Friday, October 30, 2009

Is the mediator merely a "host"?

A study reported in The Jury Expert (brought to my attention on Phyllis Pollack's blog), came to the somewhat surprising conclusion that the mediator's behavior did not greatly affect the agreements reached. The researchers observed 62 mediations, then coded and analyzed the particpants' statements, and correlated those with the results achieved. They were surprised to find that the mediator's behavior and techniques seemed to have a limited impact on the results.  The authors conclude that, rather than seeing their actions as determinative, mediators "should understand that they are hosting a negotiation process." (This sounds like a comment noted in my post on the "beer summit", where one of the participants described President Obama's contribution as providing the beer.) This conclusion still seems questionable given the results reported which indicated that in more than half of the observed mediations, the mediator's actions did affect the disputants' behaviors. More than half the time seems like a lot to me. I know from my own experience that if I give up too easily, or say the wrong thing, the participants in a mediation may decide to walk away from the table. But if I keep trying to ingratiate myself with the parties and push and cajole them toward a resolution, I can cause parties to renew their efforts. Depending on my rapport with the parties, or my techniques, or even my mood, the results of mediation can vary greatly.

Nevertheless, I agree to some extent that all participants in the judicial process--attorneys, judges and mediators--should appreciate their limitations. I recall reading that the great trial lawyer Edward Bennett Williams said that even the best trial lawyer in the world could only improve his client's chances by a relatively small amount (so for example, if a client had a 4 in 10 chance of prevailing with a minimally-competent attorney, a super attorney might be able to improve the odds to perhaps 6 in 10). I also recall asking a trainer at one of the mediation seminars I have attended a question about putting some of his theories into practice. His somewhat surprising response was that we should not worry about that too much because as long as mediators exhibit patience and good will and especially persistence, we are all going to be relatively successful in getting cases settled. Mediators therefore well understand that most cases will settle with or without a mediator, and regardless of the quality of the mediator involved.

So what does the mediator bring to the table, as far as results that might not be measurable by the means used in the reported study? For one thing, the mediator's actions can greatly affect the parties' satisfaction with the process. If a case settles, but one or both sides walks away feeling cheated or abused or railroaded, that could still count as a "successful" settlement, but the mediator may not have adequately performed his job in helping the parties understand the benefits of what they have achieved. The mediator's actions may also affect the quality or fairness of the settlement that is achieved, something that would probably be difficult to measure in any study. To the extent the mediator is able to expose the parties' interests, and the strengths and weaknesses of their respective positions, the mediator may have greater success in leading the parties to a settlement that will stand the test of time.

Any mediator changes the dynamics of a negotiation by allowing the parties' attorneys to retain more of their role as advocates. The mediator relieves the attorneys to some extent of having to play devil's advocate, since the mediator performs the job of conveying the other side's position to their client. The mediator also provides a filter for the views of the other side, often enabling messages to get through that otherwise might be tuned out because of distrust of their source. Any mediator thus does a lot more than host a negotiating process. Moreover, different strategies by the mediator should also have an impact, not only on whether the parties are able to reach an agreement, but also on the nature of the agreement reached, and the parties' satisfaction with it.

(photo from Joe Monahan's New Mexico politics blog)

Thursday, October 29, 2009

The New Face of Mediation

Mediation may soon be shown in a more glamorous way thanks to USA Network, which is developing a new tv series called "Facing Kate" for Sarah Shahi, in which she will be playing a lawyer who decides to become a mediator. (see story in the Hollywood Reporter) This has to be good news for the public image of mediation. Now people will start seeing mediation as sexy and exciting.

Mediators, however, may have to worry about cleaning up their acts. Lest participants be disappointed when they see how ordinary most of us look compared to the actors on tv, we may have to pay more attention to our hair, make-up and clothing. Of course, I have long been accustomed to dealing with this kind of pressure. My office is in the same building where McKenzie, Brackman, Chaney and Kuzak practiced on LA Law. There was even a character on that show named Markowitz. (Fortunately for me, he was portrayed by one of the more ordinary-looking actors, so I did not suffer in comparison.) But Sarah Shahi promises to provide formidable competition for everyone.

(Thanks to Susie North for sending this news to the SCMA list)

(photo from Exposay)

Tuesday, October 27, 2009

Reverse Psychology

Perhaps because I have two teenagers, I find myself thinking about how to motivate people who generally find my suggestions stupid or old-fashioned.  If my ideas are going to be received as uncool, perhaps I should tell my kids the opposite of what I really think. As a mediator, I face this situation less often, because people generally come at least partially receptive to what I am offering. Reverse psychology can still be employed more often than you might expect, however.  It is not only teenagers who resist prescriptions that others think are good for them.  There must be an innate human compulsion to do the opposite of what we are told, going back to the all-consuming desire Adam and Eve had to eat the one fruit they were expressly forbidden to eat.

