Successful mediation ends a litigated conflict. For most litigants, mediation will offer their only chance to be heard, their only ‘day in court’.
The mediation agreement is an enforceable contract. It contains clear detail on the disputed issues. If it only involves money, it should be a straightforward process. It isn’t. Some clients are not ready for things to end, until they are heard.
In many mediations I hear one party say, ‘The money doesn’t matter.” Since litigation usually awards money, It eventually does matter. But the large stakes are often emotional ones.
Knowing this, many parties approach the mediation clinging to positions. Many non-professionals believe that giving an inch will be perceived as a sign of weakness. They wait till the other side makes an offer before they will respond. Emotions are predicated upon perceptions of fairness. When litigants fear they will be short-changed, they become intransigent.
The mediation process usually involves multiple types of currency. In addition to the money, there are emotional issues; personal animosity, fear of failure, vindictiveness, pride. Each affects value. Each should be addressed. As you prepare your clients for their mediation, it will help to find out the other ‘real reasons’ for the lawsuit. If they want to talk to the opposition, help your client prepare their statement.
There may not be a trial, but each party can be heard – by the mediator if no one else. We know that people who have been heard are more likely to trust the settlement process. The litigants who can tell their story, can reflect on the dispute. If they have been fully prepared, they can feel secure in their settlements. Often they can also own their part in that process. For distressed litigants who are not heard, this is much harder to do.
Recently, parties to a mediation began arguing with me as I introduced myself. They had not spoken to each other, and been separated into different rooms before the mediation began. Several exchanges with each side made clear that their emotions – built up to an extreme level – were the first significant ‘currency’ to be exchanged. They were caught up in the emotional chaos at the surface of the litigation, in seeing each other as threats, as the enemy.
While the briefs addressed matters of ‘money’ and ‘equity.’ Each litigant talked about ‘fairness’ with me. Each party discussed matters of personal hurt, and the historical harm caused by ‘those guys.’ I asked each party to present their story, as if testifying in a trial. Each attorney agreed to treat the opening caucus as if testimony were being given. No cross examinations were conducted. Both ‘testified.’ Shortly thereafter, they settled. Some parties are not ready for things to end, until they are heard.
Remember. The process is foreign. Lay people don’t usually negotiate the value of personal harm, liability or injury. They don’t understand the leverage that is involved. They must rely on their champions. But first, they may need to be heard.