Note: This article is a revision and adaptation of an earlier article by Joe Epstein and Susan Epstein, “The Top 10 Barriers to Dispute Resolution, Dec. – Jan. Trucking Industry Defense Association (TIDA) newsletter. TEARS & FEARS ™ is a trademark of Joe Epstein, Esq. licensed to Conflict Resolution Services, Inc.
After mediating thousands of cases we are convinced that the process of mediation is so much more than the mere passing of numbers between the parties. The mediation process is more than the pronouncement of value by a disinterested and disengaged third party. Experience tells us that parties want and need to have a perception that the negotiation process, which is at the heart of mediation, is fair, parties have an opportunity for candid dialogue about their case and a fair opportunity to engage in negotiations. Parties need to feel that their interests, needs, and motivation have been considered. Some parties will want to emphasize the rational case analysis, while others will want to address the emotional factors of the case. The simple fact is that both rational and emotional factors need to be addressed in mediation for successful outcomes. Creative solutions can be found that may range from direct cash compensation, to structured settlements, which provide a life time of security, to the funding of scholarships in a deceased’s child’s name, to the modification of a health care provider’s policies and practices, all the while preserving relationships that would otherwise be torn asunder. TEARS & FEARS mediation requires that the mediator, negotiators, and parties look at mediation in a candid creative and holistic manner.
1. Inadequate Preparation and Design
Prior to setting a case for mediation, parties must decide what tasks and information gathering are needed for a productive mediation. Parties should determine in advance what information needs to be exchanged and the timing of this informal or formal exchange. Parties, in conjunction with a mediator, need to design the mediation specific to case facts. The greater the number of parties, the more complex the issues, thus increasing the parties need to engage in individualized case design. Design consideration may include such things as pre-mediation caucuses, staggered starts, site visits, co-mediation, mediation in pods (categories of parties or issues), and non-binding arbitration. Clearly, one mediation design does not fit all cases. Below are two examples of mediation design developed prior to mediation which set the stage for a successful settlement.
In an ERISA action involving a managed care company’s non-payment on 375 claims we devised a mediation with a non-binding arbitration by co-mediators of 20 test-case claims for the first day of the two day mediation. One mediator was a lawyer/health care specialist and the other a former litigator. Each party presented 10 cases as a representative sampling of their case. The non-binding feedback on their respective presentations became the framework for the second day negotiations. Ultimately, this unique mediation design resulted in a settlement for a case which initially had grim possibilities for settlement.
In a multi-party burn case with clear liability, the mediator ascertained the damage information defendants required to evaluate the case, then arranged for the plaintiff’s counsel to provide that information. We suggested pre-mediation independent medical evaluations be obtained. A pre-mediation caucus with the plaintiffs was also arranged. Finally, in this case as in other high value cases, we ascertained information on the various layers of insurance coverage, and were able to facilitate having the necessary decision-makers on the defense side at the table.
We recommend counsel work with the mediator regarding pre-mediation considerations such as timing, the exchange of information, “stage” setting, and the designation of the decision-makers who need to be present at mediation. In short, counsel and the mediator must design the mediation together.
Counsel must prepare themselves, their client, the counsel’s opposing party, and the mediator for each mediation. Preparation includes getting a feeling about the client’s and the opponent’s underlying interests, needs, motivation, expectations, fears, and concerns. Counsel should role play the mediation with their clients and establish realistic expectations.
The failure to creatively design the mediation, obtain discovery necessary for an accurate case evaluation or have the necessary decision-makers informed, involved, and adequately prepared will doom a mediation to failure. Attention to the rational elements of the mediation without attending to the emotional components will also doom mediations to failure.
2. Enduring False First Impressions
First impressions are extremely difficult to change and can be a critical barrier to successful dispute resolution. Decision makers make their decisions on the data available when they first see a case. They are slow to recognize and appreciate contradictory data supplied later. Thus, the key is to make every effort to establish the best first impression possible.
“First impressions” are set by the underlying nature of the case, client depositions, the quality of experts brought into the case, the efficacy of discovery, and the “style” of counsel. First impressions are lasting impressions and allow a person the luxury of not re-thinking a situation or reconsidering a situation. The very best way for parties to deal with this stubborn shortcut is prevention. They must make the most of pre-mediation opportunities to favorably impress the opposing party. Perceptions are the lens through which parties see themselves and their positions and the lens through which they view others and their positions. Selective perception (partisan perception) or stereotyping is frequently part and parcel of inaccurate first impressions. While parties cannot always prevent these negative first impressions, they must be uncovered and addressed during the mediation. Like film producers and film directors, counsel must establish his client’s positive “first impression” before the mediation and reinforce it during the mediation. If counsel discovers that there is a negative first impression or stereotype, then he should consider how he can work through the mediator to dispel it.