In settlement negotiations, I observe this human perverseness in a number of situations. At the outset, there is often resistance to the very idea of settlement. People walk into a mediation firmly convinced of the rightness of their positions, very attached to their claims, and reluctant to give them up. To counter these feelings, I sometimes tell them that if they really think they would be better off not settling their lawsuit, then by all means they should not settle. When this tactic works, it probably does so because it makes people less likely to view the mediator as someone who is trying to make them do something they do not want to do. People need to come to the conclusion themselves that they might actually be better off by accepting a settlement rather than taking a case to trial.

There is also a tendency during the negotiation phase of a mediation, to de-value any offer the other side has made. For example, if you are negotiating two or more issues in a mediation, you might be tempted to give in on an issue you don't care as much about, in the hope of speeding the process along.  But that may cause the other side to under-value your concession, and press even harder for compromise on the issue you do care about.  An obvious way to handle that situation is to show some reluctance to give in even on points that are not important to you. These are your bargaining chips, and when you hesitate before giving them away, you may be able to get a better deal on the issues that actually matter.

Or let's say the parties to a lawsuit are engaged in a negotiation over the scope of production of documents or electronic data. Perhaps there is one source of records that would be troublesome to produce and might reveal information that could be damaging to the producing party, while another source would be easy to produce while yielding nothing but wasted hours of document review for the demanding party. Might it not be in the producing party's interest to show more hesitation in producing the second set of materials? People are always most interested in discovering that which the other side is most interested in hiding. Everyone knows that going into a meet and confer session over discovery, but everyone should also know that the other side may be engaged in bluffing or outright deception.  We may need to remember that the briar patch is exactly where Brer Rabbit wants to go.

Groucho Marx said that he would never want to join a club that would accept him as a member. In negotiations as in life, people prize what is most difficult to obtain, and denigrate what is too easy. Being aware of this tendency can help parties get a better result.

Wednesday, October 21, 2009

Deja Vu

Monday night (10/19/09). It's the bottom of the ninth inning. The Dodgers are hanging on to a 4-3 lead in the crucial fourth game, in which the Dodgers have the chance to tie up the National League Championship series. Two outs, one strike, and seemingly moments away from victory, just waiting for Jonathan Broxton to put the final batter away. Instead, Jimmy Rollins hits a double, scoring both runners already on base, and the Phillies stunningly take the game, and almost inevitably, the Dodgers' World Series hopes.

But was it really Jimmy Rollins who won the game for Philadelphia? In Bill Plaschke's column yesterday in the Los Angeles Times, Plaschke argues that the decisive moment was Broxton's walk given to Matt Stairs, which put the tying run on base (the winning run followed when Broxton hit Carlos Ruiz with the ball). Matt Stairs is the same pinch hitter who hit a two run homer in last year's fourth game of the NLCS between the Dodgers and the Phillies, crushing the Dodgers' hopes last year.

Broxton, the closer responsible for allowing Stairs's home run last year, must have been haunted by last year's defeat. He may not have been expecting, however, that he was going to get the chance to face the same batter, for the same team, in the same game, of the same series, playing for the same stakes. Getting this rare second chance at redemption, Broxton could not, or would not, throw Matt Stairs a strike. Instead of looking for revenge, he seemed to be simply looking to avoid the same fate he suffered last year. So he threw Stairs four pitches that were not even close to the strike zone, and thereby walked himself right into the same result the Dodgers got last season. As Karl Marx said: History repeats itself, the first time as tragedy, the second time as farce.

Lawsuits, like baseball, offer the litigants an opportunity to face adversaries they have faced before. They also allow people to continue to re-live the past. For some, a lawsuit presents an opportunity to obtain recompense or revenge for a past injustice. The parties re-tell the story of their past relationship, and at least one side hopes to be judged differently than the outcome of the real event. For others, a lawsuit presents an opportunity to re-create exactly the same pathological dynamics that doomed the parties' past relationship. I have seen numerous cases in which the parties' battles over discovery or legal issues arising in the case uncannily mirrored the events of their past dealings in real life. Other litigants, just like Jonathan Broxton, simply want to avoid the awful fate that brought them to the courthouse. Instead of avoiding it, however, they frequently cannot escape it happening to them a second time.

