Once again, the Program on Negotiation at Harvard Law School has published an interesting blog by Katie Shonk (In Business Negotiations, Dress the Part, June 24, 2014) discussing what we all know but do not always think about: as part of any negotiation, one must dress the part. As she explains, if one is negotiating with an apparel company, the worst thing one can do is wear a competitor’s clothing to the negotiation! Also, one may not want to show up in business attire but rather the apparel typical of the company with whom one is negotiating.
Why? As explained by Ms. Shonk:
Wearing a negotiating counterpart’s apparel or footwear to a meeting may seem like a gimmick. But “dressing to impress” for a negotiation sends subtle yet important messages: that you value and respect the company’s products, recognize the importance of small gestures, and are flexible enough to conform to their norms. That’s why bankers tend to dress down for meetings with Silicon Valley entrepreneurs and investors, writes Mattioli. (Id.)
At the same time, dressing in a non-conforming style to everyone else in the negotiation has its merits. As Ms. Shonk notes, in one experiment, executives at a Harvard Business School seminar assessed the professor differently based on what shoes she was wearing. “When she wore red sneakers with her business attire (an unconventional choice) they tended to think she had more consulting clients and charged them higher fees as compared to when she was wearing more traditional shoes.” (Id.)
Similarly, other research found that clerks at hi-end stores in Milan believed that a shopper wearing gym clothes would spend more money shopping than one wearing a dress and/or a fur coat. The theory behind this is “….that dressing unconventionally in prestigious settings signals that a person’s status is so high that she doesn’t have to bother conforming to established norms. A classic example would be Mark Zuckerberg’s signature hoodies, which he reportedly wore even to meetings on Wall Street before his company’s IPO.” (Id.)
The conclusion Ms. Shonk draws from all of this research is that how you dress for a negotiation is directly connected to what you hope to accomplish. If you are asking for money or otherwise are a supplicant, show respect by dressing according to the norms of the one with whom you seek favor. However, if the playing field is level such that there is no real power imbalance between the parties, you may actually gain status by dressing casually or even wearing red sneakers!
In many of my mediations, I tend to wear running shoes or very comfortable red “bowling” shoes with my business suit, as I am doing a lot of walking back and forth between the parties. I do get fun comments once in awhile… but I have never given any thought about how it affects my ability (.i.e., success rate) to help the parties reach a settlement. Perhaps, I should start keeping statistics!
… Just something to think about!
If you enjoy this blog, and want to receive it weekly via RSS Feed, click on the “Subscribe” button immediately above the blog!
If you would like to receive this blog automatically by e mail each week, please click on one of the following plugins/services:
Excerpt from Susan North’s Acknowledge The Corkscrew
Sometimes in a mediation, there arise several issues which the parties will address in a sort of rotation. It’s a curious thing to observe. When one topic becomes too hot or uncomfortable, they move on to one of the others, often until they have made the circuit a number of times. Eventually one party, thoroughly exasperated, exclaims, “We’re just going around and around!” Or are they?
There’s a famous mediation called “The Purple House Mediation.” It’s well known in conflict resolution circles for a number of reasons. It forms the centerpiece of a landmark publication called The Promise of Mediation by Robert A. Baruch Bush and Joseph P. Folger. It has been transcribed and re-enacted as a training film. Its iconic status probably has a lot to do with the fact that the matters it addresses – ethnicity and race relations, private property, self-determination – are each issues commonly found at the heart of conflict. And here they are, all together in one epic struggle! When reading it, my initial reaction was “Oh dear, they’re just going around and around.” Then I noticed a strange thing. Each time the parties addressed one of the several sub-topics in their dispute, they went a little deeper. Then, having probed dangerously close to the bone, they would move on. It was as if by changing the subject they could get a little relief from the poking and prodding. When they returned to the topic, their beginning point was more intimate and honest than when they had discussed it before. In other words, they would leave a topic that had become sore, but when they returned to it they were (strangely, I thought) able to pick up slightly beyond where they had left off.
They weren’t just going around and around. They were going deeper too. I had to think that somehow the circling was providing relief, a few minutes to heal and prepare for further probing.
I was reminded of a corkscrew. Yes, it goes around and around but it also drills down further with each pass, thereby ultimately releasing the cork, the thing that blocks the neck of the bottle. This metaphor has sustained me whenever I hear that familiar “we’re just going around and around” complaint. It allows me to agree while putting in my two cents’ worth about what I think is really happening. Let’s look at two neighbors arguing about their property line. One of them, Bruce, says in exasperation, “We’re just going around in circles!” I might say, “Yes, Bruce, I agree, we have been circling around from topic to topic. And here’s something curious – I’ve noticed that each time, we get a little closer to things that really matter.” Then I give an example specific to the mediation at hand: “The first time you expressed your annoyance about the rose bushes, Elaine told you that they were planted by her mother just after her father died. Elaine got kind of emotional, and you responded with kindness and understanding. It was a sort of touchy moment, and soon after, the subject changed to the rear wall. But when we returned to the issue of the rose bushes, you both looked a lot calmer and were able to begin doing some problem-solving. Is that how you experienced it too?”
So when things are going round and round, see if you notice the “corkscrew effect.” That may be what’s happening. If not, and the conversation is merely repetitious, other techniques such as caucusing might help. As a final resort, when someone is truly stuck in a repetitive pattern, try asking in a firm tone, “Is there anything new that we haven’t already talked about?” Once nothing new is offered, insist on moving on to the next stage of mediation.
At the ABA Dispute Resolution section spring conference, I attended a talk on mediating discovery disputes, a subject that has been of interest to me for a long time, but which should be more urgent given the difficulty traditional court processes and rules have in managing the continuing explosion of data. As Marian Riedy, who has written about the difficulties of retrieving electronic data, pointed out, the enormous costs of discovery of such data make it essential that parties cooperate in crafting agreements on the scope of discovery. Indeed, federal and state rules generally require efforts to resolve discovery issues by negotiation. That being the case, there would seem to be a place for mediators to step in and assist attorneys and parties having difficulty reaching negotiated solutions
Even though the idea of bringing more mediation to resolving discovery disputes seems so obvious, it has not really taken hold. Why? Cost might be one reason, though it would seem that in many cases the cost of calling up a mediator should be a lot less than the cost of preparing briefs and affidavits in support and opposition to motions to compel.
Institutional resistance might be another reason, as courts are accustomed to referring discovery problems to magistrate judges or discovery masters for resolution, but have less experience or ability to refer discovery disputes to mediation. One of the panelists, Nancy Greenwald, discussed her experiences as a mediator with a Virginia state court program that has had success in assigning discovery disputes to mediation. That is an encouraging sign that some courts are overcoming institutional resistance.
