(Note: This is a fictional story based on fact. Quotations are used for literary purposes and do not reflect actual statements made during mediation.)
Not too long ago, a mediation session threatened to go off the rails before it even started. And the paradox of not pushing the parties toward agreement revealed its power.
* * * * * * * * * *
“Good morning,” the mediator cheerfully intoned as he welcomed the plaintiff into the conference room. A warm handshake followed. This party was representing herself. Dressed formally, it was apparent that she considered this to be serious meeting and that she wanted to be taken seriously. The mediator noticed she was a member of a racial minority in her mid-fifties with a black briefcase and an attitude of confidence that comes from preparation and clear goals.
“Where do I sit?” she asked, as others began to arrive at the mediation.
“Wherever you choose,” the mediator replied.
She carefully unpacked her well-organized paperwork and placed it in neat piles on the table.
The case involved multiple claims of racial discrimination against three universities. There was a long history of acrimony between the claimant and the universities, ultimately culminating in a lawsuit.
During pre-mediation communications, the mediator had learned that three male lawyers for the universities planned to attend the session. The mediator suggested that, knowing the plaintiff was in pro per, the lawyers consider appearing at the mediation with one attorney and that the other lawyers, who’s clients has relatively less exposure, could appear by telephone. There was a discussion about who else might attend to provide some diversity to the group. The lawyers appeared to be receptive to the ideas and agreed to consider them.
Somewhat surprisingly, the next people to arrive at the mediation were three white male lawyers representing the universities. Coincidentally, each of the lawyers was wearing a wide wale dark gray pin-stripe suit. As they took their position across the conference table and began to unpack their litigation briefcases, the plaintiff looked warily at the the “wall of pin stripes” she was facing. The confident gleam in her eye began to fade. Without living her life, there is no way the mediator could begin to understand the wave of feelings that must have washed over her. They’re lawyers, they’re all white, and they’re dressed in the most conservative way imaginable. What could that mean for her? She was out-numbered, out-manned, and out of hope. The lawyers said nothing to her except a cursory “good morning, I represent X university,” as they talked freely and comfortably among themselves, exchanging pleasantries, talking about their drive to the mediation, and inquiring about how each was doing. Each lawyer proceeded to pull out huge stacks of paper from their briefcases and started to unpack papers from banker’s boxes they rolled into the conference room.
Slowly, and without saying a word, the plaintiff began to gather her papers, so neatly placed on the table. She opened her briefcase and put the papers inside, as if she were getting ready to leave.
The mediator noticed the group dynamic that was quickly and wordlessly emerging. Privately, the bubble in the mediator’s head went into overdrive, “Oh, wonderful, another happy day in mediation-land. This case is going to be over before it begins. She’s actually getting up to leave! This is a first–we didn’t cover this type of situation in mediation training (or did we and I just can’t bring it up in the sweep of the moment?)! Should anything be done? What should I do?” A deer in the headlights moment followed. A mild panic set in.
The mediator’s private mental bubble swelled larger, “If something should be done, what was it? Should I encourage her to stay, making mildly vague promises about a favorable outcome? Should I issue some type of assurance about the power-balancing effect of mediation? Should I try to “sell” the mediation process and give her a pitch about all the reasons she should stay (she had already deposited the full mediation fee, she had set aside time for the mediation, and she had obviously invested time in organizing her paperwork)? Should I split the parties up, abruptly, and address the issue separately? Conversely, should nothing be done? Should the plaintiff or any party be permitted to walk out of the mediation for any reason? Would I be a wimp if I tried to ease the parties into a frame of mind where they wanted to try to work things out? If I intervene forcefully in a heavy-handed, authority-based way, would I be stepping outside my role as a mediator?”
There wasn’t time to formulate much of a plan because the plaintiff was now standing up and getting ready to start for the door. If the mediator didn’t take immediate action, she was leaving and the mediation was going to be over before it started.
Thankfully, the fundamentals of mediation training kicked in. Turning to her, the mediator slipped into a casual riff about a unique aspect of mediation, “One of the nice things about mediation is that parties can decide for themselves whether the process is working for them. Every step along the way, the parties can decide whether the mediation is still productive and worthwhile. No one will force anyone to stay with the process if they believe it is not going well. Anyone can decide to leave at any time if they feel the mediation isn’t going in the right direction.”
She stood still for a moment, without making any further moves toward the door.
The situation was still very volatile. It was obvious that the plaintiff was caught in a dilemma, “Should I stay or should I go?” So, the mediator turned to the “wall of pin stripes” and asked, “I’m thinking that you have something to offer because you’re here in mediation, am I right?”
The “wall” nodded affirmatively.
Turning back to the woman, who was now slowly sitting down in her chair, the mediator inquired, “If I were you, I’d be curious to know what they have to offer. You can always make your own decisions about whether it’s the right amount or the right terms, after you know what there is on the table. Why not make those decisions when you know what you have to work with?”
Silence. She settled back into her chair.
The plaintiff didn’t say anything as she pulled her papers from her briefcase and tentatively placed them on the table in front of her. She turned to the mediator for direction, who, sensed that the parties needed to move forward with the mediation immediately, so he invited the plaintiff to describe the background, saying, “It would be helpful if you would tell me a little bit about what brought you here today.” There would be time, very soon, for the mediator to offer introductory remarks about the mediation process. The plaintiff needed to start–right now.
She began. The “wall of pin stripes” presented their positions and defenses. Along the way, the mediator stitched in the points that ordinarily would have been made when the mediation started.
The parties negotiated for 8 hours straight. There were many deep differences along the way. There were hard decisions that had to be made. There were numerous clashes and several significant concessions by all parties. After it all, the claims were resolved globally, with a universal sense of relief, cordiality and handshakes all around.
* * * * * * *
After reflecting on the events of the day, the mediator was reminded about the power and the paradox of allowing parties to make their own decisions about their claims and about the mediation process. Even when one party wanted to pull the plug before the mediation began, false promises were not made, assurances were not given, and pressure in the form of a sales pitch–however well-intended–was not put on any party to carry on with the mediation.
By deferring introductory remarks about the mediation process, the mediator modified rules about the stages of mediation in order to meet the immediate needs of the parties. The flexibility of mediation, procedurally, actually is one of its strengths.
The mediator resisted the temptation to take responsibility for the parties’ decision-making and demonstrated that, despite the risk of failure and the very real possibility of a non-starter. Reminding the parties that they had the right to decide for themselves whether to go forward was more powerful than any promise or assurances that could be given. It was also proof that the mediator was not personally attached to a settlement. A party could decide for any reason or for no reason to terminate the process. Conversely, if any party had been pushed into the mediation process with false promises, assurances, or a sales pitch, they might have resisted it and questioned the mediator’s true respect for the principle of self-determination. Or, they might have resented the mediator for pushing him/her into a seemingly unproductive mediation.
Easy answers, old habits, and highly directive approaches might be successful in some cases, yet others resist resolution with standard methods. When mediation appears to be falling apart, are coercive methods always going to help? Conversely, is it possible that it might be productive for a mediator to guide the process with optimism, provide a realistic description of the unique party-directed nature of mediation, present options in the form of choices parties may make, and have the courage to accept the parties’ decisions? The case of the “wall of pin stripes” provided a stark example of that paradox.
IndisputablyNevada Law Journal, Vol. 19, No. 3, 2019 available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3433926 Central to her thesis is the (in my view correct) observation that most research on negotiation and gender has...By Michael Moffitt