Hopefully everyone has seen the holiday classic, Miracle on 34th Street.  I thought a quote from the movie might be interesting to consider as it relates to mediation.

Kris Kringle: Oh, Christmas isn’t just a day, it’s a frame of mind… and that’s what’s been changing. That’s why I’m glad I’m here, maybe I can do something about it.

In today’s results oriented society, mediation has often been looked at as effective if it only gets results.  However, as Kris notes above, Christmas isn’t just a day, it’s a frame of mind.  The same holds true for mediation.  Mediation isn’t a day, it is a frame of mind.  It is an openness to learning new information and it is a time to be able to try to find a resolution.  Many people judge mediation’s success by the outcome at the end.  Most of the time, it is a process and the process and journey in mediation are often the most valuable part of the process.  The resolution may be a valid outcome, but it doesn’t necessarily mean it is.

Sometimes, mediation is very effective even though it didn’t resolve the case:  it can provide perspective; it can provide information; it can provide a place for reflection; and it can be a place to test resolve.

By Steven G. Mehta

Let’s face it.  During some negotiations, you may get angry at the other sideyou’re your blood pressure may go up.  The problem with that blood pressure is that it is not only bad for your heart, but it is also bad for your ability to negotiate effectively.  According to a Clemson University researcher, your ability to recognize emotional cues in is directly linked to your blood pressure.

The study by Clemson University professor James A. McCubbin reveals that people with higher blood pressure are less able to recognize angry, fearful, sad and happy faces and text passages.

“It’s like living in a world of email without smiley faces,” McCubbin said. “We put smiley faces in emails to show when we are just kidding. Otherwise some people may misinterpret our humor and get angry.”

Negotiations are complex situations that involve all types of emotions and issues.  It is critical that the negotiators are able to understand the emotional cues that may reveal the other side’s negotiating position.  In complex social situations like work settings, people rely on facial expressions and verbal emotional cues to interact with others.

“You may distrust others because you cannot read emotional meaning in their face or their verbal communications,” said McCubbin.  ”You may even take more risks because you cannot fully appraise threats in the environment.”

McCubbin refers to this phenomenon as “Emotional Dampening.”  In other words, a person has a decreased ability to understand the emotional and social cues of other people.

This research confirms anecdotal research that people do not negotiate as effectively when they are angry.  They may make rash decisions and, as this study proves, they may misinterpret critical emotional cues which can change the dynamic of the negotiation.

Take for example, the joint session in mediation.  Many times, the parties come into the joint session angry already.  They are not ready to listen to the other side.  Then they hear something that they don’t want to hear and they become even angrier.  Now everything the other person seems hostile.  Indeed, there is a saying that we judge other people by their actions, and ourselves by our intentions.  Because of the impaired emotional vision, we interpret the other person’s actions negatively.  Many times in mediation, this anger-impairment cycle can lead to disastrous consequences.

So if you feel yourself getting hot under the collar because of a negotiation, consider using tactics to calm yourself down first before continuing the negotiations.

McCubbin’s study, published in the journal Psychosomatic Medicine, was supported by the National Heart, Lung and Blood Institute and the National Institute on Aging, both parts of the National Institutes of Health.

The journal article was co-authored by Marcellus M. Merritt of the University of Wisconsin-Milwaukee psychology department; John J. Sollers III if the psychological medicine department at the University of Auckland; Dr. Michele K. Evans of the Laboratory of Immunology, National Institute on Aging; Alan B. Zonderman, Laboratory of Behavioral Neuroscience, National Institute on Aging; Dr. Richard D. Lane of the psychiatry department, University of Arizona; and Julian F. Thayer of the Ohio State University psychology department.

By Steven G. Mehta

Are You a Nibbler?

