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TRANSFORMATIVE MEDIATION STYLES THAT WORK IN LITIGATION AND COMMERCIAL SETTINGS
By: David C. Peterson, Esq.
 

      It’s not to be confused with Transcendental Meditation. Litigators and those who mediate in the litigation arena have been afraid of such terms as and the thought of, a “touchy–feely” approach to mediation. There have been some rumors that the Pepperdine Program has aspects of the “touchy-feely.” This is unfounded as the mainstay of the Pepperdine ADR program for lawyers is “Mediating the Litigated Case” where burning candles and incense are not a part.

      Despite the aversion to techniques which include concepts of recognition and understanding as part of the mediation process, the infusion of such transformative styles has proved to be very successful. In a recent article appearing in the Southern California Mediation Association publication the subject was turning toward a transformative style of mediation in commercial disputes1. The author observed that seasoned litigators had been increasingly discouraged in mediations which were conducted as just another arena to do battle. They were turning more to mediators who would utilize transformative techniques in order to break out of the mode of just doing battle on a different turf with different rules.

      Similar to art, transformative mediation can mean various things to different people. In the extreme, it describes a near complete transformation of a participant’s perceptions and outlook on the dispute as well as the individuals and objects involved. A profound alteration occurs which brings peace in the place of conflict and reestablishes relationship bonds. Most see the transformative approach as simply arriving at a better understanding of the dispute, the parties involved and of the realistic alternatives each party faces.

      This latter ideal is beneficial in litigated cases and most other situations where conflicts are resolved as an adjunct to the judicial process. Steps in this direction during mediation have demonstrated to be extremely successful.

      Let’s take the typical distributive bargaining case, a tort claim or contract dispute. The parties arrive with counsel. The mediator opens with a review of the case and has each side give their perspectives. The attorneys are anxious to get the negotiation going. They have a game plan and perhaps a golf game to get to. They let the mediator know they don’t want to “pussy-foot” but get right to it. An offer comes out from the plaintiff. It’s in the insult range. Counsel for the defendant responds accordingly. The “dance” begins. It continues with fits of frustration and argument over who’s right and who has the better case. It lapses from time-to-time into volleys of criticism launched from each side at the other that the mediator has to deflect to the keep the parties together. Pure persistence and grit get the job done; or perhaps not.

      Many of these types of mediations fail, especially in the limited case arena. It is similar to pulling on a rubber band. If you can get the case settled before it breaks, the job is successfully completed. If it breaks, the parties are typically more polarized than ever and unsatisfied with the process.

      There are situations in which the traditional “gutty” distributive bargaining is just what the parties and counsel prefer. Mediators should not hesitate to go in this direction if unmistakably pulled there by the insistence of the parties and it proves to be working.

      However, the blending of transformative techniques has accounted for far greater success as counsel and the parties become more open to these methods. Introducing them is a task which requires keen observation and timing. The concept is leading the parties to a better understanding of: 1) their underlying interests; 2) their circumstances; 2) their realistic alternatives; 3) the alternatives available to the other side(s); 4) the underlying interests of the other parties and counsel; 5) the agents and representatives of the parties; 6) the manner in which determinations are made by key individuals at the various levels and stages of the dispute, and 7) specific ways to satisfy the interests of the other side(s) in order to reach a settlement.

      An analysis of the underlying interests of each side is vital as is a clear understanding and recognition of the trial or arbitration process which looms if the matter is not resolved.

      Most of this approach is directed at the parties but the attorneys are also benefited by a review of these concepts and the recognition of the “real world” of their circumstances and those of the other side.

      Why should this be necessary? Why do I care about the other side? It isn’t always necessary and you don’t normally have a caring attitude about your opponent. But if you want to enhance your ability to settle a case, it provides a tremendous edge to undertake a careful examination of the interests and workings of the other side and the individuals whose interests need to be satisfied in order to resolve the case. This approach likely accounts for a ten to fifteen percent higher margin in overall settlements. Tough cases settle using this approach.

      It can also mean the difference between a grueling, arduous mediation and one of greater comfort and satisfaction to the parties and counsel. Mediation, even in the litigation setting, should not be just another battleground full of anxiety and grief.

      Some transformative approaches in a typical tort case, for example, are as follows:

      Recognizing who the players are and understanding their roles: One way in which humans are able to vilify others is to demonize them. Rather than using their names they are referred to by unflattering labels. This does not mean that an attorney may not be less than truthful or a particular claimant unrealistic or dishonest. An insurance adjuster may be trying to settle for below the true value of the case. This is not always the case and blanket labeling and perceptions are artificial, unnecessary obstacles thrown in the way of productive negotiations. For example, it may be worth going into the role of the adjuster and exploring the claims analysis and adjusting process. When a plaintiff sees that the representative from the carrier is an ordinary human as is the attorney representing the defendant, and they are undertaking their appropriate roles, the negotiations can be more positive and productive.

