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.
Principal Kimberly Sands
Recently, I addressed members of the Florida Justice Association at its annual Workhorse Conference in Orlando, Fla. The presentation was titled “Deconstructing Mediation: Finding Leverage and Maintaining Tactical Advantage in Mediation.” The conference was aimed at trial attorneys who focus primarily on representing claimants, having expanded over the years to include a variety of substantive areas of law. I have delivered similar presentations to a variety of groups over the years, which I will summarize as my “Tips for Strategic Negotiation":
- Know as much as possible about the people with whom you will be negotiating;
- Know your case and show it
- Think of mediation as an event and a process and invest the time necessary to get the most from both;
- Negotiate from your strengths, not your weaknesses, but be flexible and responsive as the circumstances require;
- Use your mediator; they are a great resource, and, if not, get a new mediator.
Know as much as possible about the people with whom you will be negotiating: Knowing what is important to your opposition, who is making the decisions, how they make decisions, and what’s important in that decision-making process is extremely important in identifying opportunities for strategic negotiation. If this information is not readily available to you, your mediator may be in a position to explore these issues. Although a mediator may not be in a position to share information conveyed in private caucus, a mediator can use the information to facilitate negotiation without violating a confidence.
Know your case and show it: The most compelling approach to mediation is one that says I know my client, I know my case, and I am ready to try this case. This does not preclude pre-suit or early negotiations which I support as early negotiations often offer greater opportunities for settlement or can streamline issues for further negotiations. Knowledge, however, shows investment and demonstrates that you are prepared to explore all options.
Think of mediation as an event and a process: Mediation can be an event. It is certainly a process. Assuming that most civil disputes will be resolved by negotiation, many as a result of mediation, it should be treated with an appropriate degree of preparation and time-investment to achieve the best result possible.
Negotiate from your strengths: Leverage derives from potentially many different factors, but the most important may be the strength of your case. Evaluation includes consideration of the parties, the representatives, venue, and the time, risk and expense a party is willing to carry to achieve a certain result, but leverage comes from how these factors are perceived by the parties with whom you are negotiating. Negotiation flows from reasonable, credible offers/demands based on these factors.
Use your mediator: Finally, remember the law is a human institution and nothing brings out basic instincts more than money and lawsuits. When you are thinking about your negotiation strategy or the strategies played by the persons you are negotiating with, remember the human element. Mediation allows for do-overs and revised approaches based on the dynamics of the parties and the negotiation. Rather than dulling the message, it can allow for adjustments and changes in strategy based upon response, if you have the right mediator!
