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Ready to book a mediation?

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Ready to book a mediation?

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A Family Mediation

The impasse on whether to look for an assisted living facility for Ned or to find caretakers to come into the home was resolved with a simple question. What was that question? By now, I’m sure you’ve figured it out. Neither Jane nor Sharon directly asked Ned, “what would you like to do?” Each made assumptions based on their own preferences and filters. When Marjorie interrupted the discussion to ask Ned his opinion, he said he would prefer to move to an assisted living facility because he felt he would have more opportunity to socialize than he would if he remained in his home. Voila – problem solved! The search has begun for an appropriate assisted living facility for Ned.

There are a number of lessons about conflict resolution that can be drawn from this simple, real-life example. First, a conflict does not have to be acrimonious. Here, Jane and Sharon recognized that the other wanted what was best for Ned. Second, parties to a conflict always bring personal preference (or bias) to the table. Based on their respective perspectives, Jane and Sharon each thought they knew what was best for Ned. Third, there is no such thing as a stupid question. The only stupid thing is not to ask. Once Ned was asked what he wanted to do, the problem was solved. Perhaps Sharon or Jane had asked Ned prior to the meeting. If so, perhaps he gave a different answer. Or, perhaps they hadn’t understood what he wanted. Anyone who knows Ned immediately realizes that his desire to continue to be social is consistent with who he is. The rationale for moving into an assisted living facility seems obvious in hindsight. It should have been the first question asked at the meeting, not the last. Although this was not a litigated matter, there are lessons for attorneys and mediators handling such disputes: always, always, focus on the wants and needs of the parties. Don’t make assumptions. Ask questions and keep asking. Most conflicts are resolved when parties ask questions and really listen to the answers.

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Bullies, Butterflies, Status Quo, and Compliance

Continuing with our discussion into the four basic mediator personality types, Paul breaks down his taxonomy as follows:

Bullies, as their name suggests, want immediate results. Bullies seek power and authority, prestige and challenge. Inexperienced mediators, especially if they are used to adjudicating as opposed to mediating,  are more likely to adopt this posture than those with more experience. Often a bully is a true expert and demonstrates little tolerance for attorneys who are not quite as versed in the relevant area of the law. If a bully wants others to weigh the pros and cons of an action and calculate risks, he will tell the party what the pros and cons are and refuse to hear a party’s take on the pros and cons. A bully is likely to be extremely evaluative rather than facilitative, and forceful about pushing his evaluation on the parties. The worst bullies are those who simply tell each party:  “you are going to lose,” or “you are going to spend a lot of money” without any cogent analysis.  Bullies are predictable. They try to scare each party into settling rather than persuading them that it’s in each of their interests to do so.

If the mediator is a bully, mediation is more likely to come to a quick, sometimes abrupt, conclusion. Any settlement, if at all, would tend to be accomplished quickly. While this style may be appropriate and successful in some situations, most people end up feeling short-changed in that they often want to air out their grievances.  In these situations, even a settlement can leave a party feeling bad about the process.

Butterflies. Butterflies are articulate “people person” types who make favorable impressions on others. They want to be popular, and social recognition is important to them. Butterflies need others to seek out the facts and focus on the task at hand by being nice, building rapport, and appearing interested in what a party says.

A butterfly-type mediator is often able to keep a dialogue going, even when the parties do not appear to be making much progress, so that parties do not reach an impasse or walk out too soon. The chances for a settlement between two parties is increased with a well-respected, butterfly-type mediator.

Butterflies may challenge you by making you feel bad about your position by contending that it makes you look unreasonable.

Status Quo Mediators. Status quo mediators are patient people who prefer security and social norms, and the generally accepted status quo, unless valid reasons indicate change is necessary. For example, they may look at an email and presume that most people who respond to emails read them. If you contend that you did not get the email, he will suggest that you have responded in bad faith, because a generally accepted social norm is that if you receive and respond to an email you read the original message.

Frequently, status quo mediators will continually ask you “does that make sense?” That statement is always made, because sometimes, a position articulated may not make sense on its face. You must be ready to defend your position with responses that sound reasonable based on social norms.

Compliance Personality. Compliance types tend to concentrate (and sometimes overly focus) on details. They focus on key directives, standards, and timelines. When you are unable to work with them on key details, they will discount your case and make you feel like your case is worth less than what it is.

The message to attorneys and clients is that personalities matter. While not every mediator fits neatly into a single category, the process and outcome of any mediation will depend, in large part, on what type of mediator is at the mediation. Or at least what personality traits come out during mediation. Attorneys should help their clients prepare for a mediation by selecting the mediator whose personality the attorney believes is most likely to facilitate an agreement. Not only that, but attorneys should provide their client an assessment of the mediator’s personality so the client knows what to expect and how to react to what the mediator says and does.

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Continuing our conversation, Gene proceeded to ask me several questions around good mediation strategies and tips to settle matters successfully.

GENE: What about the idea of using retired judges as mediators? I do a lot of insurance coverage work for policyholders, and the insurance companies usually insist on it.

