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Every Dispute is Two Disputes

PGP Mediation
by Phyllis G. Pollack

Several weeks ago, I attended the annual fall conference of the Southern California Mediation Association (SCMA).   While all the sessions were very good, one of them on emotional intelligence (presented by Harold Coleman, Jr. Esq, Debra Dupree MFT, Psy.D., and Matt Argue, Esq. entitled “The Modern Mediator: Interplay of Psychology and Mediation Strategy”)  got me thinking.  The theme of the session was that while being intelligent is good, it is also very important to have emotional intelligence; the ability to tap into the emotions of others, or to read people. Those who may be very intelligent in the sense of having a high intelligence quota (IQ) but low on emotional intelligence probably will not be all that successful. Why? According to the presenters, 80 percent of our success is due to our emotional intelligence (EQ) while only 20 percent is due to our intelligence quota or IQ.

Those with high emotional intelligence typically are persuasive, optimistic, self-aware, self-confident, have self-control, are empathetic, collaborative, and good at conflict management.

All of this is quite relevant to resolving any dispute. While the disputants may claim it is all about their respective legal rights and interests and be more than willing to tell their story or their facts to anyone who will listen, the dispute is emotional. It is about a relationship gone bad, or a wrong done to them for which they seek vengeance. On an (unrealized) emotional level, each party seeks not only retribution, but vindication (need to be right), validation (to be honored and respected as a human), to be heard, the ability to give a greater meaning to what has happened to them or to make a difference in the world, and emotional and physical safety. (Thank you, Doug Noll!)

So, the parties come to mediation, allegedly to resolve a legal dispute. It is also an emotional one. And here is where a conflict arises. The plaintiff probably has never been to a mediation before and so is what one might call a “one-shot player”. However, her attorney and probably, the defendant and her attorney have been to many mediations before and so are “repeat players”. (Examples would be suits against any corporation, insurance carrier, governmental entity and so forth.).

The plaintiff is approaching mediation from an emotional viewpoint and with the goal to “right the wrong”, to find out what happened and why or the true cause of the wrong done to her.  Her attorney, and the defense attorney and defendant though are approaching it from a legal standpoint- what is the risk of winning or losing at trial and from the defense standpoint, how little money must be paid to avoid trial and its risks. The defense’s definition of the dispute is purely legal; what is the risk of losing and what will it cost to avoid that risk.

Consequently, the one-shot player and the repeat players are talking at cross purposes to each other. While the plaintiff may agree to accept a sum of money to settle the “legal” case, the emotional case remains unresolved. The defense – concerned solely with the “legal” case, is happy to have avoided a trial and its risks.

The plaintiff walks out of the mediation unsatisfied. And this is where emotional intelligence comes into the scenario. If the repeat players tap into the “emotional” aspect of the case, and work on responding to plaintiff’s needs and interests, then chances are – the plaintiff will walk away a lot more satisfied with the settlement of the “legal“ case. In short, to obtain a “good” settlement of the “legal” case, the repeat players must first resolve the “emotional” case.  Otherwise, the settlement reached will be one in name only to the one-shot player.

…Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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