The Functional Use of Intuition in Mediating the Litigated Case

This article supported the presentation made by the authors to the SCMA Annual Conference on November 5, 2005.

A. What Is Intuition?


Merriam Webster defines intuition as “quick and ready insight” or “the power or faculty of knowing things without conscious reasoning.” In everyday parlance, we often characterize intuition as a gut feeling, emotional intelligence, etc. In reality, it is nothing more or less than an exercise of judgment rooted in subtle observation and grounded in our own internal, sometimes lightning-quick, risk versus reward analysis. If we can slow down the process and analyze it frame by frame with Zapruder-like intensity, maybe, just maybe, we can improve our chances of success. In taking on this ambitious task, we seek to teach, or at least analyze, what some would say is unteachable . . . the instincts of the highly experienced mediator.


This article asks you to think about whether and when you use intuition — or have a desire to use intuition — during mediations. If you have used intuition, and we think that you probably have, how was it accessed and on what was it based? To say that it was just a hunch or a lucky guess doesn’t really do it or us justice in those instances where it has proven to be productive. We still will want and need to know how to increase the odds of our success and when best to act upon those hunches and when to ignore them. In making those decisions, a great deal depends on how we have gathered the data upon which we rely.


This paper is divided into two parts: The first part discusses some tools to enhance your intuition. The second part discusses unique opportunities in which a mediator may utilize his or her intuition.


B. Steps to Enhance Intuition


1. Maintain a Relaxed State of Mind


Most people have a greater ability to access their intuition when they have a relaxed state of mind. This means keeping your mind clear and devoid of rushing thoughts or judgments. With a clear mind, you can fully observe, listen to and interact with the participants.


A clear mind means putting aside your comparative references to other “similar cases” because there are none. This will be a wholly unique experience. No matter what your preconceptions are when you read the briefs, the mediation presents a distinct collection of personalities caught in a moment of time and an opportunity that has never existed before. And to appreciate it as such, to see for yourself what others who have lived in this spiral for months or years cannot, you must start off fresh. Put aside whatever “stuff” is going on in your own life, refrain from getting stuck in preconceptions about people’s needs and motives, and prepare to gather information from which to later draw upon..


It takes practice and discipline to maintain a relaxed state of mind, especially during highly charged mediations.


2. Observe


It is extremely important to constantly observe the parties’ actions and reactions. A different and important dynamic exists between each of the parties and their lawyers, each of the lawyers and their counterpart, the senior and the junior attorney on each side, the insurance adjustor who is present and the supervisor to whom he or she must report telephonically. Who are these people, jointly and individually? How did they get here? How can these relationships be furthered in a way that will facilitate settlement? What will it take for each of these people to feel satisfied, appreciated, understood or redeemed? Study them carefully. How do they react to you and to each other? Who is “calling the shots here” and who is only pretending to do so. Do you sense fear, anxiety, uncertainty or false bravado? Is there true commitment and resolve? Are they willing to re-examine their core beliefs if necessary or can you make it all turn on something in which they might not be as heavily invested?


Body Language: Are they relaxed or holding tension (arms crossed, face strained etc)? Does their body language change when different people are around them? What level of formality or informality seems to best hold their attention when others are talking? What do you see beneath the surface that will help you later to reach out to them on an individual level? Is someone in the room reacting more emotionally than the others? By acknowledging someone’s pain or anger, particularly when others have not, you can create a strong bond between you and that individual.


Verbal Communication: Are the parties speaking calmly or does their voice reflect anger or hurt? Do they seem to be speaking from their hearts or just following a pre-designed script? Are the lawyers speaking with sincerity and conviction or merely posturing? You should be looking for clues that will help you get them to refocus on the real needs and interests of their clients. Your intuition is what will tell you how to turn them subtly away from their saber-rattling and towards an honest evaluation of their case.


Changes in the Weather: Each time you re-visit one of the rooms, there will be something new to observe that wasn’t there before. While you have been away speaking with the other side, movement or realignment may have occurred among certain parties or between an individual party and their counsel. You will want to look closely for those changes, rather than assuming that the room has been in suspended animation awaiting your return.


3. Ask Questions


Ask questions to ascertain the participants’ needs and interests. Broader questions are useful, but you must also avoid allowing them to ramble; guide them in a positive direction with your questions and use this as a way to learn about who they are, what they value, and how they think. Later you will need this information in order to make informed judgments about what it will take for them to disengage with dignity and relative satisfaction. Showing a genuine interest in people’s personal lives is never a waste of time. And the way they answer, what they say and how they say it is critically important.


