Amy Lieberman, executive director of Insight Employment Mediation in Scottsdale, Arizona, recently published an intriguing article in the AAA Dispute Resolution Journal, The “A” List of Emotions in Mediation from Anxiety to Agreement.
For my commercial litigator and business clients, I know, I know, it’s “only about money” and you “don’t take it personally.”
If you’ll recall, however, there was that time you felt like lunging across the conference table at a recalcitrant witness or slammed your briefcase shut before storming out of a mediation in response to an “insulting” offer.
Well, “A”nger isn’t the only mediation emotion according to Ms. Lieberman. You can pretty much define the entire settlement conference by concentrating on the letter “A.”
For the truly emotionally well-balanced, you still might find your client or opposing counsel lurking here among the “A” emotional trees as described and amplified by Employment Mediator Amy Lieberman.
Anxiety is called the “most common emotion experienced by parties waiting for a mediation to begin. They know,” Ms. Lieberman writes, their own views of the conflict and strongly believe in the rightness of their positions. They each believe the other is being unreasonable and fear that the conflict will escalate, so that the goal of resolving the dispute in mediation will not be achieved.
Anger follows anxiety like night follows day. My friend the psychoanalyst says that anger consolidates our sense of ourselves when fear or anger threaten to overwhelm us. Ms. Lieberman cautions that although “we may know intellectually that displaying anger is unlikely to help us achieve a resolution . . . we may be unable to prevent an angry outburst or other negative expression that could derail the mediation.”
My own advice is to express your disgust to the mediator, who can reframe frustration into action, irritation into problem-solving and “A”nger into “A”greement (see below).
Ah, Adrenaline. Someone once told me that trial attorneys are “stress-adrenaline” addicts. I guess I’ll have to raise my hand on that one. If winning didn’t give me a rush, the loses would be too costly to bear. When you’re a mediation advocate, however, its best to channel your adrenaline to the issues, not the people. As Ury and Fisher, the famous “Getting to Yes” authors routinely counsel, “be hard on the problem and soft on the people.”
Awareness makes the “A” list. Although the parties know one another’s positions all too well before the mediation commences, counsels Ms. Lieberman, they often do not know “what led to those positions or the underlying interests or needs of the other side. This is especially true,” she writes, where there is a breakdown in communications between the [parties and often also the] lawyers involved. . . Even when there is communication, the parties are often unable or unwilling to really listen to what the other has to say. . . It is typically th[e] new awareness that leads to the “magic” of mediation. The magic is the willingness of parties, based on new information, to view the conflict in a different light. It is this willingness that opens the door to resolution.
Acknowledgment is the beginning of Mediation Magic or “A”greement “A”lchemy. Invariably, the first opportunity the parties have had to acknowledge their understanding of the other side’s “position” occurs during the mediation. Acknowledgement, writes Ms. Lieberman, often causes one’s opponent to “shift closer towards an amicable resolution. Even a slight shift can start the ball rolling.”
That’s my experience as well.
A is for Active Participation, the sine qua non of a successful mediation. Sometimes hours pass while each “side” waits for the other to step up to the zone of potential agreement, the point of probable impasse, the moment everyone fears — the time when everyone “a”cknowledges the case will never settle because the “other guy” is being unreasonable.
Amy says “progress fosters progress” and I agree.
To generate movement, I’ll often call upon the more daring of the two parties to be the first to step up to the plate of impasse, i.e., to imake an offer that represents a “stretch,” thereby encouraging the other side to do the same.
It benefits no one to bargain in the nano- and strato- spheres when everyone knows that settlement won’t be possible until the parties see the whites of each other’s eyes.
There are two A’s in Acquiescence and Agreement.
Here Ms. Lieberman and I part semantic company. I have to say that “acquiesce” should not be in any litigator’s vocabulary. Agreement yes. Acquiescence, no. I do agree with Amy that finding an agreement the parties “can live with” is a realistic goal.
In my mind, that represents a sound business decision based upon a reasoned cost-benefit analysis. Although this may be merely a matter of word choice, I’ll wager that if you use the word “acquiescence” with your litigation colleagues, the first “A” words that come to their minds will be Anger and Adrenaline. As Amy finally reminds us, all the hard work of mediation goes for naught if we don’t prepare Agreements the parties can enforce.
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