      Avoid the trap of labeling and unproductive cynicism: If a plaintiff is overreaching and the plaintiff’s attorney is unrealistic, there are reasons. They want more money than they should realistically expect. Dwelling on these conditions yields no progress toward settlement. No brain transplants can be performed during mediation. Recognition of what is controllable and what is not is one key to escaping the floundering that occurs when the focus is on the unflattering characteristics of others involved in the mediation. “It is what it is; now what are we going to do about it?” Understand it as best you can and then move on. On the other hand, most times opponents are not the villainous objects we at first perceive them to be. We tend many times to lapse into to our default mode of projecting onto another what we expect of them before making the effort to find out what the other individual is truly like. It does make a difference in negotiations to better understand those on the other side.

      What is the situation, really? Not too long ago the Mar’s Rover became stuck in sand. This baffled the scientists. The terrain was not that problematic. On earth, the Rover navigated greater obstacles. An exact replica of the conditions in which the Rover was lodged was made and a sister-ship Rover placed in the same position as the one on Mars. It moved out easily. Later it was determined that, due to the difference in gravity between Earth and Mars, the sand was not as compacted on Mars. Thus the problem. A rigorously honest exploration of the true circumstances of one’s location is crucial. Where am I really in all of this? What are my realistic options? How much will each cost? What are my true chances or the potential outcomes? Doing a simple “plus” and “minus” analysis is helpful many times especially under stressful circumstances where it is difficult to think clearly. As a party or one in an advocacy role, it is easy to forget or fail to recognize the negative aspects of the situation and only dwell on the positive. What about that expert witness the other side has? What about that witness of ours that may not make a good impression? It is what it is? Accept it and move on by making an intelligent decision in light of what is real and realistic.

      Acknowledge the Way in Which the Negotiation Process Works: “Why couldn’t we have just gone right to the solution and gotten it over with?” It just doesn’t work that way most of the time. Humans are hard-wired to negotiate in most instances where there is a “zero sum” situation. If I give, I lose and you gain. If I hold fast, I can keep more of the pie and you will get less. If there is the prospect of getting more than half, individuals will negotiate. They will provide the reasons, the support for their position that they are entitled to or will gain more than half in any event, so it should just be surrendered to them. In this situation one is also afraid that if they offer half right away, even if they would be satisfied with the other half, they will just face negotiations over the half they would keep. If you were in a market in a foreign country where bargaining was the rule and you offered $10.00 for an item marked at $20.00, how would you feel if your offer was immediately accepted? We have found through experience and error that, if you try to rush through a negotiation, you put it at great risk.

      Discover the Motives behind the Interests: A fundamental practice in mediation is to find or recognize all of the interests of the other side. By understanding the interests, offers can be engineered to meet those interests thus giving the negotiations a better chance at success. Too often in distributive bargaining both sides will conclude and stay with the idea that the other side just wants money and a lot of it. Or the other side wants to pay as little money as possible. Why? To win? To be wealthy? To look good? To feel better? Yes, the ultimate interest may be to get as much money as possible or to pay as little as possible, but there is more to it. At least two positive things occur when the parties go deeper into the reasons behind the interests. The first is that the other party perceives that their underlying interests are being considered. The positive psychological effect of this cannot be underestimated in terms of facilitating better negotiations. The second is that singling out and focusing on the motives or underlying reasons behind the interests, it is more likely that they can be satisfied sufficiently to bring about a settlement. These are basic concepts that mediators have been schooled in but the parties and attorneys too often forget to peel away the layers sufficiently to get at the root of the motivations and interests that are driving the other side. He who said “understanding is power” was on point.

      When the Underlying Interests and Motives are Understood, Focus on Them: In a wrongful death case recently, the plaintiff, mother of a sixteen year old killed in a car accident, was wealthy. The amount of money she needed to feel fairly compensated was far beyond the value of the case. Money was the symbol of the value of her son to her. The value of her son to her and the manner in which that could be recognized became the focus. The case settled with a scholarship fund being funded by the carrier. The mother was able to present yearly scholarships in her son’s name to deserving students at his high school. This approach in negotiations can apply in a myriad of situations. The key is to take the time to zero in on what is really driving the motives of each side and the various ways in which these underlying interests are able to be satisfied.

These are some examples of transformative techniques or approaches that are being utilized to bring more success and satisfaction to the mediation process in the litigation setting. To have the edge as a mediator or as a litigator in mediation, striving for that deeper understanding is not a bad thing. “Whipsawing” was used in the past and it worked. Refinement came with better tools. Utilizing transformative techniques is the laser-cutting instrument in mediation that brings refinement to the process and more satisfaction to the participants.


1 SCMA News, February, 2005, Volume 14, No.1.

* Mr. Peterson is a member of the Southern California Mediation Association. He was a litigator on the Central Coast beginning in 1976, practicing primarily in San Luis Obispo County. He began his mediation practice ten years ago serving the Santa Barbara and San Luis Obispo Courts and attorneys. In the interim, he obtained his LLM and Master’s Degrees in mediation from Pepperdine University School of Law (Straus Institute for Dispute Resolution). Prior to this he received two certificates in mediation from Pepperdine. His mediation practice has led to resolving hundreds of litigated cases, many involving high profile matters and sensitive governmental entity disputes. Mr. Peterson is president of the ADR Section of the San Luis Obispo County Bar Association and a member of the CADRe, Santa Barbara Superior Court mediation panel. You may contact Mr. Peterson with questions or to obtain further information, at: davidcpeterson@starband.net, or by calling (805) 441-5884 or (805) 772-2198.


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