And the adversarial culture that has existed for decades in both big and small document cases presents another reason for slow adoption of new techniques. Lawyers are trained to leave no stone unturned, and to prepare for every possible contingency at trial. Clients are sometimes reluctant to turn over sensitive data unless they are ordered to do so. Lawyers have accepted mediation as a tool to help settle cases after they have conducted sufficient discovery and motion practice, but have been slower to turn to mediated solutions in earlier stages of disputes. Despite courts’ meet and confer requirements, and admonitions to cooperate on discovery issues, many lawyers still view discovery as a battlefield.
There is also a big difference between resolving a dispute over the scope of discovery to which parties are entitled under the liberal standards of federal and state rules, and the discovery parties might need to evaluate a case for resolution. Ideally, mediation should promote informal exchanges of the information parties need to help them settle cases (including an opportunity to find potential smoking guns held by the other side), but that is in most cases still a lot less discovery than the parties are entitled to under the rules. In other words, mediation of discovery disputes ideally should lead to an informal exchange of a limited amount of information helpful to reaching a negotiated resolution of the dispute without protracted litigation. But if the mediation is focused on determining the scope of permissible discovery needed to prepare for a potential trial, then it might be biting off more than it should be chewing.
“Only someone who is ready for everything, who doesn’t exclude any experience, even the most incomprehensible, will live the relationship with another person as something alive and will himself sound the depths of his own being.”
– Rainer Maria Rilke
Differences between people can be incomprehensible, fueling mistrust that can deter us from engagement. Recognizing and negotiating personal and cultural differences is dependent on developing empathy for oneself and between people. Empathy is more than feeling for another; empathy requires us to reach deep within ourselves and recognize our own inner responses so we can then better recognize another person’s response. Empathy that moves from within people and between people is core to the success of transformational mediation.
Being open to the responses of others while recognizing our own requires what the cultural philosopher Roland Barthes called being “twice fascinated” (simultaneously as a participant in an event and as a witness) — to be open to both our immersive psychophysical experience and our mind’s cognitive assessment. Sensorial and cognitive awareness are critical to a mediator’s effectiveness, yet in the teaching and application of mediation strategies there is often an imbalance of attention given to these capacities. How might our field of conflict resolution expand if we rebalanced our attention between sensorial and cognitive capacities? The authors, who are artists as well as mediators, have found that the arts offer technique and methodology rich in perceptual, sensorial and cognitive strategies that can be creatively adapted to the needs and contexts of mediation.
The arts enhance our human impulse to make meaning through aesthetic processes that allow for relational and communicative acts between people. When meaning is shared, empathy “mediates” – moves between – our human differences. To the extent that art can generate empathy, and empathy can bridge the differences between us, art is implicitly “mediative.” Some artists use the relational, mediative qualities of their art practice to stimulate their audience to identify with people they typically do not identify with, or more directly to engage them to co – imagine ways to transform their belief and behavior.
In this article we focus on how art-based modalities can be applied to mediation with three goals:
Building our capacity to cultivate perceptual and bias awareness
Catalyzing and deepening our experience of empathy in mediation
Engaging further discussion: What is left unsaid?
1. Building Capacity for Perceptual and Bias Awareness
“Aesthetics” is defined as “the branch of philosophy that deals with the principles of beauty.” The arts recognize “beauty” as simple and complex, inspiring and confounding. Artists respond to inner life and to the outer world through the filter of aesthetics, which for any single artist is dependent on multiple factors of perspective—history, context, intention, form, content and function. The aesthetic approach is a way to study and express subtle permutations of inner and outer life, explore the ability of art to evoke contradiction and uncertainty, and set the stage for vision, intimacy and dialogue.
In order to develop and hone an aesthetic sensibility, artists are trained to observe and recognize sensory and cognitive experience, including awareness of cultural context, internalized assumption, belief and bias that inevitably shift meaning. What can perceptual and bias awareness training add to a mediator’s practice?
“On the penthouse floor of the MGM building, Century City, Los Angeles, at the end of a typical workday, I entered a large conference room of a well-known law office. A colleague had invited me to make a presentation on what the arts have to offer lawyers and mediators. As an artist with a history of working with spatial variables I know well how the immediate environment shapes our perceptions and relations with one another. I was invited to communicate these skills.
I arrived early to familiarize myself with the room’s architecture, furniture, lighting and multi-media capacities and noticed that the room’s technological aspects could easily turn the oversized conference table and occupants seated around into theatrical characters.
At the push of any of various wall buttons I could make spotlights beam and dim or floodlights bathe and shadow areas of the room. I could draw curtains open or closed across a large glass wall facing the outer office lobby, to make the room private or reveal it to passersby, lower floor-to-ceiling window scrims to shield the room from the sun or raise them to expose the incredible landscape of Los Angeles 20 floors below. I could open wall cupboard doors to reveal projection screens that hummed electronically as they descended to the floor and rose back to the ceiling. I could turn video flat screens on and off, and swivel the leather seats surrounding the conference table in any direction.
Sixty invited mediators and lawyers arrived. They sat sedately facing one another around the conference table waiting to “conference” in the usual way. For the first twenty minutes I “played” the room to orchestrate its shifting potential and to alert the participants to their shifting experiences. They were mesmerized by the infinite variations of a room they previously had taken for granted over hundreds of conference hours with hundreds of clients. For twenty minutes they were released from their norm and invited to experience sensation, together. This aesthetic lesson revealed how we are framed and conditioned by the environment we are in, made distant and made intimate to one another. Recognizing our experience of where we are and how our relations with others are affected means something, and especially to a mediator.”
– Dorit Cypis
We often take for granted the experience of seeing, assuming that what we see is a self-evident truth. Artists are trained to recognize that seeing is about who is seeing as much as what is seen, that the act of seeing is like a mirror reflecting the seer back to herself. In fact, seeing is a complex phenomenon that is simultaneously physical, perceptual and experiential, revealing our deeply held cultural beliefs and personal experiences.
The Seeing Triangle (above) unpacks three key modalities of sight that can build the mediator’s capacity to better understand nuances of a conflict by assisting her to recognize her own tendencies and biases and those of the parties she is working with.
Example: A person sees a chair and dislikes it immediately (“I hate that blue chair, it’s ugly”). The observation that the chair is blue is an example of formal sight. The emotional reaction is an example of experiential sight. And the judgment that the chair is ugly represents perceptual sight. Each aspect of sight is influenced by culture and simultaneously by subjective experience of conscious or repressed memory, emotion, and sensation, e.g., “that blue chair, reminds me of a chair I fell off at age 5.” If these influences are not recognized and acknowledged, they can shift how this person sees all blue chairs. Is she seeing the chair before her, or is past experience occluding this chair through bias?
Substitute person or place or situation for the chair and you can see how bias can shut down engagement. Recognizing the complexity of “how” we see informs us more subtly of our tendencies, bias and prejudice and opens paths of empathic understanding between us.
2. Catalyzing the Experience of Empathy
The arts engage the mind and body interdependently, speaking both to our thinking mind and to our body’s ability to experience sensorially and emotionally. We hold emotion, memory, pain and joy, thought, dream and desire in our body/mind. We are each a repository of history though our lived experience. Aesthetic expression – form, mass, movement, sound, visuality or language – can stimulate us to revisit the repository of our history and go beyond it towards the history of others. The arts invite us to feel, think, and imagine from the self outwards. Aesthetics is a way to build empathy for ourselves and for others. Think of a film or a performance or an image you recently saw that stimulated you in this way.
