Legal Negotiation and Mediation

Many legal cases filed are settled before a judge or a jury can render a judgment. In all these contexts, lawyers have to negotiate with other lawyers (and often with their clients present) with an eye toward what is likely to happen if the case actually proceeds to court. Thus, it is not just how effectively both sides present their arguments, all proposals and prospective settlements have to be considered in light of past legal precedent and the likely reactions of judges and juries to the way arguments and evidence are presented. In Broken Benches, lawyers are asked to resolve a personal injury claim. Arbitration is an option. Eazy’s Garage offers a two-party negotiation between an auto mechanic and an unhappy customer over an auto repair bill. Ellsworth v. Ellsworth asks the lawyers for a divorcing couple to work out the terms of the divorce, including alimony, child support and income tax payment. Saving the Last Dance is a mediation training video illustrating the “non-caucus” “mediation through understanding” model. Waltham Construction v. Foster Fuels puts the leadership from two companies and their lawyers in a situation in which they search for a settlement of a vehicle damage case. Springfield OutFest is a complicated case in which groups with very different views and values find themselves fighting (literally) over free speech rights in public spaces and the rights of minority groups to feel safe from personal attacks. Lawyers for the contesting groups and the city government as well as the principals need to find a way to structure their problem-solving efforts.

Recommended Simulations

Broken Benches

Broken Benches by Marjorie Corman Aaron, is a four-person, three-hour mediation and/or arbitration of a personal injury claim, among plaintiff, plaintiff’s lawyer, and counsel for defendant’s insurance company; arbitrator roles include possible plaintiff or defense bias. Roy Thomas, Director of Athletics at Benton College, was at the Benton College gymnasium to attend an intercollegiate wrestling match when he fell ten feet to the gym floor. He injured his elbow, shoulder and back. He was transported to the hospital in an ambulance, hospitalized for a day, and bedridden at home for a while after that. After intensive therapy, Roy’s physical condition was “largely resolved.” A therapist prescribed use of a special exercise device if the affected areas stiffened up. However, Mr. Thomas chose an alternative and expensive treatment method. Mr. Thomas has suffered three relapses in the last year, when he was laid up for a week. He claims difficulty concentrating and sleeping, as well as negative effects on his work and sexual relationships with his wife. Thomas and his wife filed suit against Pro Bleachers for negligent design, manufacture, and installation of the bleachers. Pro Bleachers, through its insurer Pinnacle, has denied liability. Counsel has suggested that after initial negotiation and stalemate, the parties use an ADR procedure to attempt to settle the case. Major lessons include the role of the mediator/ arbitrator in resolving disputes, the importance of BATNA, and issue linkages.

Eazy’s Garage (Lawyers Only)

Eazy’s Garage, by Bruce Patton, is a two-party, two-hour negotiation between lawyers for an auto mechanic and a customer over a disputed auto repair bill. Susan Garfield has a billing dispute with John Eazer, owner of a local garage, over some work done on Garfield’s car. Finding the bill significantly higher than the original informal estimate, Garfield angrily confronted Eazer. Eazer prepared a second bill at an even higher figure. Frustrated, Garfield returned to the garage after closing time with a spare key and drove her car home, without paying anything. Eazer turned to his child-in-law, an attorney, wishing to file a criminal complaint. When phoned, Garfield referred the attorney to her father, a senior partner in a local law firm. Garfield’s father is letting one of his young associates handle the case. Major lessons include relationship dynamics in negotiation, balancing short-term and long-term interests, and the use of objective criteria.

Ellsworth v. Ellsworth

Ellsworth v. Ellsworth, by Frank Sander and William Ury, is a two party, four-hour, multi-issue negotiation between lawyers for a divorcing couple over the terms of the divorce, including alimony, child support, and income tax issues. Bill and Ellen Ellsworth are in the midst of a heated divorce. Mrs. Ellsworth instituted a divorce on the grounds of physical and mental cruelty. Her attorney will meet with Mr. Ellsworth’s attorney to try to settle out-of-court. The issues with which both sides are primarily concerned are those of alimony, child support, medical insurance, ownership of family residence, custody of the children and visitation rights, division of securities and savings, and legal costs. Both parties want a divorce. Major lessons include the importance of BATNA, joint gains, and balancing short-term and long-term interests.

Saving the Last Dance (Video)

Saving the Last Dance by Gary J. Friedman, Jack Himmelstein, and Robert H. Mnookin, available from the Program on Negotiation, demonstrates the “Mediation through Understanding” mediation model as applied to a highly charged business conflict. Focusing on a dispute between a dance company and its recently discharged choreographer, which raises intellectual and employment issues, the video alternates between excerpts from the mediation itself and an educational commentary.

Waltham Construction vs. Foster Fuels

Waltham Construction vs. Foster Fuels by Dwight Golann, is a four party, two-hour mediation between a construction company and a fuel supplier over vehicle damage. Waltham Construction Supply Corporation is a regional supplier of sand, cement, and other construction materials that runs a fleet of 150 heavy vehicles, consisting mainly of dump trucks but including cement mixers and light vehicles. Foster Fuels, Inc., is a family-owned business that supplies diesel fuel, oil, and related products to businesses. For several years, Waltham had bought some of its diesel fuel from Foster. Two years ago, Waltham needed some new antifreeze. It decided to buy the antifreeze from Foster. However, after using the antifreeze in its vehicles, Waltham noticed that the vehicles suffered from corrosion. The day after the first corrosion appeared, Foster’s sales manager came to the Waltham depot to look at the trucks. He remarked that the Foster antifreeze did not look right: it was blue rather than green, the color of the antifreeze that Foster sold for small engines, not large ones. He apologized for having sent over the “wrong antifreeze” and arranged to have the remaining Foster product picked up and replaced with the “right stuff.” Several days after the first reports of corrosion, Foster’s insurer, Lloyds of London, sent an investigator to look at the engines and take the damaged components away for testing. Four months later, Lloyds’ adjuster informed Waltham that it would not take responsibility for the damage because it was not able to find anything wrong with the Foster antifreeze. After an exchange of letters, Waltham sued Foster. Waltham alleged that Foster had been negligent in supplying Waltham with bad antifreeze.

Springfield OutFest

Springfield OutFest, by Kate Harvey, David Kovick, Lawrence Susskind, and Jennifer Brown, is a six-person, four-hour, non-scorable negotiation simulation focused on mediating values-based legal disputes, specifically disputes involving conflicting views and values regarding homosexuality and religious faith. The dispute is between two private organizations and a city over speech rights that will or won’t be granted as part of a permit for a festival on city property. It also explores the role of attorneys representing their clients in negotiated agreements around values-based disputes. Major lessons of this simulation include mediation in values-based disputes and uncovering interests.

Recommended Books

Robert Mnookin, Scott Peppert and Andrew Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes, Harvard University Press, 2004.

David Hoffman, Mediation: A Practice Guide for Mediators, Lawyers, and Other Professionals, MCLE, Inc., 2013.