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The Role of Empathy in Settlement

Empathy, the ability to see a situation from a different point of view, is an important negotiation and advocacy skill. You must be able to anticipate and understand your opponent’s position to effectively counter it. Debate trainers assign students to argue the position opposite their personal beliefs to foster this skill.
I’m Fine. To Hell With You
Lately we have seen a stunning lack of empathy in our country. On the same day as a county announced that COVID-19 had become the county’s leading cause of death, one resident yelled, “It’s my body and I want to go to work.” Another defiantly asked, “Why shouldn’t I be able to sit in a restaurant and eat?”

The answer is that many people, perhaps the majority, who are infected with the virus are asymptomatic. COVID-19, unlike collisions, drownings, obesity, heart disease, and cancer, is wildly contagious. There is currently no vaccine and no cure. More than 81,000 Americans have died. Around the world, people are not allowed to work in close quarters or sit in a restaurant because that potentially exposes coworkers, servers and other customers to the contagion. Not everyone reacts to the virus the same way.

Similarly, the television journalist who tweeted that anyone who wants to continue to shelter in place should just stay home lacks any awareness of how most people live. If the boss requires workers to show up or lose their jobs, those workers don’t have the luxury of working from home. There are more people living paycheck-to-paycheck to pay the rent and buy groceries than people pulling in big bucks.

And then there’s the 79-year-old Wisconsin Supreme Court Chief Justice who said “regular folks” were not getting COVID-19. Got that, anyone with a family member in a nursing home?

Negotiators need not have suffered a serious injury or business reversal themselves to empathize with someone who has. Perhaps you have had a personal experience which makes you wonder why your negotiating opponent is apparently so much less resilient that you. Again, not everyone reacts to an event the same way. An inability to concede that these are that person’s feelings, even if you think they are baseless, impedes meaningful settlement discussions.

Why Video Mediations Are Like Early Personal Computers

You may have heard the abbreviation RTFM. As soon as everyday consumers started using computers, telephone customer support staff had to field daily questions about the most basic functions. Perhaps the most infamous is about the user who insisted that a floppy disk drive (remember those?) was a cup-holder. What the tech people wanted to yell was, “READ THE F-ING MANUAL!” 

Read the Mediation Instructions
I send instructions to participants in every one of my mediations. Over time, these instructions have gotten so specific that they even include directions on what topics to include in the mediation brief.

For better or worse, I am no longer disheartened when it is painfully obvious parties have paid no attention to the instructions. We simply carry on.

Instructions for Video Mediations
Shelter-in-Place orders have drastically increased the use of video platforms for remote mediation. It’s really important to prepare for video mediation by READING THE INSTRUCTIONS. These include information about:

  • How to sign in
  • Acceptable remote locations
  • WiFi requirements
  • Device requirements
  • What happens if a computer goes down

Unlike with in-person mediations, failure to read video mediation instructions can prevent the mediation from going forward.

Courts may be closed, but the disputes go on. You can get those disputes resolved during a shutdown with video mediation.

Mediator As Filter

There’s a lot of interest lately in filtering out bad stuff. Of course, we use filters all the time: air filters in the ceilings in our houses, filters to keep the coffee grounds out of our drinks, water filters to improve the stuff that comes from our faucets, filtered cigarettes— well, you get the idea.

Think about this. Your negotiations aren’t leading to resolution because of the absence of a filter. A big part of what a mediator does is filter messages between disputing parties.

Self-Filters Don’t Lead to Resolution
Negotiators shape their message to achieve their goal. They might threaten. They might withhold critical information. Negotiators seldom admit the flaws in their position; they’ve filtered those out to make their case look as strong as possible.

In mediation, parties have the opportunity to let their guard down. One of the most powerful features of mediation is caucusing. In caucus, only one side meets with the mediator. By statute, everything that is said is confidential. The mediator cannot disclose anything unless you authorize that disclosure. She cannot be subpoenaed.

Confidentiality promotes candor. Parties can stop filtering their message and discuss the good and bad points of the case with the mediator. Here’s your chance to discuss the case with a professional neutral who can help parties identify the issues and resolve them.

Reframing
Mediating parties make demands and offers, and the mediator conveys them to the opponent. Part of this process often includes the mediator reframing the message to filter out animosity or extraneous issues. The mediator is using her own filters to enhance the likelihood of settlement. This focuses the parties’ attention on what is important for settling the case.

