Closing the Deal in Mediation: How do you Speed the Process?

As another year has seemingly flown by, I close this year's blog with a question about rushing through the process of negotiation.  After reading the briefs, and 10 years of experience as a mediator,  I am sometimes tempted to predict the outcome of the negotiation and once the discussions get "on track"--would like to get to 6:00 at about 4:00 P.M.  This is, in my opinion, always a mistake! 

Just as childhood or work experience, the trying moments in life pass excruciatingly slowly, yet the years fly swiftly by.  I read an editorial in the New York Times last weekend about a man who worked in a prison where the prisoner wanted to change the clock to mark the months, rather than the minutes that he had left to remain in prison.  Minutes and even hours, were immaterial to him.  Only years matter when he was serving time behind bars.

People in conflict usually come to a mediation after months or years equally imprisoned by their anger, frustration, griefs and fears.  In a single day, we mediators hope to guide them through the ordeal and set them free.  Clients and their lawyers, on the other hand, need to vent and be heard.  Both client and lawyer need a chance to fully articulate their well-considered opinion before compromise can be achieved. Skipping over the facts towards the march to an inevitable negotiation is an error for the overly eager! 

I wish you all a happy and successful New Year and I wish for each of us to have the wisdom and grace to slow down, if only for a moment, before another year has passed.

How Does a Mediator Remain a Beacon of Peace to Conflicting Parties?

      "Tis the season"...to think about peace on earth and good will towards men (and women).  As a professional mediator, I am keenly aware of the conflict that arises between people every day.  I am invited into the lives and struggles of strangers to gently yet effectively intervene with some dosage of humanity, kindness, understanding and empathy.  This I do with equanimity, diplomacy and purpose.  I am asked to draw upon my  20 + years of legal experience and my 10 + years developing skills as a mediator, to assist parties in reaching a satisfactory solution to their suffering in a single day--usually by the transfer of money, and often also based upon an offering of some understanding by a neutral third party as to what lead them into the conflict in the first place.  This is harder than it seems and often results in an exhausted and depleted mediator by day's end.

     What are some strategies that you have developed to keep you from being drawn into the drama that gives rise to the litigation and unfolds throughout a mediation hearing?  How do you balance empathy and understanding with clarity to be a beacon of light forward? Are readers that are lawyers as genuinely passionate about their client's causes as they appear? How do you let it go after the settlement is achieved?

     Next week, I will be taking the week off from blogging and instead spending Christmas aboard our sailboat in the Pacific Ocean (we'll be in the nearby harbors at Long Beach and Newport Beach--enjoying family, lights, and letting go of the stress of the year).  I hope that there I will find some guidance, take a few much-needed days off, and enjoy the peace, light and clarity that I wish for all of you in the coming Year.  Have a wonderful holiday week!

Do Secrets Compromise the Mediator's Neutrality?

   Occasionally, I get stuck in a corner where I know that the Defendant in a dispute would pay more than the Plaintiff's "bottom line".  Of course, this is revealed to me in confidence, and of course, I maintain that confidence all day long--even after the case settles for something less than the Defense was willing to pay.  Still I am a little haunted by the collision between my duty of confidentiality, which in this instance is crystal clear, and my duty of neutrality.  By NOT revealing or even hinting to the Plaintiff and his counsel that the Defense would pay, hypothetically "up to $75,000" at any time before the case settles at $55,000, am I favoring the happy Defense counsel and his client? Am I maintaining my neutrality or do I have a duty to hint at the possibility of a better settlement to the Plaintiff even if he is quick to reduce his demand to $55,000?  My hypothetical assumes that Plaintiff is satisfied with the settlement at $55,000 for a variety of reasons which may include Plaintiff's sordid past history, his lawyer's incompetence or failure to comply with discovery deadlines or his inability to finance future litigation.  As in every settlement, the parties are both satisfied with the outcome of the mediation, but a mediator with a conscience is left wondering:  does my duty of confidentiality compromise my duty of neutrality?  I'd love to have your thoughts, fellow mediators as this one is a big SECRET!

