Mediator Power

Since the first of the year, the US has begun to reshape its foreign policy approach and commentators have talked about using “soft power” instead of “hard power” to achieve policy goals. This got me to thinking about mediator power.

I came up with the following lists to divide mediator power into hard and soft power.

Hard

Direct process

Evaluative focus

Challenge participant views

Settlement

Objectify decision making

Solely a business decision

Authority over process

No food

Separate participants

Soft

Follow process
Relational focus
Support multiple perspectives
Resolution
Objectify and subjectify decision making
Business and personal decision
Share process authority
Food
Work with participants together and separately

This is by no means meant to be an exhaustive list and I’m not sure the respective powers are so clearly separated; rather, they may be on a continuum. With this in mind, let’s consider the first, process leading versus following, as an example.

On one end of the spectrum you have the mediator who leads the process and makes all the process decisions. These will generally include - Who should talk first, when to meet in private caucus, when to stop the mediation, etc. This mediator is firmly in control of the mediation process.

On the other end, is the mediator who follows, asking “Who would like to start?” or “Do you need a break or a private meeting at this time?” This mediator does not control the process.

In reality I suspect that most mediators move between hard and soft power depending on their mediation framework and the needs of the participants. I certainly find value in following the lead of participants and I often present process ideas to move discussions. I suppose I take the “both – and” approach with hard and soft power. Perhaps you do too.

Could - - Not Should

I was in a mediation recently that provided a clear example of the difference between a mediator giving an opinion of case value versus a mediator offering an opinion about where the case could settle. I believe this is an important distinction of both form and substance.

Here's what happened. I was in private caucus with defendant and was asked by one of the participants “Where do you think the case should settle?" This question came after several hours of discussion and several offers and counter offers. I responded back to the questioner that I could answer the question if I could change their word "should" to “could.” Using “could” allows me to offer thoughts about a settlement range based on the offers and counter offers and both general and private discussions with the parties. In part, this question had been asked because the numbers had started quite far apart and the questioner was trying to discern whether there was value in continuing the discussion. I believe these are important instances where the mediator can enhance the negotiation by providing insight without stepping outside the neutral role of mediator.

Usually I do this in the form of a review of where the numbers started, a discussion of what the numbers themselves suggest and then I usually offer a range and probabilities concerning the likelihood of settlement at any particular number within that range. I also couch the range and the specific probability of specific numbers as estimates and even sometimes as speculation. Since I do not ask people where they are headed (I want them to stay flexible) I often don't know the answer. At the same time, I’ve discovered that by paying close attention I usually end up with a pretty good idea of the settlement range. I offer these thoughts to encourage continued discussion while on the face of it, the numbers may suggest otherwise.

This approach is in contrast to the mediator deciding or valuing the case and telling participants what they (the mediator) believes is the value of the claim. While mediators may indeed have great experience and may be able to offer opinions about value, I believe any time the mediator offers a value opinion, the mediator has shifted from a place of neutrality to a place of taking sides. And once you take a side as mediator, you lose the ability to be neutral and you lose the ability to effectively do your job. So, mediators, don't offer value opinions. Offer “where the case could settle” opinions!

Get engaged !

These are tough economic times. What’s the effect on mediation practices? I was at a recent educational program and on a break spoke with a plaintiff’s attorney about how to settle claims in mediation with the economy in its difficult state. While there is no clear or easy answer, I suggest the following approach.

If you want to get your case settled, you need to get everyone involved genuinely interested. From the plaintiff’s counsel perspective, you need to fully engage both defense counsel and insurance professional in the settlement process. The prime mover in such engagement is making a "reasonable" settlement proposal. This works best when done before mediation so that defense counsel and insurance professional have time to review and prepare for mediation, i.e., set reserves, get authority, etc.

With respect to plaintiff’s initial proposal, don’t make it so high that defense counsel and insurance professional have no belief in potential settlement. If the proposal is out of this world high, then they will not be engaged in the process and are not likely to do any additional work to obtain greater authority than their own previous evaluation. On the other hand, a demand that defense counsel and insurance professional consider "reasonable," can go a long way towards creating a more conducive settlement atmosphere. Of course, any demand must build in some negotiating room, just consider how much room you really need!

The same concept holds true for the defense side of things in terms of making counter offers. If you make proposals that the other side perceives as a decent step, then they are likely to also take a decent step. And once folks are moving, then an opportunity is created. With no movement or very small increments, a negotiation or mediation can get bogged down. People can become frustrated and lose interest. And with interest lost, comes a lost opportunity.

So, get folks engaged. Get them believing that a settlement can be reached and you have set up your mediation for opportunity.

Super Bowl Party

Did you hear that President Obama had a Super Bowl party? And not just any party, but a bipartisan party. President Obama invited elected officials from both political parties. What a great idea to get folks together in a less pressured atmosphere, to make connections and build relationships. It certainly can't hurt and who knows, it might help down the road.

Does any of this sound familiar to you as mediator? Have you ever tried to get folks in a mediation to meet over a cup of coffee, lunch or a late afternoon snack? I have and find that when you get people in the same room who are in dispute, they can be tense, they revert to various "posturing" and "positioning" behaviors that are not always constructive. However, get together in the break room over coffee or that mid afternoon cookie and often the interaction is very different. This is particularly true with people who know each other (usually the attorneys) and such interactions, even for small moments, can provide useful information to you as mediator and create opportunities.

