Finding the “Elephants” in the Room:
When One Issue Largely Determines Settlement or Stalemate
I was recently fortunate enough to go on a 10-day journey to Thailand, and it was eye-opening. While there I met with refugees from ongoing conflicts with the Burma Army, had some of the best pad thai and “cow soy” (a delicious curry-coconut milk-based soup) of my life, and was able to ride a towering elephant named “See Hom Tep.” And boy, was See Hom Tep big. While I climbed onto See Hom Tep, I quickly realized that should he have chosen to charge off into the jungle with me, or buck me into the air, it would have been all too easy. Relative to the power and size of the elephant, my best efforts at stopping him would have been futile. Instead, I had to trust on See Hom Tep’s training and willingness to let me ride him. The situation was entirely up to the elephant.
It later struck me that, in many ways, riding See Hom Tep is a lot like the process of mediation. (Of course, only a mediation “nerd” would draw such connections! But I think the point still stands…) Similar to how I was completely at the discretion of See Hom Tep during my ride, in the mediation process often only a few key issues or emotions become the difference between a healthy settlement and a stalemate. There also may be an underlying conflict so intense, or meaningful, to a party that it has manifested as the apparent “dispute” to be mediated. The questions then become:
- As mediators, how can we be attuned to identify any overriding interests that might be the lynchpin(s) of a mediation?
- How should we balance our time and energy, during the mediation process, in addressing such an issue while still being cognizant of all participants’ needs?
To be sure, especially in complex litigation disputes there is rarely only one “issue” or underlying conflict that has evolved into the complex detail of the problem presented, but there are usually a few motivating factors to which a case can be distilled. In many cases, only a handful of those factors can largely determine the direction of the ongoing conflict. For instance, in a dispute between two corporations over part of the due diligence on a deal, concerns regarding document confidentiality might drive numerous, complicated requests by one party for intricate accounting and document-handling processes. Or, in a personal injury case, one party may be more obstinate than they otherwise might be because of a perception of having been “slighted” or “disrespected” by the other—a perception exacerbated by little or poor communication before the mediation.
As a mediator it is my first duty to seek and to learn. Yes, I immediately begin building rapport with clients, but one of the most important functions of my rapport-building is to undergird my ability to probe about and learn my client interests quickly, especially when clients are playing their motivations close to the vest. Even when there may be one or only a few underlying conflicts driving the entire case, clients often balk at revealing their true intentions or perceptions because of fear of losing bargaining advantage, or a sense that their motivations may be judged as illegitimate, or simply because they perceive that masking their intentions helps them maintain control. As mediators, it is imperative that we develop the ability to both help clients become comfortable sharing with us, and to ask specific questions that allow us to deduce client interests even when we are unable to squarely pinpoint them. “Knowledge is power” is a corny phrase that nevertheless rings true during both mediations and elephant rides: My knowledge of See Hom Tep’s previous training and verbal commands enabled me to steer him, just as my knowledge of client interests and perceptions enable me to steer clients to healthy settlements. But for better or worse, many mediators don’t seem to understand how nuanced the process of identifying and understanding client interests can be.
It is important for mediators to realize that often the difference between understanding client interests and thinking one understands client interests can be both subtle and critical to reaching a healthy, enduring settlement. A mediator’s sensitivity to and ability to navigate client interests is probably the biggest factor in determining the longevity of the settlements that mediator brokers. For instance, understanding that “document security” is important to a client may not be enough – perhaps the client is particularly interested in the confidentiality of particular supplier purchase orders (or “PO”), and even more particularly interested in the confidentiality of the PO from a particular supplier for particular products. Further, the client may feel uneasy about sharing their specific concerns with the mediator because they do not want the other party to get wind of their sensitivities and probe further. The hypothetical is vague on purpose, but makes the point: There are innumerable motivations for clients to have particular interests, and further a plethora of reasons why clients may want to conceal their underlying interests (i.e., their “elephant”) from the mediator or from the other side. If the mediator in this example did not realize the client meant to include purchase order data in the confidentiality terms of the settlement, and the other client later discloses the sensitive data (not thinking the settlement including PO data), the settlement will perceived to have been breached by one party. The entire dispute would flare up again (not to mention, the mediator would likely have a few malpractice lawsuits on his or her hands!). The only way to ensure a “meeting of the minds” in a settlement is to first ensure that we as mediators know exactly what “elephants” are in the room for our clients. That in turn requires the full utilization of our ability to build respect and trust, and to efficiently inquire into client interests until we can be sure we have not missed any key information. One trick I use is to probe into successively deeper “levels of information” by asking follow-up questions, until I find that I have thoroughly dug the vein of information I need on a particular issue. The words “why,” and “how,” are the most important words I have at my disposal as a mediator, and I will ask questions until I can fully ascertain my clients’ reasoning. By the end of my inquiry, I often find that I have actually helped the client more thoroughly think through their own logic, and I see that as just one more service I provide.
As mediators, we must always be sure to balance the right amount of time, energy, and focus spent on addressing the key “elephants” versus the other needs, desires, and perceptions of all parties. The classic example of this balance gone awry is when a mediator spends “too much” time in one caucus and leaves another party waiting, with nothing to do, and feeling either underappreciated or worse, disfavored by the mediator. When I have found a rather large “elephant” that I need to examine closely with one party, I tactfully indicate to the other party that I may be some time, and that I am of course simply working to understand and balance everyone’s interests. Often, especially early in the mediation, the bulk of the time I spend caucusing may be with the plaintiff – to determine their initial thoughts and perceptions and so that I can later sift out the responses and counter-arguments of the defendant. In such instances, a simple assurance to the defendants that the “time spent” in a caucus does not correlate to the “weight given” may be adequate. In other instances it becomes necessary for me to balance the “time” dedicated to each party in other ways, if only to maintain a spirit of neutrality throughout the mediation process. Finally, it is important to realize that both what may appear to be “elephant” issues early on may actually turn out to be secondary to other concerns, and vice versa that “elephant” issues may crop up later in the mediation for various reasons. Adaptability to interests communicated is fundamental, and a skill that only comes through practice. As mediators, we will never be able to “perfectly” assess the importance of all issues, all the time. The best we can do is develop our abilities to understand the potential importance of “elephant” issues and prioritize the time and energy of ourselves and our clients accordingly.