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To be persuasive, we must be believable.
To be believable, we must be credible.
To be credible, we must be truthful. (Edward R. Murrow)
While most cases are settled in the mediation process, a reason cases do not settle in mediation is because the position taken by a party is not well founded in persuasive, believable, credible, or truthful information. While bluffing, raised emotions, fear tactics, and isolation from the other party can be used in facilitated negotiation, such gamesmanship is not as effective as positions based in solid facts.
Depositions taken prior to mediation have a tremendous opportunity to assist in developing a more persuasive position in mediation.
Traditionally, attorneys have been taught the art of deposition taking. The attorney should understand, in advance, what the purpose of the deposition is and structure the taking of the deposition accordingly.
- Is the deponent a party to the lawsuit?
- Is the deposition for summary judgment?
- Is the purpose to gather facts or attack credibility?
- Is the purpose to preserve testimony of an unavailable witness?
- Is the witness an expert?
In this process, the trial attorney is focused on how the deposition will assist in the litigation and trial process. However, knowing that the majority of civil lawsuits will be subject to some form of mediation, skilled trial attorneys must also think about what information, in a deposition, is helpful to the facilitated settlement process of mediation.
Many attorneys still view the mediation process as a type of “free discovery” or as an extension of the discovery process. Viewing discovery opportunities as an adversarial objective has the practical impact of either escalating the tension in the mediation or spending a significant amount of time in mediation calming the adversarial waters in order to move toward productive settlement discussions.
Further, many attorneys pick mediators as “water carriers” to go back and forth between cloistered rooms exchanging offers and counter offers.
Frequently, one or both parties in mediation pronounce their “smoking gun” piece of evidence, but have not shared it with opposing counsel, do not want the evidence revealed, or, worse, have not “tested” the evidence against the reality of the opponent’s response or countervailing evidence. Thus, as a practical matter, the evidence becomes worthless to the negotiation process.
In other words, parties want to negotiate based upon their perception of the facts and outcomes – not the actual, totality of facts or potential outcomes.
“Negotiation is the process we use to satisfy our needs when someone else controls what we want.” (R. Maddox, Successful Negotiation, 1986).
In the 1950s, B.F. Skinner developed the controversial area of “behavioral science.” Despite volumes of research, people, including trial attorneys, do not want to believe that our behavior is predictable in negotiations:
If we use the methods of science in the field of human affairs, we must assume that behavior is lawful and determined. We must expect to discover that what a man does is the result of specifiable conditions and that once these conditions have been discovered, we can anticipate and to some extent determine his actions. This possibility is offensive to many people. It is opposed to a tradition of long standing which regards man as a free agent, whose behavior is the product, not the specifiable antecedent conditions, but of spontaneous inner changes of course…To suggest that we abandon this view is to threaten many cherished beliefs…We simply do not want such a science. (Skinner, Science and Human Behavior, 1953).
Skinner specifically discusses the negotiation process, where negotiation is so commonplace that the people refuse to see or overlook the predictable components. Negotiators act upon a “history of reinforcement,” such as supply of an object or money, comparable values, expectations, personal goals, and time factors. For example, despite the facts and mathematical odds, a gambler continues to gamble due to the reinforcement of an occasional win. (Ibid.)
Psychologist J. Keith Murnighan has extensively researched human behavior and game theory, especially in the negotiation context. As he describes the process, people, regardless of education and intellect, tend to negotiate, “to a point of ignorant bliss.” They insist on being happy with the deal. “What’s strange is that people have a tendency to gather information about a negotiation after rather than before they bargain. At the same time, they often distort what they find.” (Bargaining Games, 1992).
These premises are true in most civil litigation mediations.
In reality, most parties know 80 percent to 90 percent of all the relevant information they are going to know about the case by the time the complaint/petition is filed and answered. In a significant number of cases, discovery is not needed to reach an acceptable settlement, and the time, cost, and emotional investments in the discovery process can actually add to the dispute. Admittedly, however, one piece of missing information can be a game-changer in litigation once discovered or if discovered.