Now I am not referring to your eating habits.  Instead, I am wondering about your negotiation tactics.  A nibble is when at the end of the deal, you ask for a little something more.  This little something generally doesn’t have huge value in relation to the entire deal.  For example, in a car sale, you might be nibbling to get the dealer to throw in the car mats.  In litigated cases, many times the negotiator asks the other side to pay certain fees such as filing costs or mediation fees.  In an appliance purchase, it might be free delivery.  Regardless of the nibble, it is creating a value for you or your client if you get it.

WARNING.  Many people just read about the nibble, but don’t pay attention to the warnings that come along with it.  The reality is in some negotiations, you may risk destroying the relationship with your negotiating partner.  The nibble might turn off the other side who may feel that your tactic is a cheap ploy designed to take advantage of them, done for the sake of trying to be a “WINNER” at the expense of the other side.

Suggestions if you nibble:

• Don’t bite off too much
• Don’t demand it.
• Don’t Do it Unless you feel that the other side might have given you an opening to do so.  In other words, don’t do it out of left field and out of the blue.

Suggestions On How to counter the Nibble:

• Nibble Back.  If the other side nibbles at you, get something in exchange
• Use a policy of the company, business, etc, that prevents you from responding to the nibble
• Make the ability to address the nibble too complicated, and therefore may take too long.
• Tell the other side that you will consider it after the deal is done.

By Steven G. Mehta

Want to become smarter, even if only for a little bit.  Well, I have the answer for you.  Chew some gum.

Recently a study found that people who chew gum before testing on a subject increased their cognitive function.  The study showed that the increase in brain power, however, lasted only for 15 minutes.

Interestingly, the study also found that the boost in brain power didn’t come from the sugar.  People with sugar free gum had the same increase.

One of the reasons that this is interesting for mediation is that many times, little things in mediation can result in big changes.  Second, this study demonstrates that by changing the conditions even a little, there is a change in the way people think.

Other ways that you might change the thinking patterns in mediation are:

• Get Up and Move
• Go Outside
• Eat a Snack
• Change Seats
• Walk Around
• Take a walk with Mediator while discussing case
• Drink some coffee

I have, at some point in time, tried all of these things, and you would be surprised that these little changes can sometimes create a large breakthrough in the mediation.

By Steven G. Mehta

In litigation, one of the biggest unstated principles is whether the plaintiff or defendant is trustworthy.  In other words, are they credible.  Well a new study revealed some interesting news about whether religion affects the trustworthiness of a person.

According to a new study conducted at the University of British Columbia, distrust is key factor why religious people dislike atheists. In cultures where there is a religious majority, “atheists are among the least trusted people,” says lead author Will Gervais, a doctoral student in UBC’s Dept. of Psychology.  The study, entitled Do You Believe in Atheists? Distrust is Central to Anti-Atheist Prejudice, evaluated 350 American adults and nearly 420 university students in Canada, posing a number of hypothetical questions and scenarios to the groups. In one study, participants found a description of an untrustworthy person to be more representative of atheists than any other group except for rapists.

The researchers concluded that religious believer’s distrust — rather than dislike or disgust — was the central motivator of prejudice against atheists, adding that these studies offer important clues on how to combat this prejudice.

The implication for such research has interesting consequences in litigation.  First, Would the religious status of a participant or witness affect the credibility of such person in the eyes of a religious lawyer, adjustor, or judge?  Second, how would a jury react if they found out that a person was an atheist?

The other issue is that there are many factors that affect credibility and trustworthiness.  Many of those factors have nothing to do with the competency of the person or the merits of the case.  Nevertheless, they are real and must be considered in evaluating cases and whether they should go to trial.

By,

Steven G. Mehta

By Steven G. Mehta

I want to wish everyone a Happy And Blessed Thanksgiving.   However, not all Thanksgiving Experiences are happy and blessed.  For those of you who may be worried about having the less than perfect thanksgiving, I thought I would give you some Mediation Thanksgiving Tips to Help you with that Challenging Family Member.

