Defendant’s Lawyer: ”We’ll reluctantly offer you $5,000. We’re doing that simply to avoid the costs of ongoing litigation. We don’t believe your case has merit.”
Plaintiff’s Lawyer: ”We believe our case does have merit, and we believe a jury might award us in excess of $1 million – but because our client would like to end this case and move on, we’ll accept $800,000.”
Sound familiar? These are typical positions parties might take during a legal mediation. Many mediators believe their role is to help move the parties from their positions, and get them to talk about their interests. For example a mediator might say to the plaintiff and his lawyer: ”I understand you’re asking for $800,000 can you say more about that? I gather some of that is to reimburse you for medical costs? And some of it is for pain and suffering? What else does that $800,000 represent?” The mediator’s strategy is designed to elicit more information about what the Plaintiff wants; the mediator hopes that if he can bring to the Defendant a list of more specific interests, the Defendant will be more able to meet the Plaintiff’s needs and settle the case. So let’s say the plaintiff says, “Well, my medical bills have only been $20,000; but I want to send the defendant a message that they can’t get away with this kind of negligence; I don’t want what happened to me to happen to anyone else.” Now the mediator thinks “Great, now I just have to get the defense to cover the $20,000 in medical bills and promise to change their policies so other people don’t get hurt.”
Next the mediator asks the defense, “I understand that you’re offering $5,000; can you say more about where that’s coming from?” Then the defense says something like, “Well, obviously we’re trying to protect our bottom line; but also we don’t want to encourage this sort of frivolous lawsuit. We don’t want word to get out that all you have to do is serve us with a complaint, and we’ll throw 10′s of thousands of dollars at you.” The mediator thinks to himself, “Great, the concern for the bottom line means they won’t want to spend money on defending a lawsuit, either. Also, maybe a confidentiality agreement will help with their concern about encouraging more lawsuits.”
Bingo. Settlement. Interests satisfied. $35,000, to cover legal fees and medical expenses, a promise to change company policies, and a confidentiality agreement. And both sides are freed from the uncertainty and stress of continued litigation. Hard to complain about that.
But that mediation was not as effective as it could have been. The mediator’s mistake is that he sees the positions as the enemy.
Another way to look at positions is to consider them a natural response to conflict. It may be that the parties are in a state of interactional crisis; they don’t trust each other; they feel threatened by each other; they fear they will continue to be victimized by each other. Given all of their fears, they attempt to regain a sense of strength by asserting a strong position. Asserting that strong position, though temporarily satisfying, often causes the other side to feel threatened, angry and misunderstood and inspires them to dig in their heals as well. So often the conversation ends after each party has stated their extreme position, and with both parties continuing to feel threatened by each other and stumped as to what to do next.
So mediators shouldn’t see the positions as the problem. The positions are an attempt by the parties to regain a sense of strength in the interaction. That urge to regain a sense of strength will serve those parties well if they are supported in an ongoing conversation. The process of having the conversation tends to help the parties find more effective ways of regaining their strength than simply stating their position. The mere act of asserting oneself to the defendant gives plaintiffs an increased sense of strength; and the opportunity to look the defendant in the eyes enhances their ability to fully understand the defendant’s perspective. And vice versa, the defendant tends to have a similar shift toward greater strength and responsiveness. When the parties have achieved that stronger, more responsive interaction, problem-solving becomes much easier as well. Settlements emerge, maybe with terms similar to those above, but the interactional component of the process means the parties feel better about those terms; and the parties are also likely to arrive at additional or different terms that satisfy them more deeply.
Just today I heard a story from a fellow mediator. He had gently suggested to one party some possible terms of settlement. In the session, the party had agreed to the terms and signed the document. The next day, the mediator received a long angry email from that party complaining that the mediator had pressured him into agreeing. My fellow mediator was shocked and called it simply a case of “buyer’s remorse”. On the other hand, if we assume that parties are not only experiencing a sense of weakness, but also see the mediator as an expert and authority figure, it’s easy to understand how a party might do something he regrets. If we want mediation to be effective at resolving disputes, we need to support the parties every step of the way, even as they assert strong positions and even as they decline settlements that seem reasonable. My fellow mediator didn’t believe he had done anything wrong – but he knew that the parties were now in a worse place than when they started.
By Dan Simon