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.

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