I recently mediated a case in which I delivered an offer and commented,
“This is much higher than I thought they would go; it’s a positive sign.”
As one of the attorneys started to say something, her client interrupted, genuinely puzzled, and asked,
“I really want to know, what makes you think this is anywhere near a good offer?”
My rapid response surprised both of us: “I have some serious concerns about your case.”
Because this was a sophisticated client with deep experience in her area, I assumed she perceived the same weaknesses in her case as I did. But, of course, I provided a more thorough analysis after my initial reaction to her question.
Ironically, this happened while I was reading Malcolm Gladwell’s Blink: The Power of Thinking Without Thinking, which is about “rapid cognition, about the kind of thinking that happens in the blink of an eye.”
Gladwell explains how an experienced professional’s snap judgments can result in far superior results than a thoroughly studied and over contextualized analysis. In other words, too much information can sometimes be a bad thing for over-thinkers.
After a deep study of all the facts, I recommend that attorneys think back to their very first reactions to the facts of a case. Remember what it felt like the first time you read the other side’s demand letter, complaint or summary judgment motion. And then ask the mediator, a neutral, to describe his/her very first reaction after reading the mediation letters. Those are likely to be the exact same reactions a trier of fact has to the case. And if the reaction is strong enough, you might not change their minds with exhaustive testimony, documents and argument.