Q: My company is involved in a contentious and high-stakes intellectual-property dispute with a longtime competitor in our industry. We have been engaged in mediation for several months, thus far without success. In each session, there are dozens of people on each side, perhaps reflecting the high stakes and complex issues of law and technology that are relevant for a full understanding of the matter. For our final session with the mediator, we are considering proposing to the other side (and to the mediator) that we leave the external advisers (primarily outside counsel and technical experts) out of the room. Is this a good idea?
A: I can see three reasons to exclude outside counsel and technical experts from the final round of your mediation.
First, it sounds as though you have spent a lot of time thus far arguing about who is right and who is wrong. Keeping the lawyers and technical experts out of the room for this final effort at mediation will allow you to focus on a problem-solving approach instead. From your description of the process to this point, it seems as if the legal arguments on both sides have been fully fleshed out, and yet you are still at an impasse. The only way to unlock the situation may be to take a creative, interest-based approach. Excluding the outside lawyers and experts will increase the odds that this kind of conversation will occur.
Second, keeping third parties away will allow you to limit the mediation to the key decision makers. Right now, you have “dozens of people on each side,” which is far too many. When the room gets crowded, the conversation tends to be less productive because people may be posturing, speaking to their own constituencies, trying to impress their clients, just plain grandstanding, or all of the above. Once you’ve got only the key decision makers (ideally, three to five people on each side), the conversation can be more candid, direct, and productive. Among other benefits to this approach, trust is more likely among smaller groups than larger groups. As a result, negotiators can float proposals without the kind of spectator effect that exists when the room has more than 20 people in it.
Third, assuming that you are paying your outside counsel and technical experts on an hourly basis, keeping them out of this final session will help minimize the costs of the mediation. I suspect this is a relatively small consideration given that your situation involves “high stakes,” but it is worth noting nonetheless. You might keep experts out of the room but “on call” in case legal or technical questions arise.
For these reasons, then, your proposal to ban outside counsel and technical experts from the final mediation session sounds like a good one. However, there is a risk that the other side will interpret your suggestion as a sign that you feel your legal or technical arguments are weak. Ideally, try floating the idea through a back channel such that it’s “mutually agreed upon” rather than formally proposed by your side. Failing that, be sure to explain your proposal in terms of the factors above (particularly the first two) rather than just throwing it “over the fence” without explanation.
Joseph Flom Professor of Law and Business, Harvard Law School
Douglas Weaver Professor of Business Law, Harvard Business School
Academic editor, Negotiation newsletter
Author, Dealmaking: The New Strategy of
Negotiauctions (Norton, 2011)
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