Insight

Road to Somewhere

How can attorneys take steps to improve settlement efforts and avoid unpleasant surprises as they map out a dispute resolution? One litigator-turned-general counsel-turned mediator (with some help from a distinguished rock star) points the way forward.

Improved Dispute Resolution Settlement
ML

Mark LeHocky

November 4, 2021 06:45 AM

In his Broadway show American Utopia—a joyous mix of music, dance and social commentary—David Byrne reprises his classic Talking Heads song “Once in a Lifetime.” Along with the lyrics “How do I work this?”, “Where is my large automobile?” and “This is not my beautiful house!” are the stirring refrains:

Well, how did I get here?
My God, what have I done?

These questions reverberate as I read mediation briefs in many cases in which the disputants close in on a trial or arbitration date with strong convictions that, sadly, don’t mirror reality. “Reality” here means the probability of winning juxtaposed against the cost of disputing fully—litigation costs, diversion of time and resources and other effects on organizations and people.

Mediators who do their job well carefully posit how things may play out—the good, the bad and the ugly—along with their associated costs. But even delivered delicately, that analysis can trigger awkward conversations among clients and counsel as to how an early case diagnosis has changed markedly, and why it took so long. This is often not pretty.

Based on my decades as a litigator, general counsel, client and neutral, let me share some tested steps to reduce one’s need to answer David Byrne’s famous questions and suffer the resulting harm to client and counsel relationships.

Conduct a premortem. In Beyond Right and Wrong, his groundbreaking work analyzing handicapping errors by counsel and their causes, Randall Kiser explores various ways to contain unwarranted overconfidence. One strategy is to conduct a “premortem” early in the life of a dispute: If we look back 12 to 24 months from now and things have gone sideways, how might that have happened? What can we do now to minimize that risk, or at least better measure it?

A disciplined review of where things might go wrong requires a hard look at all material assumptions and means to test them: What are we missing? It’s always better to kick the tires hard at the outset—and to keep kicking them. Which leads us to Step Two.

Talk early and often about the merits. The ease and efficiency of email and other forms of electronic communication is undeniable, yet they come with a cost. Emails and letters between adversaries rarely prompt frank exchanges. Instead, as essentially permanent records of communication, they typically resemble advocacy missives devoid of candor.

Yet the earlier that opponents meaningfully discuss the substance of a case—via phone or in person—the earlier the parties can come to an unvarnished view of the pluses, minuses and alternatives: repaired relationships, reinstated employees, reworked contracts and more. Saving those deeper dives until a later mediation can lead to troublesome days of reckoning, especially as many alternatives evaporate over time. Which leads to Step Three.

Don’t immediately default to mediation. The growing use of mediation to speed dispute resolution has been a godsend for clients, saving them time and resources, and preserving future opportunities. But mediation shouldn’t come first or supplant direct discussions. Indeed, direct dialogue often exposes the source of the misunderstanding of facts, positions and objectives. As such, it produces a closer approximation of reality and reveals productive paths to explore.

Of course, sometimes direct efforts don’t do the trick, and a facilitated negotiation (a fancy way to say “mediation”) is needed. But the preceding direct dialogue should significantly pare down the number of misunderstandings before mediation takes place.

Testing this approach at my prior companies, we adopted a “three-conversation” rule: Before any mediation took place, our inside or outside counsel were asked to have three substantive conversations with adversary counsel. Why three? Typically, the first call caught the other side off-guard. But by the second or third chat, a meaningful exchange would usually take place. We learned. They learned. Everyone could better assess, recalibrate and avoid unpleasant surprises down the road.

For direct exchanges to really be effective, by the way, they must be real exchanges. Playing hide-the-ball while asking for candid input from the other side doesn’t work. Nor should it. When conducted with candor, though, these exchanges often clear a path to resolution—sometimes with the aid of a mediator, sometimes not. But if mediation is inevitable, let’s move to Step Four.

Share your mediation briefs, and do so early. While some attorneys avoid sharing these briefs, think about the consequences of not doing so. Without the benefit of the other side’s best elucidation of their position, your side sees only the most positive spin on your story. Rose-colored glasses become rosier, positions harden and resetting expectations becomes more difficult. Conversely, sharing briefs allows everyone to assess realistic potential outcomes in advance, adding needed perspective to the mediation dialogue to follow.

Adjusting to adverse information also requires time, particularly when multiple constituents—business partners, insurers, family members—are involved. More than one “leveling” conversation is often needed. Sharing briefs early allows for this needed recalibration, thereby enabling the parties to avoid Byrne’s second question: My God, what have I done?

Implementing these recommended steps and doing so early in the life of all disputes regularly pays dividends, saving time and resources—and sometimes people and relationships, too. With all due respect to the great former Talking Heads front man, there’s no reason for a dispute assessment and settlement effort to be same as it ever was, same as it ever was.

Mark LeHocky is a mediator, arbitrator and special master with ADR Services, Inc. and a nationwide practice. For his ADR work in Mediation, Mark was voted 2022 “Lawyer of the Year” in San Francisco and has been repeatedly named to The Best Lawyers in America® for Mediation since 2016 by their peer reviewed voting system. Mark also teaches at UC Berkeley’s School of Law and Haas Graduate School of Business on the intersection of law, risk assessment and effective decision-making.

Related Articles

Family Matters


by Kathryn Graves

Early case management and alternative dispute resolutions seek to simplify some separations in Minnesota.

