August 16, 2019 Practice Points

The Mediators Speak: Can There Be “Oversharing” with a Mediator?

Two mediators discuss what information to share during mediation and when to share it.

by Jeff Kichaven and Paul J. Van Osselaer

Jeff Kichaven:

Yes.

One common “overshare” is to tell the mediator your top dollar or bottom line, and then ask the mediator to go get you that number, or a number that’s even better.  

It’s a bad idea.  Here’s why.

When a mediator presents a number and says “this is it,” the mediator is almost always asked whether he really believes it is so.

At this point, the mediator has two choices.  The mediator either will or will not tell the truth.  

Both are bad for you.

If the mediator offers your true endgame-number, and truthfully says “this really is it,” you have lost the opportunity to negotiate any better deal for your client.   There are reasons mediators might race to do this.  After all, if you would pay (or take) 100 to settle, why should the mediator work harder or later than he must for you to get the deal at 95 (or 105)?  Mediators want to get home for dinner, make their planes, or get to the opera on time, too.

If the mediator offers a better endgame number, and falsely says “this really is it,” watch out.  The mediator who will bear false witness for you will also bear false witness to you, if he believes it serves his interest.  Think it can’t happen?  Guess again.  You never know whether you are the favored or disfavored side.  The mediator may have economic motives of which you are unaware.  The mediator may consciously or subconsciously be biased or prejudiced in favor of, or against, carriers or policyholders in cases like yours.  Or the mediator may just think you are a nicer person and hence more malleable.

What’s the alternative?  Present your endgame number to the other side yourself, and insist they present theirs directly to you.  In both cases, maybe there’s bluffing, maybe there’s not.  But lawyers have well-developed rules and centuries of culture regarding the bluffing that’s ok and the bluffing that isn’t.  You know those rules and that culture.  Operate within them.  Size the other side up.  Ask questions.  Check out their demeanor.  Let them do the same to you.  If you’re good at bluffing (within the rules and culture), maybe you will earn your client a better deal.  If the other side is good at bluffing, maybe they will.  That’s the way negotiations are supposed to work.  Don’t give mediators the power to let inappropriate interventions warp your results.

 

Paul J. Van Osselaer:

All information is valuable.  If a party wants me to know it, I want to hear it.  So how can there be oversharing?  Mediators need information for two reasons.

First, we need to understand parties’ positions and preparation is important.  In most coverage cases, there are lots of documents to read—often including court briefing. You could argue that oversharing at this stage is harmless, but the best submissions are focused even if they are lengthy and have numerous documents.  But full deposition transcripts without excerpt references or documents to which one does not refer distracts a mediator from the focused preparation on the road to understanding.  “Document dumps” may have their place, but mediators don’t need them “just for the record”, “if you’re curious,” or “in case something comes up.”

Second, and more important, is our need for information about negotiation positions as we develop a strategy, which will continue to change as parties share in confidence competing positions about an appropriate settlement. At some point, parties often share what they describe as a final position or their authority.  While knowing that sometimes requires me to be artful when responding to questions in another room about “what it will take” from your room, knowing your view is valuable information—especially if I have a sense of that from all parties. Some mediators may prefer a party not to share authority or a final number.  I just think that such information can sometimes be conveyed too soon. “Oversharing” has a temporal element too.  

I sometimes see myself as a choreographer helping parties dance toward a settlement.  So, especially in multi-party cases, I want to see first how all parties are negotiating before being told by one party that it has only one dance step in mind.  I never ask a party for a bottom line.  For one thing, it can change during the day.  But mediation deals, in part, with the psychology of negotiation. It is more difficult to stretch an expressed position than an unexpressed one.  Besides, if a party does tell me a bottom line, that stretch effort is more successful later in the day than if I’m forced to stretch expressed bottom lines repeatedly during the day.

All information shared with me is valuable. But determining how much and when information is shared can be helpful as a choreographer of the negotiation process.   

Jeff Kichaven is with  Jeff Kichaven Commercial Mediation. Paul J. Van Osselaer is with Van Osselaer Dispute Resolution PLLC.

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