Regardless of the amount of discovery, parties and counsel tend to distort the facts to facilitate their own expectations and goals or even hide or discount relevant facts or data. Perhaps there is a reason the ethics rules prohibit an attorney from promising a specific outcome in a litigated matter – especially a jury trial.
Again, attorneys are trained and conditioned in taking depositions for the adversarial purposes of litigation and trial. The facts become evidence and the win/loss outcome is embedded and respected from those facts. In negotiations, however, parties obfuscate the facts they have painstakingly developed based upon perceived personal goals and outcomes. They ignore what is right in front of them.
Imagine taking a deposition with a portion dedicated to possible and predictable negotiation scenarios (especially a party witness). Remember, a deposition is often not tested through the examination of the opponent, and the attorney plans on tying down predicted trial testimony by use of the deposition. Knowing that the matter will enter into a mediation process and applying the same trial logic to the deposition for the negotiation setting will likely have a similar result in forcing parties and counsel to deal with the factual reality of the case as opposed to the perceived reality that will naturally occur in negotiations.
An effective trial lawyer does not discount facts in a deposition or plan on hiding from those facts in trial. The lawyer ties the witness statements down and then develops additional facts to withstand evidentiary scrutiny and support the claim or defense. The same logic applies to the use of deposition information in mediation.
Questionable things attorneys say about depositions in mediation:
“I’ll clear that up at trial when I question the witness.”
“We have a piece of evidence that blows that testimony out of the water.”
(worse) “But we don’t want them to know it yet.”
“We will have a witness that will testify differently and our witness is more credible.”
“That testimony will never come into evidence over our objection.”
“We know that’s not true.”
“We can’t really settle until we complete discovery.”
“We plan on filing a motion in limine.”
“They can’t get around what this witness testified to in the deposition.”
“Based upon the uncontroverted facts we will likely win on summary judgment.”
Effective things attorney say about deposition in mediation:
“This is what was said in testimony, and how will you get around that?”
“We thought you would rely on that statement, and here is an affidavit from X.”
“If X states this is not about the money, then what non-economic things can we put on the table?”
“The witness was instructed not to answer the question, and we have a pending motion to compel. If that motion is granted, will that change our negotiations?”
“The testimony references two other witnesses and here are their responses in (deposition or affidavit) which do not support the statement.”
“Based upon this testimony, it appears there are specific interests or needs of the party, and how can we work to satisfy those issues?”
“What evidence will support (this statement; these numbers, etc.)?”
“I know the witness believes this statement, but here is a case that shows…”
or, “…here are the model jury instructions on this point…”
Hopefully, what is evident from these examples is that an attorney can use similar trial preparation skills to more effectively use depositions in the mediation process and should avoid the tendency to ignore “the known” and replace it with perceived facts or outcomes.
The heart of mediation is self-determination of the litigation outcome. Most civil cases settle in mediation because the parties are better at controlling the outcome than a judge or jury. Further, oftentimes the basis of settlement is not in the evidentiary facts, and it should be no surprise that parties are motivated toward settlement based upon factors that will not come into evidence or for reasons the party has not even shared with his or her attorney.
As attorneys continue to hone their litigation skills, mediation skills should not be ignored. An attorney who places significant effort into the preparation of the mediation tends to have a better outcome. Cases do settle in mediation. Waiting to fully prepare information until summary judgment or trial is an ineffective strategy if the case ends in mediation. Effective use of depositions and other discovery in the mediation is a skill set that many attorneys are just learning – and more is to be learned by all, including mediators.
About the Author
Henry Cox has been an active mediator and arbitrator since 1994 and has provided over 1000 hours of dispute resolution training. He was President of KBA ADR Section and KCMBA ADR Section. He has been a trial attorney for over 30 years and was included in “Best of the Bar,” KC Business Journal 2002-2011, and Super Lawyers Kansas/Missouri.