Updated: Aug 22
Not all things go our way. We know this instinctively yet become so surprised when the unexpected or unwanted occurs. In a pressure situation with limited time to maneuver, this can result in great frustration, habitual responses, and shutting things down. Does this sound familiar?
Unsurprisingly, a mediation is one of those pressure situations with limited time. And guess what, things are not always going to go your way during mediation.
This can happen when you are confronted with a new fact, witness, piece of evidence, expert opinion, or legal argument that turns the tables on your case. Or, despite your brilliant advocacy, eloquence or skill, the other side just refuses to budge from their negotiating position. What is a poor lawyer to do?
Habitual Responses at Mediation
While many cases can and should settle at mediation, it is just a fact that not all will. The other side refusing to budge from their negotiating position will certainly impede settlement.
When this happens, all too often the habitual response is to double down and repeat the same arguments that already have been rejected. Another habitual response is to raise the stakes and make extreme demands or threats. The other prominent habitual response is to shut down, deem the mediation a waste of time, and call an impasse.
A Better Response: Pivot and Expand Your Goal to Learn Something New
Doubling down with the same arguments, raising the stakes, or making threats not only shuts down the mediation but builds a wall that impedes settlement later.
We should always be trying to build bridges not walls when it comes to resolution. While the case might not settle at mediation or even be ready to do so, that does not mean that it cannot down the road. I call this the planting of seeds for settlement.
One way to bridge the gap to settlement is to gather information during mediation. I do not mean that you are to use mediation as a discovery tool. No, to the contrary, what I am suggesting is that you make an intention to work with the other side so you both gather information that you both need to fully assess the case.
By gathering information, you can with the other side analyze its validity, assess risk, and address options. Change a fact and you can change a case or at least your assessment of it.
Shutting down the mediation where the parties have learned nothing new about the case and are in the same position as when they first started the mediation, is a lost opportunity. Not digging deeper is just an agreement to disagree on a very superficial level.
The Sharing of Information
If your case cannot be settled at mediation, at the very least pivot and make the effort to learn something new about it. Try to learn the precise reasons for why the other side feels so strongly against your position and what is the support for those reasons. You may find the other side lacks information or is relying upon wrong information.
This is usually not a one-way street. Think of it as show and tell. While you are trying to learn something new, be sure to educate the other side what your precise position is and what supports it.
Sharing information from your side not only encourages reciprocity from your counterpart but also gives them something new to think about and consider. Remember how changing a fact can change a case?
This is the essence of collaboration. If ever during your case, mediation is the perfect time to attempt collaboration. The honest sharing of information builds trust, rapport, and understanding, the hallmarks for making a good deal.
I recognize that not everyone is going to want to share information with you, but you should at least have the intention to try to learn something new. Informed decisions require information. Sharing information during mediation builds rapport, trust, and allows the parties to make rationale business decisions. What is the worst thing that could happen, an impasse?
Less conflict. More resolution.
Miami Florida Mediator