From the Blog of Phyllis G. Pollack.
This past week, I had two mediations. One settled, one did not. The reason behind each result was the same: the art of listening.
The first mediation lasted for eight (8) hours. After about four hours, the mediation reached an impasse. For some reason, the defendant refused to offer more money above a certain amount, and it was not clear why. Because the parties to this dispute knew each other and had a relationship, it was suggested that they meet in a room together (with the mediator present) to discuss the matter. This worked. The parties discussed the issues. The other parties talked with the defendant, explaining how they intended to proceed with the litigation, if the matter did not resolve. They discussed the events leading up to the dispute, clearing up the miscommunications and misunderstandings that occurred. They discussed the economics of the situation and how if the defendant agreed to offer only a little more money, how much he would save in the long run by putting an end to the litigation.
The defendant listened – really listened – to what the other parties were saying. While not necessarily agreeing with everything they said, the defendant acknowledged their points and understood that it was best to put the litigation behind him because quite conceivably, it could only get worse: there may not be an upside. The defendant, after really hearing and understanding what the other parties were saying to him, agreed to offer a little more money to make the settlement offer more acceptable to plaintiff. The plaintiff compromised from its initial demand and agreed to accept the amount proffered. The case settled because the defendant “listened.”
In contrast was my second mediation. After six (6) hours, it did not settle precisely because the defendant refused to listen. She would not acknowledge (much less agree) what her own attorney, or the mediator were suggesting to her. Rather, she had an answer for every statement made to her. . . (“yes, but. . .”). The party was so busy verbally fencing with both her own attorney and the mediator, that she did not have the time to listen, really listen to what was being said to her. . . to take it in and reflect on it. Her brain was working in overdrive to continually come up with the next rebuttal or verbal defense to whatever was being said. Thus, although her attorney recommended that she take the settlement because she had a good chance of losing at trial, the client refused, claiming she knew better than her own attorney. At the end of the mediation session, the plaintiff was making the same arguments that she had made at the beginning of the session! She had not listened to anything said to her by either her own attorney or the mediator.
For mediation to work. . . each party must listen, really listen to what the other parties (and the mediator) have to say. While each party does not have to agree with what the others say, they must, at least, acknowledge what the others are saying; that other viewpoints or other realities do exist and just might be accepted by a trier of fact. Only by acknowledging that other viewpoints or realities do exist, can a party rationally weigh the risks or consequences of going forward versus settling. But, if a party refuses to listen, she, in effect, refuses, to acknowledge that other views or realities do exist. With such a closed mind, her presence at a mediation is a waste of time.
So. . . whenever you attempt to resolve a dispute. . . be it at mediation or otherwise, put the verbal swords and shields away and just listen, really listen to what the other side is saying. . . let it sink in and reflect on it. . . she may just have a valid point.
. . . Just something to think about.
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