In this light, aesthetics can be seen as a strategy to move people to see something about themselves and the world that they didn’t see before, catalyzing and deepening an experience of empathy. Specific arts practices are available as resources for mediators to explore, adapt and apply as catalysts of empathy within more traditional mediation practice.
3. Engage Further Discussion: What is Left Unsaid?
In closing, we return to a question rather than to answers. How might our field expand if we employed tools from arts-based practices rich in perceptual, sensorial and cognitive strategies, which can guide mediators to be “twice fascinated?” Drawing from our case studies, and the mentors and peers who have inspired our use of empathy, we offer the following guiding principles to cultivate perceptual and bias awareness and deepen an experience of empathy in conflict transformation:
Listen for connecting threads (active listening and “narrative listening”)
Recognize that mind and body are inherentlyconnected
Allow sensorial experience to inform cognitive reflection
Recognize that internalized experience forms patterns of belief and bias
Recognize that experiencing empathy for another person requires first experiencing empathy for the hidden part of oneself.
Balance attention between form and content
Have patience and understand that recognition takes time
Finally, we offer one question: What is one risk you could take in your practice to creatively cultivate awareness and deepen empathy?
Barthes, Roland, “Leaving the Movie Theater”, Roland Barthes, in Philip Lopate, ed., The Art of the Personal Essay. Doubleday 1994.
The authors presented an earlier version of this article at the ACR Annual Conference in September 2013.
About the Authors
DORIT CYPIS is an award winning artist and innovative professional mediator. Her work on identity and social relations has been presented at major museums internationally. She came to the field of Conflict Resolution in 2002, founding Foreign Exchanges in 2007.
SUSAN OETGEN is a performing artist, educator and facilitator active in Brooklyn, NY and Washington, DC. As part of her creative practice, Susan designs and facilitates workshops and dialogues on the performing arts and conflict transformation for adults, and teaches conflict resolution and violence prevention through the arts in NYC public schools.
EVA VANDER GIESSEN consults with organizations on storytelling as a mechanism for social change. Beyond her Playback Theater practice, she brings together Palestinians and Israelis through entrepreneurship at MEET and serves on the board of Afghan Friends Network.
Case Study 1
Susan Oetgen on Fieldwork
Fieldwork, a program offered by The Field, a NYC-based non-profit, is dedicated to the creative and professional development of performing artists (www.thefield.org). Each session features the presentation of works-in-progress “showings,” followed by a “feedback circle” in which the artist presenting work receives feedback from other artists present.
The Fieldwork methodology could be adapted for basic mediation training as a follow-up to role-play.
Participants offer one another incisive and stimulating critique by restricting their feedback to direct observations rather than directorial suggestions. In doing so, they support the integrity and intentionality of each other’s creative agency. In Fieldwork the practice of observing and speaking about what an artwork simply is, rather than what one thinks it should be, engages another artist’s aesthetics directly and helps us see something new about the world and about ourselves. It is a practice that is inherently mediative.
According to Diane Vivona, a Fieldwork facilitator and former Executive Director of The Field, “…Fieldwork is like a guideline to living. It is all about communication and listening to people and being very specific about things…” Fieldwork is first and foremost a creative process, but an implicit, secondary outcome is that workshop participants relate to each other with empathy as a result of the trust that is built up in the process.
The Fieldwork methodology could be adapted for basic mediation training as a follow-up to role-play, or for advanced mediators who wish to meet together in a practice group. Giving incisive but non-directorial feedback after a role-play training session could help mediators uncover their own unconscious habits of perception and bias, and practice using language that aims for directness and honesty while supporting the integrity, intentionality and agency of others. Receiving honest, keen, non-directorial feedback about performance in a role-play training session – and not responding to it in the moment – could help mediators attend to their own sensorial and cognitive experience of vulnerability and stay present to the discomfort that vulnerability elicits.
Case Study 2
Dorit Cypis on Psycho-Portraits
Psycho-Portraits is a creative process I developed that bridges live performance, cinema and photography to show how we unconsciously internalize cultural images that stand in for our forgotten or repressed experience, and how images can re-evoke liminal aspects of our identity. Over the past three decades I have used this process to create performative artworks for exhibition, and as a teaching tool for artists, psychotherapists, and educators across the United States and Europe. Psycho-Portraits also exists as photographs that have been widely exhibited.
Moving across the projection beams Robert reveals within his shadow an image of the opera singer Jessye Norman, now embedded within an image of himself as a child.
In this process a participant is invited to my studio and brings with her autobiographic and public domain images that are compelling to her (whether through attraction or repulsion). The images are technically transformed for slide projection. Three projectors are placed side by side to project three cinema size images at once so that they overlap onto the same cinema screen. The light of the overlapping projections obscures the individual images. I guide the participant to explore the relationship between the images by moving bodily between the projectors and the screen, acting as a masking device to fluidly block light of the projectors, concealing parts of some images while revealing parts of others. On the screen the previously static and passive images come to life and (lava-lamp like) become active and fluid. The participant is now an actor enmeshed in a psychophysical relationship with her/his images, stimulated to recognize an internalized past experience, something newly remembered and felt, something hidden brought to light.
When I practice as a mediator, especially when in a high emotion session, I think back to what I learned from this rich process: how our inner lives are complex and contain the richness of our lived and learned histories; how we collect images, often unconsciously, that stand in for and reflect back to us something about our identities, hopes, dreams, loss and desire; how creating a safe creative space within which to gently unravel what we hold within, allows for deep self-reflection, empathy and possibility. Images carry stories.
Moving across the projection beams Malka reveals an image of herself as child now embedded in the classic photograph, The Living Dead of Buchenwald, by Margaret Bourke White, 1945.
Try asking the parties in a mediation to each bring to a session an image close to their hearts. In silence, have the parties exchange their pictures and look at them for two minutes witnessing how they see the image. Have them return the images to the owners and ask each party to share what her/his image is about while the other/s listen. That is performing empathy.
Case Study 3
Eva Vander Giessen on Playback Theatre
True Story Theater in Boston in 2013, photo by Jason Jedrusiak.
Playback Theatre (www.playbacknet.org), founded in 1975 by Jonathan Fox and Jo Salas, is empathy embodied. In Playback participants/ tellers share an important story from their life, which an ensemble of actors then spontaneously and sensually brings to life through words, movement, color, gesture and music. The story is mirrored back to the teller evoking an empathic emotional response from the teller towards herself often deeper than previously experienced, as well as evoking empathy towards the teller from the audience. Playback takes place in school classrooms, church basements, hospital hallways, conference rooms, and police stations to elicit the stories behind loss and hurt, stories that are often the underbelly of conflict.
