A Newly-Minted Mediator’s Reflections On Negotiation Training

I’ve just completed a mediator certification program and now I, like hundreds if not thousands of other lawyers around Los Angeles County, am a certified mediator. My name will be appearing soon on computer-generated lists of people who handle various kinds of cases and I will have to volunteer three hours a month to mediate some local cases.

In fact, the mediation school is excellent training for a litigator. There are some very good insights into how negotiations work, both from a technical and psychological perspective. I have never had a negotiation that proceeded along the lines described as a “traditional” sort of haggle, but I have had several that proceeded along the general pattern — and I suspect I could have had better results, or at least had more control of the situation, if I’d understood not only the formal framework but more importantly, how the particular negotiation I was in had deviated from that framework. For that alone, the training was well worth my time.

Now, the real value here is in the fact that as a mediator, I can charge a premium rate, and the volunteer mediations are the manner in which those services are advertised. The next challenge will be to create a series of appropriate documents and procedures to get this new part of the practice set up properly.

Still unanswered, however, is the question of how to deal with the guy who says “It is not enough that I win. You must lose.” I think there are a lot of people out there who are strangers to confrontation, people who have avoided confrontation all their lives. When it comes and smacks them in the face and they can no longer avoid it, they have no other way to deal with it other than to completely demonize their opponent, no way to understand the conflict other than as a deeply personal and potentially bloody and life-threatening fight. They turn into sadists. I still don’t know, and no one could tell me, how to get a sadist to compromise.

And an otherwise-excellent program was marred by the suggestion that resolution of conflict is facilitated by getting the parties to talk directly to one another, to explain how they are hurting as a result of the dispute and the resulting conflict — the idea that this will make fundamentally good people see one another as fundamentally good, build rapport and empathy, and make them more likely to want to compromise and work with one another. I scoff at this idea because far too often, I have seen people scoff at their adversary’s pain. They want their adversary to be hurt, they like it. For many people — not necessarily even the ones who turn sadistic — measuring their adversary’s discomfort is an indication to them of their own strength, their own progress towards realizing their own objectives.

Figuring out how to break through this is something that I rather strongly suspect will take experience rather than education. In the meantime, a good nuts-and-bolts training on what happens most of the time when people haggle is a very good background. (You’d think they would teach more of this sort of thing in law school, but no; all too often law students wind up in useless specialty classes like “The Law Of Prime Numbers” or “Intermediate Arboreal Law.”)

I suspect a good number of the cases I’ll have to handle, at least on a volunteer basis, will be soft tissue personal injury cases. Those are generally not hugely emotional and are driven not by the parties but rather by the attorneys and insurance adjusters. That’s a process of getting them to first make reasonable offers favorable to themselves and then working through the dance of direct numbers negotiation, which is really an exercise in patience and in discerning between real and feigned frustration on the part of the negotiators.

Seriously, I think most lawyers should take a class like this and the reason they don’t is hubris. Very few of us have actually done this. None of us are so good at what we do that we can’t benefit from learning other people’s perspectives. None of us are such good negotiators that an abstract understanding of how negotiation works would not be profitable. And if you think you’re already so good at it that the class would be a waste of your time, then chances are very good that for a good part of your career, you’ve been leaving a lot more money on the table than you think.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.