Wednesday, February 29, 2012
The End of Negotiation
The legal system cannot solve this kind of problem very well. Courts only decide whether one party is required to pay the money, or not. If a mediation only tries to short circuit the court process by assessing which side is likely to prevail in court, that may not entirely satisfy the parties' needs either. Neither can the kind of negotiation in which each side simply tries to best the other side with clever negotiating tactics, as for example using the common tactic of playing low ball offers against full price demands.
What if we try to reduce the time spent arguing about the parties' legal positions, and also reduce the time spent going back and forth negotiating a settlement amount? What should we do instead? In several situations like this recently, I spent a considerable amount of time with each side simply trying to persuade them to talk to each other directly, which they had not done for some time, and setting up a safe environment for doing that. I also tried to find out from each side what they wanted to hear from the other side. In one case, the party who was most reluctant to engage in that kind of dialogue (in this case, the lender) was nevertheless quite clear about what he wanted from his [partner/friend/relative]: an acknowledgement of wrongdoing, an apology, and a plan to fix it. I seized on this framework, and told the borrower he had to address each of these concerns. What do you regret? What are you sorry for? And what's the best you can do to make it better? As long as he did that, I told him he was also free to express whatever he was disappointed in from his former partner.
Next I raised the idea of having this one on one meeting outside of the presence of the attorneys, but I assured both attorneys beforehand that we were not going to agree to, or even discuss, the outlines of any kind of settlement without their full participation. The purpose of the meeting was only to allow the parties to express their disappointments and regrets to each other. I then brought the two estranged parties into a room, and made sure they both understood and agreed that when one was speaking, the other was not to respond in any way until given permission to say his piece. My only role in the dialogue was to ask questions to make sure I understood, and the other side understood, exactly what each one wanted to tell the other. It turned out that it did not take very long to cover what they both wanted to say. I thanked both parties for participating, and told them I did not expect that we would magically solve all their lingering resentments in one meeting. I'm not a therapist. But at least they had started a dialogue that I hope would lead to a better relationship. As to the dispute that we had come to resolve, I told them that their attorneys would take care of negotiating the resolution of that, and that I expected they would both agree to the terms we reached. By this time, I had enough confidence in both parties, and both parties' attorneys, that we would be able to accomplish that.
Then I brought the attorneys into a different room, and we hammered out a deal in about 10 minutes. The actual negotiation of the settlement number and terms probably took about a minute of that time. The attorneys then explained the deal to their respective clients, and both signed on. What took some time was to write it up, which the attorneys proceeded to do without much input from me. Now, if you're going to do a deal in this manner, you have to have some confidence that neither party is going to take advantage of the situation, and I did in this case have that confidence. This deal turned out to be easy to negotiate because both attorneys made an effort to be fair to the other side, as well as their own client. (In my view at least, that doesn't violate the attorneys' duties of zealous representation of their clients' interests, because their clients' primary interests consisted of resolving the dispute, moving on with their lives, and restoring their relationship with the other side. To serve those interests, you have to be fair to the other side, just as you would in making a business deal that involves an ongoing relationship.)
Mediation training puts a lot of emphasis on the art of negotiation. But at least in the situation where it might be important to restore an important personal relationship, as opposed to the cases in which the parties want nothing more from each other in the future other than the payment of a sum of money from one to the other, I would challenge the idea that a mediation should focus primarily on negotiating the resolution of the dispute. If we see mediation primarily as a negotiation, we might be curing only the symptom, instead of the underlying problem. And if we don't deal with the problem, then resolving the dispute doesn't accomplish very much, because the parties are just going to find something else to have a dispute about down the road. If, on the other hand, we can use mediation to help the parties address their larger problems, then it serves a much more important purpose than simply resolving the dispute at hand. The dispute can be seen merely as an obstacle the parties both need to put behind them so they can get on to more productive concerns.
Another problem with spending all our time on negotiating is that the parties may end up no more satisfied by resolving their dispute through a process of negotiation than they would by presenting it to a court or arbitrator. If parties go to court, they expect the judge is going to tell them who is right and who is wrong, who has to pay and how much. And they have to live with that result. If they choose to resolve their dispute by mediation, they should get something more than the feeling that the dispute has been resolved through some complicated and tricky bargaining game, in which the skills of their respective negotiating teams determined the result. If the parties understand the process simply as a negotiation game, the resulting number may appear more arbitrary and unfair than whatever a judge might come up with. If the parties view a negotiation as an adversarial process that each side is trying to "win," then both are likely to be dissatisfied with the result. Neither will feel that they have "won," and the negotiated resolution will not even begin to resolve the underlying problem.
If instead we try to deal with some of the underlying people problems, the parties are going to be a lot less invested in achieving the maximum that each side came in asking for, and the result is going to seem more fair to both sides. The dispute should recede somewhat in significance, and become easier to resolve. Ideally, in that kind of negotiation, each side is going to want to give the other side more than they are asking for, and feel less entitled to their own demands. Think of the kind of negotiations that parties in good marriages or other kinds of friendly partnerships have: In those negotiations, each tries to persuade the other to take a larger share. One says, "Here, you take a larger slice of the (literal or figurative) pie. You deserve it" "No," the other responds, "I insist that you have the bigger piece." Those are the kinds of negotiations we strive for, and we don't expect to see them very often in an adversarial mediation. But if we concentrate more on removing some of the obstacles to a good relationship, and lessening the suspicion and distrust the parties have for each other when they walk into a mediation, we might find that the dispute can be resolved seemingly without having to "negotiate" at all.
(photo from Alpha Male blog)