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Dealing with Difficulties: What to Say When Parties Won’t Settle and Only Want to Prove They Are Right

Mediation

By Stephen B. Goldberg, Jeanne M. Brett, and Beatrice Blohorn-Brenneur, with Nancy H. Rogers November 2017
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This article, adapted from “How Mediation Works: Theory, Research, and Practice,” published earlier this year by Emerald Insight, is intended in part for a traditional audience of mediators, aspiring mediators, and lawyers. But the book also aimed at a broader audience, including the increasing number of disputants who have been directed or encouraged to mediate by judges or lawyers, yet know little or nothing about it.

The book relies on the combined mediation experience of all the authors to ensure that the book is technically sound. “How Mediation Works” is written in plain English, not legalese—it’s short, but sufficiently comprehensive to serve as the central text in a mediation training program, or as supplemental reading in a law or business school negotiation or dispute resolution class. 

How Mediation Works

The focus: Breaking down remedies for mediation breakdowns, by top neutrals.

The assessment: There are many reasons why bargaining sessions run aground. The mediators’ intervention steps can break impasse.

The assumption: Mediation can get you where you want and need to be. The mission here is to improve the effectiveness of the mediators and the parties.

Below is an examination of what happens when a mediation runs aground—from the book’s Chapter 4, “Dealing with Difficulties.” In the book, the gender of the mediator is alternated by chapter, with masculine in one chapter, feminine in the next. Here, the terms shift.

* * *

There are significant difficulties that mediators may encounter that are worthy of separate treatment. This article highlights four of the eight that appear in our book’s chapter on overcoming mediation roadblocks.

The Inability of the Disputing Parties to Reach Agreement: A mediation difficulty of great concern to many neutrals is the inability of the disputing parties to reach agreement. The following conversation between mediators would not be unusual:

Mediator 1: I had a really bad day today. I tried everything I know, but I still couldn’t get an agreement. What worries me is that my low settlement rate may discourage people from hiring me.

Mediator 2: I did OK today, but it has been a really tough week. I settled only one of my three mediations … and I can’t get the failures out of my mind. Maybe being a mediator is not for me.

The assumption underlying the mediators’ conversation is that agreement is the goal of both the mediation process and the mediator, and if no agreement has been reached, both have failed.

A more nuanced, and we think more accurate, view is that disputing parties go to mediation with the goal of reaching agreement, but only if they can obtain an agreement that each views as superior to its BATNA—the Best Alternative to a Negotiated Agreement, the bargaining concept from “Getting to Yes: How to Negotiate Agreement Without Giving In,” by Roger Fisher, William Ury and Bruce Patton. For, it seems evident, a well-advised party will not accept an agreement in mediation if it views that agreement as inferior to its BATNA.

It follows that the mediator’s goal is not to assist the parties in reaching agreement, but rather to assist them in finding the best agreement possible in mediation, leaving it to each of them to decide if that agreement is better than its BATNA.

The mediator can assist each party in finding the best agreement possible in mediation by helping each to (1) understand its interests and priorities, as well as those of the other party, and (2) develop the best settlement proposal it is willing to make.

Once each party has received the other’s best settlement proposal, each knows the best agreement it can reach in mediation. At that point, it is for each party to compare the best agreement available in mediation with its BATNA, and decide which it should choose.

The mediator may aid the parties in making that comparison, and may, as discussed elsewhere in “How Mediation Works: Theory, Research, and Practice,” offer advice. But even if the mediator thinks the best agreement available in mediation is superior to the parties’ BATNA, his success as a mediator does not depend on whether or not the parties accept that agreement.

The mediator’s role in this respect is not unlike that of a doctor treating an ill patient. The doctor’s task is to provide a sound diagnosis of the illness and to recommend a course of treatment. If the patient decides not to follow that treatment, despite being advised of the risks of his decision, the doctor has not failed; the patient has exercised his right of free choice.

So it is with mediation.

If the mediator has done what he should to assist the parties in determining the best agreement possible in mediation, but one party prefers its BATNA, the mediator has not failed; the parties have exercised their right of free choice.

Acceptance of this more nuanced view of the mediator’s role should have little effect on what the mediator actually does. The mediator techniques discussed in “How Mediation Works: Theory, Research, and Practice,” are equally appropriate for the mediator who believes it is her role to bring about agreement as they are for the mediator who views her role solely as assisting the parties to see if they can reach an agreement that is better than their BATNA, whether or not they choose to enter into that agreement.

The techniques we recommend to all mediators, regardless of whether they view their goal as bringing about an agreement, consist of (1) aiding the parties in understanding their interests and priorities, as well as those of the other party; (2) using those interests and priorities to assist the parties in developing potential settlements; (3) encouraging the parties to make the best settlement offers possible; and (4) aiding each party in comparing the best agreement available in mediation with the best outcome it can reasonably expect outside mediation (BATNA).

