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The Need to Dance; the Fear of Failure

by Phyllis Pollack
August 2017

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

The other day, I received a telephone call from an attorney wondering if I could conduct a mediation on very short notice. It seems that the parties had a trial date in less than three weeks and wanted to make another attempt at settling the matter. They had already been to one full day of mediation elsewhere… to no avail.

I agreed and so the parties and their respective counsel appeared at my offices within a matter of days after that telephone call ready to take a second shot at resolving the case.

At the outset, there seemed to be some confusion whether the parties had in fact agreed to a bracket either at the very end of the last mediation or shortly thereafter. (By “bracket”, I mean the scenario (by way of an easy example) in which the parties agree that plaintiff will demand $100.00 if the defendant is willing to offer $25.00. If the defendant agrees, then plaintiff offers another bracket in which perhaps plaintiff is willing to reduce the demand to $85.00 if the defendant is willing to offer $40.00. With each new bracket, the range narrows until finally an amount is agreed upon. Typically, the agreed upon amount is close to the midpoint of the low and high amounts of the bracket.)

After that confusion was cleared up, the parties did agree to use a bracket. So, I thought, “okay, this should not take too much time, as the parties have set definitive boundaries on the amounts being demanded and offered”. And more importantly, each party expressed a great desire to settle, overlooking actions of the other party throughout the day that in other circumstances would have caused the mediation to end right then and there.

Boy, I was wrong. It still took over 8 hours to resolve the matter. Why? The parties still felt the need to “dance”- to engage in the negotiation dance, to try to outthink, out strategize and out manipulate the other parties. Complicating this was the fact that there were three defendants and so there were sub dances within the dance. Everyone was dancing but me- I was doing all the walking between the rooms. (My Fitbit got its workout!)

Recognizing that the parties needed to dance, I let it go on for 4-5 hours. Then I started commenting that while I did not mind spending my whole evening with them, did they really want to do that. At this point, they were still making only very small jumps from one amount to the next. I suggested that one big jump begets another  big jump. That is, if one party makes a large concession, the other party would reciprocate. The response was a game of chicken: “let the other party be the first to do it!” And then, when I was finally able to get what I considered to be a large concession from one party, the other thought it was too small and so would not respond in kind. UGH!!!

The “funny” thing, was that early in the day, the defendants sort of knew where they wanted to end up. Recognizing that the parties had to dance a little, I did not push it. But as the day progressed and after multiple rounds of dancing, I suggested that perhaps the defendants start talking “turkey” with plaintiff. No, they would have none of that; they were not willing to cut to the chase.

So… several hours later, the defendants ended up at their target amount having taken two full days of mediation to get there. The case settled.

Do not get me wrong… I respect the dance and appreciate that it must occur. But, as one trainer told me long ago, most Americans can only tolerate 4-5 rounds of dancing. These parties first spent one day with another mediator dancing multiple rounds and then spent the whole day with me dancing a lot lot more. I would think that after several rounds on a second day of mediation and especially as the day was winding down, and everyone was getting mentally drained (our brain uses about 20% of our glucose even though it weighs about 7 lbs.) they might want to end the dance especially with a fast approaching trial date.

Or, perhaps the long slow dance was a stalling tactic to avoid the risk of not being able to settle at the end of the second mediation. The mediation with me was the last chance to settle before trial. (That is, the costs of preparing for trial which would now be included in any settlement demand, would make reaching a settlement quite difficult.) Perhaps the fear of failure was the tune to which they were dancing. Perhaps the tightrope on which they were walking was a lot thinner than I realized or appreciated. So- they wanted to forestall making the ultimatum (“Take $x or we go to trial”) for as long as possible.  As long as they kept dancing- there was no bad result, no failure and still the possibility of no grueling trial confronting them! Perhaps, they were scared that it might end in failure once again and so they put that possibility off for as long as possible.

Who knows but it certainly was a very long and very slow dance… that succeeded.

… 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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