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Intent To Settle

From Erica Becks’ Cure for the Common Conflict.

This past week I mediated a landlord-tenant dispute. On paper, the issue seemed pretty straight forward, but in my experience, very few mediations are as simple as they appear. And this one was no exception.

After both parties sat down, listened to the ground rules and introduction, and signed a confidentiality statement, the first party started off the conversation by saying “I don’t think this is really going to work. I just wanted to let you know that. Because I don’t want anyone hear to get their hopes up. We’re simply here because we were told to do so by (blank)”. This of course set the entire tone for the mediation immediately. I, as the mediator felt dejected from the start, and I can only imagine, after examining Party 2’s body language that they too, had given up before the proverbial ‘fight’ had begun.

What ensued for the next two hours was a tortuous display of angry emotions. Party 1 broke every ground rule including yelling, threatening, giving put downs, etc. Yet surprisingly, both Party 2 and myself remained calm and continued to press on with some modicum of hope of settlement. But alas, the mediation quickly disintegrated after hour two. Even after Party 2 begrudgingly proposed what appeared to be a fair offer, Party 1 refused with no explanation given. After I tried to uncover the motivations for the refusal, Party 1 simply stated, “I told you this wasn’t going to work”. At this point, I made the determination to terminate the session. As an aside, I rarely do this, however, given her complete refusal to offer any sort of resolution or uncover any reason why she wouldn’t settle, I decided to throw in the towel.

Someone once told me that intention means everything in life. I once attended a business seminar, where I remember the speaker saying something to the effect of: that to be successful, you must have the intention everyday when you awake, to be successful at whatever it is you choose to pursue. And although I struggled with what I perceived to be somewhat kitschy advice, I often reflect back on that seminar from time to time. I do believe that motivation and intent defines life. What you put out is what you receive; the universal law of energy (or something like that). If you believe you will overcome adversity, then you generally do, or so many a self-help book might relay. And as much as I hate to buy into anything ‘preachy’, I must admit that I do witness a strong correlation between parties who enter mediation with the intent to settle, who ultimately achieve settlement. I see an even stronger relationship between parties who have no intention to settle, who ultimately do not reach agreement.

Mediation is not an effective means to resolve issues if one and/or both parties never have the intention to settle. So if you or someone you know is thinking about entering mediation, you should ask them, why are they motivated to settle? If they can’t answer that question, then there are always other fun alternatives to mediation that you can recommend to them, like litigation, which simply requires a blank check and a motivation to line your attorney’s pockets.

Lesson for the Day: Don’t fake it if you truly believe you can’t make it.

                        author

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