Our ADR Times Contributing Editor, Zach Ulrich, recently had the opportunity to sit down with expert mediator and arbitrator Scott Van Soye, to discuss Mr. Van Soye’s insights into the emotions and typical negotiation dynamics of mediation, his unique perspective into employment and disability cases, and his “learned wisdom” from experience as a lawyer and mediator. A consummate commercial attorney, mediator, and arbitrator, Mr. Van Soye practiced for over 20 years in the areas of real estate, employment, disability, and education law. Scott was a judicial staff attorney for eight years, during part of which time he was personally responsible for over 200 insurance claims cases related to the San Bernardino wildfires. Mr. Van Soye has served for six years as an appellate mediator for California’s Fourth District, Division Two. He has also mediated for both San Bernardino and Los Angeles Superior Courts, and on behalf of the EEOC. He was recently recognized for his exemplary appellate mediation work by California’s Chief Justice, Tani Cantil-Sakauye

Scott, thank you for joining us today. You have dedicated your life to helping others solve their disputes - what motivated you to enter this line of work?

My wife Andrea gets the credit for that. I enjoyed litigation; I felt I was helping make wrongs right, and I have a competitive streak that made it fun. But I was often bothered by the tremendous toll (e.g. time, stress and money) it took on the people involved. I went to a seminar on mediation put on by the Straus Institute. I found the idea that conflict could be resolved so much more quickly, cheaply and creatively in ADR than in litigation fascinating. At lunch that day, Andrea noticed how excited I was about the seminar, and said I ought to get my LL.M. at Straus. The rest is history.

You have practiced in a variety of fields….Do you have a topic-area that you find particularly enjoyable?

I enjoy mediating any chance I get. I don’t have to mediate, I get to mediate. But if I had to pick a favorite, I’d say it’s disability law, because a successful accommodation agreement helps the disabled person move forward and be productive while giving the employer a motivated, useful employee. Everyone wins, and the benefit continues over the long term.

Your practice in the area of disability law has a special significance for you - could you talk about that?

I didn’t plan on becoming a disability lawyer. I was a real estate guy. But people kept assuming that because I use a wheelchair, I knew all about it. So I learned. I learned (really, I already knew) that there are disabled workers out there - many of them veterans and older folks whose lives have changed dramatically - who ask for nothing more than a chance to prove they can still do something useful. I learned that employers out there mostly are people of good will who want to do what’s right but are scared of extra expense and an unproductive worker. They know that they ought to accommodate their disabled employees. They’re just not sure how to do it without disrupting their businesses and spending a fortune. I like helping find those solutions. Often times, employers are fixated on a high-tech solution when there is often something much simpler that will work equally well.

Have you found it helpful, or an encumbrance, to mediate from a wheelchair?

Most of the time it’s neither one nor the other. If anything, it’s been helpful, because I can inspire hope in a good post-injury life, or convince an employer that his disabled employee can be part of the team. Suppose someone has a serious injury. Hopelessness and anger can inflate their settlement demands. I can believably say to them something like this:

“I know you’ve been hurt, and I’m not minimizing that. I want you to focus, though, not on what you can’t do, but on what you can do. Sure it’ll be harder, and I know it, but there are ways to overcome this and stay productive. So, let’s see if we can’t craft a settlement that will put this behind you and help you move forward.”

And the negative emotions will lessen, and often they’ll become more reasonable. It’s a way of finding common ground, without emphasizing my disability too much.

If you could give one piece of advice regarding employer/employee accommodation agreements, what would it be?

Keep it as simple as possible. Imagine you have almost no money and still have to solve the problem. What would you do?

Tell us a story about that.

Some years ago Judge Vic Micelli asked me to serve on a committee to renovate the historic Riverside Courthouse. It’s a really beautiful building, but it was built in 1901 and wasn’t accessible to the disabled. One of the issues was the jury box in Department One, which was elevated. Anyone entering had to get over a step. I was new to the committee. The solution they had picked was a $30,000 electric lift. I said, “Wait a minute, what about a folding metal ramp? When it’s needed, you unfold it, and the juror rolls up it. When you don’t want it, you put it away in a corner. No renovation to a historic courtroom, no fancy electronics. Just a simple little thing at the right time. The cost to the taxpayers was about $100 instead of $30,000. After that, I was a favorite of Judge Micelli’s. But I’ve always imagined that there was a salesman out there mad at me about the lost commission.

What’s the most valuable lesson you’ve learned as a mediator?

You know, I’ve learned a lot of things over twenty-some years of resolving conflicts, but the thing of most use to me as a mediator I learned from a client when I was a young lawyer.