Even though this alternative view of the mediator’s goal may not affect the techniques she uses in a mediation, it should have a profound effect on how the mediator evaluates her success. The mediator who views her work as successful if she uses each of the techniques described above, without regard to whether the parties reach agreement, is free of self-imposed pressure to reach agreement.

As former U.S. Magistrate Judge Wayne Brazil has pointed out, such a mediator is not subject to the temptation to manipulate the parties in order to obtain an agreement. The mediator should not, for example, be tempted to exaggerate the weakness of each party’s legal arguments, hoping thereby to make the potential agreement in mediation appear superior to court resolution.

Nor should the mediator be tempted to overstate the advantages of the best agreement available in mediation so as to encourage acceptance of that agreement.

Some mediators may be concerned that this approach will have a negative impact on their settlement rate, making them less attractive to parties selecting a mediator. That concern is unwarranted.

Settlements obtained through mediator manipulation of the parties, even if they increase the mediator’s settlement rate, are unlikely to increase the mediator’s attractiveness. The parties to a mediation and/or their lawyers or other representatives often engage in post-mediation discussion of the mediation and the mediator.

If they discover that the mediator has engaged in the manipulative practice of telling each party that its case was a likely loser if the dispute were to go to trial, or that the mediator misstated his view of the advantages of settlement, they will not hesitate to criticize the mediator’s behavior to others who ask whether they should use that mediator (See Model Standards of Conduct for Mediators (2005)(available at http://bit.ly/2xO1VzY). The mediator will thus have gained little by his manipulative behavior.

In sum, our view that the goal of the mediation process and the mediator is to assist each party in determining the best agreement available in mediation and whether that agreement is superior to its BATNA should have no effect on what the mediator does or how the mediator is viewed in the marketplace.

It should, however, free the mediator from unwarranted pressure to obtain settlements, and enable him to deal with the difficult moments in mediation free from such pressure.

One additional point: In the book’s previous Chapter 3, we wrote about techniques that the mediator may use to “help the parties reach settlement” or to “move the mediation toward settlement.” We used these terms because it is simpler to say that the mediator is seeking settlement than that the mediator is seeking to assist each party in determining if the best agreement available in mediation is better than its BATNA.

It should be clear, however, that whenever we suggest or encourage mediator behavior “designed to assist the parties in reaching settlement,” we refer solely to behavior that assists the parties in determining if they can reach a settlement that each regard as superior to its BATNA.

We turn to techniques that the mediator may use in dealing with difficulties encountered in mediation.

Unwillingness to Make the First Offer: At times, neither party is willing to make the first settlement offer. This often occurs when neither has a good sense of negotiation strategy, and each fears being taken advantage of by the other.

The mediator might address this situation by giving both parties advice on negotiation strategy. For example, the mediator might say to each (in separate sessions):

One excellent way to determine your first proposal is to identify an offer that is at the limit of what you can reasonably hope to attain. Such a first offer provides you with room to retreat and still end up with an acceptable agreement. …

You must be prepared, however, for the other party to say, “How did you ever come up with that crazy proposal?” If you don’t have a good answer to that question, your offer will not serve its intended purpose of starting the settlement negotiations where you would like them to start.

The mediator might also say:

Another means of determining your first offer is to make it close to what you think would be a fair outcome, but with room to concede a bit and still end up with an acceptable outcome. If you start this way, you still must be prepared to provide a defensible answer to the question, “How did you ever come up with that crazy proposal?” Developing that answer should not be difficult, however, because the proposal is not extreme.

By providing each party with a means for determining its first offer, the mediator should be able to break the deadlock of neither party being willing to make the first offer.

Additionally, by giving each party the same tactical advice on making its first offer, the mediator eliminates any concern that she has prejudiced the outcome of the mediation by providing advice to only one party.

The mediator’s suggestion that opening offers should leave room for subsequent concessions also signals to the parties that the mediation process will involve a series of offers and counteroffers, rather than “take it or leave it” proposals. This sets the stage for an orderly and productive interchange.

Strong Emotions: Parties who end up in mediation because they have been unable to resolve a dispute on their own are often angry and resentful. Such emotions are an obstacle to the reasoned analysis of interests and priorities which is important to successful dispute resolution.

Efforts by the mediator to ignore parties’ emotions or to persuade them to suppress their emotions are unlikely to be successful. Accordingly, the mediator needs to know how to manage emotions.

The key to turning an emotional party into one who is able to participate in reasoned settlement discussions is to let the party express his emotions, signaling respect for his remarks by thoughtful questioning and empathic listening. Once the emotional party believes his concerns have been heard and respected, he is more likely to turn to the hard work of settlement negotiations.

This means that the first step in successfully managing emotions consists of providing the parties with an opportunity to express—“vent”—their emotions. The mediator needs to decide whether venting should take place in joint session with the mediator and the other party, or in a separate session alone with the mediator.

There are pros and cons to each approach, and the mediator must decide on a case-by-case basis whether having the parties express their emotions directly to each other will help or hurt the mediation.

