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Negotiations within Negotiation

by: charles parselle

If only two persons attend a mediation and they are both have authority to settle, then only three negotiations take place. They are between (1) person 1 and person 2, (2) person 1 and mediator, (3) person 2 and mediator. The dynamics of this are easy to manage.

More commonly, at least four persons attend, namely two parties and two attorneys, in which case ten dynamic interactions may take place, as follows: (1) party 1 and party 2, (2) party 1 and lawyer 1, (3) party 1 and mediator, (4) party 1 and lawyer 2, (5) party 2 and lawyer 2, (6) party 2 and mediator, (7) party 2 and lawyer 1, (8) lawyer 1 and mediator, (9) lawyer 2 and mediator, (10) lawyer 1 and lawyer 2.

It is easy to draw a cat�s cradle to demonstrate the complex dynamics that exist in the above simple mediation, with only two parties each represented by an attorney.

If this was a dinner party with five friends, the conversation would be a free for all with everyone having a wonderful time. But a mediator cannot afford to have a free for all in a mediation session. A mediation is a negotiation, and every negotiation is (however politely or amicably conducted) an adversarial process. Further, most mediations take place within a larger context of adversarial relationships, or adversarial process such as potential or pending litigation.

If there are multiple participants, i.e. more than two parties and two attorneys in a mediation, the cat�s cradle becomes exponentially more complex, in fact, exceedingly complex. Such negotiations can easily get out of hand. It becomes all the more important for the mediator to set herself or himself as the focal point of all communications, and to control cross-table communications quite carefully, with as much finesse as possible.

No one attends a mediation without an agenda. Every person�s agenda is different.

The mediator must control the flow of communication, or the negotiation will founder. That is why he was hired. With whatever subtlety or bluntness this is accomplished, it is essential. The mediator must be willing to shut off a destructive communication. He/she must also be willing to draw necessary communication out of participants who are keeping silent, even if this requires a private session.

The easiest way to control the dynamics of the situation, without attempting to stifle them, is to have the participants communicate with each other through the mediator. The slight deflection that this requires has an ameliorating effect on the language and the attitude of the speaker. As this is exactly what happens in court, attorneys are used to it.

There are only two kinds of communication in mediation. The first is any communication that keeps the negotiation moving towards clarity and settlement. The second is any communication that tends to torpedo, stifle or impede clarity and settlement. When �bad� communications occur, as they always do, the mediator must repair the damage and move on.

There are only two venues for a communication. The first is in joint session. The second is in private session.

Joint sessions are for participants to communicate positively such facts, attitudes, interpretations, arguments, and offers as will tend to move the parties closer to the goal of settlement.

Individual sessions have two purposes. The first is to permit participants to �vent.� Venting means to express negative thoughts and emotions about the other side. The setting in which such venting takes place must be controlled by the mediator in such a way as to advance, not impede, the purpose of settlement, and this means in private session. The purpose of venting is to get it said and done with. Some people take longer to vent than others. Some people never stop venting on their own volition, in which instance the mediator must make a calculated judgment when to call a halt to it. The second purpose of private session is to discuss what the participants will say in joint session, or what they want the mediator to convey to the other side.

Sometimes a participant wants to express his or her thoughts, emotions, feelings or attitudes directly to the other side. This is the side of mediation that is closest to therapy. The only reason to permit this is if it will advance the settlement process. How this is done is very important. There is a world of difference between on the one hand, explaining how one feels, and on the other hand, engaging in an ad hominem attack on another participant. This can be quite subtle. However much a person is coached, sometimes they just cannot resist turning an account of how they feel into a personal attack. There is a simple rule concerning ad hominem attacks: don�t do it, because it never helps.