4. Listen


Listen intently to the parties so you can truly hear what they are saying, and perhaps, more importantly, what they are not saying. What remains unspoken or implied? Are they trying to send you a message or can you discern one that is not spoken but is of vital importance? Listening is more than just being polite. It’s an opportunity to observe and evaluate. We must resist at all costs the ego-driven urge to have them hang on our every word and, somewhat selflessly, hang on theirs instead. To maximize the value of this process, suggesting a direction, interrupting with a question, or making an acknowledging remark will often be necessary, but the focus should be upon listening to what the other person has to say. For some of us, that is not always easy. The remedy might be to remember that in mediation, authentic progress often occurs when the mediator says nothing but is fully present with the participants, allowing them to speak their own words.

5. Give Yourself a “Time-Out”


You will gain cues from the process of observing and listening and often your intuition will easily guide you in determining what is needed. If you don’t know what move to make next, you may need to give yourself a “time out.” You may have lost your relaxed state of mind. This can occur when you’re dealing with difficult lawyers or parties; you might absorb their tension and lose your inner compass that helps you decide what to do next. Sometimes, it’s difficult to regain a calm and clear mind. But the more quickly you are able to do so, the greater opportunity your intuition has to help you make decisions. One way to see whether you have lost your relaxed state of mind is by observing how quickly and how deeply you are breathing. If your breathing is quick and shallow, you have likely lost your relaxed state of mind. In order to regain that state, allow your breathing to be slow and deep.


Before you enter the next room, take a moment (or several if you need it) to get re-focused. Think about where you are in the mediation process and where you want to go. Regain that relaxed state of mind. While you must always show empathy and work “within the conflict,” you must also stay sufficiently detached from it if you are to be of any real assistance to the parties.


C. Use Your Intuition to Manage Process and Content: The Importance of Timing


A mediator can use his or her intuition to manage both process and content when mediating a litigated case. Process includes the logistics, such as the manner in which the mediation is conducted. Content is the substance or subject matter discussed. Generally, the mediator is making quick decisions to determine what to say or do and what not to say or do, how to say or do it and when to say or do it. As Eric Galton states in his book, Ripples from Peace Lake, “when you do something is often as important as what you do.”


The following subsections discuss when a mediator can use his or her intuition to make decisions by applying the tools discussed above.


1. Use of Intuition to Manage Process


a. Getting Participants to Buy Into the Process


As the mediator, it is important that you establish trust and credibility with each participant. Mediators often use their intuition to determine how trust will be established. The diversity of the participants will require that the mediator take different approaches with each of them in order to establish trust and credibility. For example, some lawyers might expect the mediator to be highly competent in legal analysis or experienced in trying cases. Others do not, and are looking to the mediator for his or her interpersonal skills instead.


Certainly most participants, lawyers and clients alike, will expect the mediator to be trustworthy. Ultimately, that is our greatest capital and ought never to be compromised under any circumstances. Your intuition must guide you in preserving the trust of both sides. Without it, you become just another interested party entitled to no greater say or credibility than anyone else. With it, you hold a special place at the table and are accorded the opportunity to lead by example.


Often a dysfunctional dynamic between counsel or the parties, or even between one of the parties and their own attorney, can be entirely re-written based upon the mediator acting as a conduit through whom each person can be understood, but it can’t happen without the presence of trust. If you were artificially limited to directing all of your intuition at one single goal, and fortunately you are not, that goal should probably be establishing and maintaining trust.


How can trust be established? Using the awareness, listening and observing skills discussed above, the mediator makes a connection with each and every participant in the mediation. With a relaxed state of mind, the mediator is more easily able to intuit what questions to ask, when not to speak, and how to let each participant know that he is important and that the mediator cares about them.


b. Joint Session vs. Private Session


A mediator uses his or her intuition to decide when and if it is appropriate for the parties to meet together or stay apart. Any hard and fast rule about always or never having a joint session means that you are not staying in the present moment to determine what is most appropriate for these participants on this particular day.


Often, the participants will resist a mediator’s suggestion for a joint session, and in some cases a joint session may not be appropriate. However, in most cases, once a mediator seeks to understand the cause of the resistance and helps the parties envision a joint session that makes them feel safe, the parties will agree to meet. In this situation, the mediator may help the parties construct guidelines for what will and won’t be discussed in joint session, who will and will not speak, and how long it will last. However, if that voice inside you is saying “putting these people in the same room together right now could be a complete disaster,” pay attention to it. You can always try it later once you know the players better and have a clearer sense of what can or cannot be accomplished.


c. People Moving


The mediator who thinks they have tried everything else to no avail, should not hesitate to raise the stakes somewhat and mix the parties up (numerically speaking) in new and different ways so long as you believe that doing so will yield more good than harm. While you would never want to do so arbitrarily (i.e. “okay, let’s have everyone who is left-handed in this room over here”), doing so intuitively based upon what you have learned about these people during the course of the day can often move things in a new direction. Sometimes this means meeting with the lawyers in the absence of their clients, sometimes it means meeting simultaneously with both clients without the attorneys being present (if you are afforded that privilege), and sometimes it means choosing a single delegate from among a large group of attorneys or co-parties and having them participate with the mediator in face-to-face discussions with the other side.


