Overcoming Mediation Obstacles
Joe Ramsey
Copyright © 2009
Four common obstacles to settlements which I regularly encounter are: (1) Starting with extreme positions. (2) Diametrically opposed perceptions of the same evidence. (3) Marked changes in negotiating direction. (4) Extreme distrust. Here are some thoughts about how to overcome them.
Extreme Starting Positions
Especially when money is the only or major matter in dispute, the most prevalent deterrent to compromise arises when the parties assert unreasonable positions at the outset. Since plaintiffs seeking money damages usually begin the negotiations with an opening offer, plaintiffs often set the tone for the negotiations. Unless the opening offer by the plaintiff is reasonable, it usually provokes a similarly unreasonable response, and the process is off to a bad start. The parties usually overcome the bad start, but it almost always takes valuable time to do so. This initial challenge is getting from the “ozone” to the “twilight zone” in which both sides begin to realize that settlement may be a better option than trial.
One way the mediator can get to the twilight zone is to convince the parties to share an objective evaluation in confidence. Such an evaluation usually exposes weaknesses. Plaintiffs often confide in private caucus what they envision as their best possible result. Once that occurs, even the most aggressive negotiators concede that settlement value is considerably lower.
A variation from that solution arises when one party decides she will not respond to the last “bad faith” offer. In that circumstance, as the mediator, I assure both sides that I will persist with the process as long as there is any hope but that I have an ethical obligation to find out sooner rather than later if there is no hope. Most of the time, each side will then re-evaluate their positions and tell me in confidence what they will accept. Even though the parties may still be negotiating with me, most of time I can get a pretty clear idea what will settle the case.
Diametrically Opposed Perceptions
Well-prepared adversaries often draw completely opposite inferences from the same evidence. It is the nature of zealous advocacy to perceive the same evidence differently. Counsel and the mediator can usually overcome this problem by identifying the precise evidence each side is relying upon. This exercise rarely fails: Either one side has to concede or both sides realize that the evidence is not as clear as perceived. Confronted with reality, denial usually dissipates, and we move on to the next issue.
A different but related problem arises when one or both parties realize they do not know what they need to know to compromise responsibly. The mediator on his own or at the private suggestion of either party may wisely suggest suspension of the process until the information can be developed.
Marked Changes in Direction
In most mediations, a certain rhythm develops, with the parties consistently making positive compromises narrowing the distance between the sides. Sometimes, one party will disrupt this rhythm by making a marked change in direction. The result is almost always negative. At a minimum, the opponent needs time to absorb the new direction and formulate a response. At worst, the change may be perceived as sufficiently drastic that the opponent wants to end the process. This problem usually arises in one of two contexts.
The most common problem occurs when money is the only issue. Plaintiff presumably starts at a higher amount than she will ultimately accept. As negotiations proceed, plaintiff continues to demand less, and defendant continues to offer more. There is a major disruption when either side reverses direction. Mediation will fail unless counsel and/or the mediator can get the negotiations back on track.
The other context in which a late change of direction can threaten the process arises from the injection of a new and usually non-monetary issue. As an example, in a case of alleged professional negligence when defendants always want confidentiality, a plaintiff may first agree to confidentiality and then renege. As a related example, the parties identify the confidentiality requirement early and agree that any settlement will be treated confidentially, but, late in the negotiations, the defense demands substantial liquidated damages for violations of the confidentiality provisions.
In either context, a late directional change is usually the result of poor preparation or a failure to anticipate that the problem might arise. Most often, the parties will not likely consider their positions markedly better in mid-negotiation. And in professional negligence cases, counsel and the mediator should routinely anticipate potential confidentiality problems and raise and resolve them early in the process.
Disabling Distrust
Sometimes the parties distrust one another to such an extent that distrust precludes reason and shuts down communication altogether. The problem usually arises in emotional matters such as disputes in family businesses, estates, long-standing business relationships, and many employment cases. Sometimes the parties refuse even to be in the same room. There is an instinct of automatic rejection of whatever the opponent suggests as rotten and toxic. The initial challenge for counsel and the mediator is to find a way just to communicate negotiations.
A way to overcome a refusal to consider anything the other side suggests is to require that all sides submit their proposed solutions to the mediator who then makes a proposal based on the combined suggestions. In an especially malignant property dispute between neighbors, each side predicted darkly in private what the opposition’s demands would be and why they were insulting. I was delighted to find that neither side suggested anything remotely close to what the opposition had expected, allowing a much more positive start. Since the source was the mediator and not the opposition, each side listened and reacted rationally. An extension of this concept is to authorize the mediator to find and consult with an independent source outside the mediation. A simple example is getting an independent real estate appraisal in a dispute in which both sides are convinced the other side has found and paid for a partisan appraiser.
No matter what obstacles may arise in any given mediation, patience and perseverance will usually prevail and the matter will settle
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