“This mediation probably won’t go anywhere – the parties are too far apart. And, by the way, I’m pretty sure my client won’t want to be in the same room with the other party.”
“Ok, got it. And of course, we only need to continue the mediation for as long as you feel like it’s worth doing. As for your client not wanting to be in the room with the other party, that’s totally fine, we can do it anyway everyone wants to. Often the question that arises next is how any messages will be conveyed from one room to the other. I know many mediators carry messages back and forth. I don’t do that, because I see it as my obligation to enhance the conversation – and there’s no way I can convey messages the way the original speaker has said them. So you’ll have choices about how to convey the messages: I can set up a phone or Skype line between the rooms; or you can go speak on your client’s behalf to the other side; or the opposing lawyer can come to your room; or any other ideas you all have for how to do it.”
This was part of the conversation I had before a business mediation a few weeks ago. As always, I let the parties and the lawyers know that they are in control of the process. There are certain things I won’t do myself, such as carry messages, but as for what the parties and lawyers do, it’s all entirely up to them.
In this case, I heard from both lawyers that their clients didn’t want to be in the same room. I honored that preference by showing the 3 defendants and their lawyer to my office and showing the plaintiff, his associate, and his lawyer to a conference room down the hall. For the first of the 4 scheduled hours, I spent 10-15 minutes in alternating rooms, not conveying any messages, but exploring with each side what they wanted to communicate and how they wanted to do so. The only message I conveyed was to let the plaintiff know that the defendants decided they would, after all, be willing to meet directly with the plaintiff, but they requested that his associate not be present. And then I let the defendants know that the plaintiff, after all, would be willing to meet with them and would ask his associate to leave.
Once the plaintiff, the defendants, their lawyers, and I were in the same room, the conversation wound through a variety of topics. The plaintiff explained that he had hired Defendant #1 over 20 years ago and had taught him everything he knew about the business. For Defendant #1 to have left the company, in a sneaky way, to have stolen customers, and to have stolen these 2 other employees (the other defendants) was a betrayal. Defendant #1 explained that Plaintiff had talked for years about giving Defendant #1 some ownership in the company, but that it had never happened. He also explained that he had no intention of stealing customers, but just as when a physician switches to a different practice and patients follow that physician, Defendant #1 couldn’t help that these customers were loyal to him personally and not to the company.
The plaintiff also said that he knew there was no way the defendants could afford to pay him the $1,000,000 he was demanding – his real intention was to drive them out of business. He also explained that part of what had made the defendants’ actions so devastating to him, was that he had intended to sell the company so he could retire. Because of what they had done, the company was now worth half of what it had been.
By the end of the 4 hours of mediation, the three defendants had agreed to buy the plaintiff’s company; they would pay for it from the profits over the next 4 years. All of the parties appeared happy, even excited about how things had turned around. The plaintiff had his retirement; the defendants had a company with even better prospects than they had imagined; and the feelings of betrayal on both sides had been processed.
The reason this worked was that the parties had what it took to work through their animosity and distrust. From that clearer and more understanding perspective, they were able to work out a plan that worked beautifully for all of them. My contributions were to abstain from taking control of the communication (by carrying messages), to give them control of and responsibility for the process, and to continue, throughout the conversation, to support them in making their own decisions about everything.
By Dan Simon