Playback builds a bridge between people, accessing the richness of their emotional and sensorial experiences and giving dignity to their internal struggles.Playback builds empathy for the shared grief, longing, fear and hope between people, an essential tool in humanizing people in conflict.
Many mediators use techniques to draw out the telling of personal stories, as in Narrative Mediation, which looks for patterns of repetition in a party’s spoken story and guides a shift of the story to one of non-victimhood and possibility. Building on Narrative Mediation, Playback models sensorial evocation of a conflict narrative that places conflict within a context of humanizing relationships. Playback adds a rich understanding of a conflict story that goes beyond the spoken word to touch us sensually – “as a living, fomenting ingredient within the conflict rather than a simple account of the conflict,” (Linda M. Park-Fuller, PhD, Beyond Role Play: Playback Theatre and Conflict Transformation,” Centre for Playback Theatre. 2005). Witnessing a story “played back” with all the artistic components of metaphor, sound and movement deepens the teller’s understanding of his/her story and reveals to other participants their own perceptions in visceral “ah-ha” moments.
Mediators looking to catalyze or deepen empathy within a mediation context can invite a Playback ensemble to playback/reflect stories of the parties involved, and guide parties to recognize their own responses. Examples of the use of Playback include narratives between descendants of Nazi soldiers and Holocaust survivors, between Boston citizens who have been incarcerated, within families dealing with the tensions of inheritance and legacy, and among university stakeholders creating a healthy environment for diversity.
I am a dog lover; so any story about dogs catches my eye, and I will find a way to relate it to negotiation/mediation. Here is my latest.
Recently, The Economist (November 2, 2013) and other news organizations reported on a study by Giorgio Vallortigara, Marcello Siniscalchi, Rita Lusito and Angelo Quaranta on the meaning of a dog wagging its tail. Previously, Dr. Vallortigara and other researchers found that dogs will wag their tails either to the left or to the right in response to different emotional stimuli. The “… dogs will wag their tails to the right when they see something pleasant such as a beloved human master and to the left when they see something unpleasant, such as an unfamiliar dominant dog.” (The Economist.)
Now, in a follow up study, the researchers established that which way a dog wags its tail is meaningful to other dogs as well. That is, like people, they “read” other dogs. To determine this, the researchers;
“…wired up several dozen dogs of both sexes and various breeds with electrodes, to record the animals’ heart rates, and then showed them videos of dogs, or silhouettes of dogs, head-on, with tail wagging to left or right. A left-wagging tail, they found, induced a higher maximum heart rate (in other words, an anxiety response) than a right-wagging tail, and this maximum heart rate lasted longer. A right-wagging tail, indeed, produced the same results as one that was stationary.” (The Economist.) ”
The researchers also found that more often than not, the dog was left wagging when it displayed the familiar symptoms of a stressed out dog; ear-flattening, head-lowering and whining. (Id.)
(Frankly, I went home and tried to read my dog’s body language; although I knew Cookie was happy to see me and was wagging her tail vigorously, I could not tell that it was a right tail wag- it looked more even to me!)
So, dogs like people read and react to “body language. “Body language” (aka kinesics aka non-verbal communications) not only includes “how we hold and move our bodies” but also:
how we position our bodies
our closeness to and the space between us and other people (proxemics)
and how this changes
our facial expressions
our eyes especially and how our eyes move and focus, etc
how we touch ourselves and others
how our bodies connect with other non-bodily things, for instance, pens, cigarettes, spectacles and clothing
our breathing, and other less noticeable physical effects, for example our heartbeat and perspiration
(Body Language at p.4)
However, it tends not to include our “…pace, pitch, intonation, volume, variation, pauses etc of our voice. These are deemed verbal cues rather than visual ones. .” (Id. at 5).
Professor Albert Mehrabian, who is currently teaching, writing, consulting, and researching as Professor Emeritus of Psychology at University of California at Los Angeles, has been a pioneer in the study of how people communicate. Based on his research, he determined with respect to communicating feelings and attitudes (i.e., like-dislike or where emotional content is important) that people communicate:
7% of message pertaining to feelings and attitudes is in the words that are spoken.
38% of message pertaining to feelings and attitudes is paralinguistic (the way that the words are said).
55% of message pertaining to feelings and attitudes is in facial expression.
(Mehrabian at 1.)
Thus, to understand the context of any communication, not only should both the speaker (to convey the meaning) and listener (to understand the meaning) pay attention to the words, each should also pay attention to the style, expression, tone, facial expression and body language, as well. (Id. at p. 3) But, Dr. Mehrabian cautions that the notion that 93% of our communication is non-verbal is NOT a general rule that can be applied across the board. As his research involved face to face spoken communications, his percentages may well NOT apply to telephone conversations, texting, e-mail communications or even video conferences. (Id. at 4-5).
As you might suspect, there is quite a lot written on this topic. I highlight it only to give you some food for thought the next time you find yourself in a negotiation or mediation. Listen not just to the words, but watch how they are being said, and more importantly, pay attention to the body language. People, like dogs, “wag their tails” signaling their emotions and what they are really thinking!
…. Just something to think about!
PHYLLIS POLLACK BIO
Phyllis G. Pollack, principal of PGP Mediation, is a full time mediator in Los Angeles, Ca, specializing in business and commercial disputes and is past president of SCMA and the current vice-chair of the California state bar ADR committee.
A funny thing happens to professionals who are natural born perfectionists: Confronted by an endless array of options, the perfectionist is so worried about making a suboptimal choice that even when they have agonized, evaluated, negotiated and finally acted, they are often left feeling regretful. Indeed, it is a challenge to live up to perfection in every decision. As a decision-maker, perfectionists can also be seen as “maximizers.” Lawyers and their clients who are insistent upon getting the absolute win in litigation are typical representatives of this decision-making style.
There is another option that fewer lawyers or litigants may have considered: satisficing decision making. Defined as “a process through which an individual decides when an alternative approach or solution is sufficient to meet the individual’s desired goals rather than pursue the perfect approach,” the term was coined by Nobel laureate economist Henry Simon in 1971.
By way of example, consider the house hunting project that my daughter and son-in-law recently undertook. My daughter, an educational psychologist, made a list of all of her needs: three bedrooms and an office, in a good school district, with a new or modern kitchen and in a neighborhood that is primarily comprised of single family homes. A classic satisficer, she was ready to put an offer on the first (and second and third) home that met her criteria. Finding the “perfect home” was not her objective.
My son-in-law, however, holds an MBA and is the classic maximizer. Before he made any offers, he needed to see every house on the market between Westlake and Long Beach, run comparable values for every neighborhood, consult with architects and lenders about loan-to-value and costs of upgrades, and assure himself that the investment he was about to make was absolutely optimal. (Of course, by the time the excel spread sheet was printed, the homes had sometimes been sold.)
