Monday, April 29, 2013

Master of the Game – Watching an Old Pro Lead the Dance at Mediation


Master of the Game – Watching an Old Pro Lead the Dance at Mediation

I’ve worked in the insurance industry for more than 30 years and have developed certain advanced skills at the art of mediation. But today I had the privilege of watching a master of the game bring a day of negotiations to the conclusion we’d had little expectation of achieving. It was a long, tedious battle involving strategic planning, intestinal fortitude, knowing how the deck was stacked, exploiting relationships and patience.  This is not a game or the faint of heart.

Because of confidentiality agreements and discretion, I will not disclose the names of any participants; however, I will state that the negotiators involved are all tough, experienced veterans of high stakes games. And I call it a game because mediation is similar to a chess match or a game of poker.  Which piece do I move and where do I move it? Do I reveal my cards or hold them close to the chest? It is critical to know when to hold them and know when to fold them.

Today the cards were stacked in our favor. But, that is not always the deciding factor in a negotiation. There is a lot of nuance involved in a negotiation process. Today I learned a lot about the significance of long-term relationships and leveraging credibility. The participants in this mediation were all smart, well- prepared, ethical, legally astute individuals with the ability to separate the wheat from the chaff. The case involved allegations of malpractice by litigators. It happens because professionals have bad days or weeks or months or years. We all make mistakes. But sometimes those mistakes cost others a lot of money. In this case, two insurance companies paid a lot of money because of adverse rulings that the insurers believed resulted from the failure of the law firm to act with a reasonable standard of care.

After hours of failing to engage in any meaningful negotiations, the mediator brought the two adversarial chief negotiators together, individuals with a relationship spanning 20 years. They met in a conference room, set forth their positions, the pros and cons, and weighed the evidence. The master had the upper hand and played it beautifully. The parties retreated to their conference rooms. We waited. And waited. And ultimately, an agreement was reached. It was masterful to watch.

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