Please allow me to introduce myself

Allow Me To Introduce Myself

Some rock lyrics you forget and some seem to stick in your mind forever. The first two lines of the Stones' "Sympathy for the Devil" are in the latter, unforgettable, category: "Please allow me to introduce myself. I'm a man of wealth and taste."

Talk about making an indelible first impression -- who wouldn't want to be introduced as a person of wealth and taste?

In life and in mediation, first impressions are important, and as the old saying goes, you only get one chance to make a first impression. Some recent mediation experiences made me think about how first impressions influence success at settling cases.

Just before I wrote this article, I was reading a detailed brief from the plaintiff in a commercial dispute. It was well-written, hit all the major points, was supported by exhibits and ended with a concise statement of what the plaintiff wanted and expected from the mediation. I was persuaded from the brief that the plaintiff had a solid case and I was looking forward to hearing the other side of the story (any experienced mediator or arbitrator will tell you that no matter how persuasive the arguments are from one party you can never assume anything until you hear the counter-arguments and see the countervailing evidence). I was also impressed by the professionalism of the presentation and I concluded that the plaintiff business entity and its lawyer would be well-prepared if a trial ever took place and would likely do well in the trial itself. Disappointingly, at 7:00 p.m. on the evening before the mediation, I had not yet received a brief from the defense (I eventually received an overly long -- 50 pages -- brief the next morning, 30 minutes before the start of the mediation).

What impact did this have on my thinking about the case? My visceral reaction was that the plaintiff had already created a good first impression and the defense was going to have to work hard to change it. Even though I wasn't deciding the case, the favorable first impression from the plaintiff's brief and the unfavorable first impression from the defendant's late brief was a negative factor for the defendant during the mediation. Like most mediators who don't receive defense briefs, or receive them late, I was thinking various thoughts about the defense position, some of which were: Are the defense lawyers incompetent? Are they unsophisticated (not understanding the impact of failing to send a timely brief to the mediator)? Are they uncaring? Are they not serious about the mediation process, e.g., just going through the motions for some other reason than trying to actually settle the case?

In short, to use an old expression, they were behind the eight-ball from the start because they made a bad first impression.

In another recent case involving a complex series of financial transactions, I asked the plaintiff's lawyer before the mediation if the plaintiff (an extremely wealthy and sophisticated business person) would be physically present at the mediation because I knew that unless he was there, the case had no hope of settling. I was assured that the plaintiff took the case seriously and would be there in person. And that happened.

Well, sort of. The plaintiff was there in person, but not until 1:00 p.m. for a mediation that started at 10:00 a.m.

What first impression did this create for me and for the defense team? Predictably, it enraged the defendants and their lawyers, who immediately started yelling. "This is a waste of time. He doesn't respect you. He has no respect for us. He has no respect for the process. He's a rich jerk who thinks that his money gives him a hall pass for everything." And, of course, it took a great deal of time and effort to try get everyone to calm down and re-focus on the issues -- time that could have been better spent on discussing resolution. When the plaintiff finally showed up, much as I was looking forward to meeting him and hearing his side of the story directly, I had to take a deep breath and contain my own annoyance at the fact that he was three hours late (by the way, although he was polite and gracious during the mediation, he never offered an apology or explanation for being three hours late).

The case ultimately settled, and somewhat surprisingly, everyone felt very good about the outcome, with lots of shaking of hands, broad smiles and expressions of good will, but it sure took a lot of time and effort to transform the negative first impression into a positive result.

In a third case involving a construction dispute I received extensive briefs from both sides, replete with hundreds of pages of exhibits, bar charts, damage calculations and a detailed history of the tortured relationship between the many parties and all the problems on what was a multi-million dollar project. Everyone was making a great first impression and I was looking forward to dealing with some top-notch lawyers and dealing with interesting and challenging legal and factual issues. At least I felt that way until I got to a certain point in one party's brief (let's call that party the developer) where the lawyer postulated an interesting, but quite novel, legal theory. I could use another word instead of "interesting" or "novel," but this is a family newspaper and using language better suited to describe the result of bovine excretory functions is not appropriate. I leave it to you to guess what the word would be. My impression of the lawyer's ability to rationally analyze the case headed straight downhill and I resigned myself to what was now likely to be a difficult day.

The next day, at the mediation, I met the author of the novel legal theory. To provide some context, this was a case where everyone knew that the developer was going to have to write a big check to the other party if the case was going to settle. Because this was so clear, I decided to cut directly to the chase and ask how much money the developer wanted to offer to get the negotiations started. To my surprise (a mild understatement), the lawyer for the developer said, "We want them to pay us $5 million." I thought to myself: "this is going to be a long, long day." If there's such a thing as a "second first impression," this lawyer had just created one, and not in a good way.

What's the take-away from these experiences? First, not sending a timely, well-written brief creates a bad first impression. Second, not showing up on time creates a bad first impression. Third, making legal arguments that are facially unsupportable creates a bad first impression. Fourth, creating a bad first impression doesn't help your client's position in mediation. It forces you to spend time and effort just getting back to even, let alone putting yourself in a position where you can make convincing arguments.

Why is the first impression so important? Simple: In any mediation, one of your basic jobs is to convince the other side that they have risk. Risk is a substantial factor in reaching settlements (and uncertainty of outcome, which is itself a risk factor). You create risk in certain basic ways, one of which is to first convince the mediator that you are competent, qualified, prepared, determined, organized and effective. This enables the mediator to communicate in an honest and persuasive way to your opponent that he or she is facing someone who is competent, qualified, prepared, determined, organized and effective. What happens if the mediator thinks you are incompetent, unqualified, unprepared, wishy-washy, unorganized and ineffective? The Mediator is going to have a difficult time "selling" risk to the other side. This reduces your chances of persuading the other side to buy their way out of the risk.

The bottom line is that you have one chance to create the first impression of being professional, competent, organized and effective. Creating that great first impression is vitally important to increasing your client's chances of getting an equally great result at mediation. Think about this the next time you are preparing for mediation and let it guide your actions, from writing and sending the brief, to being on time, to being prepared at mediation, to articulating rational legal positions and taking reasonable settlement positions. Your first impression will be a lasting impression and you will get consistently better results.