Posturing
Even in caucus, some attorneys will grandstand in an attempt to assure the client of their support, no matter how unreasonable the client’s position.  An experienced mediator understands the dynamic and how to use it to resolve the case.

Maybe you think your opponent is the biggest jerk in the world. In mediation, the mediator can filter out that attitude to get your case settled.

Mediation During the COVID-19 Shutdown

Mediation Is Critical Right Now
Courts are closed. Attorneys and claims professionals are working from home as best they can. But disputes continue. If an employer is responsible for a claimant’s medical care, delivering that care during a “Shelter in Place” order is a challenge. How a dispute is handled now can determine how the case will proceed in the long term.

Because courts are closed, litigating parties should make an extra effort to resolve disputes through negotiation. However, when they are unable to do so, agreeing to mediate is the best alternative. Issues subject to mediation can include conflicts usually resolved by motion, discovery disputes or entire cases. You can contact your mediator of choice by phone or text at 310/889-8165 or by email. She will take it from there.

Two mediation options are available during the shutdown.

Mediation by Video
Your mediator can conduct a mediation while everyone remains at home through several applications, including Free Conference Call, Zoom, or Legaler. This can happen quickly– as soon as parties agree on a time and electronically send the mediator their mediation statements so she knows the basic outlines of the dispute.

Scheduling an In-Person Mediation
If parties insist on an in-person mediation, the time to schedule that is now.

Once courts and mediation venues re-open, scheduling will be a mad dash to secure an available time. Cases already on the court’s calendar for a future date have first priority, pushing litigants with disputes cresting now further back.

In contrast, cases with a date already on the mediator’s  calendar will get first chance for any other date if circumstances allow an earlier date or must be further delayed.

You may be feeling frustrated as you see the conflicts mounting in your email inbox. There is a solution available right now: mediation.

Quid Pro Quo in Negotiation

We’ve heard a lot about quid pro quo lately. But it’s not necessarily a bad thing.

Quid pro quo is Latin for “this for that.” This is what negotiation is all about. In fact, the exchange of something of value, legally termed “consideration”, is a requirement for a contract to be valid. Settlement agreements are contracts.

A good negotiator always seeks quid pro quo. Don’t give away something unless you get something in return. In mediation, parties take turns lowering demands and increasing offers until we reach settlement.

The exception to this rule is if you were legally obligated to do something. Then it is improper to seek compensation for it. For example, an employer is legally required to pay the ordinary and customary medical expenses of an employee who suffers a work-related injury. In an ongoing case, it would be an improper quid pro quo to ask the injured worker for anything of value in return. The thing of value might be money or an agreement to do something in an unrelated context the worker would not otherwise do. That could include sexual favors.

Parties can enter into any contract which is not illegal. Hiring a hit man to kill your enemy is not a legal contract, no matter the agreed amount of compensation.

What About Leverage?
Leverage is different from quid pro quo. A party has leverage in negotiation when that party has the better alternative to a deal. How badly does the negotiator need the deal? For example, an individual who needs money for basic living expenses is likely to accept a settlement of less than full value in order to expedite closure.

In litigation, each party is negotiating to obtain a quid pro quo, a certain amount of money now in exchange for a release of the claim. When one party is in the better position to wait out the full life of the claim, that party has leverage. Frequently that is the insurance company/defendant. However, many insurers are anxious to close “old dog” claims. In that situation, the claimant has leverage and can demand more to settle. Uncertainty about how future events, such as medical treatment, can affect the value of the claim, giving one party more leverage than the other.

Quid pro quo is the very basis of settlement—so long as each side is getting value beyond what the other party was already obligated to do.

Hello 2020

Knowledge Management

KNOWLEDGE MANAGEMENT – CREATING A MEDIATORS LIST

Every organization should have a process for creating a collective memory. It’s called knowledge management.

Knowledge management preserves team members’ experiences so everyone on that team can access them. This efficiency avoids mistakes and duplication of effort.

Still, it is not uncommon for people considering mediation to send an all-hands email asking, “Do you know a good mediator?” or “Who mediates these kinds of cases?”