In the new book, “Wonder Women: Sex, Power and the Quest for Perfection,” by Debora Spar, president of Barnard College, the author candidly admits that “my generation made a mistake.” Those of us who came of age after the feminist movement of the 1970s mistakenly believed we (women) could have it all and do it all. As Spar says in a recent interview in the New York Times, “we took the struggles and victories of feminism and interpreted them somehow as a pathway to personal perfection.”
In her role as head of one of the most elite all women’s universities in the country, Spar offers the alternative of “satisficing” as a means to achieve happiness, balance and still make significant contributions to intellectual thought in business, law and the sciences. She suggests that going for “good enough” may be the best option. (For lawyers, I see this as giving you the green light to order take-out for your next family gathering or celebration and to decline that particular PTA committee appointment this year).
In mediation, the maximizers are easy to spot: They are the men and women who take a “strategic walk out” at the end of the day rather than accepting an offer that is sub-optimal. The maximizer needs to be certain that there are no better options if they wait, prevail on a risky motion, take that last deposition, etc.
In the case of a recently mediated alleged wrongful termination from employment case based upon a failed security clearance check, the maximizer demanded $1 million and then walked away when the employer refused to pay less than two years of plaintiff’s lost salary in damages (the optimal result of the negotiation or strike point) plus an adequate compensation to cover attorney fees, amounting to another 40 percent on top.
The satisficer, after hearing all of the employer’s defenses, may have accepted an offer as a “second best” offer, even though there was a chance he could do better over the next few months. The offer of one year of salary may have been acceptable as the best available option, though not quite optimal. Where the former employer agreed to seal the personnel records and convert the termination to a voluntary resignation, the second option becomes “very good,” though still suboptimal. While the satisficer could see that, the maximizer would turn down such an offer as insulting and consider it a loss, not merely second best.
To the satisficer, the offer, simply stated, would have been “good enough” and the client could have had the funds to get an apartment, retrain for another position and get back on his feet instead of continuing to stay with relatives and apply for jobs which included being compelled to admit he had been terminated from his last position for failure to pass a security test.
In other words, the satisficer in a mediation carefully evaluates the best option “on the table” against the risks and expenses and delays of rejecting that offer and proceeding with further negotiation after the mediation. In those instances where there is an option that is “good enough,” the satisficer will accept the last and best offer, even if it may not have been the perfect choice or outcome. Ad studies have shown that typically the satisficer is more satisfied with his choices than the maximizer, who can’t escape doubting himself and wondering whether he could have done still better.
Here lies the paradox of perfection: It’s hard to be absolutely certain that you have achieved the optimal outcome, and because you are a perfectionist you will beat yourself up over it and second guess yourself even after a good decision is made.
Before making your next decision, consider your general approach to decision making and whether choosing the option that meets your goals, satisfies your Client’s objectives and perhaps even pleases the person with whom you share joint tenancy is ultimately a better option, even if not the perfect one. It may put you on the road to both professional success and personal happiness.
Jan Frankel Schau is a mediator with ADR Services, Inc. She can be reached at firstname.lastname@example.org
It is July, and your client has urged you to get through with the pending litigation as quickly and efficiently as possible. You call the court to schedule a hearing on a motion for summary judgment and the first available date is next May. You delicately broach the subject of ADR with your opposing counsel, select a busy mediator who can fit you in sometime in late August, and you and your client arrive for a full day’s mediation hearing at 10:00 a.m. with great expectations. By 3:00 p.m., there have been no monetary offers or demands made and your client is getting frustrated with you, the process, the mediator and the entire judicial system.
There is great news coming out of business schools and corporate America about strategic negotiation. If the predictions made by Professor Rita Gunther McGrath of Columbia University’s Business School are accurate, “fast and roughly right” decision making will soon replace deliberations that are “precise and slow.” This new way of decision-making has extended beyond business to international banks, consultants and real estate professionals who all recognize that an ever-changing global economy demands new and innovative ways to stay ahead of the curve in order to maintain even a transient competitive advantage. In the time it takes to deliberate about a pending deal, all potential profit could be lost and the opportunity missed. Lawyers and mediators would be well served to adopt the same strategy as it applies to settling cases.
How does the “fast and roughly right” decision-making process work?
Nick Tasler, a human behaviorist and writer for the Harvard Business Review, suggests a simple, flexible, “Know-Think-Do” framework to enable business leaders to immediately start making these “fast and roughly right” decisions. He paraphrases Albert Einstein, saying “the framework should be as simple as possible, but not simpler.”
The Know-Think-Do framework comes down to three distinct steps in every decision. First, the decision-maker must know the strategic objective. In terms of a lawsuit, that might translate as: “get out of the lawsuit before any further disruption to our business occurs at the least expensive amount by year end,” or perhaps, “get the case settled at a level where I can pay my lawyers and cover my expenses for another year until I can find another job.” In simplifying the strategic objectives, the decision-maker will have to eliminate some objectives in favor of the best or most salient one or two. This means the discussion should center upon which of the multiple objectives will have the biggest positive impact and will adversely affect the fewest possible stakeholders. Remember, there is no such thing as a perfect choice.
The next step is to think rationally about all of the possible options that may satisfy the primary strategic objective. This process is best done through what Tasler refers to as an “Anti-You.” Let an objective third party (as in a neutral) shine a light on the potential options and help you and your client see which one aligns best with your identified strategic objective. By seeking out the opinion of a nonparty, those options that are weaker will be eliminated in favor of the stronger ones. The testing that goes on with the “Anti-You” is designed to highlight possible new insights as you talk through each option and to offer new perspective from the third party as to the feasibility and likely outcome of each of the “good options.”
As in any decision, the last step is the most challenging. After identifying the strategic objective and laying out the good options that will align with that objective, the decision-maker has to do something: make the decision. This is hard because you are also deciding to go with that choice which you have declared to be “roughly right” under the prior analysis, even if it may not be “altogether” or “perfectly” right.
In my initial hypothetical of a client already having reserved a date for a motion for summary judgment, this may be the hardest step of all because it contemplates walking away from a judicial determination of who is actually “right” under the law in favor of the “roughly right” decision to settle without the satisfaction of knowing the results of all of your legal research, brilliant written briefs, and eloquent oral arguments. It is, in fact, the anti-you personified as you give up that slow, deliberative, counseling role in favor of a fast-paced, business-based decision.
Practical applications for decision-making in mediation
Like Tasler’s 3-step framework of “Know-Think-Do,” the first several hours of mediation are often spent probing towards the ultimate strategic goals of each party before any options or bargaining begins. When the mediator asks questions which appear to create rapport and trust, they are also mining to discover what is really driving the dispute. As these discussions go deeper, the decision-maker and his counsel can come to see and identify their own strategic objectives. For example, does the plaintiff have an alternative source of income so he or she can afford to maintain the lawsuit (for wrongful termination) for the next two years or does he need a cash infusion now? Is the corporate defendant under scrutiny by the labor commissioner for some wage and hour issues and wants to avoid a potential class action lawsuit or is it in talks to be acquired and wants to have all pending lawsuits off the books by year-end?
