The Physical Laws of Mediation
By Wendy Williamson, Esq.
Over 30 years of mediating civil and domestic cases, I have discovered certain rules of physics which are unique to mediation. Oxford Dictionaries defines the scientific use of “law” as meaning: “(3) a statement of fact, deduced from observation, to the effect that a particular natural or scientific phenomenon always occurs if certain conditions are present.” These physical laws of mediation explain some “forces of gravity” which can make my job as a mediator easier if I respect them:
1. It is easier to keep extraneous people out of the mediation room than to remove them once they have entered. I learned this lesson over and over again when parties and their entourage arrive for mediation. This entourage can include family members, children, friends, advisors, pastors, rabbis or their current romantic interest [which is always interesting in cases of divorce mediation]. I apply the rule that only parties and their attorneys of record can enter the mediation room unless and until I, as the mediator, have decided, with input from all parties and attorneys, to grant an exception. In other words, the first mediation should occur during scheduling or in the waiting room to determine who will be allowed to enter the mediation room.
2. Beware of parties with puppet strings attached in mediation. Much damage can be done to settlement negotiations by an excluded or offsite advisor with power or money. In the old days, I would handwrite agreements, and I made the mistake of releasing parties for lunch… until too many written agreements were torpedoed during the break by advisors with limited knowledge and disproportionate power. Mediators need to carefully listen and watch for references to advisors, paying parents or other interested parties who are being consulted during mediation. It is a gamble, but mediators may choose to include the advisor in caucus in person or by phone to reduce the likelihood of a veto from afar. Be very careful to have any participant in mediation, including caucus, sign the mediation contract so that confidentiality and immunity are protected.
3. Mediation will only progress if each offer gets better. This sounds so obvious. A seasoned mediator knows to track offers of all parties, analyze those offers and be on alert for backward movement that could end negotiations. Some mediations are dead on arrival when a party’s first offer in mediation is less than the last offer before mediation, so that same seasoned mediator will make sure to ask about pre-mediation settlement offers. In personal injury cases, tracking movement is relatively easy if the exchanges involve a single number. In complex family, business or construction cases, tracking offers and evaluating movement is a much greater challenge. Beware of really smart attorneys who mask the same or worse offer in a glossy package. A mediator must undertake to understand an offer and its relative value before carrying that offer into the next caucus. Which leads to the next rule of mediation physics…
4. In mediation, some dollars are apples and some dollars are oranges. In other words, each dollar can have a different value. Obviously, a dollar in cash is not equal to a dollar of debt. But a dollar in cash is also not equal to a dollar in a future pension, a dollar in encumbered real estate, or a dollar of a small family corporation. So for mediators who work with columns in mediation, the total number at the bottom of each party’s column may not be numerically equal but could be fair or equitable. If I propose taking two dollars that come with risk or delay and offer you $1 dollar in immediate cash, that may be a fair offer. These relative values present a great challenge to a mediator tracking offers for forward movement. Additionally, the mediator must be prepared to neutrally explain to parties about the relative values of each asset in each offer to help parties see beyond the numbers.
5. Imagination weighs more than reality. The unknown or unprovable is always larger than any known or visible asset or offer. If I (a party) believe you (the other party) are hiding an asset, misrepresenting a value or downplaying your authority in mediation, I will always assign greater value to what I don’t know than what you are showing me. And sometimes I am right. As a mediator, I need to keep one foot in doubt and the other in movement. If I express confidence that no more authority exists in “the other room,” only to find out in the next caucus that more authority does exist, I have sacrificed my own credibility. A seasoned mediator will help a party analyze the cost of continued investigation and litigation against the likelihood of never-ending frustration and dissatisfaction. Helping a party value peace and closure over prolonged uncertainty can be an attractive alternative. I might say something like “Let’s assume that there are more assets. Let’s assume that you can discover those assets. What will it take to find them, how long will it take and what will your net gain be if you do find them?” This can backfire especially if an attorney is unwilling to be realistic with her own client about the bumpy and costly road ahead.
6. Objective criteria have superhero strength to overcome obstacles. I’ll never forget the divorce mediation in which a wife’s attorney revealed in caucus a beautiful picture of the husband’s Caribbean wedding two weeks before mediation. The husband’s attorney was zealously representing his client and the mediation was heading for impasse. The mediator convinced the wife’s attorney to share the photo and sacrifice the advantage of surprise in court. Once the photo was shared, the case quickly settled because reality had entered the room. I marvel at the impact Facebook, voicemail, emails and texts have in mediation. People say and post the darndest things. A memory of an event rarely measures up against a visual or audio recording of the event. Computers have become a powerful, and sometimes dangerous, tool in mediation. If a property value is in dispute, a party can go online and look at the tax assessor’s valuation for at least one opinion. That party can also go online to look at properties for sale or recently sold near the property. If a dispute arises over telephone contacts between parties, phone records can often be accessed. If a balance owed or expenditures are questioned, credit and bank accounts can be accessed online to get current and reliable information. A mediator must handle objective criteria with care and protect dignity in the exchange of such powerful information. I always caution parties to expect the unexpected in mediation and to find comfort in the confidentiality of the process.
7. Movement begets movement. For every action there is a reaction. One of the greatest challenges for a mediator can be to bridge large gaps between offer and demands. Eventually, someone needs to make the leap toward the land of reality. Too often, fatigue or hunger are the most effective motivators. Sometimes bracketing helps to ease this movement but some attorneys are unwilling to use bracketing. Timing is critical and requires great wisdom. A large leap too early can turn into a “take or leave it” that ends mediation prematurely. A leap too late may fall on deaf ears. One of the mediator’s jobs is to encourage thoughtful movement taking into consideration the readiness of the parties, the stage in mediation and any remaining room to move. I often describe myself as a co-pilot trying to land a plane. During caucus exchanges, I may speculate on where I think the landing range is for the ultimate settlement. I use this tool to help prepare people for numbers that may be outside of their current reality. By the end of mediation, parties and attorneys are speculating on the “landing range” and it is fascinating to watch the numbers move toward an actual settlement.
8. Certain actions in mediation create positive or negative magnetic fields.
a. Negative Magnetic Fields repel or push parties away from settlement:
ii. Misrepresentations or exaggerations
iii. “Take it or Leave it”
iv. Personal Attacks
v. Ineffective Apologies
vi. Lawyers villainizing the other party
vii. Unreasonable demands or offers
b. Positive Magnetic Fields attract or bring parties closer to settlement:
i. Effective Apologies
ii. Consessions or compliments
iii. Reasonable explanations for offers
iv. Reasonable explanations addressing the other party’s concerns
v. Lawyers treating the other party with respect whether earned or not
vi. Normalizing and encouraging
What I love most about mediation, other than the people I get to work with, are the unexpected and unbelievable flips and turns that can happen during any mediation. So these rules of physics are predictors but not guarantees. I have encountered objective criteria that have been revealed to be fabricated or altered during mediation. I have had mediations settle only because an advisor was allowed into the mediation room. I have watched imagination become reality when some objective evidence surfaces during mediation to prove the impossible. If you study the origins of mediation, you will learn that negotiation and dispute resolution first developed as a science. Any science involving human nature is ever-changing and endlessly fascinating.