3. Failure to Address Feelings and Emotions
“We cannot stop having emotions any more than we can stop having thoughts. The challenge is learning to stimulate helpful emotions in those with whom we negotiate and in ourselves.”
Roger Fisher and Daniel Shapiro,
Beyond Reason, (Viking 2005), Pix.
Fisher and Shapiro define “emotions” as a “felt experience” that affects our bodies, our thinking and our behavior. Id. at P 4, 11. Michelle LeBaron expands on this by noting that “emotions” are instinctive and intuitive impulses to act that kick in before rational analysis takes place. Michelle LeBaron, Bridging Troubled Waters, (Jossey-Bass 2002), P 47. Doug Noll suggests that “emotions” arise from a non-conscious process that is biologically determined without conscious deliberation and control. Douglas Noll, Peacemaking, (Cascadia 2003), P166.
According to Michael Brown there are three basic emotions – fear, anger, and grief. Michael Brown, The Presence Process, (Namaste Publishing and Beauford Books 2005), P191. Gary Zukav, in The Seat of the Soul, (Fireside 1998), P 120 states that there are just two basic emotions- love and fear.
Most people do not make this somewhat academic distinction between our intuitive or unconscious emotions and our interpretive and conscious feelings or what qualifies as an emotion. Thus, it may be important to engage in the emotions/feelings distinction debate as it is important to be alert to identifying our feelings and emotions and the feelings and emotions of others while engaged in conflict. The simple fact is that with experience one can anticipate many of the emotions and feelings that will arise in the course of a conflict resolution process.
Contrary to the indication in Roger Fischer, William Ury, Bruce Patton, Getting to Yes, (Penguin 1991), it is not realistic to divorce people from their conflict problem. People, their emotions and their feelings, are part and parcel of the conflict. Reason and emotions/feelings cannot be divorced if we are to reach the soul of our conflict. In many of our mediations, we see safety/security (fear and courage), appreciation (acknowledgment, apology and atonement), autonomy, process fairness, and connection (soul) as being the core concerns in the conflict setting. Thus, without touching the emotional component we miss the heart and soul of mediation.
Thus, in conflict resolution settings we must be attuned to our own and other’s emotions. We must be prepared to deal with both the rational and the emotional, or the head and the heart and find a reasonable balance of the two forces. In many conflict settings, emotions and feelings can be anticipated, at least in part. For example, litigators who come to a mediation unprepared should anticipate their own fear and anxiety. Relatedly, we can anticipate that a widow, an amputee, and a paraplegic will experience grief, anger, and fear during a mediation. A businessman who can foresee the loss of a business without a positive resolution of the conflict enters the mediation with apprehension and anger.
Emotions have a big part to play in conflict resolution. They cover the gambit of rage, revenge, remorse, regret, anger, anxiety, apprehension, fear, and guilt. Smart negotiators and mediators try to anticipate the emotions that will permeate the dispute resolution process.
Emotions and feelings can have either a positive or negative impact on negotiations and mediation. If a party has not yet dealt with the grief associated with the loss of a loved one, the loss of a business or long-term business relationship, the loss of a leg, the loss of a major business deal, or the loss of a way of life, it may be too early to sit down at the table because the grief may be still too raw. However, even if there has been at least some healing prior to the mediation, the participants may be ready to move forward.
The displaying or sharing of emotions and feelings add energy and dimension to a party’s story, which is why a party, not the lawyer, should generally tell it. Mutual story telling will entice parties to share their interests, needs and motivations, thereby giving context to the rational case analysis. The enlightenment that comes from this sharing can generate creative problem solving. This opportunity should not be lost.
4. Systemic Distrust
Zealous advocacy, no holds barred competitive advocacy, and Rambo negotiations are all glorified in folklore, the litigators’ mystique, and the culture of trial attorneys, insurance carriers, and corporations. Unfortunately, this sort of mindset often sows the seeds of distrust.
Parties often begin mediation distrustful of their opponent. This distrust is reinforced by overstatement, denial of the obvious, misstatement of the facts and the law, and hiding discoverable information. This barrier needs to be torn down, not re-enforced. Candid opening statements, acknowledgment of weaknesses, acknowledgment of the opposing party’s position, apology, advance pay, listening, and revelation of negative information are all examples of strategies for tearing down the barriers of distrust.
