Saturday, April 19, 2008

Stupid Mediator Tricks (4)

Visualization and "As if" negotiation.

I have been thinking about the applicability of visualization and "as if" social activism to mediation. Maybe mediators focus too much on having each party focus on themselves: on their own interests, and on trying to understand and appreciate the other party's interests.

Maybe mediators should focus more on the settlement itself: by having each party visualize the settlement, and negotiate "as if" there was no choice other than to settle.

At some point in the mediation, maybe I will call a timeout and have each party visualize the settlement. No doubt they will say, "What settlement, we are not even close!" But I will say, visualize it and tell each other: What it feels like. What it has accomplished. What it permits the parties to do going forward. Maybe even what it looks like in substance, but if I go this far, I would want to hear more about what the substantive terms do for each party, how they make each party get something important, rather than what the precise terms are.

Also at some point in the mediation, maybe I will call a timeout and have each party agree to negotiate in a way "as if" there is no BATNA, no alternative to reaching a settlement. Michael Pollan discusses "as if" behavior in a recent article about what each person can do to help deal with global warming. Essentially each person must suspend disbelief that social change can be accomplished one person at a time. Each person must act as if each person's personal attempt at living a more green life will actually retard global climate change. If everyone acts "as if," then one by one our green decisions accumulate, and we all will accomplish social change. If everyone says that no one person can affect global warming, so why bother, then social change will not happen.

I think everyone has had the experience of being in a situation where you decided to act in a way where you would not accept an available alternative. Maybe something as simple as you are running a race and you are getting tired, and you know you can drop out, but the thought triggers a wave of shame and you say to yourself, "no, I am not going there."

If you want social change, act as if what you do will achieve social change, as if what you do matters. If you want a settlement, negotiate as if there is no alternative, as if the settlement matters.

If I pursue this stupid mediator trick, then my main job becomes making sure each party is negotiating "as if."


Wednesday, April 16, 2008

Stupid Mediator Tricks (3)

Something Mnookin points out in Beyond Winning grabbed my attention. He stated that a productive negotiating posture for parties to adopt is to maintain a dynamic between assertiveness and empathy.

You should maintain assertiveness when stating your own interests and objectives, showing that you take them and your arguments seriously. You should maintain empathy for the other party when the other party negotiates, to understand the other party's interests and objectives by adopting the other party's perspective, seeing what the negotiating table looks like from the other side. I was struck because this same dynamic between assertiveness and empathy was what I have been telling my son is the the essence of leadership.

There is precious little leadership training in high school. This is not viewed as an academic subject, at least for students at this age. Doesn't make sense to me because I find it interesting to discuss with my son.

I might have a conversation with my son that goes like this: what would make people want to listen to you and follow your recommendations? By making sure, first, that you really know who it is you are talking to and where they are coming from, so that you understand their questions or needs in the way that they feel or understand them; and, second, by not being wimpy about where you stand and what you think. Thoughtful yes, but wimpy no. (But don't go over the top).

So now, I think I am going to start some mediations by saying I am looking for some leadership to be able to settle this conflict. Ah, making leaders, that's what mediators do.


Monday, April 14, 2008

Why Mediation is Not a Pre-Trial Trial

The biggest impediment to a mediated settlement in commercial cases is the inability of parties to regard mediation for what it is, as opposed to a pretrial mini-trial.

Parties settle conflicts in mediations, they don't win mediations. Litigators who appear at mediations often don't sufficiently appreciate this, certainly not as much as their clients. Which is why I will probably start making even more certain that only those client representatives who have sufficient stature to think for themselves and authority to act for the client appear at mediations.

Mediations are not mini-trials because mediators are not judges or juries. Thankfully. Mediators do not stand in judgment, and they have no institutional or personal competence in deciding who should prevail in a conflict. Indeed, mediators generally shun the notion that any party should prevail in a conflict, as if conflict was sport.

