Stages

At a recent seminar, the lecturer was telling us that the Kubler-Ross model of the five stages that people go through when they are dying–denial, anger, bargaining, depression and acceptance–has applicability to many other processes, including mediation. I had not really thought about mediation in those terms before, and I wasn’t sure how that insight might apply to conducting a mediation.

Then recently, I actually watched a mediation participant go through most of these stages in a relatively short period of time. Starting with denial: a failure to recognize his predicament. Next, expressing anger at the other side for causing it. This took the form of blaming the other side’s attorney, as well as anger at the other side for lying or inflaming the situation. Bargaining: we see this in every mediation of course, but I think the kind of bargaining we might be talking about as an intermediate psychological stage takes the form of trying to obtain an approximation of what each side feels it is entitled to, rather than a realistic assessment of the costs and risks that each side is facing. Depression: The person I am thinking of actually started expressing feelings of hopelessness and despair. And finally, acceptance: A recognition that settlement represents the only way, and the best way out.

Somewhere between depression and acceptance, I was in a caucus session with the other side, who were going through the stages also, but in a less dramatic fashion. They suggested that I tell the other side some information they had previously wanted to keep confidential about the strength of their case. We’re past that point now, I told them. We don’t really need to talk about the case anymore. If we bring that up, we might be going backward. Instead, we just need to help both sides accept the need to settle it. And we did.

                        author

Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >

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