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A Perfect Example of Engaging to Avoid

by Phyllis Pollack
May 2016

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

A few weeks ago, I discussed the paradox of Avoidance and Engagement as discussed by Bernard Mayer in his book, The Conflict Paradox (ABA and Jossey-Bass, 2015). I cited the use of mediation as an example of this paradox. Parties engage in mediation to avoid further litigation or prolonging the dispute yet at the same time, they avoid each other during the mediation (through the use of separate sessions) to engage in settlement negotiations. Further, the defendant tries to avoid acceding to plaintiff’s demand while plaintiff tries to avoid accepting less than it really wants (while engaging in settlement negotiations).

I return to this paradox because I mediated the perfect example of it recently. It was a trademark infringement dispute in which the Plaintiff alleged that the defendant had been engaging in the use of its trademark through the sale of counterfeit goods. The matter was filed in federal court.

Initially, the defendant agreed to use a federal magistrate judge for mediation but, suddenly, decided against it. I can only surmise that it was because she did not want the magistrate judge- a judicial officer- to know the alleged details of the matter. (Avoidance?) Suddenly, she wanted to use a private mediator instead. (Engagement?)

So, there I was- mediating a trademark infringement case. As is usual in California, the plaintiff and her counsel were in a separate room from the defendant and her counsel. While the defendant told me quite a few times that she wanted to speak directly to plaintiff and her counsel, when I passed the request on to the latter, they refused. Their rationale was that they figured that defendant wanted to speak with them to soften them up. Plaintiff and her counsel were adamant that they would not change their position based on anything defendant said and so did not want to give her false hopes by giving her an audience. (In paradox terms- defendant wanted to engage hoping to avoid settling at a higher sum while plaintiff sought to avoid on the rationale that it did not want defendant to think its engagement would lead to success!)

From the beginning, Plaintiff and her counsel took a very strong position. Using fictional amounts, Plaintiff demanded $200,000.00. In response, (and again engaging in fiction), defendant offered $15, 000. Plaintiff explained to me that this one infringement was actually a pattern and practice that defendant had been engaging in for years, but, this time, she got caught. Defendant insisted to me that it was a one-time mistake, she was otherwise innocent, and plaintiff really did not suffer any damages. (Plaintiff was seeking statutory damages as the counterfeit goods had been seized before any sales had occurred.) She insisted that any evidence that plaintiff was supplying me to the contrary was not true.

This disconnect between the demands and the offers went on for most of the day. Plaintiff insisted on staying close to her original $200,000 demand while defendant insisted that the matter was not worth much more than $15,000.

Normally, with such impasse, one would think the parties would leave. This is where the paradox became most apparent. Although the parties were seemingly getting nowhere, defendant did not want to leave. She REALLY wanted to settle the case that day yet she wanted to settle it in a range of dollars she thought was fitting rather than in the range that plaintiff thought was fitting. While several times, I advised defendant that Plaintiff insisted that the settlement amount be much closer to the $200,000 amount than the $15,000 amount, defendant continued to increase her offer in only small increments not willing to concede to Plaintiff’s demands yet not wanting to leave the mediation. The defendant was insistent on engaging in mediation to the point of insisting that the case be settled that day yet avoiding any agreement to pay anywhere close to the amount demanded by plaintiff and/or avoiding the substance of plaintiff’s allegations. Clearly, the defendant did not want to proceed with the litigation which would include having her deposition taken as well as those of others, yet did not want to engage in settlement discussions along the lines of plaintiff’s demands.

As the day progressed and I began to sound like a broken record by stating to defendant that plaintiff was insistent that the settlement be closer to $200,000 than $15,000 and then stating to plaintiff that defendant insisted that the settlement be closer to $15,000 than to $200,000, the defendant finally realized that it had to become more engaged to avoid the potential greater liability (including a deposition) if the matter did not settle and proceeded forward. The trial date was fast approaching.

In the end, and through the use of bracketing, the parties settled in an amount closer to the $200,000 demanded by plaintiff than the $15,000 offered by Defendant. But, throughout this day long mediation, I could not help but think about the paradox; two parties voluntarily coming to mediation with one of them professing a great desire to settle, yet both parties being extremely stubborn, unresponsive and uncooperative throughout the day to the point that I felt like I was pulling teeth.

When you wonder why people profess that they want to settle a dispute, yet take every action that contradicts that statement, remember the paradox: they are avoiding to engage and are engaging to avoid!

…. Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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