To the extent mediators do their job, they help the parties themselves discover for themselves meaningful ways to accomplish their goals without undergoing the time, expense and risk of litigation. Litigators seek damages, and perhaps another judgment that they can list on their resume for the next time they pitch a general counsel for a beauty contest. Clients want to a reasonable, risk-adjusted settlement to a problem, so that their business can focus more on profit generation than liability containment.

While there are cases that go to the heart of the way a firm conducts business, even these cases are typically better settled than pursued to a win/lose result. Settlements often become ways for a business to create goodwill even as it eliminates a risk.

Mediators are in the goodwill generating business, and litigators often don't appreciate how much goodwill can be created out of conflict.


Friday, April 11, 2008

Mediator as Agenda-Buster

Is it unrealistic for a mediator to suspect that every party to a mediation is pursuing a hidden agenda?

I always try to be overt in disclosing my mediator's agenda, which is to be a passionate advocate for settlement. I tell parties that I will seek to have them transcend any barriers to settlement that arise in the course of the mediation. I will try to understand what they are saying and acknowledge where they are coming from, both to help the other party understand all this, as well as to be able to suggest ideas or options that might create value for both parties.

These settlement barriers can be overtly on display, such as a party feeling hurt, having a specific and stubborn dollar bottomline, or having little repsect for the other party. These are fine, insofar as they are out in the open and can be addressed, whether successfully or not. But what is a mediator to do when things don't seem to add up, in the sense that a party seems to be taking a position that seems extreme or at odds to that party's declared interest and objective. "Who you gonna call?"


One party may want to stretch out the conflict in order to defer as long as possible the recognition of a loss for accounting purposes. This conflict will simply not be settled here and now. Another party may insist on a lowball settlement because it is judgment proof and believes the other party will never be able to satisfy any judgment it might obtain. I can talk about ethical conduct until I am blue in the face. Another party may have an emotional attachment to, or a shameful history with, the other party to the conflict that the party will not acknowledge that is keeping the party from being reasonable. The other party to the conflict is telling me this in private caucus. Is it the other party who is pursuing the hidden agenda?

You begin to sense what is going on in a private caucus session and you call the party on the carpet, as gently as you can. The problem for me and the mediation is, I have become that party's adversary now. Why? Because I am an advocate for a settlement, and the party's hidden agenda has become my adversary.

If a party in confidential caucus doesn't permit me to acknowledge this hidden agenda in open session, then I simply have to continue to work on that party in caucus. Persistance, patience and maybe a little persuasion to keep the hidden agenda from creating the negotiating impasse. It is a matter of mediator pride, if little else.


Friday, April 4, 2008

Mediator as Advocate for a Settlement

I find that the best way for me to be actively neutral in a mediation is to regard my mediator role as someone who has to be a constant and passionate advocate for settlement.

If I can't be actively neutral, I am not working hard enough to promote settlement. If I am not a constant, even at times annoying, advocate for settlement, then I can't be actively neutral.

What do I mean be being actively neutral? Really, this is the core obligation of a mediator. Each party must feel that it's assumptions and positions are being actively challenged by the mediator in a neutral manner. In part, this neutrality is achieved when the party sees the mediator treating the other party in a like manner. But much of a mediator's challenges are done in separate caucus, where the parties can't witness the other party's equal treatment. So, how does a mediator try to have parties tear down their own barriers to settlement, and consider what are uncomfortable options that ultimately prove to be fruitful avenues to a fair settlement? Especially in commercial cases where each party is represented by a staunch advocate that is prepared to press on with litigation? By being a staunch advocate as well, the only one in the room that is an advocate for a purpose and not a party.

Truthfully, I have very few reliable guideposts in mediation. I really will not know what each party's litigation strategy is, even if I ask in caucus. I really will not know what each party's real bottom line is, even if it is loudly announced in open session. Really, all that I have to guide me as mediator is patience and a strong disposition to advocate for settlement, especially when the mediation operates in the shadow of litigation. Of course, often enough, the parties will reasonably assess their interests, objectives and likelihood of prevailing in litigation in a manner which leaves no recourse for settlement, at least until the course of the litigation causes them to reassess. For a passionate advocate of settlement, you win some and you lose some, just like passionate courtroom advocates.