Fairly Legal Blog by Clare Fowler
As mediators, we have long known the importance of creating the proper setting for a mediation. Where do we place the chairs, do we provide water and coffee, do we cross our arms or lean back into our chair.
I recently watched a negotiation where I observed the importance of also creating the proper emotional setting. The issue at hand– letting go of a product that was no longer profitable–was emotionally charged. One party, the owner, was eager to drop the dead weight and move on to more profitable ventures. The other party had invested years of her life into this product. She had dreamed up the product herself, envisioned how it would be used, and was thrilled when her company said they would adopt it.
Entering the room, it was clear that neither party was ready to mediate. The owner did not come prepared with facts about the future or health of the product, he simply wanted to move on to a next product he was more interested.
The employee could not have the conversation. Letting go of this dream was so terrifying to her, so earth-shattering, that she froze before any negotiations could begin. She reacted a variety of ways–in anger, in denial, in silence, even getting up repeatedly and leaving the room–but she was unable to examine this new possibility.
The genius researcher Sarah Peyton said that the brain is not able to discuss a concept unless it is within the brain’s window of tolerance. For this employee, letting go of her dream was clearly outside of her window; it was more likely on another continent.
As an observer, it was clear that the product had identity value to the employee. If the product failed, she would identify herself as a failure. In her extreme state of agitation this was not something that I could discuss with her.
So how do you precede in mediation when one party is too wrapped in fear to mediate?
What I observed in this case worked beautifully, so I will outline it as one potential option.
1) Meet with both parties in caucus.
2) While listening to the party with power, in this case the owner, identify that you would like reassurance from the owner to be able to provide the other party simply to give them freedom to brainstorm. In this case, the owner said that he was willing to back the product for at least another month, giving them time to discuss other options.
3) While listening to the party with fear, listen openly. Take notes. Neither “confirm nor deny” their fears; just listen. Give them space to vocalize what they are afraid of. This might have been their first time to talk through it, and it is unlikely they will be unwilling to negotiate until they know the shape of their fear.
4) When they are winding down, repeating themselves, or working themselves up even more, step in. In this case, the listener began with “thank you for being so honest. I understand much better now.” Then she slowly listed back a couple of the fears. Then the mediator said, “I want you to know I just finished speaking with your boss who confirmed me that we are not here to talk about trashing your product today. We might need to in the future, but today your product is safe. We need to talk about ideas for your product and the future of this company.”
5) After the party has talked through all of their fears, be careful about letting them go down that road again. The party immediately became afraid and began again to explain all of the reasons she was afraid. The mediator observed that the party was working herself up to an even higher state of anxiety, so she stepped in and said, “I think I understand your reasons. How about this: why don’t I check-in with you to make sure I heard you, and then could you check in with me to make sure you heard me?” It was beautiful. The party began to feel safe.
6) When they came back together to negotiate, they both agreed to initially not discuss trashing the product. Instead, the employee agreed to personally take more ownership of the product herself outside of work, and invest more time during the day into other developments. The owner of the company agreed to release his interest in the product and help the employee develop her own private company to house her product.
So in this case, by identifying and removing the party’s fear she was able to brainstorm. She negotiated herself into the very thing that she was afraid to discuss earlier. But by removing the fear associated with it, she realized it was the very thing she wanted.
Rojas v. Superior Court (Coffin) (2002) , Cal.App.4th [No. B158391. Second Dist., Div. Seven. Oct. 10, 2002.] GENOVEVA ROJAS et al., Petitioners, v. LOS ANGELES COUNTY SUPERIOR COURT, Respondent. JULIE...By Managing Editor