The next step, rational thinking and option generating, is a process with which neutrals are particularly adept. Instead of the “Anti-You,” I prefer to call the neutral the “Alter Ego You” in this instance. The Alter Ego You will test out the best options by shining a light upon how these options will be presented to the other side. Sometimes, when you hear the options played back to you, they sound less rational or more appealing than they did when you first raised them. Next, the Alter Ego You will offer her own perspective on these various options — a rhetorical question, such as, “If your objective is to close this down by year end and you propose to demand a number that they have already told me is beyond what they can come up with in a lump sum settlement, how does that align with your strategic objective?” In discussing the various options with the Alter Ego You, the decision-maker may see a new or different perspective, leading them to narrow the field of possible good options to only one or two.
Finally, as Tasler suggests, after all of the hard work has been done to identify the strategic objectives and to think rationally about which options are best going to align with those goals, it’s time to “call it quits on all of the planning, strategizing, number-crunching and critical thinking” and just select one option, even if it’s not the perfect one.
Just as Einstein advocated, the process should be as simple as possible, but no simpler. Once you have distilled the decision down to a written agreement, you and your clients can simply let go of all of the other “good” options. The signed agreement, as simple as it may be, will end the litigation and second-guessing. It will also achieve what your client came to you for: an end to the dispute, an end to the anxiety and expense of litigation and finality, sometimes even with a guarantee of compliance. It does not really get better than that.
Ruth Gunther McGrath observed that the competitive advantage that many American businesses once enjoyed is no longer sustainable. Instead, we live and work in a new world of “transient advantage.” Trial lawyers understand this concept too: you win some and you lose some. For that reason alone, business leaders are no longer sticking to the same old playbook and expecting the same results. Business students and young entrepreneurs who have been raised in the age of the Internet are well trained to think fast and accept “roughly right” decisions.
While a handful of trial lawyers take enormously large stake cases to trial each year, the vast majority of litigated cases get resolved without the theatre of a jury or the judicial determination of a jurist as to rights and remedies which may not be perfectly aligned with the strategic objectives of the disputants. Like business people, often the most successful lawyers and law firms are those that keep their clients out of court and find a way to meet their business or personal objectives reliably and consistently.
Business people are leading the way to radically re-thinking traditional decision-making models. Perhaps it is time for lawyers to also create a new playbook that includes the radical notion that the slow wheels of justice and deliberative decision-making that has characterized the judicial system should be brought into the 21st century of “fast and roughly right” decision-making.
Jan Frankel Schau is a mediator with ADR Services, Inc. She can be reached at email@example.com.
A look at the pet peeves of experienced counsel and mediators can help you avoid some common mistakes
Last autumn, I introduced a panel of speakers at the Southern California Mediation Association’s 23rd Annual Conference for their presentation entitled “Attorneys’ Pet Peeves about Mediation.” The panel was comprised of five individuals: a highly esteemed former litigator and retired judge, now full-time Mediator/Arbitrator; a very successful former litigator and now full time mediator; two highly successful plaintiffs’ attorneys and an equally impressive insurance defense attorney. They all possessed courtroom chops, transactional expertise and keen negotiating prowess. What became clear at about the second “pet peeve” is that each mediator and each attorney has their own unique approach to mediation and that mediation is clearly not a “one size fits all” process.
One panelist approached his chosen mediator with what he described as a “co-conspirator mentality,” all the while never surrendering any control during the process. Another stated that he firmly believes the process involves “negotiating against the mediator,” not with the opposing party.
One panelist never wants the client exposed to the “other room” while the other resents not being allowed access to the opponents. One panelist prefers to approach the mediation “briefless,” while another is offended when briefs are not exchanged in advance of the hearing. One panelist felt strongly that the mediator can never be trusted with confidential material, while another felt equally strongly that confidences should be shared and would be kept.
Several of the panel participants felt strongly that if an agreement was reached, the key deal points should be reduced to a writing enforceable in court, while another panelist disagreed and wanted a handshake to suffice rather than spending an additional hour or more hammering out the specific deal points at the end of a long and tiring day of negotiations.
The lesson to be learned is that the tactics useful in one room will not necessarily be successful in another. This requires footwork akin to that seen on “Dancing With the Stars.” Having litigated cases for 20 years and transitioned to a full-time dispute resolution professional in both mediation and arbitration, I have found it is equally true that each mediator brings a different skill set to the table, and while that skill set may work for one type of case or litigant, it may not work for another.
Whereas one matter (or one room within a matter) may require an “evaluative approach,” another may benefit from a “facilitative approach.” Although many cases may seem to only involve the distributive bargaining process and negotiating a “fair” settlement, it may be that, in order to achieve a resolution, an apology is necessary, thereby giving the hearing a “transformative” aspect.
Approaches which seem to be working at the outset of the mediation hearing may need to be completely overhauled as the day progresses. How does an attorney navigate this minefield of possibilities while achieving the best result for his or her client? I propose a reading of the following “Mediator’s Pet Peeves” for guidance!
Failure to communicate
Mediators are often left in the dark to try to intuit and “guesstimate” what the parties, attorneys and insurance professionals want to accomplish in your hearing. Further, within each room, and on each side of the dispute, there may be different goals, styles and motives.
There may be client control issues or a history with the client that needs to be communicated. You may need your mediator to help explain things to your client or you may need your mediator to let you do the explaining. You have already spent countless hours working on the case; you know your client and the issues you face the best. Your mediator will greatly appreciate being taken aside and given the “heads-up” on issues she or he may have no way of determining, some of which may have nothing to do with the case at hand. (For example, there may be personal issues which may affect a client’s decisions regarding settlement vs. proceeding forward in the litigation process.) Feel free to communicate those issues confidentially either before or during the Mediation Hearing to your mediator. It will only serve to help your mediator achieve resolution of your matter. There is simply no downside.
Failure of timing
Has the hearing been set too soon and is it being used as a “testing ground” to determine what further discovery needs to be accomplished before a second session of mediation can result in a well-reasoned, well-negotiated settlement? Are there pending motions that need to be heard before mediation, or is the mediation timing appropriate with a motion scheduled and on calendar, but not yet heard? Good mediators are trained to be “closers!” Let your mediator know what your goals are. He or she can often provide great assistance with discovery and evidentiary issues if given the information necessary to achieve those goals, then a second session can be scheduled at an appropriate interval. Good mediation techniques can assist the parties in gathering and exchanging whatever information is important to them and the exchange of that information often removes barriers to settlement.
