Peacemaker continued; page 3/4
The hardest thing for me as a trial lawyer in a mediation was to be patient when I had a pretty good idea where things were going. The hardest thing for me now, as a mediator, is convincing the parties to be patient and let the mediation develop.
Negotiations are sometimes described as a dance. In order for them to be successful there needs to be cooperation and communication among the negotiating parties. Think of the mediator as the dance instructor. He or she is the one who selects the music and determines if this is a foxtrot, swing, or salsa. Just as the mediator should be flexible in responding to the personalities of the parties, the parties need to be flexible enough to follow the mediator’s approach to the mediation.
“Don’t short-circuit the dance” is an expression I’ve heard for years in and out of mediation. Until I started working as a mediator, I didn’t fully appreciate how important this is.
Mediations develop at a pace and the pace is always slower than the parties, generally in separate rooms, like. You may know where this mediation is going but to move the other party takes time. If you rush the process, either the plaintiff is going to feel he or she left money on the table, or the defendant is going to feel that he or she overpaid.
Both parties should come out of a successful mediation feeling they got the best deal they could under the circumstances.
Some mediations, often because of the personalities of the parties or the history of the case, will simply drag on with small baby steps, because neither party is willing to move out of fear the other side will take it as a sign of weakness and not reciprocate. This is where patience comes into play.
If you’re a plaintiff, don’t be insulted with a low opening offer that merely responds to an unreasonably high demand. Likewise, if you’re defending, offering five cents on the dollar will not bring the plaintiff down from an unrealistic demand. When you make an offer or demand, think about how the other side will react to it.
Trusting the Mediator
Oftentimes the mediator will deliver bad news. My advice is this: Don’t shoot the mediator, he or she is merely conveying information back and forth. Better to work with the mediator to try to design a response that might move your opponent. Sometimes it just isn’t going to happen. Remember, this is an entirely voluntary process and, even though most cases will eventually settle, some cases just have to be tried.
As a negotiator in a mediation, you are only privy to one part of the story. You may understand the needs, interests, and personalities in your room, but not in the other. If the mediator changes course (a good one will, sometimes several times in one mediation) trust the mediator’s approach. As lawyers we are trained to control the courtroom. Its hard letting go of that in mediation, but remember you hired the mediator to assist you in resolving your case.
Let the mediator do his or her job. I’ve had parties absolutely refuse to respond to a proposed bracket. In one case it was because “our firm doesn’t negotiate that way”. In another, It was “…if they do so here the other party will think they’ll do this in all negotiations” . This makes no sense, if the goal is to fairly settle the case. Your responsibility in mediation is to do what is best for your client, and if that means adapting the negotiation approach to the case, then you ought to consider that method.
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