I recently had a mediation where the concept of “dancing” and “difficult people” collided. What an experience!

The matter was a simple automobile accident in which defendant admitted liability. So, I thought to myself prior to the mediation (and after reading the briefs), this should be easy. I would simply go back and forth between the parties trading monetary amounts as damages – medical expenses, pain and suffering, miscellaneous expenses, etc.

I was wrong! The plaintiff’s attorney turned out to be impolite and a bully. After introducing myself, I outlined the facts and issues as I understood them from her brief, asking if I understood the facts and issues correctly. She said I did. I asked both the attorney and the plaintiff if either would like to share anything with me. Both said “no”. I asked the plaintiff’s attorney what monetary amount did she wished to demand. She responded that as she had obtained a default judgment (that had later been set aside), the defense was aware of the amount, and so she was waiting for a response. When I asked again, she then gave me an amount (which turned out to be higher than the default judgment amount).

I then met with the defendant’s insurance adjuster and counsel and conveyed the demand. Noting that the amount now sought was higher than the default judgment, defense counsel provided me with a counter-proposal which I took back to plaintiff’s counsel.

When I conveyed it to the plaintiff’s attorney, she rejected it, noting that the amount proposed was less than the actual alleged medical expenses. I asked for a counter-demand. The plaintiff’s attorney then informed me that her initial demand was a “take it or leave it” demand. (In essence, she did not want to “dance”.) I told her I would convey this to the defense.

After meeting with the defendant’s insurance adjuster and her counsel for a bit, they decided neither to bid against themselves nor to accede to plaintiff’s counsel’s bullying tactics. So, they requested that I go back and convey that they were not prepared to pay the amount demanded. I did and also mentioned that the defense would be willing to entertain a demand for a lesser amount, but was not prepared at this time to pay the requested amount.

At this point, plaintiff’s counsel was in a dilemma: Does she walk out of the mediation in light of her “take it or leave it” demand or does she stay and lose credibility?

Suddenly, the plaintiff’s attorney wanted to meet with defense counsel. She did not want to leave and lose the opportunity to settle a case. In doing so, she lost credibility and leverage; technically she got out-bullied or out-maneuvered.

In the meeting with defense counsel, plaintiff’s attorney continued to be rude which, thankfully, both defense counsel and I ignored. Neither of us took the bait by responding to her belittling comments. She finally made a demand for an amount that was approximately the same as the amount of the default judgment. When I asked her to explain the amount, i.e. what were each of the sub-totals (i.e., medical expenses, pain and suffering, miscellaneous expenses etc.) and how had she arrived at each subtotal, her demeanor changed. As she engaged her “right” brain by analyzing each subtotal and explaining it, her “left” brain or bullying side disengaged. Not only did it help me understand the case from plaintiff’s perspective, it also helped defense counsel to understand the basis for the demand. Defense counsel could then better explain it to her client – the insurance adjuster – and allow them to justify and document their counter-proposal in the file for audit purposes. The entire tenor of the mediation changed when I asked for the factual basis behind the total amount demanded. It went from emotional to analytical. While plaintiff’s counsel was rude to me once or twice more, I continued to ignore it.

By the end, the bully became meek and accepted the amount that the insurance company was willing to offer even though it was less than her second demand. Miraculously, the matter settled.

There are two morals here:

(1) when negotiating, do not make the initial demand a “take it or leave it” one as it requires either walking out (which is not what one wants to do), or losing face and leverage; and
(2) if someone is being “difficult”, do not accede to it, or take the bait, but rather meet it head on and/or ignore it. More importantly, force the “bully” to “analyze” the issues or facts thereby switching to her “right” brain and away from the “left” brain!

Real life certainly does add flavor to what articles and trainers talk about!

… Just something to think about!

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by Phyllis Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com