From Clare Fowler’s Fairly Legal Blog
Try adding this tool to your toolbox: let parties figure it out on their own.
My daughter is learning addition in school, and she continuously asks me, “What’s 2+2? 14 + 23? 109 + 5?” And when I’m busy or tired, I take the easy way out: I tell her the answer 109 + 5 = 114. At which point she stares at me with a blank look while her mind decides if I’m telling the truth. After a pause, she cocks her head to the side and says, “Really?” At which point I always suppress a laugh because I’m not sure if she thinks I’m lying or dumb.
When I’m at the top of my game, we walk over to the whiteboard and I show her to make columns and lines and where to put the plus sign. I show her how to line it up with 109 on top and 5 on the bottom. Then we put everything in its proper place. Once we have gone through the process of figuring out where everything should go, I step back and let her figure it out. She looks at it for a second, sticks out her tongue the way she always has when she thinks hard, and then turns around and screams, “114! It’s 114!”
It wasn’t any more or less true when I told her it was 114, but she didn’t completely accept it. When a judge tells two parties to split the difference it doesn’t make the judgment any more or less true, but the parties don’t completely accept it. In the back of their mind, they continuously think that they could have done things differently or gotten more. If instead, two parties sit down at a table and negotiate, they rationalize to themselves why they are comprising certain things, they are able to watch the other party compromise other things, and then they arrive at an agreement where they split the difference. It is the same settlement that the judge forced upon them, but now both parties accept it. They have invested in to the process, they are proud of their behavior, and they watched the other party concede. All of these elements are necessary for an agreement to work.
In the Fairly Legal episode where Kate Reed helps a couple reach a settlement after the husband has been hit by a bus, her most stunning moment was when she let go. She had went through the process of figuring out what the pieces were, what their importance was, what went on top and what stayed at the bottom, she got everything lined up, and at the crucial moment where the couple decides to settle and/or separate she steps away.
Our jobs as mediators is never to tell people the answer. That is the job of someone who has a long black robe and a gavel. Our job is to figure out what the pieces are and help the parties to line them up properly, and then once everything is clear let the parties finish it. If we tell our parties what to do, there will always be a little resistance. Why? Nobody likes to be told what to do! No matter how scared or confused or powerless a party might feel, no matter how much it looks like they are begging you for an answer, if you tell them what to do they will resent you for it. Instead, find out the parties’ interests, empower the powerless, validate feelings, and move them to a place where they both realize clearly what to do, the lightbulb goes off, and they turn to you excitedly and scream, “114! The answer is 114!”