Avoiding Hobson’s choice in Mediation: Five Proven Strategies

The decision to mediate was an easy choice. It was faster, more expedient and less expensive then going to trial, and the upcoming mediation seemed to portend a positive result. Our hypothetical 5-year litigator has spent hours reviewing the case, both alone and with his client. He seems to have the “right” amount of client control. Although he hasn’t been before this mediator previously, his colleagues at his law firm assure him of the mediator’s competence. His client seems anxious to settle – within appropriate parameters, of course. The lawyer is prepared, anxious and ready, and he needs to be. A good result from this mediation will guarantee acknowledgement and acclaim for hard work from the “partners that matter” and secure future litigation work from the client.

As he glances at his watch while walking into the 26th floor conference room, he doesn’t realize that both he and his client are about to experience a “Hobson’s Choice” in this mediation. What is this ubiquitous Hobson’s choice? The term has its genesis in Cambridge, England in 1544 –1631, with one Thomas Hobson. To make his living he maintained a livery stable and required that every customer take either the horse nearest the stable door – or none at all. [Similarly, in 1914 Henry Ford offered his customers of the Model T a famous Hobson’s choice, making it available in any color “so long as it is black”]. Although similar to the “take it or leave it” ultimatum, it is more understated and less discernible to the uninitiated. Regrettably, it has become a familiar negotiation tactic by some attorneys in mediations. The purpose of this article is to both expose this ploy and discuss certain strategies and techniques that can be used to either prevent it altogether or minimize its consequences.

Seasoned lawyers as well as their naive clients have faced a Hobson’s choice in mediation when they have been given an apparent free choice by the opposite side, (as it relates to the ultimate resolution), when in reality it was no choice at all for them. [For example, in a situation where a widow in ill health sells an office building primarily so that she can fund her medical and retirement expenses, her opponent’s unwavering insistence on rescission of the property, as opposed to other breach of contract remedies, may very well constitute a Hobson’s choice for the retiree]. One side’s demand or counter offer of what really is a Hobson’s choice too often sounds the death knell for the mediation, replete with a panoply of comments such as “a complete waste of time”, “lack of good faith” and “hidden agenda.

There were five strategies our litigator could have used that would have mitigated the possibility of this occurring or would have avoided it altogether. Bear in mind that what transpires between opponents in mediation is usually a by-product of the quality of their relationship pre-mediation, especially in litigated actions. Said another way, encountering a Hobson’s choice tactic in mediation is less common when the lawyers initiate and litigate the case with the goal of reaching a settlement in mind.

First, remember that it’s the client’s case – not the lawyer’s. At first glance this might seem pedestrian, but the truth is that lawyers may forget that it is the client’s life and future at stake, his occupation, his property and money, his investment, his debt – not the lawyer’s. When a lawyer consistently focuses on the client and his needs and objectives, balanced against the merits or lack thereof of the case, sound litigation decisions are more readily orchestrated. Another way of saying this is that form follows function. If and how the litigation strategy should be employed should begin and end with a white-knuckled analysis of the client’s needs and goals, individually and collectively with the client. The onset of litigation is the time and the place for the ultimate reality-check and perhaps a “come to Mecca” approach. It bears repeating: it is the client’s case.

Second, maintain objectivity. After identifying and understanding a party’s needs and objectives, the lawyer must analyze the facts of the case and relevant case law, statutes, rules and regulations without emotion. He should be dispassionate in his examination of all of the pertinent information because emotion on his part or his client’s is what often produces a flawed assessment of the risks and benefits inherent in the action. It also manifests unreasonable, unrealistic and ludicrous demands for settlement in the mediation, which, in turn, produce equally unrealistic or hostile responses from the other side. Negative emotion on the part of the client or the lawyer, or both, contributes to an uncooperative mediation atmosphere …and leads to the disappointing Hobson’s choice. A lawyer should be passionate about a cause where appropriate, but be able to maintain an objective and unemotional stance where his client’s case is concerned.

