Hon. Kay M. Hanlon, (Ret.), senior mediator and arbitrator at ADR Systems, recently presented on alternative negotiation techniques and Game Theory’s applications in settlement negotiations for the Illinois Trial Lawyers Association’s Diversity & Inclusion Leadership Bootcamp CLE program on January 20, 2022.
“In Game Theory, mediation typifies the ‘non-zero-sum’ game,” said Judge Hanlon. “Parties only lose when they fail to achieve a settlement or refuse to negotiate at all. Parties win by maneuvering through the ‘conflict and cooperation’ phases of negotiations as pragmatic decision-makers and, ultimately, by agreeing on a settlement.”
Counsel can better navigate the negotiation process by mindfully practicing a variety of techniques, according to Judge Hanlon.
- Preparation: Support demands with solid facts and case law. Submit factual pretrial or pre-mediation memoranda
- Assert Respectfully: Avoid criticism of opposing counsel or the Judge hearing your motions; remember that the process is not personal
- Control Emotions: There is no reason for outbursts or hysteria; no jury is in the box
- Be Patient: Remember that this is a process. Your client or opposing counsel or client may need the back-and-forth negotiation to settle the case. This is the “day in court” for many involved
- Be willing to negotiate with an open mind and be confident in your case and skills without drawing a line in the sand
Some attorneys, legal scholars and court officials have questioned whether implicit biases subtly disadvantage women and members of minority groups in legal proceedings and, even, the non-zero-sum dynamics of negotiations. Some courts have even implemented measures to circumvent such effects, including jury instructions on implicit biases and implicit bias training for attorneys, judges and court personnel. Knowledge of the negotiation process and the very nature of mediation – as a collaborative, party-driven process – however, seem to ameliorate the effect of any such risks, according to recent scholarship. Likewise, research has indicated no significant difference between results achieved by women and minority claimants compared to those by others in adjudicated and mediated matters.
Even so, mediators should remain mindful of implicit biases within interpersonal exchanges before and during mediation proceedings. Mediators may need to address any possible gender-related power imbalance, for example, to cultivate a civil, fair forum for negotiation.
“The mediator takes an active role in this, clarifying process, facilitating fair negotiations as a neutral, listening and attending to the interests of both sides, proposing reasoned settlement options and encouraging civility by their own example,” said Judge Hanlon. “Once the proceeding is finished, parties can leave knowing their negotiations were procedurally fair and will be again if they need a second session.”
Hon. Kay M. Hanlon, (Ret.) has expertise in resolving personal injury actions such as medical malpractice, mass torts and product liability. Counsel who appeared before Judge Hanlon find her to be perpetually prepared, ready to listen attentively.
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