Positive Negotiations, Part 4: Examples of the “Positional” & “Can-Do” Approaches to Mediation
Here, I provide very simple examples of how the “positional” and the more positive “can do” approaches to mediation can impact negotiations. This follows up on my recent video:
Video Transcript
In my last two videos, I explained how framing “The Problem” everyone faces at a mediation, and focusing on what each side "can do" to prove their claims or defenses at a trial, encourages the parties to move away from “positional” bargaining and toward a more positive negotiation effort. In this video, I am going to provide very simple examples of how the positional approach and the “can do” approach can impact negotiations.
The first example involves a personal injury claim where a defendant drove into the back of a plaintiff’s stationary car. At the mediation, the plaintiff’s attorney opened his presentation by declaring, “this is a clear liability case.” Now on its face, that did not seem to be an unreasonable position to take. But note this was a positional statement. That is, it was the plaintiff’s position that the defendant was in fact liable. Having taken that stance, it would be very difficult for the plaintiff to accept there was any risk, and therefore reason to negotiate, on this issue of liability. Also, whether the defense side questioned liability at this stage or not, they had little incentive to discuss it in the mediation because the plaintiff had effectively foreclosed on that discussion.
Now the ensuing negotiations in this case did not progress very well, not least because the relationship between the plaintiff’s side and the defendant’s carrier became somewhat strained. To be fair, both sides became positional, one regarding liability and the other regarding the scope of damages. Neither side wanted to move far from their respective positions, they were unable to reach a resolution, and the case went to trial. At the trial, the defense attorney presented testimony from his client that suggested she was momentarily, and not unreasonably, distracted by someone else in her car. That was enough to create some degree of Evidentiary Risk for the plaintiff, and unfortunately for him that risk transpired into a no liability verdict for the defendant.
Now these things happen, and even if the parties had discussed this liability evidence at the mediation they may still have chosen to accept the risks of going to trial. And there is nothing wrong with doing that.
But let’s just compare that “clear liability” approach to the one taken in a similar case that took place around the same time. At this other mediation, the plaintiff’s attorney took just a few minutes to lay out - confidently and politely - all the evidence he could present to prove liability. He presented photographs that showed the defendant had a lengthy, unobstructed view of the intersection and the traffic lights as he approached them. Although the defendant had insisted at his deposition that the light ahead of him was green, and he did not expect the car in front of him to be stopped, the plaintiff’s attorney provided his own client’s deposition testimony in which she stated she was stopped and waiting at a red light and he provided a statement from a third party witness who corroborated his client’s testimony. He added photographs of the two cars, and also of the car debris on the roadway, that had been taken shortly after the collision. And he even had timings of the traffic lights which, together with the plaintiff’s testimonial evidence further undermined the defendant’s account. The plaintiff’s attorney did not express any judgment about the defendant’s personal presentation and credibility, but it appeared that may well have been an additional risk for the defense. With all this, and in just a few minutes, the plaintiff’s attorney had laid out clearly and comprehensively what he could do to win his case on liability.
The defense attorney then opened his presentation by acknowledging the evidence his counterpart had compiled and by saying it would be extremely difficult for him to win this case on liability. That was a compliment and, judging by their smiles, both the plaintiff and her attorney appreciated it.
The parties then reached a resolution based on the remaining questions of causation and damages. And those negotiations proceeded very smoothly, and it was clear the initial exchange on the liability issue had built a degree of mutual respect and good will that helped everyone in reaching that resolution. The mediation wrapped up with everyone shaking hands, and everyone seemed pleased with the result.
Now these are very simple, but true examples. Obviously many cases are much more complex than these, and many cases involve tragic events that are very difficult for people to overcome. But if anything, it is even more important in those cases to forgo positional presentations and to focus instead on the evidence each side can present.
As with the first example above, “positional” presentations are really just argument, and they tend to trigger counterargument, and neither focus the parties on the real problem they each face - the risks in having someone else decide their case. Instead, this approach tends to steer negotiations toward positional bargaining and all the negative emotions, if not hurt, that can go along with that.
The “can do” example I gave, however, basically eschews all argument, and instead focuses solely on the best evidence each party can present at a trial. It is effective because it focuses everyone on their respective Evidentiary Risks. It also objectifies, and depersonalizes, the mediation, making negotiations much easier for everyone.
Now, so far I have explained how positive negotiations begin by framing “The Problem” as the shared risk of having someone else resolve the parties’ dispute. They then continue with each side presenting what they "can do" - that is, what best evidence they can present - to prove their claims or defenses. The next step in the process is for the parties to evaluate, or appreciate, the risks of the opposing party’s “can do” evidence - and this is where a mediator can provide considerable assistance. I will discuss how we can work through this appreciation process in my next video.
I look forward to seeing you then. Goodbye.