Mediators, working with collaborative negotiators, can skillfully develop the trust necessary for conflict resolution. Our goal of building trust between mediator and the opposing parties frequently causes us to engage in pre-mediation caucuses. This leads to relationship building upon which trust can grow and it feeds us ideas for creating a bridge between the parties.
5. Failure to Listen and to Communicate
Native Americans have a valuable tradition of using a Talking Stick. The purpose of a Talking Stick is to give the person holding the stick the honor of speaking while all others have the duty to listen. A Native American proverb capitalizes this goal as follows:
“Listen or your tongue will keep you deaf.” Terri Jean, 365 Days of Walking the Red Road,
(Adams Media Corporation 2003), entry for April 16, (Hereinafter cited as the “Red Road”) I am aware of what I think and maybe what I feel. Parties in conflict would do better at resolving their conflict, if they would listen for the nuances of sound and the inner meaning of what is being said rather than interpreting, talking over, or instantly debating the speaker. Respectful listening combined with the well placed and non-judgmental questions can be awfully powerful. Respectful listening can enhance dialogue, mutual respect, and fair play. Respectful listening and dialogue often reveals underlying fears, interest, needs, and motivations. This self disclosure or open disclosures will frequently open doors for dispute resolution that would have otherwise remained closed. This respectful active listening allows the parties to shed old emotions and old ideas and allows new ones to grow. We know that bearing witness to another’s story is important to dispute resolution, yet in the zeal to get the best deal parties often fail to listen.
6. Insufficient Focus on Underlying Interests, Needs, And Motivation
Too often negotiators focus on the zero sum game involving the distribution of money. While this focus is appropriate, counsel, adjusters, and risk managers often miss the opportunity to address core values that often impact the progress of a mediation and the ultimate level of satisfaction that can flow from the mediation process.
For example, in a wrongful death case involving the loss of an infant in a small community hospital, both the hospital and the parents had important underlying interests. The parents needed to have their grief addressed and validated by a neutral and by the hospital administrator. The parents needed to know that lessons learned from their devastating experience would be used to help others. The hospital administrator wanted his risk management team to utilize the parents input to develop a training program. He also wanted to acknowledge the parents pain and to provide support that would help them and give his staff a feeling of positive closure.
To this end, we fashioned a settlement that included a meeting between the relevant staff and the parents, counseling for the parents and grieving children, and a risk management program addressing the pertinent issues. During the mediation, there were three face-to-face meetings between the hospital administrator and the parents that were important parts of the healing aspects of the mediation. Further, the mediator made sure that he addressed grief issues with the parents head on. We closed the day with the parents thanking us for our understanding and for making a rough day less difficult.
7. Partisan Perception and Judgmental Overconfidence
Partisan perception involves the partisan filter that advocates bring to a case. What we see depends on where we stand, who we are and what we have seen before. Thus, with the same set of facts, advocates can see a different reality. Mediators should require parties to switch LENSES OR FILTERS. If the parties change vantage points maybe they would not suffer from judgmental over-confidence in the evaluation of their cases. Hopefully, with a balanced view, parties will not insist on proceeding from an inaccurate baseline evaluation. To bring this point home, on occasion we have asked parties to do an “opening statement” for the other side. It is interesting to see how balanced such openings tend to be.
If advocates and their clients come to mediation with a collaborative perspective and a willingness to listen to and consider other perspectives, these inter-related barriers to dispute resolution can be addressed.
8. Reactive Devaluation
It is well recognized that if an opponent offers a suggestion, it will be given less consideration than if a mediator offers the same suggestion. Similarly, if one side offers an opinion on the law or an interpretation of the evidence, it may be discounted. The same opinions offered by a mediator are given more consideration. Thus, it is imperative that parties plan for this by preparing mediators about their case, dealing with the mediator openly, honestly, and persuasively so the mediator feels comfortable and knowledgeable about the facts of the case. Anticipation is the key to handling this barrier.
9. Misunderstanding the Risk Assessment
Too often parties create a barrier to dispute resolution because their risk assessments do not factor in the full range of key decision points that the jury and the court will be considering. This problem often leads to unrealistic client expectations. Parties tend to be averse to risk regarding gain and would rather have a certain gain than an uncertain larger gain. On the other hand, people are risk-seeking with regard to loss. That is, they would rather avoid a certain loss and take a risk of a greater loss if there is some chance of avoiding that greater loss. In other words, some parties would rather postpone a certain loss (settlement) for an uncertain result in the future (trial).
In fact, parties with either perspective should be encouraged to address the realities of the situation that they ultimately have to address. Effective negotiators can assist their clients and their opponent in addressing these realities.
