From John DeGroote’s Settlement Perspectives
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.
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:
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.
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:
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.
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