The client was a wealthy man, angry about being sold shoddy goods. At the beginning of the case, I warned him that he would spend more on my fees than he could recover. He was offended; it was a matter of principle. Couldn’t I see that? He was ready to go to the Supreme Court. So, I filed the lawsuit, and off we went into litigation - interrogatories, documents, depositions, experts from Yale, the whole bit. Two years later he settled cheaply, and I asked him why. He said; “I like you, Scott, but you’re a pain in the neck. Every time I turn around there’s a letter from you, or discovery to answer, or a deposition, or a meeting. I can’t go fishing; I can’t go away with the wife. I got sick of it. So I settled.”

The real problem, of course, was the litigation process. But it taught me that the cost of litigation isn’t just monetary. It’s lives disrupted, pleasures foregone, opportunities missed. It’s tremendously powerful to remind people of that, and to ask them to picture their world without this conflict. How would they spend the time, energy, and treasure no longer absorbed by it? Not surprisingly, many disputants decide they prefer a conflict-free life, and settle reasonably.

When you walk into a room to mediate, what goes through your mind? What are your primary goals?

I’m trying to determine what the barriers to resolution have been. Sometimes, it’s that the parties haven’t communicated enough and lack critical information. Sometimes it’s that they have strong emotions or unrealistic expectations. Sometimes, it’s a lack of negotiation skill. Sometimes the parties need help coming up with creative alternatives or don’t fully realize the benefits of resolution. Finally, some parties just don’t have enough resources to fund a reasonable settlement. Each barrier leads to a different approach to helping the parties agree.

When you give an introduction, what points do you make sure to emphasize, and why?

I’m always upbeat when I go into mediation. I emphasize that with hard work we can settle the parties’ conflict so that they can move on with their lives. I focus on the parties’ control over the process, its confidentiality, and my neutrality, as well as my years of experience and my extensive training in ADR. The point is not to brag, but to put the participants in a positive, hopeful, emotional state. Research shows that people in a good mood are more likely than those with negative emotions to be creative and cooperate, and less likely to make unreasonable demands. I want to take advantage of that in mediation.

You’ve written on the impact of emotion in negotiation. What have you learned about the role of emotion throughout the negotiation process?

When I started as a lawyer, the accepted wisdom was that negotiation ought to exclude emotion and focus on logic and economics. As more and more research has been done on decision-making, we’ve learned that that is poor advice. We are emotional and social creatures, and our emotions influence all our judgments. Neuroscientific studies have shown that our brains’ emotional circuits activate before our centers of logic can process incoming information. Trying to squelch those emotions can impair a negotiator’s ability to reason about the matter in dispute. Instead, often uncovering the root of strong feelings can point the way to resolution.

On the other hand, allowing ourselves to become overly emotional can warp our judgment whether or not these emotions are related to the conflict at hand. For example, anger can make us overconfident. Sadness or guilt can make us too ready to concede. Disgust can irrationally lower the value we place on something. Also, our emotional displays can affect how others see us - intimidating and unpleasant, incompetent, needy, and so on.

You’ve written before about “nibbling” in mediation and how it can affect mediation outcomes. Help us understand that.

“Nibbling” is a negotiating technique whereby after the deal is done, a party adds another relatively small demand that he “must” have or the deal is off. It often leaves those unprepared for it upset, because in our culture “a deal is a deal.” We feel betrayed. In other cultures, the contract is seen as flexible, and there’s no fuss.

Remember, the nibbler is counting on you to fall into the “sunk cost fallacy,” so that you’ll give in. That’s the idea - think of a poker game - that you have so much invested in the pot already that you have to stay in and see the cards instead of folding even when folding may make sense. The work you put into the deal being nibbled is done and gone. Don’t think about it. Ask yourself if the new deal makes sense. If not, call their bluff, but give the nibbler a little time to retract the demand, to “talk sense to her client.” Or a better way, both because it saves face and because it can turn a minus into a plus, is to prepare ahead of time. Think what extra nibbles must I have in return, before the new deal is done? Not only do I have whatever I nibbled back, I’ve won respect because I played the game well and didn’t lose my cool.

You’ve been very successful at settling appellate cases. How are those different from cases still pending trial?

Well, typically a win generally means no more than a chance to go to trial and do it all over again. Appellants have a heightened sense of risk because they lost at trial, while the respondent may be overconfident because he or she prevailed below. If the law is unsettled on a material point, both sides are at risk - and the mediator can explore that risk in helping both sides work toward settlement. But the key point is that the disruption and opportunity cost associated with litigation has already been mounting for some years, and will continue to do so. So one of the things to work with is the “litigation fatigue” that’s already present. That, plus the chance of winning the right to a new trial and losing that trial anyway, will often convince people it’s time to come to an agreement.

Thank you for your time, Scott.

You’re welcome, it was great being able to talk.

by Zach Ulrich & Scott Van Soye

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