I bring muffins and sometimes fruit to my morning mediations and usually cookies in the afternoon for this very reason. I try to create personal interactions that are not specifically directed at resolving or settling the dispute. I create personal interactions to create connections between the mediation participants, and in so doing, it sometimes opens a door in the negotiation that had been closed.

So, next mediation - have a Super Bowl (Dispute) Party!

Calling President Carter

I took some time off from blogging and now with the New Year upon us let me get us going again! And with the inauguration recently behind us, I was reminded of a mediator technique shared by an experienced mediator.

She explained that as an impasse breaking tool she would ask former President Jimmy Carter to come into the room and work his mediator magic. Not the real resident Carter, but the imagined one. She would actually say to participants something like – “We are somewhat stuck and I have a mediator technique where we suppose that Jimmy Carter is here with us to help mediate. What would he do at this point?”

She solicits input from participants, adds her own ideas and then tries to take action along the lines of discussion. The discussion about what former President Carter would do allows her to tap into the process knowledge of the participants (that's also linked to the substance of the dispute) in an indirect manner. This can allow greater creativity in thinking and a willingness to share ideas that might not be shared if you ask "What should we do next?" Of course, sometimes asking what next is a great technique in and of itself. Finally, using an "indirect" approach lets the participants share their ideas without feeling “directed” by those in which they are in dispute.

With a new administration in town, perhaps we should call in President Obama?

Negotiation Capital

In these tough economic times let’s talk about “capital” – not true dollars, but the currency and capital you use in mediation. Think in terms of “negotiation capital.” I’ve coined this phrase to refer not specifically to the dollars that are exchanged in negotiation, but rather how easy or difficult are the steps in the negotiation. Are folks moving in very small steps early on or large steps? Is it taking a very long time between proposals such that one party is becoming impatient with the process? Has the negotiation taken so long that folks are running out of energy to do the really tough work at the end when a gap in the numbers remains? My sense is that for all of these instances, if it takes a long time for the negotiation to get to the end, then once at the end, there is little “capital” left to bridge whatever gap remains.

I routinely explain to folks at mediation of an injury claim (and most litigated claims) that there are two negotiations. The first, from the defendant (institutional) perspective is based on authority given, reserves set, and market value. From the claimant (individual), it is based on their goal for the negotiation, what they want, what their attorney tells them would be an appropriate settlement. When the respective parties get to these points, there usually remains a difference. I call it the “gap.” As you might imagine, if it only takes 4 steps to get to the gap as opposed to 10, then the participants will have more energy and generally more willingness to keep going and figure out how to bridge the gap.

I encourage folks on both sides to move in larger steps early so that the “pressure” to take a step that will be seen as significant is on the opposing side. Generally, the more one side moves, then the more likely they will also get a significant move from the other side. Of course, rarely do folks match moves; however, the main issue is whether the move is perceived as “good” by the receiving side. When I walk in to a caucus, present a proposal and folks say “that was a good step” then they generally try to do the same.

The point is that if you can get to the gap without spending all your negotiation capital, then you will be ready for the hard work ahead. You’ll be ready for the second negotiation, ready to bridge the gap and get the case settled.

In your next negotiation, consider moving in larger steps early and try to put yourself in the other sides shoes – How will they perceive your move? Remember, you can always slow down later if you want/have/need too. Save your negotiation capital for the second negotiation!

The Power of Getting Back Together

In most mediation of litigated cases, the parties and their attorneys (and us mediators) want to get to the private caucus quickly. These caucuses provide a relatively comfortable space to discuss and analyze the case. It’s where we ask attorneys about their BATNA and WATNA – what’s the best and worst that could happen if the case does not settle at mediation. And, if we are doing our job, we also connect with the individual party and learn more about their needs (as opposed to wants). We know that attorneys will not “honestly” evaluate their case in front of the other side, so we don’t ask in general session. Once this analysis by the participants (with the mediators’ facilitation) is complete we switch to a facilitative negotiation. My query to you – is there ever a time short of settlement when we should get folks back together? I believe the answer is a resounding “Yes” and let me demonstrate with a recent case.

The case was a denied workers’ compensation claim and after our general session we moved to caucus. In caucus, it became clear that the injured worker was very interested in a medical evaluation to find out what was wrong with his back. (His first proposal was for a medical evaluation which was declined by defendant.) Since he didn’t know, the uncertainty presented itself in a settlement demand that the defense found out of the ballpark. We still traded some numbers, but things were not moving to quickly and at some point, plaintiff’s counsel again raised the idea of medical care. The way counsel shared it suggested to me that we get back together or at least get the attorney’s and the claims professional together.

So, I asked plaintiff’s counsel if he would come back to the other room and share his idea that a medical evaluation would provide everyone with needed information, i.e., if the evaluation did not show a serious condition needing surgery, then the plaintiff would be better able to settle the case in a range likely acceptable to the defendant. Or, if a serious condition was found, then both sides would know the extent of potential medical care. I brought counsel together with the claims professional; plaintiff explained their idea in a cordial manner and then I split them up again. After some discussion, the defense agreed. We recessed the mediation to allow for a medical evaluation at defendant’s direction. Now, I still don’t know whether the case will eventually settle or not, but it now has a much better chance as compared to the chances last week.

With this recent experience under my belt, I encourage you to think of ways to get folks back together for a specific purpose in your mediation. As I explain in mediation trainings, when you get folks together there is risk and opportunity. As mediator we must set up for opportunity and manage the risk!