Hit the Pause Button

I know Uncle Arthur is the family curmudgeon and he is going to comment negatively about  something.  You know it is going to make you angry.  The solution is to hit the pause button on your reaction.  When the comment comes out, take a second, minute, or even five to react.  Many times you will find out that you don’t need to react after you have paused.  In mediation, many hostile things are said.  Pausing will help to manage the reaction and help you to not overreact.

Mental Mantra

In the movie, Point of No Return, Bridget Fonda is being trained as a spy.  She was training to be placed in very difficult situations.  Her trainer said, “whenever things bother you, just say something like, “I never did mind about the little things.”  Well when things get tight, find your own little mantra that you can either say out loud or internally.

Keep Them Talking

Sometimes all the challenging family member wants is to have a forum to talk.  So rather than doing something to shut them up, let them talk.  Ask questions.  By asking questions, you can help to lead the conversation in a direction that is more suitable to your needs.

There Is No Place Like Home

In the Wizard of Oz, Dorothy keeps repeating that there is no place like home.  Well the same is true for you.  “It is only one day.  It is only one day.”  “There is no place like home. – meaning soon it will be over and you will be home.”

Savor A Raisin Before It Starts

One study found that by savoring the flavor and taste of a raisin and being mindful of that experience, people were dramatically less likely to retaliate against personal attacks.  Take something you like such as coffee, wine, or chocolate and savor it before you open the door for the Thanksgiving onslaught.  If you don’t want to savor that, simply listen to calm relaxing music and focus on your breathing.  Big deep breaths for 5 minutes.  Another study found that focusing on your breath can help combat stress when it comes.

Tag Team Wrestling

If a member of the family bothers you, the odds are you are not alone.  Find that person and play tag team wrestling.  Enter into an agreement that you will help each other when things get bad.  When you have had enough, find your partner, and tag him or her just like in wrestling.  Maybe you can even be like a famous Luchador team and double team the person.

Invite “Buffers.” 

There is nothing so good at forcing the challenging people to behave as having a stranger amongst the company.  Remember the old saying, “familiarity breeds contempt.”  Well “unfamiliarity breeds politeness.”

Take charge of seating.  Put people who hate each other at different parts of the table.  Don’t let the guests choose.  Then have the younger kids make place cards and place their cards at the spots.  It is very hard for adults to attack a seating assignment when a 7 year old child has made it especially for them. Seat the most challenging persons near you and your wrestling buddy.  This way you can steer the conversation.

Provide escape routes.

Make sure that people have different spaces to congregate or go to.  If you see someone being overwhelmed by a challenging family member, ask them to help you with something.  Create activities for the challenging person or for the escapees.

Reward Yourself.  After it is all over, sit down and pull out something special for yourself that you have saved before the holiday.  Maybe it is a nice glass of wine, port, or piece of pie.  Tell some of your wrestling buddies to stay for the After Thanksgiving party.  Commiserate and laugh at the the funny moments.

Remember that you can choose your friends, but you can’t choose your family.  But without such family, you wouldn’t be who you are.

By Steven G. Mehta

It is never ceases to fascinate me that there are so many styles of providing mediation briefs.  Recently, I   received a brief that screamed “I don’t want to do this case.” As a result, I thought I might give some of the biggest mistakes in mediation briefs.

Don’t Know Your Target Audience

First, before you write your brief, you must consider who is your target audience?  If you write a brief without such focus, it will not be persuasive or useful to anyone.  Typically, you possible audiences are the mediator, the opposing lawyer, the opposing client, or your own client – or some variation and combination of those.  Given the different targets, you might consider different briefs – such as a confidential brief for the mediator and a public one.  One counsel wrote briefs that were informational for the mediator, but intended to show his client that he was an advocate for the client’s position.

Wait Until the Last Minute to Let the Other Side See Your Brief

If you are writing a brief for the opposing counsel or client, make sure to have it to them well in advance for them to consider.  If you send it to them a few days before the mediation, they won’t have time to digest the information.  Consequently, the decision that you want them to make can never be made in such short time.

