Friday, January 18, 2008

The Mediator and Party Fatigue

By party fatigue I am not referring to when you decide it is time to leave a party. I am talking about that point in the mediation when the mediator would like to (a) leave the parties to their own devices, because they deserve each other, (b) wring a party's neck (at least just a little), (c) charge a premium rate, in the nature of hazardous duty pay, or (d) take a breath, smile and do none of the above.

If you choose (d), congratulations. But how does the mediator deal with difficult or unlikeable parties in a way that is conducive to settlement without being adversely affected by party fatigue?

The mediator has to empathize with and actively listen to the parties in order to get the parties to do likewise. All of the mediator's devices, such as focusing on interests rather than positions and finding common interests and needs among the many opposing incentives, will be useless if applied to parties unsympathetic to the process.

But what happens when for all of the mediator's empathy and patience, the parties remain disengaged and resistant? In one mediation involving a conflict arising out of a failed joint venture, I could not move the parties into a position of even possible accommodation. One party, the money partner, smugly presented a position of strength. It didn't help matters that it was mostly right on the merits, so in their view, why accommodate? The other partner, who needed the money and labored long and hard to develop and present the business opportunity, was tiresomely incompetent, if the truth be told. I found that not only was I frustrated in my efforts to develop common ground, I was frustrated in my effort to identify with either party empathetically to the extent necessary to effectively explore options.

I found that, in this case, it was important to be a vigilant champion of the process even if I couldn't readily become an empathetic champion of the parties themselves. This mediation ended in settlement and, to the extent I contributed to this result, it was only because I was tenacious in pursuing the process towards settlement...even though I had developed party fatigue well before the end.

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