If you previously thought that the case you have going to court-ordered mediation soon had as much chance of settling as the Chicago Cubs had of winning a World Series, obviously, you now have to reorient your point of view. Actually, with spring training and a new season approaching, baseball game theory and off-season negotiations offer even the slightly game-weary practitioner some fresh approaches to successfully mediating the difficult case.
The Straus Institute for Dispute Resolution at the Pepperdine University School of Law offers various programs at the Malibu, California, campus for those who want to learn more about serving as a mediator or about being a more effective advocate in a mediation. The Pepperdine Dispute Resolution Law Journal offers insightful articles for those who are not able to spend several days in Malibu. One article offers insights from the baseball field and the team owners’ offices. Michael N. Widener, “The Five-Tool Mediator: Game-Theory, Baseball Practices, and Southpaw Scouting,” 12 Pepp. Disp. Resol. L.J. 97 (2012). You don’t have to be a baseball fan, or even a sports fan, to appreciate the lessons offered. Just as in the realm of litigation and mediation, in baseball the potential for controversy is great because of the diversity of the parties to the enterprise. The owners and players, the owners and managers, the owners and unions, the managers and umpires, the players and umpires, the managers and players—all are positioned for conflict at any given time even though they all may have to act cohesively in a team’s quest to win a World Series trophy. In mediation, you may have to align the interests of your client’s decision makers—the board of directors, the chief executive officer, the chief financial officer, the in-house counsel, the insurance carrier’s claims specialist—all of whom may have different points of view on how or why to resolve a dispute.
For meaningful negotiation to occur, Widener notes the parties have to move away from the idea of “wounding” each other and instead move toward the idea of being made “whole” or at least as whole as possible under the circumstances. Id. at 99. Then the parties have to move away from a goal of “winning” and instead move toward “pragmatic” thinking about resolution. Id. at 100. Finally, creation of an atmosphere of “trust” will move the parties closer to a specific outcome being made whole through resolution. Id. at 101.
Widener promotes an emphasis on helping mediators become “inciters and advocates” for a result that solves the problems presented by a case, no matter how large the initial gap between monetary offers and counteroffers. This “help” for mediators spreads out to the lawyers in those mediations, who can help themselves by understanding what the mediator is trying to do and why. First, the mediator and the lawyer should explore, from the perspective of each party, the range of satisfactory outcomes. Widener comments that “some of the most creative problem-solving episodes in American business history have occurred within the confines of professional baseball.” Id. at 103. “A highly contentious and publicly exposed institution, like Major League Baseball, has bred creative problem solving via negotiating processes.” Id. at 104. Widener says that, just as in baseball, in mediation some of “the thorniest controversies are penetrable to solution if properly framed and flexibly approached.” Id.
Widener identifies the “Five-Tool Mediator” as one who displays a versatility not commonly seen, just as does the five-tool baseball position player who excels at hitting for average, hitting for power, running speed, arm strength, and fielding ability. The “tools” for the five-tool mediator to use in the course of a mediation are the ability to deflect “win or lose” thinking, encourage joint problem solving, neutralize negativity and the obstreperous lawyer, facilitate monetary and nonmonetary trades for value, and provide a “resonant settlement narrative” in making the deal. Id. at 104, 114, 116, 121, and 129. Those five tools used deftly will get the job done.
Widener sees the mediator “as an agitator, teasing out the underlying interests of the disputants,” while creating a “trade-friendly environment” and ultimately obtaining “credible commitment” to a workable agreement. Id. at 132–33. In this role, the mediator may have to deal with the lawyer “who wants to prove himself the smartest person in the room” and who grinds every issue raised “to powder” trying to find the win in the “dust of minutiae.” Id. at 107 n.69. In that regard, the mediator may have to deal with the lawyer acting like the passionate baseball manager who gets in the face of an umpire over a disputed call, an event Widener describes as “passion overcoming reason.” Although the client may like this display of belligerence because it makes the lawyer appear to be “formidable, a menacing force,” the mediator, like the baseball umpire, is less likely to be impressed or cowed. Widener advises that throughout the proceedings, mediators should address the principals “at least as intently as their advocates, reflecting the appropriate deference to the real decision makers.” Id. at 119.
Another baseball tactic that can be seen in mediations is akin to “pitcher retaliation.” In baseball, one team’s pitcher plunks a hitter in what appears to be an intended way, as opposed to a mere “wild” pitch. Soon enough, the other team’s pitcher retaliates by throwing “wildly” and appearing to deliberately plunk a batter. There may be nuances as to how this behavior escalates, as well as unwritten rules such as how high or how far inside the “wild” pitch should be thrown. This pitcher retaliation can continue into multiple meetings between the teams during a season, unless umpires intervene, offering advance warnings that the behavior won’t be tolerated further.
Similarly, the mediator may have to deal with parties who match each other’s “moves” dollar for dollar, even while one side’s position is still unreasonably high and the other’s is still unreasonably low, which makes the value of those dollar moves vastly different. At some point, the mediator has to take command and warn that the strategy is not and will not be productive. This warning can then create an atmosphere conducive to “break-through collaboration” to move the case to resolution.
Baseball has even given litigators and mediators the so-called “baseball arbitration.” This form of final-offer arbitration is occasionally suggested by a mediator after a lengthy session when all else has failed in the traditional mediation context and the mediator wants to make one last-ditch attempt at settling a case. By this point, the mediator will presumably have heard enough of the parties’ views, presentations, or arguments about the facts and the law to make an independent reliable evaluation of the settlement value of the case. Basically, upon all involved agreeing to convert the proceedings to a binding process, each side makes its best offer for settlement, and the mediator-turned-arbitrator is empowered to pick the “winner” within a limited time frame of perhaps an hour or two while everyone remains at the site of the proceedings. Invocation of this process can push parties to make one final effort at settlement on their own while the mediator-turned-arbitrator ponders the choices given. And, carried to conclusion, a case gets settled.
What is the takeaway for litigators who want a successful mediated outcome of their thorniest cases? Seek out the five-tool mediator who will put in the advance effort to understand the case presented, and not just shuttle back and forth with dollar offers. Understand what this mediator will be doing and why, every step of the way. Be as flexible as you can be. Try to leave an obstreperous personality outside the proceedings and save it (maybe) for the courtroom. And remember that even the most unexpected thing can happen, and your case can settle, just as the Chicago Cubs can win the biggest game.
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