Mediation When A Party Is Not Present: Are You There?
COMMUNICATION PREVENTS DIVISION, AND SETS UP SUCCESS.
At the start of voluntary mediation to resolve a dispute, intra-party consensus about strategy and the strength or weakness of a case is building, but not yet realized. In this climate of formulation and frank discussion, there is the risk of harmful division between people on the same side of an issue. Inside this early time window, mutual trust among allies is fragile. Fostering trust at the outset of negotiation earns outsize dividends later, when decisions are consequential, and must be made. It takes an especially astute mediator to help preserve intra-party relationships on the way to settlement.
DIVIDED ALLIES POINT FINGERS.
The Roman historian Tacitus wrote, “This is an unfair thing about war: victory is claimed by all, failure to one alone.” Across nearly twenty centuries, Theodore Sorenson, President John F. Kennedy’s speechwriter and later biographer, repurposed Tacitus’ proverb for Kennedy’s statement to the nation about his singular responsibility for the April 1961 Bay of Pigs debacle: “Victory has ten thousand fathers. Defeat is an orphan.” Mediation is about inventing a solution from the ingredients of a conflict. It works best when people on the same side of the bargaining table share expectations and trust one another. To do otherwise, spurs finger pointing that puts us squarely in Tacitus’ quandary. In this edition, we consider what happens to trust when settlement negotiations have one present speaker, and a distant audience. We also discuss how talented mediators manage negotiations and settlement when the decision maker is remote by tactical choice.
THERE'S POWER IN PRESENCE.
Mediators know successful mediations happen when parties with full authority to settle are present. Because this truth is universal, judges know it too, and in scheduled settlement conferences, judges order and enforce “attendance”. In voluntary mediation, attendance is expected, but ultimately left to the parties. We can see then, how “present with full authority to settle” is fluid in voluntary mediation.
There is someone at the mediation who delivers demands and offers, but that person is often not the one with full authority to settle. Instead, that “full authority” audience can be hours, or even time zones away, participating in the mediation second-hand and reachable by phone. Discussion with remote decision-makers happens through a representative in the room. Depending on the issues at stake and the apportionment of liability, that communication can be fraught. It’s one thing to bargain when a knowable sum is at issue. It's a different challenge when punitive damages are possible. The role of that present person; often an attorney acting on her client’s behalf; can be perilous. Seasoned mediators know this and behave in ways that minimize the structural danger and remove settlement obstacles.
MEDIATION WITH A REMOTE PARTY. A "KNOWN UNKNOWN".
That faraway place has its own emotional and logical dynamic, and the mediator must have the experience to know this. At the receiving end of the phone there’s sometimes a much broader view of things, and how this settlement, or impasse, affects second and third order events. Astute mediators must account for this. These second and third order concerns can redefine what is achievable.
Distance can mean devotion to an unattainable outcome goes unspoken. That’s hazardous. Expectations about strengths and weaknesses change from pre-litigation, to litigation, to mediation or trial. In an earlier edition of this newsletter https://www.linkedin.com/pulse/we-yet-can-pick-perfect-time-mediate-tim-mara-j-d-ll-m--10pie/?trackingId=LZkXmU4GRpuwhf5iqOXMeQ%3D%3D we considered how the case you mediate, or you take to trial, is not the same case you sued about or you confronted at the outset. When change is obvious, seasoned mediators have the vocabulary and credibility to talk about it, candidly. Distance, and communication through intermediaries with faraway decision makers can make mediator discussions about expectations tough. Clever mediators know this, and plan accordingly, so far away, or in the room, change is addressed, and reflected in successive rounds of demands and offers.
At the faraway receiving end of the phone, the typically plodding pace of early mediation rounds of demands and offers can engender mistrust in the mediator, the attorney acting for her client, and the adversary. Astute mediators must account for it, and talk about it aloud, so trust is fortified, and fruitful negotiations have time to progress.
In that faraway place, criticism, impatience, and obstinacy can grow in destructive ways if the mediator is careless about thorough communication. Conversely, distance and confusion can send a faraway decision maker down the path to early, expensive surrender because overwrought anxiety can propel impulsive choices. Conflicting parties enlist mediators to do what they want done but cannot do themselves. The best mediator communication is complete communication inside the bounds of what mediation allows.
We know that disputants threaten impasse to take control of settlement. Skilled mediators know the impasse threat often comes from the faraway place at the receiving end of the phone. Faraway opaque agendas, unrealistic expectations, miscommunication, and fear are all jeopardous to settlement. Impasse can result in cases that would settle if the settlement authority was in the room. Capable mediators avoid impasse and enhance the present advocates’ situation so that information she delivers remotely, is unmitigated, trustworthy, and useful. The “full settlement authority” may not be in the room, but it falls on the mediator to use her experience, skill, and judgment to make the present circumstance as close to that ideal as possible.
Capable mediators work so that the authority of the person who is present is validated and augmented. This means the mediator communicates about the cross-party discussions they are allowed to share in ways that enhance the trust between the present advocate, and the remote decision maker. To achieve this goal, mediator candor and attentive listening are essential. Clear communication about developments or their lack, is indispensable, as is the mediator’s repeated confirmation of the bargaining instructions she has been given.
THE BEST MEDIATORS TAKE TACITUS' MAXIM TO HEART.
There can be no settlement when intra-party trust evaporates. Astute mediators know this, and agilely use every tool in their mediator toolbox to build, protect, and defend a climate of complete, trustworthy communication. Parties enlist mediators to do what they want done but cannot do themselves. The best mediators take Tacitus’ maxim to heart. They quietly pave the way for the parties to take full credit for the resolution they share with their colleagues- especially remote ones.
3Chairs CAN HELP YOU.
Every year, tens and tens of millions of us start our fights in court and ninety-five out of one hundred of us, voluntarily take the mutually agreeable settlement off ramp, long before our trial lawyer picks our jury. Mediation works, and almost all of us choose it.
We look forward to answering your questions and helping you with your full or half-day mediation. Contact us:
3Chairs Mediation Group, Inc.
(855) 3Chairs | (855) 324-2477