Your intuition will, of course, guide you as to whom you suggest as a probable nominee, but it will no doubt turn on your own observation of which person is best liked and respected by the remainder of their own team and most inclined to compromise. Having thus succeeded in breaking a couple of such persons out of their respective herds, you can then focus on how to enlist their support and through them, the support of the rest of the group they now represent.


d. Taking Breaks


The timing of certain breaks can be crucial, both during the course of a single day mediation and a mediation that lasts multiple days. For example, the timing of lunch breaks, wherein one side leaves the conference area entirely while you stay to work with the other, can be particularly important. Your intuition can guide you in choosing who you need to work with and who can leave for lunch. Or you may decide that everyone will take a break and eat lunch together at your office. Your intuition will guide you in determining whether the parties would benefit from breaking bread together. Sometimes the dispute is too charged for this kind of interaction. Other times, however, it’s a way for the parties to discuss something other than the dispute that has brought them there. The simple act of eating together can sometimes lay the foundation for resolution.


Breaks not only help the participants, they also can help the mediator. We mediators don’t take enough breaks. We may forego lunch or a quiet moment to satisfy our internal expectation that we must be hard at work since we’re on the clock. Yet, this mentality can prevent us from accessing our intuition. We get tired, we are hungry, we lose the present moment, and we stop listening. In short, we lose our ability to say and do the right thing at the right moment. It happens to all of us, especially if we don’t take care of ourselves. Taking a short walk outside to let your mind relax or eating a good snack is a good remedy.


Taking a break during multi-day mediations is also important. Sometimes the parties and the mediator need time to evaluate the case, or to gather more information; the mediator may need to work with one side or another, or simply to create a new approach for the next mediation session.

2. Use of Intuition to Manage Substance


Intuition can help a mediator decide whether and when to encourage a dialogue regarding the substance of the mediation. Substance can include a discussion on the facts and feelings giving rise to the dispute and the terms of a negotiation.

a. Legal Evaluation


The mediator needs to be mindful that some parties expect the mediator to evaluate the case while other parties have no such expectation. If the mediator is unsure, he should find out the parties’ wishes. If the mediator evaluates, he needs to use his intuition to determine how best to deliver the message to the individual participants. Delivering an evaluative message should not be at the expense of alienating the parties from the mediation process.


b. Negotiation


A mediator often uses his intuition to determine when the participants will begin a negotiation. The purpose of the negotiation is to help the parties satisfy their interests. Interests can range from broad to narrow and from personal to organizational. They can vary depending on the nature of the dispute, the personalities of the people involved, the financial stability or instability of the organization or the individual, the emotional states of the parties, the risks of loss or gain and the parties’ relative comfort with risk.


More often than not, the negotiation in litigated case mediations will involve a direct discussion about money. There is a key moment in every mediation when it is the right time to “focus on the numbers,” when the issues have been looked at sufficiently for each side to know where they want to go. Delay it too long and you risk creating irritation, boredom, and a sense that “we are all just wasting our time.” Go there too soon, and the parties or lawyers may feel slighted, short changed, disrespected or misunderstood.


Other essential, though less primary, terms that will eventually need to be directly addressed may include confidentiality, mutual non-disparagement, and the required waiver of all related claims. A mediator often uses his intuition to determine when to raise these substantive terms. Many follow the general rule that if the parties can agree on the monetary amount, the rest will follow. This, however, is not always the case and the mediator must be mindful that if there is a term that is a necessity for one side and a deal-breaker for the other, then the mediator must be able to manage the parties’ expectations regarding that issue. It can be easier to discuss the sensitive issue once the parties have reached agreement on other terms. And how the mediator helps structure the dialogue on the sensitive issue will often make or break the deal.


In addition to these more predictable terms, parties may have other non-monetary interests. These other interests are harder to identify, because parties generally do not discuss them openly and sometimes they are not aware that these interests may be driving the dispute. They can include seeking revenge, respect, or an apology, saving face, and avoiding embarrassment.


Indeed, the mediator is often acting solely from his intuition when addressing these kinds of non-monetary interests. The more skill the mediator has in addressing them, the more effective the mediator will be in settling difficult cases.


i. Examples of Non-Monetary Interests


Apologies


The mediator uses his or her intuition to determine whether it would be helpful if one or both sides made an apology. The timing and sincerity of the apology is crucial and the mediator often uses his intuition to determine the most appropriate time and the most appropriate person to make the apology. As a general rule, however, an insincere one is worse than none at all. As a practical matter, a mediator should never suggest the possibility of an apology to the plaintiff without having already confirmed with the defense that one is available and would be forthcoming if requested.