The Private Meeting Between Clients: Mediating Dangerously

      In it's purest sense, a mediation is supposed to be a chance for direct confrontation and communication between the principals engaged in the dispute.  Far too often, in the age of litigated cases and commercial mediation, this step is avoided or eliminated at all costs.  Still, whenever there has been a strong and positive pre-existing relationship, such as employment, family or even marriage, it's great if you can orchestrate a private meeting between the principals early on in the mediation.
     This week, I took that risk and had the Human Resources manager meet privately with the terminated long-term employee to discuss the reasons for her decision, her regrets and her thoughts about future potential alternative employment.  At the same time, the employee had her chance to rage at the H.R. manager, express her sadness for being let go so abruptly, her frustration in finding alternative employment and her profound sense of loss after she was fired.  The meeting ended with tears and a hug.
     The mediation was not over, but it was only after that watershed meeting that the parties could productively and collaboratively work together to find a way out of the lawsuit.  It is mediating dangerously, since neither the mediator nor either sides lawyer was present to orchestrate or script the meeting and each of us took the considerable risk of allowing things to blow up instead of over.  But in the end, when those private meetings result in tears, hugs and ultimately settled cases, it is oh, so rewarding to take such a risk.

Leaning In to Conflict

Sheryl Sandberg has written a great book called "Lean In" about the importance of women assuming a certain posture in business and personal interactions designed to demonstrate that we are truly engaged and committed to serious business as equals at the conference table.

This week, I heard a civil service case in which an employee who was discharged from her employment after an angry outburst directed at her Supervisor lead to her termination.   As a civil servant, she was entitled to have an administrative appeal before the Personnel Commission makes the termination follow or makes the decision to overturn the termination and restore her to work.  The striking part of the case for me was that after she was separated from her work site during the investigation, no one really took the time to listen to her complaints, which were plentiful!  She painted a picture through numerous witnesses of a toxic environment in which screaming and disrespect were commonplace amongst staff members and tears and resentment were a regular occurrence.

It sounds trivial, but often times the way out of conflict is to allow your client to fully vent and explain the circumstances to a non-biased third party.  In the heat of the conflict, nobody within the work place can completely divorce themselves from the environment in order to see the full context of the events precipitating a termination with an un-biased view.

The outcome may be identical, but the output is very different.  Just giving a person a chance to be heard can be a very satisfying and emotional experience which may have a healthy impact on everyone involved. 

It turns out that "leaning in" can be a way to "lead out" the parties who come to a conflict in so much pain and chaos.

As my readers approach Thanksgiving next week, I give you permission to put your elbows on the table and practice "leaning in" to really discover what is affecting at least one person at your holiday table.  You will both be grateful for the opportunity to connect in that way.  And isn't gratitude what this holiday is all about?

Finding the Sweet Spot: The art of the Mediator's Proposal

      Lately I have been finding that very skilled litigators frequently defer to me as mediator to help them settle their cases by making a mediator's proposal, even before they reach an impasse in mediation.  In fact the last 3 of 4 cases I have mediated have been resolved on the basis of a mediator's proposal.  So how do I do it? 
     At a certain point in the negotiation, when it threatens to stall, but before it hits an impasse, I begin negotiating with each side in hypothetical brackets or ranges until I hear or sense there is a potential overlap.  Contrary to the beginning stages of negotiation, this one really becomes a negotiation between mediator and parties, as opposed to party against party. 
     By the way, there is not always an overlap, so sometimes I have to consider both the "bluff factor" and the "stretch factor".  That is, one side may be telling me that the case will never settle below 6 figures ($100,000.00) and I may ultimately discount that by 10-15% and make a mediator's proposal at $85-90,000 on the assumption that the strong assertion of a particular number has some "bluff" to it.  The other side may tell me that they will never go above $75,000, but in a mediator's proposal at $85,000, that side will usually "stretch" to get there.
     I just read and reviewed Dwight Golann's excellent book, "Sharing a Mediator's Power" where he describes the negotiating dynamic in mediation as a triangle with each opposing party at either side and the mediator as the base of the triangle--negotiating with both and still trying to achieve balance and harmony between the two, standing as their foundation and supporting them in an integral function of her own. 
     I prefer to think of it as hitting the "sweet spot" where the proposal just abuts the intersection of good ideas and bad ideas to make a sensible means of settling the case after all other efforts through the course of direct and indirect negotiation have failed.  And boy do I feel triumphant when I hit the sweet spot and both sides say "yes".