(Note: This is a fictional story based on fact. Quotations are used for literary purposes and do not reflect actual statements made during mediation.)
In response to defendant’s “best offer of $750,000” conveyed during a private caucus, the plaintiff turned to the mediator and said, “I’m going tell you something I haven’t even told my own attorney.” It was a pin drop moment. Everyone was all ears. Plaintiff’s attorney turned stiffly toward his own client with the look of someone bracing for hard news. The defendant’s offer was favorable. It was the result of a long day of contentious yet arms length negotiations. There had been many moments of extended breath holding and tension, but now the offer was in a ballpark some plaintiffs may have found appealing. Then, for what seemed like an eternity, there was silence.
The plaintiff gathered himself and, when he finally broke his silence, he confided with great sincerity, “Last night I prayed, and God told me not to take a penny less than $1 million.”
Feeling like a deer caught in the headlights does not begin to describe this moment. For the mediator, it felt like being thrust somewhere between the proverbial rock and a hard place. A bombshell, an obstacle of enormous proportion had just been dropped into the mediation and the feeling of being stuck was momentarily overwhelming.
Beliefs and values are generally considered to be non-negotiable. What good would it do to question or challenge the plaintiff’s faith-based estimation of the settlement value? Scanning the long-term memory banks from mediation training, was there a technique for this type of situation? If so, it was not coming to mind right away. Along with these feelings, the bubble over the mediator’s head was filled with questions, “Am I hearing what I think I’m hearing? Does the Almighty get involved in the everyday business of case evaluation? Is this plaintiff being sincere and genuine–or is this some kind of tactic? What is the plaintiff’s attorney reaction in response to this news? How can I handle this type of comment without confronting the plaintiff and challenging his beliefs? Is there a way to respect plaintiff’s faith and still move the process toward resolution?”
In the sweep of the moment, a path began to take shape in the mediator’s mind. Without any fixed ideas of where it would lead, the mediator acknowledged the plaintiff’s statement, “I can see that you sincerely believe the case is worth $1 million.” The plaintiff nodded.
The mediator continued, “If the case can’t be resolved today during mediation and it goes across the street to the courthouse, that’s a man-made system of justice where a jury made up of everyday people will decide your case. People like your neighbors and friends, with all the flaws and limitations of ordinary people. It’s hard for them to put a single number on a case and it’s also hard to predict what they’ll do with your particular case.”
Highlighting the practical versus the providential nature of the legal system, the mediator framed a question carefully, “Given the alternatives, do you think there’s any guarantee of doing better than $750,000 at trial, in the man-made system of justice?”
Another long silent pause. Exhaling audibly and sinking noticeably into his chair, the plaintiff looked at his attorney, then answered quietly, “No, not really.”
Recognizing the plaintiff’s right to make final decisions regarding settlement, the mediator inquired further, “So, what would you like to do at this point?”
“I’ll take the $750,000,” the plaintiff conceded. He was visibly at peace with his decision as he relaxed into his chair and resumed normal breathing, for perhaps the first time in the past several hours of mediation.
Using acknowledgment (“I can see that you sincerely believe the case is worth $1 million”) and a BATNA analysis (asking the plaintiff to predict what might happen at trial) were key stepping stones in the process. The mediator did not challenge the plaintiff’s sincerity or his faith, both of which were respected and recognized. Even after the breakthrough when the plaintiff conceded that there were no guarantees of doing better at trial, the plaintiff was asked for his final decision regarding acceptance of the pending settlement offer, thereby preserving his right to self-determination. The plaintiff was able to hold onto his personal and religious beliefs. At the same time he was invited to take a close look at his alternatives to a negotiated settlement and to come to terms with those alternatives himself.
Concededly, at every turn, the mediation may have gone in different directions, including the final issue of whether this particular plaintiff would accept the settlement offer of $750,000. Yet, once again, the power of a BATNA analysis was confirmed and a seemingly non-negotiable belief was managed in a way that the plaintiff never felt disbelieved, coerced, threatened or personally challenged. The fundamental skills of negotiation and mediation triumphed, this time in unexpected ways and in a unique situation.
Howard Bellman discusses the fact that he doesn't think justice is being served much of the time, however, the focus is the autonomy of the parties and if they're satisfied,...
By Howard BellmanOriginally published in the Eugene Register Guard on April 12, 2002. Reprinted with permission.THE WEEPING WILL LAST for generations to come, and what are we to tell our offspring? I...
By Nir PearlsonKluwer Mediation BlogIn the early days of personal computing, the development of the “graphical user interface” was accompanied by the acronym, WYSIWYG: “What you see is what you get.” While...
By Ian MacDuff
