2 PerspectivesMarch 1, 2010

What Will She Tell Her Husband?

When was the last time you were in mediation and the other side just didn’t “get it”? You have what you need to win the case — documents that demonstrate the fraud, confirm the negligence, or whatever — but the other side just won’t go away. You offer a few dollars so you’ll be done by lunch, but she still won’t give in. Why not?

Why won’t the other side capitulate? The answer isn’t in the conference room, and it’s not in the documents. The reason your case won’t settle — at least not just yet — may be at a table far away.

The Smartest Guy at His Table That Night

I have given a lot of thought lately to a cluster of closely related negotiation concepts, each of which ultimately leads to the kitchen table:

• managing expectations;
• acceptance time;
• saving face; and
• the irrevocable offer.

Years ago a senior trial lawyer I really admire told me a story about how he positions technology cases for the jury. It went something like:

Tonight that guy on the front row is going to be the smartest person at his dinner table. No matter what else went on with his family today, he will explain to them — in great detail — how a telephone number is called up in a database or what happens behind the scenes when you swipe your credit card at the Wal-Mart or what “just in time” inventory management means to the local bookstore.

Everyone in your case, from the opposing party to her lawyer to the judge, is a real person who talks to someone — a husband, a friend, her dad — about her day when it’s over. The discussion at her dinner table matters.

“What will she tell her husband?”

When was the last time you admitted you had a bad case at home? No one wants to, and it’s especially true in litigation. Someone was mad enough about how they were treated to file a lawsuit, and they aren’t going to drop it without a good story and the time to tell it. That’s why your surprise attack on the merits at mediation can’t succeed — it’s often better, psychologically if not financially, for the other side to lose in court and blame it on the lawyers than admit defeat at home.

Instead, if you want to settle today, ask yourself what your opponent will tell her husband, her friend, or her dad about her settlement and how she got there — because she won’t settle without dinnertime talking points. A few ways you might get there include:

1. Advance notice of your position through a credible mediation brief, a clear pleading, or a phone call to her lawyer so your opponent has time to manage expectations at home;
2. An irrevocable offer, such as a Rule 68 offer, so she has time to carefully discuss the offer with her family before it expires;
3. An offer to settle halfway, discussed here and here and here, settling much of the case while moving forward on a few issues so she gets her (limited) day in court; or
4. A settlement that allows her to save face, like a donation to charity or a payment for some disputed severance time that she can talk about when she gets home.

At your next mediation, think about your opponent’s dinner conversation and the talking points you’re helping her write. You’ll be glad you did.

Categories: Communication,Mediation,Negotiation

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