Sunday, February 3, 2013

Resist the Temptation to Negotiate too Soon

Participants in mediation usually know how it ends:  there is a negotiation and one party agrees to pay money to the other.  So why not get right to it?

I am struck by a lot of dialogue that has gone on in the mediator's blogosphere since the fatal shooting of a party to a mediation and his lawyer by an aggrieved party during a mediation in Phoenix.  The most telling comment I saw was offering some humility to mediators.  Though the disputants may know one another well, we have usually less than a full day to get to know two parties, their attorneys, the facts and legal claims.  In truth, we have no real idea of who these disputants are, have been or may become. 

What we do know is that even the most mundane of commercial disputes are rarely solely about the money involved.  There is pride, there is ego, there is a lack of respect or communication or both.  There is deep hurt, shame and sometimes status at stake.  Taking time to listen, attempt to comprehend and then communicate in ways that have not been understood or respected prior to that day takes time.  If you skip a step and rush to numbers, you will undoubtedly sacrifice some of the true benefit offered by this alternative dispute resolution process.  A jury or judge can decide who is right and who is wrong and what the value of the case should be.  A mediator offers a chance to do more than that--if you listen for the cues.