Breaking the psychological barriers to settlement

People cannot divorce themselves from their emotions and perceptions when they decide to mediate

2014 September

A review of the mediation literature suggests that to be a successful mediator one must be able to build rapport with the parties; be seen as honest, ethical and trustworthy; be empathetic; and have the ability to create workable solutions. While these are essential characteristics, the importance of various psychological factors should not be overlooked. A critical component to a successful mediation or settlement conference requires a thorough evaluation of the participants, their thoughts, emotions and behavior. People do not live in a vacuum and the fact is that people cannot divorce themselves from their emotions and perceptions when they decide to mediate a dispute. Factors such as motivation, perception, personality, interpersonal relationships as well as emotions are all a part of the mediation process. Often, a resolution can only be achieved after these factors have been recognized and taken into consideration as part of the process.

Choosing a mediator

Sensitivity to these intangible factors could have made a difference in the first case I submitted to mediation as an attorney. The case was a highly contentious will contest. The attorneys did not get along, nor did the clients speak, so to break the logjam someone suggested mediation. Mediation was not yet a household word and private mediation companies were just getting started. I can’t tell you how long it took the parties to agree upon a mediator, but we finally selected a very highly respected retired jurist who had hung up his own shingle upon retirement.

On paper he possessed all of the usual characteristic sought in a mediator. I know that we were all hopeful when we entered that office, but the experience was far from positive. The mediator was late and had clearly not read the briefs (did I mention that we were paying for his services). After introductions he spoke to one side then the other, after which he came into the reception area and announced that the case would never settle and that we should prepare for trial. We were all somewhat stunned that he reached that conclusion after working with us for just over an hour. I sat in my car wondering why the mediator give up on us when I saw him load his golf clubs into his car and speed away.

The need for third-party intervention

First impressions may have led the mediator to conclude that the situation was hopeless. However, if he had looked beneath the surface he may have drawn a different conclusion. First, it spoke volumes that in spite of the hostile relationship, all parties had voluntarily agreed to participate in the negotiation process. The attorneys knew they were in need of third-party intervention if they were ever to move the case toward resolution. The fact was that the personalities involved prevented a candid discussion of the merits of the case. The parties needed a third party to evaluate the merits of the case and had faith that this mediator was the catalyst that could lead to resolution of the case. Apparently, the mediator lacked the necessary ability to evaluate the motivation of the parties and thus failed to seize that opportunity.

I often recall that experience and make sure that I am always tuned into the psychological factors that often speak louder than the spoken word. It is not always easy. Mediations and settlement conferences are dynamic and a good mediator is constantly processing and evaluating the situation and reframing issues depending upon what twist or turn the mediation takes. I take an approach that is designed to create an environment of trust where the parties feel that they can speak freely.

I start every settlement conference by introducing myself to all of the parties. I want to shake hands and make small talk. I want to walk away knowing something about the parties that is completely unrelated to the case. (When I complimented an elderly women on her flawless complexion she shared her secret – almond oil − applied nightly. I took her advice and bought some that same day.) Next, I always ask the litigants whether they have any questions and tell them that they can always come in and speak to me at any time as negotiations unfold. I take this opportunity to let it be known that I will never disclose what is told to me in private and in return I expect a candid and honest give-and-take.

Two sides to every story

Next, I take a few minutes to speak privately to the attorneys, primarily to observe how they interact. Are they friendly, hostile or indifferent? Does it matter? I believe that it does, because it tells me whether there are any personality issues that we have to overcome in addition to the underlying dispute. The tone set in this initial interaction usually helps me decide which party I speak to first. For example, I once had an attorney tell me how much he liked his opposing counsel and how they had been friends since working together in a firm right out of law school.

From just watching the other attorney, I knew there were two sides to that story so I decided to talk to him first. The door was barely closed before he just let go sharing his very negative opinion of his opposing counsel. It was important to get that issue on the table in case it became a factor as the negotiations got underway. I listened and it helped me to understand the attorney’s perceptions about the case. Speaking to each attorney separately also allows the attorneys to tell me about their clients and they will often share private concerns or issues. I always ask the attorneys if they have any suggestions on how I should approach their clients. By this time in the process I usually have a good feel for the relative positions of the parties.

It’s all about perception

The next phase involves the back-and-forth of negotiations. I am naturally a people person so I enjoy listening. During this stage I talk to each side separately usually with the attorneys and their clients, but even this has a psychological component. For example, some people have scorekeeper mentalities and they watch the clock to make sure that I don’t speak longer with one party over another. One plaintiff actually said to me that she was upset because I spent more time talking to another plaintiff and that she now felt that I must not find her damages as compelling. That perception can certainly damage the trust and credibility that the mediator has been building. So in multi-plaintiff cases I now address that issue upfront during the initial introductory stage.

Also, it is often important for plaintiffs to share what they have been through and how their lives have been impacted. It helps to understand the plaintiff’s perception of the events and gives a better idea about what is important to the plaintiff. Is there something in addition to monetary compensation that we can explore as part of a settlement package? Often an attorney will ask me to “talk sense” to the client when there is a viable offer on the table. I often find in many of these situations that there is something else going on in the person’s life.

In one such instance, while listening to the plaintiff it became clear that in addition to the trauma of the accident she had not recovered emotionally from her father’s sudden death just weeks after. She eventually accepted the offer but first she needed to be heard and to know that no amount of compensation was going to fill the losses that she had experienced.

It’s not about the money

The strategy of money – how much to offer and how much to demand – can also be complicated. Everyone tries to divine where the other is coming from. These can be the most delicate of decisions, and the mediator plays a critical role in helping to frame the counters. At some point someone will threaten to walk away from the table. The mediator’s job is to direct the discussion, calm down the parties and keep the momentum going. Sometimes it is difficult to keep the parties focused but the mediator has to be patient and keep all parties engaged. When each side is approaching their target numbers, I will discuss the consequences of not settling from both a practical and emotional context and I will evaluate the tangible and intangible costs of proceeding to trial or settling. I don’t like to let anyone leave the table unless I am convinced there is no more room for movement.

Settlement is a process

Of course, a mediation that results in a settlement is an unequivocal success. Ideally all parties should feel slightly compromised for a greater good. However, even a mediation that does not result in a settlement presents an opportunity for the parties to regroup and reassess their positions. Many times the attorneys can point to the advice offered by an experienced jurist or mediator, and the always present uncertainty of victory at trial, to lay a foundation for settlement at a later time. The door is always open to further discourse and it is not surprising that many cases settle a week or two following the first mediation.

In summary, settlements are always based upon the applicable law and the circumstances of each particular case, but given the cost of litigation, there is real value in settlement conferences and mediation whether the case settles or not. The key is a well prepared mediator who understands not only the law, but the inevitable psychological factors that bring the parties to the table in the first place.

The will-contest case that was the subject of my first mediation did eventually settle, but not until the first day of trial. During voir dire the jurors were asked their opinions as to whether it was okay for a person to leave their worldly possessions to friends rather than relatives. In response, an elderly gentlemen expressed the opinion that whoever is the first to get to the house should be able to take whatever they can carry. Five other prospective jurors nodded in agreement. Two hours later, the attorneys, who had never had a cordial exchange, settled the case. I have always wanted to thank prospective juror number 5.