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
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
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
Similar to art, transformative mediation
can mean various things
to different people. In the extreme, it describes a near complete
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
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
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
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.