Failure to prepare
It goes without saying that showing up for your mediation hearing “trial ready” will maximize your settlement options. This includes making sure that you have deposed or obtained statements from all favorable (and sometimes unfavorable) witnesses and that you have completed all discovery necessary to fully evaluate your case. This also means ensuring that you have fully ascertained and documented wherever possible your client’s damages and that you have considered all of the potential defenses to liability and your client’s items of damages. This includes not only your client’s medical specials, but any loss of earnings, alleged diminution in value of property damage, life-care plans, actuarial opinions, and expert opinions regarding the potential costs and details of any further medical expenses or other forms of care needed. Bring all of your documents to the hearing. Don’t pare down your file and bring the “Jenny Craig” version! Whenever possible and appropriate, documents and information should be exchanged with your opponent prior to the hearing. This allows the defense and insurance professionals to run the information up the flagpole, so to speak, and avoids the often heard complaint that new information has just been sprung and, “Nothing can be accomplished today…”
Disrespecting the mediator or your opponent
Mediation can be frustrating. Tempers can flair, patience lost, voices can be raised, tears may flow…mediation can be messy. All of this is fine . . . it is expected, and your mediator is trained to deal with these occurrences. That said, it is one thing to express your frustration in a professional, respectful manner, and quite another to engage in unprofessional behavior. Name calling, eye rolling and character insults serve no purpose and may do irreparable damage to your position or at the very least, waste valuable time and resources, which must then be spent trying to get the process back on track.
Although as noted above, being “trial ready” is essential, it is not necessary to try your case at the mediation. Mediation presents a unique opportunity within the litigation process for candid, confidential discussions about what might or might not happen if the case proceeds to trial. Keep an open mind. Listen to the points being addressed by your opponent and the mediator. Draw upon your stores of patience, and most importantly, keep your sense of humor. Inflexibility and arrogance are not useful traits to bring to mediation and there is a vast difference between healthy vs. unhealthy distrust for your opponent and your mediator.
There are only a handful of attorneys who have the “presence” to pull off dressing in a casual manner for a mediation hearing. For most, appropriate business attire does indeed buy a measure of respect. First impressions are important. You are judged by your opponent not only on the content of your arguments but the package in which they are presented. I recall a hearing where the injured party’s young attorney appeared in jeans (and was also chewing gum). He had just taken over the case and had not yet met the defense team. He wanted to be put face-to-face with his opponents – a 30-year insurance defense trial attorney and an experienced insurance professional. He wanted to explain why he was going to beat them at trial and why they should recommend policy limits to avoid such an outcome. His presentation did not go well. He had a good client and a good case, but he was not taken seriously, simply because he did not look the part (although he did follow my suggestion to spit out the gum).
It is equally important that your clients appear for mediation well dressed, well groomed and be prepared to possibly meet informally with the defense folks. Often this is the first time that the insurance professional or the actual defense trial attorney will have an opportunity to meet your client and evaluate his or her potential viability as a witness. This can tip the scales in favor of a good settlement if you have a properly prepared client who presents well.
Don’t be late or forget your client
Showing up late to a mediation, really late, without an adequate reason, is a surefire way to get things started on the wrong foot. Although your mediator can get things started with the other side, there is only so much that can be accomplished without your presence. If there is something unavoidable, provide the mediator with your cell phone number so that communications can get started.
If you fail to adequately estimate the amount of time that you need for your hearing, this can result in the necessity for a second session and increase your costs. If you are uncertain how much time you need, discuss the issue with your mediator during the scheduling process. That way, he or she can schedule your hearing in a way that allows the flexibility to continue on without having to adjourn and reconvene, wasting precious time and resources.
Not bringing your client without first clearing it with your opponent and your mediator is another surefire way to get things started on a chilly note.
Optimal results can be achieved when you recognize that your mediator is a neutral party and yet treat your mediator as an ally and not an enemy. If you cannot trust your mediator, the process will be fraught with difficulties. The appropriate mediator’s mantra is to “Do No Harm” to your case and as such, he or she will maintain strict confidentiality as requested. A well trained mediator has the flexibility to use whatever style, strategies and skills that are dictated by the parties’ needs as they evolve throughout the hearing.
Wendy W. Kramer is a full-time, independent mediator and arbitrator in Santa Monica. She specializes in personal injury, business disputes, professional malpractice and complex litigation. Ms. Kramer has mediated over 1000 matters and is known for her ability to deal with difficult personalities and complex legal issues. She is the President-Elect of the Southern California Mediation Association. More detailed information can be found on her Web site: www.kramermediate.com.
As beginning mediators, we’re taught that facilitative mediation is classic mediation. If you’re like me, however, you’ve discovered somewhere along your mediation career path, that an evaluative approach can greatly increase your settlement rate. The more cases you mediate, the more your subject matter expertise grows, giving you the right to be evaluative, right? You’ve “seen it all before;” you speak with experience and confidence; you know what a judge or jury will decide. Your settlement advice is invaluable. After all, you’re the expert. Your mediations begin to follow a tried and true format. Read the briefs, make your decision, and proceed with mediation…
Wednesday morning, Santa Monica Court, a rear end, minor impact auto case. This one’s a textbook fact pattern seen in hundreds of PI cases. MIST: minimum impact soft tissue. No broken bones, no mangled body parts, just sprains and strains with no demonstrable manifestation. Soft tissue injuries which would completely resolve, leaving the plaintiff good as new. Defendant wasn’t denying liability; he couldn’t. He’d rear ended plaintiff in an intersection where plaintiff was waiting for the green. It was a five mile per hour “little tap”, resulting in a modest $1,200 auto repair bill. What the defendant was disputing was the “necessity and reasonableness of plaintiff’s treatment.” Plaintiff’s chiropractic bills (specials) amounted to about $5,000 and, although multipliers went out the window decades ago, plaintiff was demanding $15,000. Defendant was represented by his insurance company’s in-house council. Their offer of $2,000 was playbook perfect: $1,000 for chiropractic and another $1,000 for pain and suffering.
I’d barely finished reading the mediation briefs when a number jumped into my head. $5,000!! My experienced opinion said plaintiff had over treated. While he definitely deserved more than the $2,000 defendant was offering, I clearly saw the settlement as $2,500 to the good doctor and another $2,500 for the plaintiff, his attorney and court costs. The magic number was $5,000!
I met the plaintiff and his attorney in caucus. I talked about confidentiality, told them that I wasn’t the judge and proceeded to evaluate the strengths and weaknesses of the case. This was a piece of cake – I can do PI cases in my sleep. Plaintiff’s counsel admonished me that, as mediator, my “job” was to get $15,000 from the insurance company, no negotiation. “Put yourself in the defendant’s shoes,” I replied. “Consider that your client has over treated.” Plaintiff’s attorney informed me he did not, and would not, put himself in Defendant’s shoes.
I had not gotten off to a good start. My next move would only make things worse. “Juries in this venue are particularly conservative,” I said. “In my experience, they wouldn’t be sympathetic to a healthy young man receiving four months of massages and hot and cold packs.” I went on to say that people hate being dragged to jury service, and that a jury may be angry at both sides for not working this dispute out themselves. “The jury,” I concluded, “could even, conceivably, award nothing.” Plaintiff’s attorney grabbed his client’s arm, dragged him to the door and screamed, “You have no basis for those assertions; this mediation is over.” He then headed into the courtroom to set a date for trial.