Mediation challenges the participants to break out of the vicious cycle of their previous relationship. Mediation can offer the cathartic experience of re-living the past, just as telling one's story in court can do, but it also offers the opportunity to explore strategies for breaking the patterns that caused parties to suffer at each others' hands. Sometimes it is useful to remind people that if they cannot settle their dispute, they are likely to proceed with a farcical re-creation of their prior disastrous relationship. Other times it is possible to get people to see each other in a new light, to understand the other side's point of view a little better, or to handle the problem in a different way, so that they do not repeat those prior mistakes.

One wonders if Jonathan Broxton received the counseling he probably needed before facing Matt Stairs in a similar situation for the second time. Had he been better prepared, perhaps he could have faced his opponent, and his own demons, in a more convincing manner.

Monday, October 12, 2009

What is a peacemaker?

The surprising choice of President Barack Obama for the Nobel Peace prize, coming so early in his term, has led to some interesting commentary on what exactly constitutes a noteworthy achievement in peacemaking. Many who feel the award is inappropriate contend that unless Obama were able to broker a significant treaty, or achieve an actual arms reduction, or some other similar accomplishment, he would not merit such an award. Supporters of the award, on the other hand, point to the transformation that President Obama has already achieved in the way Americans view the world, and the way the rest of the world views America. These conflicting points of view, as I discussed in my political blog, could be said to represent different philosophies of peacemaking. In one view, the successful resolution of conflict represents peace, whether that resolution is achieved by deterrence, or by force, or by diplomacy. In another view, it is the beginning of constructive dialogue that represents peace, even if an actual agreement has not been put in place.

In judging whether mediation of court disputes is successful, is it enough that the parties sign a settlement agreement? Sometimes parties agree to a settlement because the costs of litigation are too high, or because they want to avoid the risks of an unpredictable result in court, or because they are able to arrive at a similar calculation of the likely results of continued litigation. Such settlements are usually still a good thing, because they spare the parties the wasteful expenditures of time and effort involved in litigation. But it could be argued that they do not bring real peace, only an approximation of the results of litigation without going through the cathartic actual experience. For mediation to result in a truly transformative experience, i.e., peace, the parties have to engage in a more searching dialogue. Parties might need to consider whether they can repair their relationships with one another. Even if they intend no future relationship, they might need to spend some time really listening to and appreciating the other party's point of view. They might need to re-evaluate whether their own conduct contributed to the dispute.

It appears that the Nobel Committee recognized President Obama for opening up a potentially transformative dialogue, even if that process has not yet resulted in all of the results people might eventually like to see. Those who do not understand the nature of the President's achievement as recognized by the Nobel committee seem to be mainly people who have trouble understanding the nature of the peace process itself. Many, perhaps most, people have less experience with the art of diplomacy based on a recognition of common interests and shared values, being more familiar with ways of reaching results based solely on calculations of respective power positions. Perhaps the Nobel Committee, in addition to having the lofty goal of actually influencing peace processes, also has a more sophisticated understanding of how to achieve peace than do many of the committee's critics.

(image from

Monday, October 5, 2009

Emotional issues in negotiation

Last night's season final episode of Entourage contained some good examples of the intangible factors that sometimes create, and then break, logjams in negotiations. First Ari Gold had to persuade his wife, in front of their counselor, to allow him to put up her assets as collateral for a loan needed to purchase Gold's former agency. She was distrustful because she suspected that he was pursuing this opportunity mainly to exact revenge against some of his former colleagues. In order to gain her trust, Gold had to admit, in graphic terms, that in fact he did have the basest and most personal of motives for buying out his former boss, and that he was looking forward to firing a number of their employees, but in spite of that, the deal made excellent business sense. As soon as he confessed his emotional and personal motives, he regained his wife's trust, and she consented to allow her assets to be pledged.

Later in the episode, the deal almost broke down over Terrence's demand that the agency he was selling continue to bear his name. Ari walked away from the table at this demand. Only when Terrence came back to Ari with an apology for his past mistreatment of Ari, would Ari allow the deal to get back on track. Ari was so moved by the apology that he even agreed to Terrence's demand.

Both incidents illustrate how seemingly irrational and emotional elements can prevent business negotiations from reaching a conclusion; and how settlement can sometimes only be reached after the emotional needs of the participants are fully acknowledged and at least partially met.

I would not hold Ari Gold up as a model in all respects, however. For example, I would caution against using a paintball gun as a means of firing employees.