do."

Lawyers are all too familiar with stone faces they periodically encounter when dealing with people. These people are closed, angry, have little affect and seem determined to maintain a hard-line stance. The key to dealing with them, according to Krivis, is to identify what is causing their immovable stance. He said that a stone face is a signal of some sort of strategic or emotional impediment - or both.

"When I say strategic, I'm talking about information that people have or that they're concealing because they're looking for a better deal and they think that if they don't show you this information or distort it in some way, they're going to get a bigger piece of the pie," he said.

Emotional impediments can vary widely - fear, anger, depression - so it's important for lawyer negotiators to identify which one is causing the blockage and "address it through communication skills so that it will lighten up the negotiation."