Does your organization maintain a list of mediators? If not, start today. Ask team members to provide names of mediators and include comments, good and bad. It can be as simple as a shared Excel document. Column headers might be: Mediator, Contact Info, Cost, Outcome, Comment.

To keep information current, whenever someone mediates, that person should report their experience.

Whether you already have a mediators list or need to create one, make sure Teddy Snyder, SnyderMediations.com,  is on it.

Peace on Earth, Good Will to Men

You’re sure to hear this phrase repeatedly in December. What are you doing to make it happen?

Most readers of this message are professionals charged with managing disputes. You may spend a considerable amount of time strategizing how to annul the opposing party’s claims. That’s appropriate. It’s your job. But what practically every party involved in a conflict really wants is peace. Settling parties often say they are compromising in order to get peace.

It’s also your job to achieve the optimal result in a cost-efficient manner. Mediation is a way to achieve that outcome. A trained professional neutral will work with all parties to achieve their own bit of peace– not just at holiday season, but all year round.

HAPPY HOLIDAYS

Mediation Opening Statements

Times have changed. In the past, mediators would open a mediation by asking for opening statements from lawyers for each party. Problem was, though, these were typically so inflammatory that a meeting which was supposed to be about resolution started with animosity. Sometimes one side walked out right then, before the real mediation even started.
 That’s why I have never invited opening statements at the start of a mediation.

Lawyers no longer want opening statements either. I have even had lawyers ask that there be no opening joint session with all parties present. Rather, they wanted to work with me only in caucus, one side meeting with the mediator,  keeping every communication confidential. The lawyers wanted to avoid the hostility which previously permeated the parties’ dealings.

Unless there is strong objection, I start mediations in a joint session. I introduce myself and go over logistics: important stuff such as where are the bathrooms and how we will handle meal breaks.

I also assure everyone that nothing bad can happen. The parties control the outcome, and there can be no result they did not agree to.

Everything that happens in mediation is confidential and cannot be used against anyone in a different civil forum. To emphasize that rule, while we are still in the opening joint session every person present signs a confidentiality agreement.

Then we typically break up into caucus.

The only person who has made an opening statement is me, the mediator. 

A Mediation Quiz

Find out how much you really know about mediation with this short True/False quiz. 
1. Opposing parties meet together with the mediator in caucus. T/F

2. No one can use documents disclosed solely in mediation as evidence if the case does not settle. T/F

3. If parties are unable to agree on settlement terms, the mediator will decide the case based on the information presented at the mediation. T/F

4. The process of getting everyone to agree to mediation and to a specific date, time and place is called “convening.” T/F

5. Mediators start a mediation with a mediator’s proposal. T/F

6. Settlement at mediation should be documented with a settlement agreement, stipulation to settle, or memorandum of understanding. T/F

ANSWERS  

  1. FALSE. Opposing parties meet together with the mediator in joint session. In caucus, only one side meets with the mediator
  2. TRUE. Strict confidentiality laws prohibit the introduction of evidence in any civil forum of information disclosed exclusively within mediation
  3. FALSE. Mediators never decide any issue in a case. The mediator facilitates communication so parties can come to an agreement. The parties have complete control of whether and how a dispute resolves.
  4. TRUE. Sometimes convening the mediation is as big a challenge as settling the dispute.
  5. FALSE. The mediator’s proposal may be made near the end of the mediation, never at the beginning. When it looks like parties will not move one more inch toward settlement, and the mediator has an idea what it will take to settle the case, the mediator may propose a way to resolution. Each party responds confidentially to the mediator’s proposal. If everyone agrees, there is a settlement. If fewer than all parties agree, no one will ever know others’ responses; everyone is left at the same bargaining position as before the mediator’s proposal.
  6. TRUE. Settlements should be documented while everyone is together. If parties are unable to complete a settlement agreement at the mediation, which is common, the main areas of agreement should be documented in a binding stipulation or MOU, memorandum of understanding.

HOW DID YOU DO? 
6 correct answers- Mediation Superstar

4-5 correct answers- You’ve got the right idea. Just brush up on the nuances

2-3 correct answers – Looks like you’ve done some reading, but are still pretty unclear on the particulars. Get more information here.

0-1 correct answers- Hey dude/girl, have you ever even been to a mediation?  Please call me, and I’ll talk you through how it works.