In this series principal Rodney A. Max discusses "breaking impasse" as it relates to closing the deal. In complex cases (including mass torts and class actions), there are four aspects to the opportunity of breaking impasse in closing the deal. The following is Part I: Calling on the Leadership.
It is not unusual in complex cases for each room to have a number of participants—both lawyers and non-lawyers. Among the lawyers there may be in-house counsel, as well as, outside counsel; there may be referral attorneys, as well as, litigating attorneys. As for the parties there may be the Plaintiff, as well as, Plaintiff’s family (sometimes to include extended family). On the Defendant’s side there may be corporate representatives, as well as, insurance coverage representatives. Among insurance representatives there may be primary carriers, as well as, excess carriers. Speaking to a particular side involves a multitude of personalities, interests, and perhaps negotiating strategies.
The ability to call on the leadership of each room is a matter of timing, as well as,identification. Who is the right person to call on at that right time to meet with the right representative from the other side? Sometimes this requires more than one person from each side.
In a case where two companies were suing one another (one on a promissory note and the other on fraud) each room had a combination of corporate representatives, in-house counsel and outside counsel. It was clear that the formal position of the parties would not and could not achieve resolution. (Each side was insisting on the flow of money going to them not from them). The ability to break impasse was the ability to bring the corporate representatives together to make a business decision as opposed to a litigating decision. This could not occur the first thing in the morning nor after opening session. In fact, it could not occur until both sides had frustrated their formal negotiating positions and reached a point where their negotiating strategy had, in essence, failed with neither party willing to cross the demarcation line of zero. The opportunity of bringing the corporate representatives into a room (with the agreement of their counsel—both in-house and outside) was the key to the ultimate resolution. In a private session, the parties agreed to enter into a buy-sell arrangement of the outstanding minority shares which one party had of the other parties’ company. The note was forgiven and the claim for fraud was dismissed. The case was resolved.
In a case where sixty-three property owners were being sued for wrongful death and personal injury of several workers, each room had a multitude of parties, party representatives, and/or attorneys. Prior to the mediation leaders from both rooms emerged among counsel so as to be able to look for direction from that counsel during various stages of the negotiation. By establishing this leadership prior to the mediation, the parties knew who the leadership was and the mediator knew who the “go to” persons were so that after a multiple day mediation, all claims of all parties were resolved against all Defendants.
There are circumstances where insurance representatives may have conflicting interests with corporate representatives, or where insurance representatives have conflicting interests among themselves (especially where primary and excess carriers have different interests to protect). So too in a Plaintiff’s room, there may be differing interests between the Plaintiff’s referral attorney, the litigating attorney, and a guardian ad litem. In each case, calling on leadership at the right time avoids divisiveness and gets direction where impasse may otherwise occur.
Once that leadership is identified and can be brought together from the respective sides, separate or joint dialogue can occur to (1) rebuild trust, (2) define goals, and (3) find a new direction to the negotiation that is mutually acceptable.
In Part II of Breaking Impasse
as it relates to closing the deal, I will discuss court direction.
Rodney A. Max is a principal mediator at the firm of Upchurch, Watson, White and Max. For more information visit Rodney A. Max’s biography.