Were he living, Al Capone could tell you a thing or two about putting your feet in concrete. In mediation, better you should emulate Fred Astair and keep those hoofs dancing.
Premature commitment to a demand or a denial, I should not have to tell you, is anathema to constructive settlement negotiations, in or out of mediation. Yes, yes, I understand that at some point in a negotiation “a line in the sand must be drawn.” (Lord, save me from that cliché!) Too often, however, that line is drawn too quickly, too early, lacks tactical consideration, and invariably inspires a matching response from the other side. Result? Impasse – and all the litigious consequences that follow.
The rhetoric employed by attorneys is legion and, given the nature of their roles as advocates, perfectly understandable. The level of discourse is nowhere more prominent than in mediation, where, also, too often, an increased volume level is believed to complement the powers of persuasion.
Precipitate positioning and bombastic rhetoric seem to go hand in hand in many cases, combining to implant the speaker’s feet in the aforementioned concrete. Fortunately, Capone’s follow-through does not occur. Unfortunately, in a mediation proceeding, loss of the spirit of negotiation does.
My advice? Relax, counselor. Go with the flow. Let the process work. Give the mediator a chance to do his or her thing. If you are attending solely by reason of the judge’s mandate and have already exhausted – truly exhausted – settlement opportunities, an appeal to the court to waive court-ordered mediation (good luck!) may be appropriate and fairer to both sides. Otherwise, allow the “magic” of mediation to play out. No, the mediator is not a magician. The magicians are all those in attendance, each wielding a wizard’s wand ready to cast its spell of reason and compromise on the symposium.
Won’t bid against yourself? Won’t take “$1 under” or pay “$1 over” a certain amount? Think your case is a slam dunk? Get real. Learn to paint outside the lines. Keep your feet out of the concrete. And resist the “desire to reach things before the right time.”
The payoff for reasonable patience in reaching a settlement can be invaluable, as you explain to your client how he, she or it has averted the cost, delay, stress and uncertainty of a trial.
PGP Mediation Blog by Phyllis G. PollackOn June 1, 2016, the California Law Revision Commission (CLRC) held its meeting in Sacramento and, as in the past, took up mediation confidentiality...By Phyllis Pollack