When my kids were young they didn’t have a good understanding of what their dad did at work all day. So I tried to break it down for them. I’d tell them that “I read a bit; I write a bit; I talk on the phone. That’s about it.”
I’m sure that didn’t sound like a barnburner kind of a job.
Truth be told, there’s a bit more to lawyering than that. As a real estate, business and construction litigator and transactional attorney, I wore many hats. Counselor; writer; general; warrior; advocate; peacemaker; facilitator; strategist. I sometimes felt like a river guide where I knew the river my client and I were traveling and had some idea of was up ahead, around the next bend.
After lawyering for 30-plus years I turned my attention to full time settlement work as a mediator and arbitrator. I had long been a facilitator. I recognized early on in my litigation career that many of my clients were ill-equipped to take on long, expensive, uncertain litigation. A litigation approach to problem resolution would financially grind my clients more than they could bear. As a result, I learned early on to be a facilitator. I often found myself solving other people’s problems so that I could solve my own client’s problems. When I became a mediator my long history of facilitative problem-solving sprang into action, and I quickly found myself addressing problems on multiple fronts all at the same time. It’s something my whole career had prepared me for, and it came naturally.
As I dug in to my new-found work of full time settlement, I made an important discovery: as long as the parties were talking, there was hope. Not every case was ripe for settlement at the time of a mediation, but as long as the parties continued talking there was hope. However, if one of the parties removed themselves from communications, then the mediation was over. No communication means (in most instances) no settlement.
That might sound a bit odd. Why would the parties pay for and attend a mediation only to drive it into the ground? Mostly because the mediation didn’t go the way they had hoped (or planned, or intended). When things start going sideways, people don’t always respond well. Truth be told, most of us don’t respond well to frustrated expectations. When things don’t go as expected, we just aren’t happy. And when things go really poorly, we sometimes get downright angry. And when we get angry, settlement may not be the most important thing. Sometimes when we get extremely frustrated the frustration becomes the most important thing and that’s what we focus on – even if it’s going to cost us.
If we don’t feel like we are being heard; if we don’t feel like we are being respected; if we feel like someone is being unreasonable; if we feel like someone is demanding more of us than they should – then there can be a real temptation to shut the settlement process down. We don’t always do this by slamming our planner down on the table and storming out of the room. Sometimes we express our displeasure and frustration by taking control of a situation that feels out of control by disengaging, and one of the most immediate way of disengaging is to stop talking. A key way we do this is to say, in effect, that the other side knows where to find us and if they want to propose a deal, to resolve a dispute or have us hear them then they can send us a message – but at the present time we are done engaging in any back and forth interchanges.
Such an approach can feel empowering; it can feel like we have restored to ourselves a sense of control. But the problem with such an approach is it shortcuts what can be an essential process of hammering out differences; trying out theories; addressing problems and impediments to settlement. Unless the other side is exceptionally weak or desperate, the response to such an approach is often… silence (and not capitulation).
Sometimes this refusal to communicate extends only to the other side. But sometimes it also extends to the mediator. I’ve seen situations where negotiations have grown heated, and one side is willing to continue the discussions in good faith, but the other side just shuts it all down. This doesn’t mean the parties can’t come back later – but doing so can be time-consuming and expensive. If trial is coming up, settlement delays can be costly – and sometimes, the other side can misunderstand the negotiation signals being sent with the result that they may conclude (wrongly) that the other side isn’t interested in settlement. If there is a need to test the other side’s resolve by shutting down settlement discussions, then discussions can be shut down deliberately, intentionally and by taking into account the full risks of taking a hard nosed position and ending the mediation. But all too often it seems to me that when one side or the other shuts down settlement discussions, it isn’t done because that’s the best available negotiation strategy. Instead, it often seems like the side that shuts down the discussions acts out of frustration and a desire to restore their sense of control over the negotiations (by stopping them altogether). Such an approach often short circuits settlement discussions that were otherwise progressing and may well have borne fruit.
What’s the moral of the story? If things have escalated, take a deep breath. Look around. Stop, pause, and regroup. If the best approach is to shut it all down in view of the risks, the costs and the client’s values, then do it. But don’t shut it all down just because the process is difficult or because the other side isn’t being reasonable. Stay the course. Work through the impasse; re-evaluate; regroup. Talk to me.
Robert Jacobs is a full-time California neutral with more than 30 years of litigation experience. He believes that parties at mediation are best served when their mediator is prepared, attentive, respectful, engaging and tenacious. He finds that most parties and counsel who mediate with him are pleased with how the proceedings were conducted and that they welcome the opportunity of mediating with him again.