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Mediating Past Impasse: Humility and Diagnostic Questions

It is the last Friday before the New Year and the Mediation is entering Hour Five.  I am cajoling, wheedling, blandishing, coaxing.  Mr. Lee’s attorney is doing a little begging himself.  But we are unconvincing.

Mr. Lee wants to settle the case.  Every smoke signal he has sent up during the day indicates that he has sufficient resources — and more importantly — the committed desire, to settle this troublesome lawsuit for a figure that is very close to that which the Plaintiffs have signaled they would be willing to accept.

And yet . . . . . . Mr. Lee is back-sliding.  We importune and he gives us less authority than we had an hour ago.

We are failing to persuade.  And we are out of arguments.  The settlement proposal now on the table makes economic sense. It’s good for business.  Trial is approaching.  The chances are less than even.  Everyone is taking a loss.  If it’s wrong or unfair, it’s no worse than a random car wreck.  One of life’s bad accidents, best left in the past.  Trial is worse than uncertain, it portends a bad — and avoidable — result.

Still.  The money is coming off the table.  I am missing something.

“I’m missing something,” I say.

Mr. Lee looks at me with interest for the first time in hours.

“What are you missing?” he asks.

“I don’t know.  I only know you want to settle the case and that I’m not helping you do that right now.  Can you tell me what I can do differently or better?”

Mr. Lee returns to an old theme — a horse I’d assumed we’d beaten to death several hours ago — the reason his co-defendant should be contributing more than it has resolutely refused to do.

Finally it occurs to me that Mr. Lee does not believe I am negotiating hard enough for him.

“Do you think I’m not negotiating hard enough with your co-defendant?”

He lights up.  “Yes.”

“O.K.  If you give me a counter, I’ll work harder to get more money from Mr. Co-Defendant,” I say, realizing that I haven’t been pressing Co-Defendant as hard as I could be.

My mediator friends are cringing.  “Don’t press!!” I hear them saying, “explore.”  

Back to Plaintiffs’ caucus.  “We’re at impasse because Mr. Lee insists his his Co-Defendant knew the facts that all the documents show it didn’t.”

Plaintiff lights up.  “That’s true,” he says, offering a detailed and credible account that contradicts the written record but dovetails with Mr. Lee’s account.

Hour Six.  Case settled with another small, but significant contribution by Co-Defendant.

New Year’s Resolution:  Ask more diagnostic questions.  Citation?  Leigh Thompson’s Mind and Heart of the Negotiator, page 77:

“[L]eft to their own devices, negotiators fail to ask diagnostic questions.  For example, only about 7 percent of negotiators seek information about the other party’s preferences during negotiation, when it would be dramatically helpful to know such information.”

What were Mr. Lee’s “preferences” here?  That I press his co-defendant to put more money of its own on the table.  Did Mr. Lee need more money?  No.  But his preference that I exert a greater effort on his behalf was so strong that my failure to do so caused him to retaliate — against me — by giving me less authority in hour five than he’d given me in hour four.  I genuinely believed I’d done the best I could do.  I was wrong.  By how much?  Not much.  The point is, there was more value to be gained and I had given up.

New Year’s Resolution:  Proceed with Humility.  Citation?  Sri Chinmoy, i.e., the Oneness of the Eastern Heart and the Western Mind.

The moment we use the term ‘help’, a kind of egocentric idea enters into us. If we help someone, that means we are in a superior position. When we help, we feel that we are one step ahead or one step higher than the ones that we are helping. But if we serve someone, then we offer our capacity with humility, on the strength of our loving concern and oneness. So let us use the proper term, ‘service’.


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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