by Robert J. Conover (as it appeared in Claims magazine, December 2000)
The most effective negotiators at MSC’s and Mediations are master poker players.
Negotiating at a MSC or Mediation is much like playing seven-card stud. The players are knavery, clever at posturing, and skillful at betting (negotiating). They don’t trust the dealer (judge or mediator). They believe in their own hand, and are skeptical of the opponents’. They question their strategy between bets. They grow emotionally attached to their cards. Talks turn intense. Bluffing is suspected.
Unlike negotiating at the claims stage, cases in post-discovery litigation have different dynamics. The parties have invested significant time and money, and expectations are higher. The attorneys have committed themselves to a predicted trial outcome and value range. Prejudices and opinions have been heatedly exchanged. Egos and reputations are at risk. The stakes are high. All the elements of a great poker game are present, yet seldom is great poker played.
Most adjusters and attorneys are good, but they’re not master poker players. Masters possess considerable experience, patience, perception, and discipline. Most players don’t have, or are unwilling to invest, the time to perfect these qualities. Many don’t recognize the need. Unless already practicing these virtues, they seldom appreciate the fine art, cunning, and finesse of the master’s craft, so shrewdly executed, it is scarcely noticed.
There are many differences in technique that give the master player the edge. To begin with, good players seldom wear a poker face. In short order the master will know which players will go the distance, and which will fold early. By her words and actions, the inscrutable master conveys a carefully constructed image.
As the players come to the table, good players keenly observe and draw impressions of the plaintiff and plaintiff’s attorney. The master studies every person present, even, if not especially, the dealer. He observes intently, listens acutely, and evaluates constantly the motivation behind the words and body language. Further, the gathered information is retained for future games.
As the deal begins, when posturing is a part of the game, good players eloquently play the cards that argue the strength of their hand. The master’s eloquence, however, is in the art of listening. The master’s approach is not rehearsed, but is instinctively drafted as the deal unfolds. The master will often refrain from showing her full strength, reserving a few cards that will have greater impact after the betting has commenced.
Good players make their opening bet (offer) based on a careful evaluation of where they want the betting to stop. The master bases his opening bet on much subtler criteria, such as how it will be perceived by the other players and dealer, and what their likely responses will be. Good players anticipate the response from plaintiff player; masters anticipate the response from all players. Good players think not only of their current bet, but their next bet as well. The master might be three or four bets ahead.
Good players keep certain numbers in mind, such as the potential size of a jury pot, the size of the pot being played, the cost of continuing the game, and the number of chips available to play. The master retains a broad array of numbers, such as the prospective profit and loses to the winners and losers, the exact sequence of the bets, the escalation of bets by each player, and many other seemingly unimportant numbers that may “tip the hand” of the other players.
Good players are always ready to bluff (threaten trial) and know the timing and words to employ it. The master finesses the bluff into every move. Resourceful betting, potent posturing, projected integrity, and a poker face have conveyed the bluff without ever having to state it, making its insidious presence more powerfully felt.
There is much more to the master’s skills than I can convey here. The point is, if you want to be a master player in the game of mediation negotiation, you must study the fine art of poker playing, and have the patience and presence to effectively employ those skills when playing the game.
Robert J. Conover
30 Years in Claims and Litigation Management
Independent Mediation Negotiator & Claims Representative
805/473-1206 -- Central & Northern California -- rjcono@aol.com
