"Good afternoon, is this Mr. Jones?"
"Yes." The voice was cautious.
"My name is Doug Noll. I am a peacemaker and have been asked to contact you about a conflict that you may be involved in."
"There is no conflict. The matter is over with and there is nothing more to be done." The hostility is just under the surface.
"Yes, I can appreciate how you feel that the matter has been resolved. The fact that I was asked to call you indicates that someone else may have a different perspective. I would like an appointment with you to merely to explain what I do."
"What was your name… oh yeah, Mr. Noll, I really have nothing more to say about this. I can understand why my former partner, who I kicked out last week, would want you involved, but this matter is closed."
"Mr. Jones, my methods will allow you to meet all of your interests without further disputing. I truly believe that the other options you might face will be unsatisfactory."
"Is Thad threatening to sue me? Let him try. I’ve got more resources, better lawyers, and more time. I’ll make his life miserable! I’m not afraid of being sued. I’ll kick his ass!"
"Mr. Jones, no one is suggesting that a lawsuit will be filed. However, that is certainly an option to people who do not want to discuss their differences."
"I have no interest in talking." Click.
Nine months later . . .
"Good morning. My name is Doug Noll and you have asked me to mediate this lawsuit for you. Could all please introduce yourselves?"
"Good morning Mr. Noll, my name is John Clements, counsel for Bill Jones who is sitting on my left."
"Good morning Mr. Noll, my name is Susan Johnson, counsel for Thad Wheeler, sitting next to me."
Good morning. As I believe everyone knows, Mr. Wheeler called me about nine months ago before litigation started. I was unable to convene a peacemaking session. Could you fill me in on what has happened since."
"Yes. On behalf of Mr. Wheeler we filed a complaint for damages alleging breach of fiduciary duty and defamation against Mr. Jones. Mr. Jones filed a cross complaint for dissolution of partnership and also sued for breach of fiduciary duty," responded Ms. Johnson
"What has been the pretrial discovery?"
"We have taken 15 depositions. The parties have exchanged about 5,000 pages of documents. Each side has engaged forensic accountants as experts," said Ms. Johnson.
"So each side has spent somewhere between $75,000 and $100,000 in fees and costs?" I asked.
"That would be conservative," said Mr. Clements.
The mediation continued for the rest of the day and resulted in a settlement that made the lawyers happy, but left the parties dissatisfied because of the enormous expenses they had incurred. Faced with the uncertain outcome and the continued high expenses and with a trial looming, they had no choice but to swallow bitter pills. The settlement divided the business, which hurt them both financially. However, no other resolution appeared feasible. The money they had spent in litigation had depleted their wealth to the point that a buy out was now impossible. Nine months ago, a buy out could have occurred without depleting so much wealth.
This story illustrates one of the great frustrations of peacemaking. Time and time again, when trying to convene a peacemaking session at the request of one party, I face hostility and resistance from the other party. And, more than once, the same parties have appeared before me as I have mediated their litigated dispute.
I have not yet figured out the magic words that will persuade an angry person to accept the idea of peacemaking. Too often, the conflict has escalated to a level where denial of the rights, interests, or even existence of the other dominates a person’s reality. Unfortunately, serious conflicts that could be resolved through early peacemaking efforts are forced into unnecessary and costly litigation.
So, what do you do when the peacemaker calls? Here’s my list:
- Listen politely. The peacemaker is trying to help.
- Be careful of your anger—it may cost you many thousands of dollars.
- Remember that talk is cheap; litigation is expensive.
- Agreeing to peacemaking does not mean you have to agree to anything except to participate in good faith.
- Agreeing to talk is not a sign of weakness; it is a sign of maturity.
- Refusing to talk invites further escalation.
- Most lawsuits end up in some form of mediation and settle. So, when the peacemaker calls, recognize that you are usually facing a "Pay me now, or pay all the lawyers and me later" situation.
- Threats do not work against parties intent on getting a dispute resolved one way or the other.
- Consider the peacemaker’s call an opportunity rather than a danger.
No one likes to be in conflict. The anxiety, frustration, and uncertainty of conflict create emotions we truly wish to avoid. If you deny or avoid he conflict, you will give up all of your abilities and powers to influence its outcome. Accepting that you are involved in a conflict allows you have some word in how the conflict will be resolved. Therefore, when the peacemaker calls, pay attention. You have a problem that needs your attention.
By Doug Noll