Avoiding Hobson’s Choice in Mediation – Five Proven Strategies

What is Hobson’s Choice?

The term “Hobson’s choice” 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, Henry Ford offered his customers of the Model T a famous Hobson’s choice, making it available in any color “so long as it’s 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.

One side’s demand or counter offer of what really is a Hobson’s choice too often sounds the death knell for the mediation, full of comments such as “a complete waste of time,” “a lack of good faith” or “a hidden agenda.”  So how does one avoid the dilemma of a Hobson’s choice?

Five Strategies for Avoiding Hobson’s Choice

1. Remember that it’s the client’s case – not the lawyer’s. At first glance this might seem obvious but the truth is that lawyers may forget that it is the client’s life and future at stake, their occupation, their property and money, their investment, their debt – not the lawyer’s. When a lawyer consistently focuses on the client and their needs and objectives, balanced against the merits (or lack thereof) of the case, better decisions can be made.

Another way of saying this is that form follows function. The litigation strategy should begin and end with an analysis of the client’s needs and goals, individually and collectively with the client. It bears repeating: it is the client’s case.

2. 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. They should be dispassionate in their examination of all of the pertinent information because emotion on their part or the client’s is what often produces a flawed assessment of the risks and benefits.

Negative emotion on the part of the client or the lawyer, or both, contributes to an uncooperative mediation atmosphere and often 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 the client’s case is concerned.

3. 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. Identify and explain to the client their best alternative to a negotiated agreement, as well as their worst alternative to a negotiated agreement. Jointly predict what is most likely to occur in the mediation, next 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.

4. Adhere to the “Partner Principle.” Remember that opposing counsel and their client will be your and your client’s “partners” in the 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 your client’s side, it does mean advocating common sense, courtesy, and professionalism. Here are some tips to encourage courtesy and professionalism:

  • 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.

5. 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. 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.

What Do I Do When Presented with a Hobson’s Choice?

When confronted by a Hobson’s choice in mediation, how should you respond? There are some things that you can do to prevent yourself from being pigeon-holed into a Hobson’s choice.

1. Enlist the aid of the mediator privately in caucus. Ask their thoughts, perspectives and assistance in getting past the blockage.

2. Analyze the additional information and possibilities, if any, with your client and the mediator. Leave no stone unturned when it comes to brainstorming.

3. 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.

4. 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.

5. 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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