Provide a Four Page Introduction

Make an introduction just that; not a full factual story.  The introduction should quickly summarize in no more than two paragraphs the theme of the case, the key facts, and the emotional appeal.  It should not be a full statement of the case.  It should tease the audience into wanting to read more and not just stop at the introduction.

Provide a 32 Page Brief

Be Concise, Clear and Short.  One time I received a brief that was 76 pages.  After a while the mediator will not be able to digest all the facts and information that you are providing in the treatise on Doe v. Roe.  The more concise you can make the brief, whilst communicating the message of the case, the better.  Consider the brief like a motion in court, there is a page limit.

Don’t provide any Legal Authority

The mediation brief needs to address the factual and legal issues in the case.  Some cases require less legal analysis.  For example, a PI auto case might not need Prosser’s treatise.  But on the other hand, an employment case might need more specific authorities.  When citing to law, it is helpful to cite specific cases that address the specific legal points and not just generic legal authority.  Also, when citing to cases, it is very helpful to quote the actual case and not just your own conclusion.

Make Claims in Your Brief that Can’t Be supported

In the movie Top Gun, Tom Cruise (Maverick) was being chewed out by his superior officer and the Captain shouted “Maverick, You are writing checks your body can’t cash.”  Well, don’t write checks in your brief that your case can’t cash.  Credibility is critical in mediation.  You need the other side and the mediator to believe you.  If you make claims that aren’t true, you will have lost all credibility.  Generally, overstating a case is a sign of a weak case.

Don’t Provide Any Backup for Your Assertions

One simple and persuasive thing that can be done in a mediation brief is to support your claims with evidence.  If you claim that a witness stated something in deposition, either attach the relevant portion or quote it in the brief.

The mediator doesn’t know what fact is or what fiction is.  Having the backup for everything you say in your brief can help the mediator evaluate your strengths and weaknesses.  In one case, every factual statement was supported by a document.  You would be surprised at how credible and impressive that is to a mediator.  It is hard for the other side to argue about the facts.  They can argue the meaning, but they can’t argue the facts.

Depending on the case, consider cutting and pasting the evidence directly into the brief.  One attorney submitted critical pieces of evidence directly into the brief.  As a result, when reading the brief, the reader did not have to flip to the back to see the evidence.  It was right there in front for everyone to see.  The message it sent was: “I know I have the goods.  Do You?”

Copy Your Pleadings Directly Verbatim

Perhaps this is my pet peeve.  But it drives me nuts when I start reading the brief and I see allegations that are just out of the complaint.  You might as well say, “I didn’t have time, nor do I care much about this case, so here it is.”

Make No mention of what has Happened in Prior settlement Discussions

Many times, there have been settlement discussions prior to mediation.  It is helpful for a mediator to know those discussions.  Sometimes, when both sides discuss the settlement discussions in their briefs, it is obvious that there is already a disagreement.  In one case, one side stated that they would settle the case at the end of the day for $100,000.  The other side interpreted the discussion as a starting spot.  Having that information beforehand can help the mediator prepare for the mediation.

Even if the discussions were informal, it is very important to raise those to the mediator.

By Steven G. Mehta

Many times when parties to mediation talk about the settlement value of a case, they talk about one number.  The case should settle for $100,000, or $50,000, or whatever number is at issue.  However, all too often that single number is a flawed method of helping you to figure out the best negotiating strategy.

First, it is important to note that there are many factors that go into deciding the value of a case.  This discussion is not intended to address that concern given the multitude of factors that affect the valuation.  Instead, once the value has been decided, we should discuss what should be done from there.

The reality is that instead of deciding a number, parties should really discuss a range of numbers.  Often times focusing on one single number as an outcome gives you a deceptive picture of the true negotiating picture and result.   There should really be 4 or 5 numbers that you should consider as part of your preparatory strategy before the mediation.

Think about a grade for your settlement.  A through F.

A – This settlement would be Awesome.  If I got this, and kept this up, I could make partner in a year.

B – Bravo.  You settled the case for a good number and you’ll get some high fives back at the office.

