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When Posturing Gets in the Way of Progress

April 3, 2014

In mediation, many lawyers can and do focus on the needs, interests and priorities of their clients.

They understand the risks and costs of litigation.

They have analyzed both their chances of winning and of losing at trial and they help their clients to understand the benefits and rewards of a negotiated, certain outcome, as opposed to the gamble and expense of going to trial.

They come to the mediation table well prepared, rational, reasonable, willing to listen to the other side and to learn what solutions both sides can tolerate.

They are adaptable to the circumstances, creative in their approach, and they counsel their clients well in dealing with the vagaries of the mediation, in order to make the best deal they can for their clients.

They also appreciate that mediation is different from court and they tone it down when it comes to the drama and theater of the courtroom.

Some lawyers do not make the transition from the courtroom.

They posture. They argue. They “pound their chests” and make offers or demands that do not encourage a productive response [see my earlier blog post at https://karpmediation.wordpress.com/2011/12/10/opening-offers-may-backfire-if/ ] or they make no new proposal at all.

Maybe they get caught up in the adrenalin rush of wanting to prove their case and do not see, or simply ignore, the other side’s view of the case and its chance of prevailing.

Perhaps their own emotions about their own pride or prowess get in the way and/or they feel the need to impress their clients in such a way.

And in so doing, perhaps they get carried away.

Maybe, consequently, they miss the opportunity to have a smoother, more productive mediation, to do good for their clients, to help them make reasonable and rational proposals, decisions and revisions for settlement purposes.

Maybe, consequently, they undermine the mediation.

Or maybe they have a different agenda, other than settlement, that they have kept hidden from the mediator and the other side.

As a mediator, I usually believe that everything that happens in the mediation is someone’s strategy.

Perhaps there is a purpose in posturing.

On the other hand, many times I have seen it get in the way of helping the disputants to resolve their case.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com. He apologizes for any ads affixed to this post by wordpress.com. They are not his.

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