Come on, we love the ‘hardballer’…“I made him an offer he couldn’t refuse”…”I’ll be back”…and my personal favorite, “A census taker once tried to test me. I ate his liver with some fava beans and a nice Chianti." Perhaps Clint was the best hardballer of them all… “You’ve got to ask yourself one question. ‘Do I feel lucky’ Well, do you, punk?” and of course, ”Go ahead, make my day.” Ya, baby! Nothing like an ‘in your face’ hardball moment on the big screen!
Come on, we love the ‘hardballer’…“I made him an offer he couldn’t refuse”…”I’ll be back”…and my personal favorite, “A census taker once tried to test me. I ate his liver with some fava beans and a nice Chianti." Perhaps Clint was the best hardballer of them all… “You’ve got to ask yourself one question. ‘Do I feel lucky’ Well, do you, punk?” and of course, ”Go ahead, make my day.” Ya, baby! Nothing like an ‘in your face’ hardball moment on the big screen!
So, I’m sitting around wondering about the vagaries of the mediation process (hey, I’m retired) and I get to thinking about playing hardball in mediation. And what is the $64,000 question (given inflation it should be the $664,000 question)? Why do attorneys ever play hardball at all? It is not like it’s the golden key to the Kingdom of Resolution. Sometimes appropriate, but far more often than not it is incendiary and counterproductive. So why? I have a few theories.
Theory One: “You don't understand! I could've had class. I could've been a contender.”
Some play hardball because they just don’t feel as adequate without the tough persona. Some players walk into a mediation with a small chip on their shoulder. It’s as if nice and polite were signs of weakness. The hardball is pitched right away, I mean like within the first 10 minutes. “If your client doesn’t keep his mouth shut I will shut him and this whole mediation down faster than a brothel in Vatican City.” This attorney has almost put professionalism and civility out of reach for the rest of the mediation. I just cannot help but ask myself ‘for what are you compensating? What are you so unsure of?’ Hey, you may suspect that the other side is coming to the mediation in bad faith, or is going to make things miserable, and you may be right. But the ‘first strike’ response above tells me volumes about what you think of yourself and how you respond to tension and trying circumstances. It is not a good beginning. It hardly ever gets better from there.
Theory Two: “I'm as mad as hell, and I'm not going to take this anymore!"
It is not uncommon to feel good at the start of the mediation, okay after about two hours, so-so after four hours, and downright ornery about hour six. Kiss the deodorant goodbye, even if it does say “24-hour formula”. At this point, even the nicest of intentioned players can find themselves losing it. “I have been countering for the past five hours. This is getting us nowhere. I have not heard one good reason for their position. Tell those jerks I am through. Jason (must be the adjuster), let’s go. I don’t care what you tell them!” This player is not compensating for something; he or she has simply run out of gas. But the result can be disastrous, or certainly a major waste of time as the mediator attempts to put Humpty Dumpty back together again. No telling how close the negotiations were getting. This is a right turn onto the road to perdition. Never, ever let your emotions get a foothold in the process. Emotional conviction- yes; emotional embroilment and its “Hasta la vista, baby”
Theory Three: “All right, Mr. DeMille. I am ready for my close up.”
Clearly, some attorneys are playing to their client or to the adjuster. They feel that neither will think well of them if they appear to be playing along, getting along, following along. Heaven help us should they actually concede a point or in any way suggest a legitimate argument within the other side’s position. They are neither incomplete nor tired. In fact, they are very much ready to take charge, take the stage…all for the purpose of acting out for the client. ‘My clients hire me to be their champion. I will give them a good show.’ These attorneys need a lot of attention outside the presence of their client. Unless they truly appreciate the acting job they are giving and accept it for what it is worth, they will miss opportunity after opportunity to reach that all important consensus needed to reach an end point. They will remove themselves from being a positive factor in resolution and will simply be reduced to a stumbling block over which the mediator must step.
Theory Four: “Get away from her, you bitch!”
This player has arrived ready to negotiate and is feeling pretty good about herself. She is in relatively good health and not likely to succumb to sixth hour fatigue. She also feels that being a counselor, not a thespian, best serves her client. Everything is going fairly well. She has even talked her client into making some important concessions, when without warning, the other side throws that hardball, fast and up toward the chin. Brushed back from the plate by the totally unexpected turn of events, the lawyer feels betrayed. This came out of nowhere. “You talking to me?” Bat in hand she walks out towards the mound. The attorney has decided to respond in kind, and this is the one instance where it may be very appropriate to do so. While calling out the opponent’s abrupt change in behavior, or totally ignoring it, are two more options, a tough hardball counter is a strategic decision that should be carefully weighed.
Theory Five: Well, there is no theory five, or is there? “Quid pro quo, Clarice. Quid pro quo.”
Some people hold to certain ‘truths,’ one being that hardball is the only way to conduct mediation. This is philosophical, a true professional choice based on experience and expertise. ‘I always go into a mediation locked and loaded. Doesn’t matter what the circumstances. That is how I best can control the outcome.’ I respectively submit that any attorney locked into a persona or strategy before the mediation begins is going to do anything but control the outcome. The outcome could not be more in doubt when a fixed and regimented personality walks through the door. Unable to mutate with the circumstances, this attorney is sometimes the bridge and sometimes the brick wall. The circumstances do not penetrate, and the mediator is working overtime on how to make this personality work in this particular case. It’s a crap shoot!
And now comes that ‘Ah, hah’ moment. “Soylent Green is people!” The hardballers, whenever they reveal themselves, provide a good deal about their personality, the case, and/or the client. The trick is figuring out which of the above theories is in play. Are we dealing with a person unsure of his or her own ability, perhaps new to the law or to mediation? Is this person unsure of the case, or dealing with a weakness they are praying is not yet known or will not be exposed? Is this person beaten down and ready to be put away. Are they more likely to grab your next demand/offer just to be done? Are they playing to the audience but in fact their position is more aligned with resolution than seems apparent? Has this person been offended? Are we dealing with an emotional response or a strategic one? Lots going on here! There are many possible scenarios. That is what makes mediation so interesting and challenging. You just hope it ends with Humphrey Bogart and Claude Rains walking into the mist, Bogie hopefully saying, “Louis, I think this is the beginning of a beautiful friendship.”
See you at the mediation. I’ll bring the popcorn.