From the Blog of Phyllis G. Pollack.
An important aspect of any dispute, be it one filed in court or simply a neighborly spat, is the expectations of the parties. Are they unrealistic or do the parties know exactly what is what and what they can expect as part of a resolution?
When the expectations of the parties are not realistic because no one has discussed the realties with them, any attempt at alternative dispute resolution will end in disaster.
This, again, happened in one of my mediations recently. It involved a case filed in court. Plaintiff hired an attorney to prosecute her claim against defendant. The plaintiff’s attorney duly filed and served the complaint. After the defendant was served, it turned the complaint over to its counsel who analyzed it and concluded that the otherwise applicable state statutes did not apply. Plaintiff did not have a cognizable claim. Defense counsel wrote plaintiff’s counsel to share her analysis but did not receive a response. So, several weeks later, defense counsel, again, wrote plaintiff’s counsel, sharing her analysis. Again, no response.
The matter meandered along. Finally, the court ordered that the parties attend mediation. So, the parties scheduled a mediation with me. Defense counsel sent me a brief setting out the same analysis that she had given plaintiff’s counsel on several occasions over the past few months: plaintiff had no claim cognizable under state law.
I started the mediation with a joint session. Plaintiff explained the substantive issues. Then defense counsel presented her analysis. As she spoke, I could see from plaintiff’s face that this was all new to her; she had not been told that her case was subject to dismissal because the otherwise applicable statutes were not applicable. After some discussion on this point, the parties broke into separate sessions.
When I met separately with plaintiff, I could see she was clearly perturbed. She had come to the mediation with a particular mindset in terms of what she would accept to settle her case, only to find out for the first time at the mediation, that she had no case, and that any settlement would involve minimal amounts, nowhere near the amount she had in mind when she walked into the mediation.
The mediation went downhill from there. Plaintiff needed to process the new information and until she accomplished this, she was unable to accept the “new” situation and make a demand. Eventually, she got so angry at the situation, that she stormed out of the mediation, slamming the door behind her.
Several months ago, I read a book entitled The Science of Settlement by Barry Goldman, MA, JD (ALI ABA 2007) in which he discusses all of the psychological factors involved in negotiations. He devotes an entire chapter to “Preparation”, discussing the myriad of mind games we each play with ourselves in negotiating with others. His opening paragraphs are on point:
“Negotiating a deal is like painting a room.. It’s all about the prep. The part where you put the paint on the walls is easy. It’s the scraping and sanding and taping that takes the time and effort.”
“Negotiating without preparation – trusting your instincts or “going with the flow” – is a dreadful mistake. . . .”
“Obviously, you need to know your file. . . . “The best way to sound like you know what you are talking about is to know what you’re talking about.” . . . .” (P. 9)
On several occasions in the past, I have written about the importance of preparing for mediation. In each blog, I have stressed that the parties need to be fully informed about all of the issues and the consequences of any decisions made at mediation, including acceptance or rejection of offers and demands. I have noted that each party needs to know the exact parameters of the dispute, and thus the potential existence or non-existence of liability and thus the possibility for damages. I have suggested that prior to a mediation, a party needs to learn what mediation is all about, what to expect, to review the issues and to analyze them. I have implored that prior to the mediation, investigate the facts and law and assess the strengths and weaknesses of not only your position but that of the other party. Step into the shoes of the other party and view the dispute from her vantage point. How does your side of the dispute look from the other person’s side of the table?
All too often, I have witnessed parties attend mediation, believing that settlement is possible without any real knowledge of the facts and the law. Their expectations are unrealistic. As Mr. Goldman notes above, it is a “dreadful mistake” to approach mediation by simply “winging it.” Parties need to mentally process issues, i.e., to prepare. Our minds must work through the issues to reach a conclusion. We cannot just walk into a mediation, be given a reality check by the mediator or the other party and mentally process such disparate information so quickly that we are capable of accepting a totally different reality in a nanosecond. Our psyches will not allow us to suddenly accept a settlement proposal that we thought to be anathema an hour earlier. We are not computers: we are humans and so require time to absorb and accept new ideas. Without preparation, unrealistic expectations will exist and will be the recipe for failure to reach resolution at a mediation. The effort will be futile and a valuable opportunity will be wasted.
So once again, I urge – – do not take mediation lightly. Come prepared and you will have a great chance at settling. Come unprepared and you will be doomed to failure.
. . . Just something to think about. . . .