Mediation:  A Case History

by

Alan R. Maler*

 

Few things are as disappointing or potentially costly as a failed negotiation.   A true life case in point:  As a result of the inability of the parties to negotiate a resolution of a dispute, there immediately followed twenty-seven depositions, three motions for summary judgment, and three months of intense trial preparation.  On the eve of trial, a settlement was reached, but the blood-letting had been severe.  The cost of the new settlement plus the additional six months of litigation were significant.  Worse yet, the settlement bore a striking resemblance to discussions batted about in the earlier negotiations.

It would be comforting to believe that the results of six-months of furious pre-trial activity actually contributed to the resolution of the conflict.  I can offer no such meager solace.  Rather, the additional discovery and legal maneuvering, while essential trial preparation, resulted in a minimal increase in the available knowledge base.  Six months earlier the case could have settled at substantial savings to all parties.  What could have been done differently?  What was missing?  Twenty-twenty hindsight makes the answer clear:  the skills of a competent mediator were not present.

A skilled mediator would have made a difference.  First, it was not just the money; there were many other issues and concerns requiring attention.  A mediator could have brought the non-monetary issues to the table.  Second, none of the parties ever had the positions challenged by an independent observer.  A mediator could have compelled parties to face the cold realities of the failure of the negotiation process and the possible range of outcomes of litigation.  A mediator could have challenged erroneous assumptions without compromising a negotiation position.  Third, parties that apparently were reconciled and aligned were in fact at odds, the façade of agreement and congeniality was a well-orchestrated negotiation ploy.   In the end, the ploy prohibited those parties from working out important differences.  A mediator, in separate confidential discussions, would have discovered these disparate viewpoints without sacrificing negotiation positioning. 

The mediator should build rapport through active listening creating an atmosphere of trust and understanding.  As important as the mediator’s depth of understanding of the positions and interests is a party’s belief that the mediator understands his or her position.  The mediator does not assume a position or result.  Only by asking questions, and avoiding imposing his or her conclusions, does the mediator ferret out the actual interests of the parties.  The mediator can pursue a relentless, but subtle, search of the underlying interests, for the unstated, without assuming that the answers are obvious, or that the positions are logical or coherent.  The experienced private mediator has a bevy of tools available to move negotiations along. 

Make sure that the mediator has experience in the mediation process and methods of dispute resolution.  Mediation is increasingly a recognized legitimate tool for resolution of disputes.  The continued use of mediation and availability of competent mediators is steadily increasing.  My own experience is that nearly 85% of cases that come to me for mediation are resolved.  Few things are as welcome and cost effective as a successful negotiation.

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