Family Matters

Destiny Fulfilled


by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

On Neutral Ground


by Patricia Brown Holmes and Rachel F. Sifuentes

Years after the American Bar Association resolution on diversifying the pool of neutrals, alternative dispute resolution panels still fall short.

ADR Panels Still Fall Short in Diversity

Meeting Halfway


by Julia B. Meister

To resolve family and business disputes including wills, trusts, estates and more, mediation is often a more effective, gentler and cheaper option than litigation.

Mediation to Resolve Wills, Trusts, Estates

It’s a Gas, Gas, Gas


by Best Lawyers

Michael Polkinghorne discusses why arbitration or mediation is a better option.

An Interview With White & Case LLP

How to Advise Clients in International Arbitration and Mediation


by Best Lawyers

Karl Pörnbacher discusses how his firm stays at the forefront of advising clients.

An Interview With Hogan Lovells

An Interview With Egorov Puginsky Afanasiev & Partners


by Best Lawyers

Russia's 2020 "Law Firm of the Year" in Arbitration & Mediation Law

An Interview With Egorov Puginsky Afanasiev

A Startup Accelerator Program Sets Cuatrecasas Apart


by Best Lawyers

Miguel de Almada and Frederico Bettencourt Ferreira from the Portuguese firm discuss their 2019 "Law Firm of the Year" award for Litigation and Arbitration.

Cuatrecasas "Law Firm of the Year"

Bringing Down the Hammer


by Joseph Trotti

Thor relied on one weapon, his mighty hammer. General counsel tends to play to their own strengths. What worked for the Viking deity may be a bad idea for you.

Gold plated toolbox with gold tools popping out of it

The Resolution Solution


by John Oh

The pandemic threw sand in the gears of America’s slow-moving trial system, making mediation an increasingly attractive option for plaintiffs and defendants.

Vintage image of man with fists up with yellow backdrop and oversized hand pointing

Is Family Law Mediation the Future of Conflict Resolution?


by Best Lawyers

In recent years, family law mediation has started to emerge as the preferred option over traditional forms of litigation, offering clients an amicable and efficient alternative of conflict resolution.

Silhouettes of family split into multiple sections

A Time for Choosing


by Brandon D. Saxon and Debra Ellwood Meppen

Vast changes in the law, at both the federal and state level, have made it even harder to get through the already dense thickets of employment arbitration. What do businesses need to know going forward?

Suited man holding up falling walls with gray and yellow backdrop

The Great Debate: Do You Arbitrate Commercial Disputes?


by David K. Taylor

In a civil case, is it wiser for a business to try to persuade the counterparty to agree from the outset to arbitration—or potentially to place its very solvency in the unpredictable hands of a judge and jury?

Hand moving multicolor blocks

Protecting Small Business Owners: Trial Experts Connick Law LLC Notoriously Successful with Fire Litigation


by Justin Smulison

When small business owners become the target of insurance companies in fire-related lawsuits, hiring a firm with a reputation for understanding the science of fire suppression trials can save their livelihoods.

Gold Indoor Sprinkler Heads on Red Background

Announcing the 2022 Best Lawyers: The Corporate Law and Commercial Litigation Issue


by Best Lawyers

The first edition of Best Lawyers: The Corporate Law and Commercial Litigation Issues features thought leadership articles from attorneys around the nation, as well as listings in more than 70 practice areas.

Corporate and Commercial Issue

Measuring Success by Results


by John Fields

Recognized Best Lawyers®* recipient Joseph F. Brophy on how his Firm determines success.

Measuring Firm Success

Trending Articles

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

The Long, Short, Thick and Thin of It


by Avrohom Gefen

“Appearance discrimination” based on employees’ height and weight is the latest hot-button issue in employment law. Here’s a guide to avoid discrimination.

Woman stands in front of mirror holding suit jacket

Trailblazing Titans of the Industry: Announcing the 4th Edition Best Lawyers: Ones to Watch® in America


by Best Lawyers

Best Lawyers honor and celebrate these talented, innovative newer lawyers who are trailblazing their way to victories in courtrooms across the country.

Connected web above map of the U.S.

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Pearls of Wisdom: Celebrating 30 Editions of Best Lawyers’ Rankings


by Best Lawyers

In celebration of our landmark 30th edition, Best Lawyers’ leadership explains how the world’s original and most trusted legal awards maintain their esteem, integrity and reputation for excellence among the top legal entities and their clients.

Best Lawyers logo for 30th edition release with gold glitter in background

Vanguards of Victory: Best Lawyers: Ones to Watch in Canada 2024


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in Canada™ has been announced, and the lawyers showcased by these awards are rising to the challenge each day as advocates for clients all across the country.

Blue and black background with small squares connected by lines

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

IN PARTNERSHIP

Thomson Rogers: Toronto Personal Injury Lawyers


by Thomson Rogers

Since establishment in 1935, Toronto-based firm Thomson Rogers has consistently delivered results for their clients struggling through complex litigation.

Top of a Staircase Featuring Two Large Black Doors with Bookshelves and Chairs on Each Side

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

IN PARTNERSHIP

How Long Does a Felony Stay On Your Record in California


by Peter Blair

A felony can remain on your record for life in California. Some felonies qualify for expungement. Learn how to remove a felony conviction from your record in California.

Hand setting bird free out of a guarded fence

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US