These issues do not always arise. Often, the volume and extent of these potentially explosive interactions is reduced or minimized by the parties themselves or their lawyers. Some lawyers prefer keep their clients out of the negotiations, keeping them on hand to ratify settlement proposals. Some parties do not want to take an active part in the proceeding, feeling that is what they retained an attorney to do for them. Also, attorneys often do not want their clients interacting directly with the other side�s attorney. Some clients become terribly frustrated with the other side�s attorney, seeing him or her as the supreme obstacle � sometimes such a client takes the opportunity to call the other side�s attorney a liar; the mediator should put an immediate stop to such �fighting words.�

About the author:
Charles Parselle graduated from Oxford University�s Honor School of Jurisprudence, and is a member of the English bar and the California bar. He is a prolific author and sought-after lecturer. You can contact him through his website:

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Personal Injury Lawyer - Do We Need Them?
by: Mumtaz Shah

Following an accident you'll hear a person say that they don't need to see a personal injury lawyer, TOO expensive! In this article we will set out for you some reasons why NOT seeking, at minimum, a consultation with an accident lawyer could end up costing you a lot of money!

More often than not, regardless of whether you caused the accident or are its victim, if you do not seek a consultation with an accident lawyer as soon as possible after the accident you may well end up regretting your decision. The overriding reasons for saying this are two-fold:

� the insurance company you will be making your claim against are trying to minimise their losses; and

� you most probably don't know what you're entitled to.

As A Victim Of An Accident

Let's assume you are the victim of an unfortunate accident. Let's further assume that your insurance company has come through and has agreed to pay all your medical bills. Now, you may well be feeling that your insurance company are the good guys and you don't need a lawyer's advice. Wrong!

What's happened is nothing less than what the insurance company is obligated to do under the terms and conditions of your accident policy. Moreover, the insurance company is hoping to play on the fact that you feel somewhat indebted to their generosity.

Profitability

That way, they hope, you'll not bring about a bigger claim for what you are rightly entitled to. In the long run that means that they don't have quiet as big an insurance claim loss and they can still make a profit from your policy.

In short, they are protecting their financial wellbeing at the cost of your entitlement rights. But, unless you have spoken to a personal injury lawyer you'll not know this and you'll feel that everything is fine.

So, the next time you are in an car accident or accident, ask yourself this question: 'Is my insurance company interested in protecting me and my rights, or are they more concerned with paying a dividend to their shareholders?'

Non-Profitability

On the other hand, a professional compensation lawyer is normally an ethical impartial third party who knows what your rights are. Aside from possibly being paid a fee, not from or by you, he's also likely to have another job to help a victim better than its' insurance company, (and, keep in mind, if any court proceedings occur, these fees are reclaimed from the opponent side).

So, why shouldn't they tell you the truth about what accident compensation you are entitled to? What's more, even if he does have a financial interest in your case, surely the better compensated you are, the better compensated he is?

As such, if anything, he has even more interest in making sure that you know exactly what your rights are and of making sure that you claim for those rights according to what you are entitled to.

Looked at it like this, it not too difficult to see who the interested party is and who the independent party is. Now ask yourself: 'Do you want to take advice from someone who is interested in minimising your claim, or someone who is interested in maximising it?'

Cause Of An Accident

Now let's look at it from the point of view of, you being the person at fault in the accident. You may well feel that you have nothing to fear, as your insurance company will pay for the damage done. You may even find that initially your insurance company agrees with this. But why...?

Unless you see an accident lawyer as soon as possible after the accident you'll never know. Why? Are you 100% sure that it was your fault...?

Being Polite

The insurance company has to be polite, you're their customer! However, once the claim is over and you're thrilled with their service, you're definitely going to renew your policy. But the extra couple of hundred they ask for will justify the accident? 'Sir/ma'am, you had an accident and your premium has increased!'

Knowing exactly what your rights or obligations are after an accident can be extremely tricky. In most cases it will depend on what happened to cause the accident in the first place.

As such, seeking the advice of a compensation lawyer as soon as you can following an personal injury is the only independent way you can really determine and know exactly what you are entitled to or what you may be liable for arising from the accident.

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