The Power of Principle, Part 2

Kimberly Sands, a partner with Upchurch Watson White & Max, has been a civil litigator and has been involved with difficult and complex disputes as litigator or mediator for over 30 years. To schedule a mediation with Kimberly, please call her case manager, Cathy McCleary, at (800) 863-1462, or visit our online calendar.



This is the same scenario as in Part 1, but this time I have all decision-makers in person, so I decide to dig in and go for it, exploring the parties’ “principles,” discussing the risks and disadvantages of litigation and requesting that the parties evaluate the available opportunities for resolution.

I have little to discuss with the Defense; they are prepared, well-represented, and are evaluating options based on any worst-case scenario I could offer. The Plaintiff, however, is focused on the bad behavior of the Defendant in allegedly breaching the agreement and is pursuing the long-game of litigation, as punishment and for the potential of higher reward, but only in the long term, with time and expense and too many additional variables to accurately count the cost or risk. Under the circumstances, my ethical and professional obligations are obvious, at least to me; confront the immovable forces with a discussion which assures that the decision-making is informed. This means (1) Trying to get the parties what they want; failing that, (2) Exploring the options available; and (3) Always making sure decisions are informed and consistent with self-determination.

For my efforts, I may receive a little bit of “shoot the messenger.” Defense counsel may not agree with my observations in mediation. Fair enough; however, this is sort of the point when the alternative is turning decision-making over to others; you may get a decision you don’t agree with; at least my observations can’t hurt you. By contrast, Plaintiff’s counsel may not really disagree with the legal or factual basis of any of my observations but may not appreciate my engaging the client in a risk-benefit analysis because it was not consistent with the objectives of the long-game strategy. Maybe counsel will thank me if the strategy fails and the client isn’t happy with its decision, but I would never wish for less than a satisfactory outcome for any of my clients, which is why I try so hard in these situations to make sure there is at least informed decision-making, the true objective of any mediation.

So often it works because parties, be they businesses or people, want to know the BATNA, the best alternative to a negotiated agreement. That requires preparation of the client, counsel and the mediator; preparation of the opposing parties and counsel; knowledge of the client’s and the opposing parties’ businesses and interests; flexible decision-making and exploration of the value of remedies not available from litigation or to which the process is detrimental; and recognizing the emotional components that might negatively influence the client’s ability to know its own BATNA or to recognize a good deal when it presents itself. Failing all that, don’t shoot the messenger; an informed client makes better decisions and is happier with the decisions made, particularly when no outcome in litigation is guaranteed.