California Bar Journal
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California Bar Journal

The State Bar of California


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Front Page - September 1998
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Need info about bar members? Look on the net
Western State law school wins provisional approval for ABA accreditation
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You Need to Know
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From the President - A privilege gone awry
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In defense of opinion
Thomas can think as he chooses
Time to drain the 'BOG'
Let's build a stronger forum
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Letters to the Editor
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Trials Digest
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Legal Tech - 10 reasons to ignore 2000 problem
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New Products & Services
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Law Practice - When mediating, let your imagination run loose
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MCLE Self-Study
The Internet and Global Implications
Self-Assessment Test
MCLE Calendar of Events
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Ethics Byte - 'He said, she said' rule for sex
Attorney disbarred after investing client's assets
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Annual Meeting
Did you know these Monterey Peninsula facts?
Scenic, legal visions on the menu
Four vie to lead embattled State Bar
11 seek five seats on bar board
District 2: Three-way race in capital and environs
District 4: Unopposed in San Francisco, Albers is ready
District 7, Office 1: 3 seek southern seat...
District 7, Office 2: ...and also in Los Angeles...
District 3: Two-way race develops in South, East Bay region


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When mediating, let your imagination run loose
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The next time you are in a mediation, you can do several things to increase your chances of reaching a settlement agreement. The most important of these is to listen. Think of yourself as a detective whose job it is to gather clues about what matters to each person involved, including opposing counsel. Listen as your client tells his or her story during the opening phase, making sure that you understand your client's current goals and priorities.

Listen even harder to what the other side has to say. For the time being, shed any assumptions that you may have about what they want, including what you have read in the pleadings and heard in earlier settlement discussions. Turn off the part of your brain that wants to engage in a silent rebuttal each time the other side speaks, and instead, listen for new information.

If you are defense counsel, do not assume that the only way to meet the plaintiff's needs is to offer money. In most cases, the plaintiff will be open to a settlement package, consisting of cash, as well as other types of compensation which are easier for the defendant to offer. If you are plaintiff's counsel, look for ways in which the other side can provide something of value to your client, at a relatively low cost to them.

Although your mediator may not be able to take a demand for $100,000 and an offer of $10,000 and bludgeon the parties into splitting the difference, experienced mediators know that an intangible, such as an apology or an expression of appreciation, can be worth thousands of dollars.

The next time you are in a mediation, search for intangibles and other non-cash forms of restitution. These often comprise the key to a solution that both sides can live with. If you or your mediator make the mistake of viewing money damages as the only solution, you will inevitably miss possibilities for settlement that would have left both sides much more satisfied.

Mediators look for a piece of the puzzle that we call the "high-low exchange," something that feels great for one side to receive and is easy for the other to give. You can assist your mediator in searching for the high-low exchange.

Think outside the lines. Make a list of as many solutions as you can dream up, including some intangibles, some cash, and some non-cash items. If you focus on finding creative solutions that meet the needs of both sides, you will notice that many more of your cases will settle. More importantly, your clients will view you as a successful problem-solver and turn to you in the future for help in preventing and resolving disputes.

Many times, the possibility of achieving a settlement rests on whether or not someone is creative enough to add value to a cash offer with a non-cash item. These options can include:

A private apology. A heartfelt "I'm sorry" by the defendant can be worth thousands of dollars, which is why good mediators won't proceed with a case where the defendant is not personally present. An insurance adjuster can't offer a credible apology; only the defendant can do that. An apology can be accompanied by an acknowledgement not only of the plaintiff's physical and emotional pain, but also of other losses experienced by the plaintiff as a result of the incident.

A public apology which is designed to set the record straight in front of a larger audience, such as a group of co-workers or family members who were also affected.

Words of appreciation regarding some aspect of a job that was done well, or some well-intended attempt to salvage a botched job.

Information that the defendant has done something to ensure that others won't be similarly inconvenienced, injured or damaged.

A second chance--an opportunity for the defendant to do a better job for the plaintiff the next time or to repair the damage done this time.

A free (you name it) . . . ad in the defendant's publication, year of car washes, month's rent, crown or bridge, shopping cart full of groceries, or year of consulting services.

The extent to which you allow yourself to look beyond traditional legal remedies will determine your usefulness to your clients in a mediation.

Brainstorm with your clients for solutions that might work for both sides, prior to and during the mediation.

Access that creative part of yourself that existed before you entered law school and took the course in remedies.

Let your imagination run loose.

That crazy idea that you are tempted to dismiss as too far out might be the key to a successful settlement package, the missing link that seals the deal by adding value for the plaintiff, at little or no cost to the defendant.

Elizabeth L. Allen is a member of the California bar and co-owner of Coast to Coast Mediation Center in Encinitas. She and her husband, Donald D. Mohr, co-authored "Affordable Justice--how to settle any dispute, including divorce, out of court."