If all you have is a hammer, everything looks like a nail.

We learn something every day, and lots of times it’s that what we learned yesterday was wrong.

Whether it is in trial or in mediation, it’s dynamic – we don’t really know what the next pitch is going to be. What does it mean when the other side rests without calling the witness you were prepared to devastate? How should you respond when the other party makes a new offer totally inconsistent with how things were going?

The answer is – and this is going to frustrate you – don’t do the same thing you did last time – at least not instinctively or by rote. By definition, this new approach is something you haven’t planned for – exactly. Sure, I know, we all tell ourselves (and our clients) that we are prepared for everything and anything.

But how about this for a concept – every time we are caught off guard when the other side throws a screwball, we are getting more information. Why did she do this? What were they thinking? What did they think we’d do in response to the new foray?

BTW, bear in mind that when we ask, “What was he thinking” after a bizarre action, the answer usually is, “He wasn’t.”

Many mediations proceed in stair step negotiation moves where one side moves up and the other side moves down, time after time. One of my favorite defense lawyer colleagues says, “I don’t even look at their moves. I only care what my moves are and what the means about where I’m going and where I’ll end up.” Of course, that infuriates the other side – and that’s worth something. And it can be effective – it deprives the other side of the sense that they have control – no matter what they do, the opponent moves in its own planned way. It can also be ineffective if it makes the mediation end short of settlement. But don’t overlook this – the canny negotiator isn’t a one trick pony – if the chosen technique doesn’t work and failure is looming, change ponies is always an option. And experienced and canny negotiators, like my colleague described above – I’ll call him Brad (because that’s his name) – reaches into the bag of tricks and pulls out another.

So here’s the point – just because something worked yesterday doesn’t mean it will work today – and vice versa.

As a 36 year Kansas City Chiefs season ticket holder, I’m not a Tom Brady fan. Except to recognize that he has all the tools, and his success is more in his choosing of the tools based on the situation than his commitment to his favorite tool.

Moral of the story: in mediation or in trial, we are best served by picking the right tool at the right time. 

The Missouri Supreme Court reminds us, "The choice of a lawyer is an important decision and should not be based solely upon advertisements."
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