Shestowsky’s Study Supports Value of Lawyers’ Early Education of Clients About Their Procedural Options

This post summarizes parts of Donna Shestowsky’s study on parties’ expectations about the process used to resolve their cases. She writes, “Our findings suggest the value of educating litigants about legal procedures, helping them develop realistic expectations for what each procedure can entail for their situation, and helping them make informed decisions about whether to attend their procedures. . . . Our results suggest how important it is for lawyers to educate their clients about each of their procedural options. Effective education and managing client expectations might lead to the formation of attitudes that reflect realistic expectations, and, in turn, lead to post-resolution assessments that reflect early impressions.

WHAT’S A BOTTOM LINE?

During the life cycle of a case, lawyers start with vague and tentative bottom lines, and they develop more precise and confident bottom lines as the case progresses. People typically are not candid with others – and sometimes even with themselves – about their real walkaway point (or “trip wire”) for ending negotiations. Indeed, “bottom line” claims are standard negotiation gambits using wildly inflated numbers that experienced negotiators and mediators routinely assume to be false

BATNAs and the Emotional Pains from “Positional Negotiation

This post describes the role of BATNAs in the “positional negotiation” game, pains that it causes people in many roles, and some remedies to avoid and reduce these pains. In this “game,” each side seeks to maximize its outcome by starting with extreme positions and then making a series of counteroffers. Each side concocts stories justifying their positions but everyone knows that these stories are exaggerations at best and fibs at worst. If you gave truth serum to the lawyers, they would admit that they don’t really believe their own arguments. But they do it because “everybody does it.” It’s expected. It’s just “puffing.” They would feel like suckers if they didn’t do it. They would see themselves as bad lawyers, failing to protect their clients. They fear losing financial rewards and professional opportunities if they don’t get good results for clients. But many don’t feel good about it. The process wears on some mediators who stage manage these dramas. Parties suffer the worst. Even when lawyers explain the game, clients often anchor their expectations on the negotiation positions. With each new concession, they feel a new loss – an unprincipled loss for no good reason. In the end, they swallow a bitter pill when they settle for a much worse outcome than they expected. People can reduce or avoid pains of positional bargaining by using what I called “ordinary legal negotiation,” negotiating to change the game, and using wise assessment and communication techniques

UNDERSTANDING ACTUAL DR PRACTICE AND COMMUNICATING CLEARLY ABOUT IT

This post recommends we develop a common language of dispute resolution and increasingly use qualitative research methods

Real Mediation Systems to Help Parties and Mediators Achieve Their Goals

This article argues that it is time for a paradigm shift in our current general mediation theory because of numerous problems. Our current theory is incomplete at best and seriously misleading at worst. The traditional mediation models are oversimplified, poorly mapping onto the reality of practice. They combine multiple elements that are not necessarily correlated. Many practitioners ignore them because they are confusing or not helpful. People do not understand the theoretical meanings because the terms are not consistent with commonly understood language. Arguments about what is or is not real or good mediation have spawned unhelpful ideological divisions in the field