By Steven G. Mehta

I recently read about an interesting concept called a pre-mortem for a business venture. A pre-mortem is the same as a post-mortem, but done before death.

Let me explain by example. Recently, I went to a new arabic restaurant in town. I saw that the restaurant was dying on the vine. Two months later, the restaurant had closed, and I happened to speak to the owners — a husband and wife team. They started asking me questions and were grieving the loss of their business. “Why did it fail,” the husband asked. “Why didn’t the customers come in — the food was good,” said the wife. We then proceeded to conduct a post-mortem over the business. We looked at the location, the experience, the feel, the food, the curb appeal, the customer service, and many other factors. Like a coroner’s investigation, we looked at all of the factors to determine the cause of death for the business.

We determined based on our investigation that the cause of death was (1) lack of customers due to a failure to provide a dining experience and bad customer service. A related cause of death was the location and the inability to market that location. Time of death: Shortly after opening the store.

The couple learned a lot about their mistakes and vowed never to let that happen to them again. What, however, if they had done the same post mortem, before they ever entered into the venture. They presume that it failed before they even start and ask “what caused it to fail?” They could then say, “it failed because of a bad product.” “It failed because people didn’t enjoy the experience.” In thinking of that answer before they entered the business they would have perhaps discovered some of the issues that plagued their business. Indeed, a good experience can be fixed. Customer service was easily fixed. They knew the food was good. Advertising could have been changed. But, alas, none of those things could be done after the failure occurred.

So how does the premortem apply to mediation and negotiations. Attorneys need to look at the mediation before it happens and ask themselves “why did the mediation fail?” Was it because the other side didn’t have all the information to understand your position? Was it because you didn’t understand the weaknesses in your case? Was it because it was too early? Was it because the right parties weren’t present? All of these questions that identify the reasons for failure can be identified before hand and then evaluated.

For example, recently I mediated a case where there were three critical theories in the case for the plaintiff. The third theory involved fraudulent documentation and the possibility that some of the defendant’s employees were creating a cover up. The plaintiff had alluded to the theory throughout the case, but had never made it clearly known to the defendants. The defendants arrived at mediation prepared to discuss the two theories, but unaware of the fraudulent documentation theory.

That mediation session ended in not having a resolution. However, both sides could have avoided the problem by conducting the pre-mortem. They could have both asked the question, “has all the information been exchanged that will help to evaluate the case.” Once the parties had exchanged that information, the case resolved shortly thereafter.

The pre-mortem is a valuable tool for negotiators to be able to maximize their results. This is especially true when they consider that in general, if a mediation doesn’t resolve the case, there is usually a significant gap between the time of the mediation and the time that the case actually does resolve. That time is wasted energy, resources, and money.