Effective mediators provide a reasoned neutral reality check. Sensitive and effective mediators are mindful that “naked” truth is often rejected, while truth clothed in parable is more readily received. Annette Simmons, The Story Factor, (Basic Books 2001), P. 27. Thus, mediators should be prepared to provide “truth” in doses that are in readily absorbable stories and parables that make otherwise bitter medicine easier to swallow.
10. Failure to give Face, Respect, Dignity, Acknowledgment, and Empathy
“Treat others how you would like to be treated” is an adage we all learned in childhood, yet frequently forget to heed it in the heat of battle. Pointedly, in 500 BC, Sun Tzu, a Chinese consultant to a variety of warlords and emperors, wrote that the wise general does not press a desperate foe too hard. If you have the grace and good sense to let your opponent leave the battlefield with face, dignity, and self-respect, he is more likely to avoid an unnecessary battle. Further, the opponent with no place to go, like the cornered tiger, may prove to be more tenacious and more dangerous than expected. Sun Tzu, The Art of War, James Clavell, editor, (Delacorle Press 1983), P. 35. So, it is a wise general who avoids forcing an opponent to become a “tiger”. Collaborative negotiators are nimble enough to avoid this common barrier to dispute resolution. Collaborative negotiators do not flaunt their power; rather they exercise it firmly and graciously.
11. Failure to Allow Autonomy
Too often during mediation, parties neglect to give the other side space or the autonomy to make their own decision. Mediators may be guilty of this when they put on the robes as settlement judges and rob parties of their autonomy. It is more powerful and respectful if a mediator can help a party find their own way. Taking a party through a decision tree analysis in a case, a cross- examination or a possible opening statement the mediator helps individuals analyze the case for themselves. Skillful mediators allow parties the autonomy to decide if new information acquired at mediation changes their thinking about the negotiations.
Bring a thirsty man to a well, push his head in the water, tell him to drink, and he’ll sputter and spit out the life giving water he needs. On the other hand, bring the same thirsty man across the arid desert to the well and leave him, he will drink on his own in order to survive. In mediation, if you take another to the well of knowledge and wisdom, but give him the space or autonomy to determine whether or not to drink from the well, he will. If you have a dialogue that allows another to reach their own conclusions, they will find their conclusion more powerful than yours even if the two conclusions are the same. By asking a series of questions that brings parties to the well of knowledge and wisdom the mediator allows parties to more readily make a reasoned decision. This decision leaves the party more satisfied with the legal process than if the decision is forced on them like a dose of bad tasting medicine. Negotiators and mediators who do not respect this need for autonomy ignore an important ingredient for success.
12. Failure to Create a Sense of Fairness
The perception of fairness is a critical aspect of conflict resolution that is often minimized, if not overlooked. The fact is that the fairer parties to conflict perceive a dispute resolution process to be the more they are satisfied with its outcome; willing they are to resolve their disputes, and willing they are to abide by the outcome or agreement. See, Michael L. Moffitt and Robert C. Bordone, Editors, The Handbook of Dispute Resolution, (Jossey-Bass 2005), P 91-92.
Parties have criteria by which they judge procedural fairness. Criteria for fairness include the (1) opportunity to tell his/her story, (2) perception and assurance that the opposing decision maker has listened to, understood, and appreciated his/her story, and (3) parties have been accorded dignity and respect. See generally, Nancy Welsh, “Perceptions of Fairness” in The Negotiator’s Fieldbook edited by Andrea Kuper Schneider and Christopher Honeyman (ABA Section of Dispute Resolution 2006), P. 169. The importance of procedural fairness simply cannot be overemphasized. It dramatically affects mediators as they set the tone and a pace for the mediation.
Our goal with TEARS & FEARS? mediation is to encourage parties to look at the mediation process in a different light than the litigation process. Yes, legal analysis and risk analysis are important. And, yes, rational analysis is a necessary ingredient of mediation in the context of civil litigation. We do not suggest otherwise. But, it is our belief that if parties utilize pre-litigation mediation, early dispute resolution, and a collaborative and sensitive process utilizing what we have come to affectionately call, TEARS & FEARS? mediation, which acknowledges and addresses, the “Dirty Dozen Barriers of Dispute Resolution” more relationships can be preserved, more disputes solved more creatively with less hostility, and with less transactional costs.
Source: The Policy Consensus Initiative (PCI) The PCI builds and supports networks that provide states with leadership and capacity to achieve more collaborative governance. (December, 1997) First, the Bad News...By Robert Jones