The Illinois State Bar Association (ISBA) recently published an article on the art of negotiating online. The ISBA Journal is near and dear to my heart since they published several articles I wrote much earlier in my career. Members can access the article online, or if you are not a member, I have highlighted in this blog what I think are some important takeaways.
1. Online negotiations can be successful.
I work as a mediator so I’m going to focus on mediation negotiations online. If anything, ZOOM has taught us is that online negotiations can be so productive–I just finished a multi-million dollar mediation with lawyers from around the world. We successfully mediated the case and signed the deal before 6:00 PM that night. Think about the time and money we saved by hunkering down in our offices and committing the day to serious negotiations.
One important element in our success was an exchange of information before the mediation. Both sides exchanged mediation statements with one another a few weeks before the mediation. In some practice areas this is heresy, but I want to encourage you to give this tactic a second thought. If you want the other side to seriously evaluate your position you have to give them your strongest points. In a mediation statement you can lay those out in a cogent manner, perhaps attach even an exhibit or two and ensure that the other side realizes the seriousness and principles behind your position.
If you are plaintiff, it allows defendant to adequately assess the value of your case and make sure the correct insurance adjusters are present. For example, I had a case in which plaintiff dramatically increased the demand at the mediation and defendant was caught flatfooted. They did not have the excess insurance carrier present at the mediation, and we were hampered in moving forward. If you are on the defense, an exchange allows plaintiff to realize your strong issues and prepare their client accordingly.
2. Determine whether an ongoing relationship between the parties exists.
I have mediated disputes between family members over disposition of the family farm of course, there is an ongoing relationship between these family members. Contrast this with two drivers in an automobile accident who will have no future relationship. ZOOM can be clumsy so go the extra mile to preserving that ongoing relationship.
3. Allow the small talk to occur naturally online.
If we were mediating in person there would be small talk about the weather, the commute into the city and maybe even the Cardinal baseball team results from the night before. Online negotiations that start with small talk can help put everyone at ease and put a personality together with the talking head on the screen. Be patient with your mediator as she tries to establish those relationships through small talk. She knows these will improve our chances of success.
4. Signing the Settlement Agreement.
If we were in person, the parties would sign a written settlement agreement. However, during a ZOOM mediation there must be a written memorialization of the agreement, but how do we sign this? Adobe Reader has some signature functions; DocuSign works as well. Try something as simple as typing the names of the parties or maybe the lawyers onto the settlement agreement. Warning– check your state laws for validity of electronic signatures before relying on typed signatures. Many times, the attorneys follow up with an email to me and each other confirming their client’s assent to the settlement agreement.
Online negotiations present some strange problems but also some wonderful solutions. I have conducted over 100 zoom mediations since the pandemic began and I would love to act as a mediator for you call Mediator KIM L. KIRN at 314 231-4642.