At that point, my past experience and extensive subject matter expertise meant nothing. My immediate jump to an evaluative stance caused me to miss an important underlying fact, namely a complex attorney-client dynamic. (In this case, the two were long time family friends and Plaintiff expected his attorney to act like a shark.) What I should have done first, was to explore that attorney-client relationship. Second, based on those findings, I should have given this combative attorney ample time to posture in front of his client. And third, in a private caucus with the attorney, I should have asked him to give me a chance to tell his clients the true value of their case.
In playing the role of “agent of reality,” the mediator allows the attorney to remain in a true advocacy position thus ensuring the mediator has earned the right to apply his subject matter expertise to set the case back on track towards settlement.
By Scott Berman, SCMA Director www.scmediation.org
Abstract: Civil harassment mediation, from an outsider’s perspective, seems to be a daunting environment in which to achieve a settlement. Parties have an emotional dispute, are not likely to cooperate with each other, and mediation time is limited. Nevertheless, settlements are achieved by applying well known concepts from basic mediator training.
Proving the proverbial “you can’t judge a book by its cover” axiom true, my mediations in the Los Angeles Superior Court (LASC) civil harassment program during the last several months have almost universally resulted in settlement agreements. No one is more surprised than I am by this revelation, as I approached this assignment cautiously hoping that my developed skills might work an occasional “win-win” outcome that we all seek as mediators. Parties to these disputes are highly charged with emotion, have a strong desire not to cooperate with each other, and mediators generally have less than one hour to try to resolve the dispute before the court hearing. With hindsight, and peering through the lens of our mediator training, comes recognition that the posture of the cases and the situations in which the litigants find themselves (by the time they get to court) make this a very settlement-friendly environment.
Why settlement-friendly? Let’s take a close look at the typical situation. Under current LASC program protocol, litigants appear at the courthouse to argue the merits of their case as to whether an injunction should be granted to keep respondent away from the petitioner for a period of up to three years. Many of the petitioners have been previously granted (without a hearing) a 15-22 day temporary restraining order (TRO) vs. the respondent(s) that is due to expire shortly. Usually in this program, the litigants appear pro per and are naturally very apprehensive about what might transpire during the upcoming hearing. The court may assign a specific case to the mediators, or alternatively, mediators may be allowed to solicit volunteers for mediation from the litigants waiting for the courtroom to start the day’s calendar. If the parties do not settle at mediation, they proceed almost immediately to their court hearing on the matter. The mediations in these matters are generally very short; 30 minutes to an hour may be all the time you have to mediate before the court calls the case.
Settlement-friendly: Alignment of Interests
One of the most important skills mediators develop is the ability to get “under the hood” of a litigant’s position to discern the interests. Our training tells us that once you do that, there may be interests in common between the parties for which we can ultimately derive a different position (which is then reflected in the settlement agreement).
Civil harassment mediators find this often “gift wrapped” for them. Not surprisingly, petitioner’s main interest at the courthouse is to have nothing to do with the respondent. However, the revelation is that in almost all cases, the respondent wants nothing to do with the petitioner. Without evaluating the veracity of the petitioner’s claims, (which may suggest that the respondent is fixated on the petitioner), by the time they get to the courthouse the respondent wants to be done with it. Maybe whatever they wanted previously from petitioner has not been worth the trouble created by the TRO or the current court hearing. Or maybe petitioner has overstated respondent’s actions. In any event, during mediation, respondents often state that their interest is to be left alone and they do not want further interaction with the petitioner. This aligns petitioner’s and respondent’s interests.
Settlement-friendly: Unattractive BATNAs
Another important skill mediators develop is the ability to help the litigants evaluate their Best Alternative to a Negotiated Agreement (BATNA). Those of us who mediate litigated cases routinely incorporate this “evaluative” approach into the vast majority, if not all, of our mediations. Civil harassment cases, housed under the statutory authority of CCP §527.6, lend themselves to this approach. Both petitioners and respondents invariably find that given their common interests of keeping away from each other, their respective BATNAs are not that attractive.
Petitioner’s BATNA is often very unattractive. CCP §527.6 requires, amongst other things, that the petitioner prove by “clear and convincing” evidence that respondent has engaged in a course of conduct over a period of time that would justify turning the TRO into an injunction of up to 3 years. Mediators with legal backgrounds, or those who have mediated litigated cases, know that “clear and convincing” is a standard that is much stricter than the general “preponderance of the evidence” standard required of most other civil cases. Additionally, petitioners in mediation often have difficulty asserting a series of acts that might constitute a course of conduct; instead, they are often relying on one egregious act or a series of ill defined actions within an unclear time framework that may not satisfy their burden under the statute to establish evidence that is “clear and convincing.” This means that a mediated agreement is, in many cases, the only real option petitioners have to come away that day with a document that will keep the respondent away from them.
Respondent’s BATNA presents troublesome issues as well. If they allow the case to go to hearing and lose, then they will have court findings against them that put them at fault. A settlement agreement is often more attractive, because they can reduce the risk of a court mandate regulating their behavior and, at the same time, serve what they state are their interests now – staying away from the petitioner and having the petitioner stay away from them. Note that even if they were to prevail in a court hearing, the ruling would not serve their interest in keeping the petitioner away from them.
Settlement-friendly: Impasse Avoidable
Mediators can avoid impasse in these mediations by establishing interests very quickly. We use a caucus-only format throughout the mediation, even in the party initial statements, because of the nature of the allegations in the civil harassment case. That provides the opportunity to use our reframing and reflecting skills extensively during the party initial statements to get to the interests of the parties. This invariably results in mutuality around the concept of staying away from each other. Agenda setting for discussion mostly includes the various forms in which the “no contact” with each other will manifest itself, e.g. personal contact, telephone, email, etc., and what happens should they come across each other in a public setting. Thus, in following this format, many of the reasons that often cause impasse are eliminated. Civil harassment mediators recognize that if impasse occurs it most likely marks the end of the mediation; the reality is that the court will want the case called in shortly if it doesn’t appear likely to settle.
Mediators have the training and wherewithal to help the parties construct their agreement. The parties have already agreed to no contact in various forms as we progress through the agenda. Mediators with their reflective and reframing skills have effectively helped the parties transfer their dislike for each other into a “no need to contact each other” mode. The settlement agreement, therefore, becomes a reiteration of what the parties have already stated as their interests. The agreement requires mediator skill in ensuring that fault concepts remain, for the most part, out of the document. Any agreement that sounds like blame to the respondent could lead to impasse, since one of the main attractions of the mediation for them was to avoid the culpability that court findings against them would necessarily entail.
At the end of the day, it is the true “win, win” scenario that we relish as mediators. Petitioners walk away with an agreement that is permanent without having to go through various and possibly daunting proof obstacles. Respondents avoid court findings against them and can get some mutuality in a “stay away” settlement agreement that serves their interests. So, although from the outside it might seem impossible to settle a highly emotional dispute in an hour in which the parties hold each other in high disregard, the reality is that we do it all the time based upon the part of our mediator training that suggests, at least in part, not to “judge a book by its cover.”