Acknowledgement and Recognition


Lawyers often need to feel appreciated and given credit for what has been accomplished. They want their clients to feel that without them, they would have paid more or gotten less. Letting lawyers shine and helping them cement their client relationships will help you establish rapport and trust with them.


Vindication and Self-Sacrifice


Sometimes a party or their counsel will alter their perception of the value of a settlement package if it can be presented by the mediator as being symbolic of a larger victory. “Thanks to you, no other person will ever have to go through this again” has real value to a plaintiff who is looking for a way to rationalize accepting less money.


Similarly, on the defense side, getting the defendant to identify core values — such as respect for family, the company or stockholders or other employees of the company — can encourage a defendant to settle if pursing the litigation is contrary to those values. The mediator can help the parties make settlement decisions that promote a good greater than mere individual satisfaction. Your intuition, based on what you have learned about the players, will often tell you to whom such discussions should be directed and how they should be presented.


Saving Face


Some defendants are reluctant to settle because they feel it reflects an admission of their wrongdoing. They would rather fight to the bitter end to protect their name than settle. Often these defendants will continue to litigate and pay far more in attorneys’ fees than the amount the plaintiff seeks in damages. A mediator may use his or her intuition to help such defendants understand where their true interest lies, so that they can attempt to move past these counter-productive feelings.


For example, the mediator may intuit that the defendant needs to know that he is good person, in spite of the plaintiff’s accusations. In breach of fiduciary duty cases (or any other cases where the defendant owed a duty of care to the plaintiff), defendants often believe they were doing the right thing for the plaintiffs and are devastated by the lawsuit. The mediator can help these defendants understand that the existence or resolution of the lawsuit does not mean that the defendant is a bad person. The mediator can help them look at the lawsuit more objectively, and explore settlement options that save, rather than lose, face.


Fear of Letting Go


Some parties are reluctant to settle because the lawsuit is meeting some need for them. This is particularly true for plaintiffs whose lawyers have taken their case on contingency. The plaintiffs are bearing very little financial risk and they may be getting more attention and feel more camaraderie as a result of the lawsuit than they ever had in their life. Someone is fighting for them and if the case settles, the plaintiff might fear losing that connection. In this situation, a mediator may help empower the plaintiff to imagine an even more positive life after the case has been settled.


c. Mediator’s Proposals


When and whether to make a mediator’s proposal, and what it should be, will almost always have an intuitive element. In a way, this can be the grandest of all intuitive gestures. It will occasionally involve the selection of a dollar amount or formula which neither side has fully endorsed. All that you have learned along the way — from listening to, observing, and analyzing the verbal and non-verbal declarations of each person — must be brought to bear in determining whether there is some proposal to which both sides might agree.


d. Follow-up


On those occasions where post-mediation follow-up is required, the mediator’s intuition will need to be strongly accessed if the process is to continue towards resolution. The mediator will want to give careful consideration to who should be contacted first, when to do so, and what subjects to discuss. Whether the mediation process can continue and, if so, its relative chances of success will turn significantly upon your ability to project a sense of realistic optimism while still properly managing expectations. To do so, you will need to draw directly upon all that you learned in the prior session about the needs and personalities of each of the participants.


D. Take Time to Reflect and Grow


While every one of your mediations will be “different,” they all will have one thing in common: you. It is essential that you take the time to reflect after the mediation to enable your intuitive abilities to grow and your psychic battery to recharge. From the standpoint of your intuitive processing, what worked and what did not? How could your timing have been different? Should the order of issues have been changed? Did everyone feel fully heard, considered and understood? Did you succeed in recognizing all of the interests that were at play? What did you learn about your own abilities to read people and prioritize issues? If you believe that the mediation was “not successful” in some regard, have you crystallized what it is that you can and have learned from the experience? If you deemed it to be “successful,” have you distilled from it a greater knowledge of yourself and others. Most importantly, have you allowed yourself to experience fully the extent to which you may have made a difference in some people’s lives by perhaps allowing them to go on to what could be some greater purpose or opportunity? Before rushing forward with your own life, take a moment and acknowledge yourself for what you have done.


                        author

Eleanor Barr

Eleanor Barr mediates extensively in the areas of business, employment, real estate, environmental, civil rights, personal injury and probate law. She is a fellow with the International Academy of Mediators, co-chairs the ADR Committee for the Business Law Section of the California State Bar, and is a former SMCA Board… MORE >

                        author

Gene Moscovitch

Gene Moscovitch After twelve years of full time dispute resolution work, and having now successfully settled well over 1,250 matters, Eugene C. Moscovitch, Esq. has brought a wealth of practical knowledge, insight and experience to PMA Dispute Resolution, making him one of the most sought after mediators in Southern California.… MORE >

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