Third, develop a “probabilities decision tree” with the client prior to the mediation. Identify the possibilities of disappointing “moves” by your opponents and how to best preempt them, or thwart them, especially if suspicion exists that such will be experienced in the mediation. Identify and explain to the client his BATNA, (best alternative to a negotiated agreement), as well as his WATNA, (worst alternative to a negotiated agreement). Jointly predict what is most likely to occur in the mediation, next likely, marginally likely, and least likely to occur. Achieve a consensus with the client that your part in the mediation’s negotiations will begin with the end in mind and will therefore be positive and constructive – regardless of the other side’s posturing and pretensions.

Fourth, adhere to the “Partner Principle”: remember that opposing counsel and his client will be your and your client’s “partners” in the latent settlement. Treating your opponents, as theoretical partners before and during the mediation will certainly assist in preventing any Hobson’s choices later. It will also help to both facilitate and ensure that the post-settlement obligations of both parties proceed smoothly.

While this does not mean abandoning enthusiastic advocacy of the client’s action, it does mean advocating common sense, courtesy and professionalism, the same qualities one would want a partner to have and extend. For example, exchange the mediation briefs prior to the mediation. Omit the truly confidential information beforehand but exchange them. Extend a reasonable opening demand that can later be substantiated by jury verdicts, reported cases, and other objective and historical criteria. If you make an opening statement in the mediation, do so mindful of the fact that this is not the trial in the case – this is the mediation. Fire and brimstone need not apply. Emphasize your client’s interest in pursuing settlement if at all possible. De-personalize your censure of the other party and his positions. Do not argue – illustrate. A plausible explanation is more effective and accepted than arguments and accusations.

Finally, abide by this simple rule: no hidden agendas. Do not participate in mediation for any other reason other than a good faith undertaking toward resolution. This means avoiding the obvious transgressions: no information gathering or informal discovery, cross-examination and harassment, or bare “compliance” to satisfy a contract or statute or to generate attorney’s fees or churn the case. Any of these motives will be readily apparent to the others, including the mediator. Most importantly, your client’s case will not be served by such misleading practices.

When confronted by a Hobson’s choice in the mediation, how should our hypothetical litigator respond? First, enlist the aid of the mediator privately in caucus. Ask for her thoughts, perspectives and assistance in getting past the blockage. Second, analyze the additional information and possibilities, if any, with your client and the mediator. Leave no stone unturned when it comes to brainstorming. Third, if the other side refuses to shift its position, don’t give up on the mediation and don’t let the client give up. Remain stalwart in your commitment to resolution. Fourth, ask for more time. Even if it means continuing the mediation for a few days or weeks, very often the additional time will provide a more leisurely opportunity for the parties and counsel to examine other options and possibilities for resolution. Remember that statistically, if parties and counsel maintain their efforts toward resolution, as many mediations successfully resolve within weeks or even months following mediation as settle at the mediation itself.

Finally, remember that choices abound at every phase in the life a case, whether litigated or not. Educating and assisting the client in making reasoned and intelligent choices early on and throughout the life of the case will help in avoiding the legacy of Mr. Hobson.

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Does Duality Precede Conflict Resolution?

When I think about what causes “conflict” to occur, I am reminded of the duality that is inherent in our world. For example, duality may be illustrated by day and night, male and female, black and white, positive and negative, front and back, high and low, up and down, sun and moon, summer and winter, and the like. In our “reality” duality is everywhere. Perhaps when we align ourselves too strongly with one of its subsets we are setting ourselves up for inevitable conflict. A key to Conflict Resolution, I think, may be to become educated and flexible.

To illustrate: there are, at long last, some wonderful books on the market that provide ground-breaking insight into the differences between the way that men and women are “wired”. They illustrate (and prove) that men and women, with few exceptions, view the world differently because the totality of their physiology is systemically different. This, in turn, creates differing experiential “information intake” between the sexes and that in itself is “processed” by them differently. The microcosm of the macrocosm here, I think, is that on some very basic levels, men and women see, feel, hear and experience some things very differently. Unless one is armed with this information and has taken some time to internalize it, it’s easy to see why women don’t think men are sensitive enough,and why men think women are too “emotional”. Both paradigms are likely platforms for conflict-filled situations . If, however, one understands and appreciates some of the inherent differences between the sexes then perhaps it becomes possible to forestall or minimize the difficult personal exchange. Maybe what’s important is education (knowledge) and flexibility (willingness to adjust).

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