C- Could Do.  You could Easily Settle For this Number and No one would blink an eye at you.

D- Difficult.  You would have a hard time selling this settlement, but it’s not impossible.

F – Forget about it.  You suggest a settlement like this, and you might as well start looking for another job.

Let’s put this thought process into action.  You have a case that you previously spoke with your client about and you have received authority for and you believe $100,000 is the settlement number that you would be willing to pay to settle the case.

1.  If you got an A settlement, maybe that number would be $70,000.  Wow wouldn’t that look good on your performance review.
2. A B settlement might be $90,000.  Good job.  You worked hard on this one.
3. A C settlement might just be $100,000 or a dollar below that number.  After all, that is what your client authorized you to do.
4. A D settlement of $115,000 might be difficult for you to sell, but if push comes to shove, you might be able to help to get it done.
5. Finally, there is no way that you could ever settle the case for $125,000.  That is a clear F.  Your boss knows it’s a recession and there are a thousand lawyers looking at your job.

Now that you have evaluated your range, you can fairly help to change your negotiating strategy.  Maybe, you should making a push to get $70,000.  However, not all cases are awesome; not all settlements are going to be great.  But, it’s worth a try.  Maybe, you should set your sights on $90,000 instead.  This number seems so much more achievable, and is still a great result.  After all, even the best batting average don’t bat a thousand.

This process can also help you over the long term in evaluating your negotiation success.  If you look at all your cases this way, and you are consistently getting C settlements, then maybe you need to think about trying to change your expectations.  On the other hand, if you are consistently getting A’s and B’s and once in a while a C or D, then that paints a completely different picture.

The reality is that settlements are not pass-fail, but instead graded on a spectrum.  By chaning your perspective, you might also have the added benefit of getting better resolutions to your cases.

By Steven G. Mehta

There comes a time in every mediator, litigator or person’s life when somebody that you have a relationship with — whether it be business or personal — gives you criticism.  How you react can make a huge difference.

The criticism I speak of is not criticism that you know is coming and expect (and perhaps agree with).  But instead, criticism you receive that you weren’t expecting and that you may not necessarily agree with.

First, it is important to understand that receiving criticism is never fun.  It always affects you.  Some people get angry, others get defensive, some people go inward.  But there is no doubt that it will affect you.  I believe that one of the reasons we react so negatively to such criticism is the fight or flight phenomenon.    This phenomenon comes from our stone age ancestors that had to make instantaneous reactions to threats:  Do we fight or take flight?  We still carry those instincts with us today.  The fight or flight reaction can be triggered when anything threatens us:  Our ego, our self worth, our self perception, and so on.  The modern person’s flight or fight reaction is to defend his or her actions or to take the attack against the beast that dared to threaten us.

Second, there is a difference between criticism by a person who is trying to help and a person who is trying to be destructive.  If you are receiving criticism from someone who is destructive, Buddha has some advice for you.

“A man interrupted one of the Buddha’s lectures with a flood of abuse.Buddha waited until he had finished and then asked him, “If a man offered a gift to another but the gift was declined, to whom would the gift belong?”

“To the one who offered it,” said the man.

“Then,” said the Buddha, “I decline to accept your abuse and request you to keep it for yourself.”  (found at the Postivity Blog).

Sometimes, you have to decline to accept the abusive behavior.  But, How?  It is difficult to say, “I don’t want to hear it.”  But you can listen until they stop.  You can move away from the conversation.  You can also thank them for their thoughts, and tell them that you will consider it.  This does not, however, mean that you accept it, but that you will consider it.  You can choose to reject the advice or criticism.   Sometimes simply thanking the other person will allow them to feel that they have been heard and they can move on.

What, if however, the advice is not destructive but intended to help.  It is important to consider that people who don’t care, don’t give advice or comments.  Think about it, your mother or father criticizes because they care about you; your spouse comments because he or she cares, and a person in business with you who takes the time to criticize cares.  They would like to continue the relationship with you.  They want to make you better.  If they didn’t care, they wouldn’t even bother to take the effort to criticize.