The advantage of venting in joint session is that speaking about one’s anger, hurt, or disappointment directly to the other party in the presence of the mediator should help reduce the speaker’s emotions. The risk is that the other party may become defensive and emotional in return, jeopardizing the mediation.

One way to avoid this risk is for the mediator to discuss with the parties in private session whether a joint venting session is likely to be helpful:

Mediator (to Party A): I sense that you are very angry with [the other party] for her actions in this matter. Is that right?

Party A: It certainly is. I can’t believe that someone I trusted could do such a thing.

Mediator: Sometimes it helps if the mediator provides each party with an opportunity to express her feelings to the other party and hear what she has to say in return. Would you like the opportunity to do that in this case?

Party A: I certainly would.

Mediator: And could you sit still and listen quietly while [the other party] responds, perhaps expressing her anger at you?

Party A: Sure. I know what she’s going say and it doesn’t bother me at all.

If both parties are interested in a joint venting session, and if each believably asserts that she can maintain her composure during such a session, the mediator may decide to schedule it. He can always cut the session short if it threatens to get out of control. The mediator may even use a failed venting session as a reason why resolving the dispute as soon as possible and so avoiding future interaction is in the self-interest of each.

If venting has not succeeded in calming the parties’ emotions so that they can proceed with settlement negotiations, the mediator might suggest adjourning the mediation and asking each party to bring a “coach” to the next mediation session. The coach should be someone who can counsel the party whose emotions would otherwise preclude the rational consideration of outcomes.

Each Party Thinks Only of Proving It Is “Right” and the Other Party Is “Wrong”: If the mediation is evaluative, each party is expected to present evidence and argument to show that it is right and the other party is wrong. Such presentations allow the mediator to evaluate the strength of the parties’ arguments, and to provide them with a neutral view of which is more likely to prevail if the matter goes to court.

If, however, the mediation is interest-based, there is little gained from parties making arguments to show they are right, at least not until interest-based efforts to reach agreement have proven unsuccessful.

Nevertheless, such arguments are common in interest-based mediation, particularly at the outset. At times, this is because the parties do not fully understand the difference between focusing on rights and focusing on interests; at other times, it is because the parties or their lawyers are so accustomed to presenting their positions as a matter of “right” that they have difficulty doing otherwise.

Whatever the reason, the presentation of rights-based arguments—whether orally or in written pre-mediation briefs—in the early stages of an interest-based mediation may distract the parties from focusing on their respective interests and priorities.

Some parties and their lawyers persist in making rights-based arguments throughout an interest-based mediation because they hope that the mediator will view their arguments as sound, and will rely on those arguments to encourage the other party to modify its settlement position. At very least, they want the mediator to know that they are confident of their rights position and ready to go to court if their demands are not met.

The mediator who wishes to discourage this reliance on rights-based arguments might, in a separate session with a lawyer who insists his client has the stronger case, say something like:

The problem is that is exactly what [the other side] thinks. So if we’re going to make any progress in this matter, I’m going to have to ask both parties to put aside the question of right and wrong, at least for now, and see if we can work out some kind of settlement that you could live with, that they could live with, and that probably would not involve them paying you [the amount you have demanded]. Let’s just try, OK?

Note that the mediator, by suggesting that the question of right and wrong should be put aside “at least for now,” did not reject the lawyer’s argument that he was right, or foreclose him from raising that argument subsequently. The mediator also assured the lawyer that he was going to ask the other party to put aside rights-based arguments “for now.”

The combination of leaving the right/wrong question open for the lawyers to argue at a later time if an interest-based settlement cannot be reached, and treating each party alike, should be enough to allow the mediator to refocus the discussion on the parties’ interests rather than their rights.

* * *

In the book, the remainder of Chapter 4 addresses the following difficulties: Parties are not candid with the mediator in separate session; behavioral issues; the mediator finds one party more sympathetic or appealing; the mediation appears to be at impasse, and the parties reach a tentative agreement that the mediator views as unfair to one of them. It also includes references, recommended mediation demonstration DVDs, and suggested reading. For more information on How Mediation Works: Theory, Research, and Practice, visit publisher Emerald Insight’s website at http://bit.ly/2fV0MNc. For a review of the book, see F. Peter Phillips, Business Conflict Management blog (June 24)(available at http://bit.ly/2kyuvkb).

Biographies

Goldberg is professor emeritus, Pritzker School of Law, at Northwestern University in Chicago. Brett is a professor at the Kellogg School of Management at Northwestern University in Evanston, Ill. Blohorn-Brenneur, of Paris, is a retired judge and a mediator at the Council of Europe, a human rights organization based in Strasbourg, France. Rogers, a longtime Alternatives editorial board member, is professor emeritus at the Moritz College of Law, Ohio State University, in Columbus, Ohio. This article is adapted from the authors’ “How Mediation Works: Theory, Research, and Practice,” published earlier this year by Emerald Insight. See endnote for more information.


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