MICHAEL: I mean no disrespect to retired judges, but really, I would rather pick 12 mediators off the street than 12 retired judges to mediate. Retired judges are accustomed to settlement conferences where they often suggest to each side privately, very early in the process, that their case has huge problems, and they need to get the case resolved. Effective mediation requires a lot more than that. I don’t view my role as simply carrying numbers back and forth. I’m usually on the phone with both sides well before the actual mediation to start getting information and to try to position the case for a favorable outcome. One other thing I’d like to say, though. For a matter to settle, all parties have to have skin in the game. That’s why I’m not a fan of mandatory mediation in the court system. It’s simply checking a box.

GENE: What kind of information do you look for in a pre-mediation submission or discussion?

MICHAEL: The first thing I want to know is, what is the procedural posture of the case? Have there been discovery motions? What’s been done? If one side claims they don’t have enough information, I will nicely ask them why a discovery motion hasn’t been filed. I also want to know about each side’s relationship with opposing counsel. Have you worked with them before? I find that there is less animosity between lawyers these days. But if there are issues, I need to know about them so that I can do my best to remove roadblocks. But with so many lawyers, often I get into a situation in which the lawyers don’t know each other. But I basically want to know about the personalities involved so I can begin identifying potential obstacles to getting the matter resolved. I also want to know whether there are any client control issues involved, because I can help with that as a mediator. I generally like to get the mediation briefs and review them before I call the lawyers from both sides and begin working the phones before the actual mediation session.

GENE: Are there some specific negotiation tips you can give?

MICHAEL: The most important thing is to do your homework thoroughly. I like to analogize to the issues with buying a car. Car salesmen like to have you drive the car first and picture yourself in it, so they can begin getting you hooked. Then a lot of them use the “4-square” method. You may be familiar with it. The salesman divides a sheet of paper into four boxes: your trade value, the purchase price, down payment, and monthly payment. This is supposed to help you and the dealership come to an agreement, but it’s really kind of a scam. The numbers are generally nonsense and are designed to distract you from the overall price of the car. They almost always lead to the old “good cop/bad cop” scenario where the salesperson tries to convince you that he’s negotiating on your behalf with the sales manager. To avoid getting the wool pulled over your eyes, you should do serious homework before going in. How long has the been on the lot? What’s the going rate is for that kind of car? Stay focused on the actual price of the car. Complex negotiations aren’t much different. You have to stay focused on the actual goals and not get distracted by all the noise, and the only way to do that is through serious homework. All the wonderful negotiation strategies in the world won’t help you if you didn’t do your homework. And I would say the second most important thing is patience. Don’t be in such a hurry to get to resolution. Take your time, ask your questions, get information so you can make good decisions.

GENE: What do you do when one side in a mediation is being unreasonable, especially with the first number? Because I do insurance coverage work, I often see that. Insurance companies and their lawyers like to prove how tough they are by coming in with lowball offers, even in horrific cases with clear coverage. I expect it after doing this for 37 years, so it doesn’t faze me, but clients, even sophisticated business clients, sometimes get angry and the negotiation goes off the rails.

MICHAEL: It’s an interesting question. I handle a lot of employment cases, and as a rule of thumb, plaintiffs’ lawyers usually come in with demands that are 3 to 5 times what they believe the claim is worth. But if I think an initial demand is so high that it may throw the discussion off the rails, I will take the lawyer aside and say, “that is not a productive first offer.” I will try to get them focused on turning the map around, which usually helps if they are really interested in getting the matter settled. I may say something like “if you demand $1.3 million, what do you think their counter will be?” If they’re honest, they will generally tell me a number that is quite a bit removed from the demand. My next question will be “how is that helpful then?” Also, I will usually spend time before the mediation working on getting numbers into a reasonable range. If one side or the other insists on an unreasonable first number, I will say something like, “I just spent time getting them into a better range. The number they’re giving you is just a signal.” My theory is that if I can do the groundwork in getting the first demand and counter into a somewhat reasonable range, I’m serving both parties well. My goal is to settle the case and not let either lawyer look bad in front of their client.

GENE: What do you do if you get the sense that either lawyer is being unreasonable?

MICHAEL: Well, the truth is that sometimes the clients can be smarter than the lawyers. I don’t try to drive a wedge between the lawyer and the client. I don’t think that’s productive. What I usually say is something like, “You’re paying the lawyers for their expertise, and they’re very good lawyers. But let me tell you how I’m looking at this, and how a court might look at it. I want you to be aware of the risks.”

GENE: You talked to me earlier about your “mediation bingo card.” I thought that was hilarious. What does it mean?

MICHAEL: It’s a collection of the sayings I often hear. “This is extortion” is a big one. The other big one, which is actually the center square on my bingo card, is “This is not about money, it’s about principle.” We all know it’s almost always about money. Sometimes I’ll ask the person who says this, “Are you rich enough to litigate on principle? Because litigation is pretty expensive.” So, I try to ask pointed questions to keep people focused on the goal, which is to reach resolution. I also try to give both sides as much control as possible over what the settlement looks like. Going back to my car analogy, I want them to see themselves driving the car. I personally try to keep focused on the fact that 95% of cases settle anyway, without mediators, so what’s my value add? My value add is to help deliver both sides a settlement that gives them confidence that they weren’t taken advantage of and eliminates any buyer’s remorse.

GENE: Mike, this has been great. Thank you so much.

MICHAEL: My pleasure.

Resolve your case through mediation instead.

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