Remember, giving criticism is hard.  People don’t like to give criticism.  Recently, I had 2 separate occasions in two completely different circumstances where I received criticism.  At first, the way that both gave such criticism was “rough.”  It initially set off my fight or flight reaction.  But as I sat down and thought that these two people who I knew very little about took the time to provide me with criticism, my instant fight or flight reaction went away, and I was intrigued to understand the reason for their criticism.

I listened to the criticism intently.  I thanked them for their criticism and then went home and considered it carefully.  In one of the circumstances, after carefully considering the comments, I agreed with some of the criticism but not all of it; Nor did I agree with the conclusion.  But the fact that the person made the comment ultimately reflected the fact that she liked me, wanted to continue to interact with me on other occasions, and needed to make sure that I knew that something I did made her feel uncomfortable.  That criticism was valid, and was more of a plea for help.

In the other circumstance, I again agreed with part of the comment.  I even told the person that I agreed with part of his comment, and appreciated his thoughts.  I suggested that after ruminating on his statement, I understood why he made the comment and appreciated the thought even more.  His response was, “That’s what friends are for.”  What amazed me is that I didn’t consider this person as a friend, but more an acquaintance at that point.  But now we were friends.

As Benjamin Franklin once pointed out, nothing can make a friend faster out of an enemy than the enemy giving you a gift.  Here both persons that I didn’t know too well, now became friends because of the gift of a criticism.

So the score at the end of the day:  Two critiques, Two changes in a part of my behavior, Two Friends.  Not bad for something that could have gone so wrong.

By Steven G. Mehta

It has been several months since I have last written, and I thought I would get back into writing.  Some of the reasons that haven’t written were vacation, burnout, family crises, busy life and practice, and other issues.   I also found that writing was important to me for my own education and self growth.   So therefore, I am now back.

The question I have is which came first the chicken or the egg?

It’s a question that has plagued man for centuries: Which came first, the chicken or the egg?

Well, scientists in England say they’ve found the answer: The chicken!

Researchers wrote in a recently published report that it all comes down to one protein – ovocledidin-17 – which helps in the formation of the egg’s hard shell.  This essential ingredient in the formation of the egg can only be produced inside a chicken, scientists from universities in Sheffield and Warwick concluded.

But what does this have to do with mediation?  Everything.  In mediation, often times both sides will start off with initial offers that are extreme.  Each side invariably states something to the effect that “the other side’s position is so unrealistic that mediation is not worth it.”  The other side responds, “Our position is such, because they won’t make a reasonable demand/offer.”  Well which one came first, the unreasonable demand or offer?  Probably both.  Each side reacts to each other and to what they perceive the other side will do.  So sometimes even though one side made an offer/demand, they are in fact reacting to what they percieve the other side might do.  Thus which came first, the chicken or the egg?

The other issue with the chicken and egg is the fact that you can debate that topic for a little while, but at some point the debate becomes meaningless and the parties need to be able to move beyond that debate otherwise the case may never settle.  Here are some thoughts as to how to move beyond that:

Ask the parties to change the style of negotiating.  Maybe change the way the offers are made such as going to hypothetical offers/demands or brackets.

Help the parties to understand that the chicken and egg discussion won’t change the nature of the settlement process.  Suggest that someone has to go first and since the next offer/demand is not your final, if the other side doesn’t respond back fairly, you can “put on the brakes.”

Let the parties know that you understand that they came here in good faith and that the other side did also, but both sides are afraid to commit.

Suggest that if the other side started at a billion, that such a number would not dramatically change what the value of the case.

Suggest that your side has an evaluation of the case, and just communicate offers/demands in light of that evaluation irrespective of what the other side does.

The key is that there needs to be some way to break the logjam.  As a mediator or party, you have to be able to give some basis for why the change in position will occur.  So long as you keep trying to find such a rationale, the process is working.