Always Leave An Option Open

As a young child I remember having discussions with my dad where he would tell me, “Don’t paint yourself into a corner.” I didn’t really understand the message until I was about 8. I was helping wash the floor at the local recreation center when I looked up and realized that I had, if not painted, at least cleaned myself into a corner and there was no clear way out. The light inside my head went on and I understood what my dad was talking about. Of course it seems simple now, but at the time it was quite the epiphany.

This elementary lesson has served me well in my professional life in San Francisco Bay Area as a negotiator, litigator and mediator. I am often surprised and somewhat dismayed to observe how frequently business people and their legal representatives will “draw lines in the sand”, “dig in their heels” or otherwise put themselves in an untenable position if thing don’t go just their way. Whether dealing with an Alternative Dispute Resolution case dealing with, Divorce, Child Custody, Probate or any other mediation, there is almost no occasion that warrants such a position. The more one knows about life, how things work and how problems can get resolved, the more one eschews insisting that it has to be your way, “or else”.

The axiom of avoiding inflexible positions presents a particular challenge for the professional mediator. While the mediating parties are in a joint session the trumpeting of an unassailable righteousness is expected and the party to whom it is directed is either equally certain of their own ultimate vindication, or there are so many figurative grains of salt ingested with the diatribe that it is virtually ignored.

Particular problems can arise when the mediator meets with a party in a separate caucus and is pointedly directed to inform the other side that the offer being presented is a “drop dead” position. Ideally a mediator is a pure neutral. How does one avoid delivering a message that will effectively end the mediation, without compromising the aura of neutrality? A delicate task indeed.

When I am faced with this sort of dilemma I freely discuss my misgivings about delivering such a message. I generally explain how presentation will often have a great impact upon the recipient. I ask them how they would respond to any offer that was positioned in such a manner? I try to get them to realize that even if the proposal would otherwise be acceptable, that just hearing that these terms have no alternative would almost certainly guarantee rejection. Ideally, a combination of artfully crafted open-ended questions and observations regarding human nature and the dynamic of effective communications will result in a softening of the position and a withdrawal of the in-transient term.

If more is needed a mediator can inquire into a party’s expectations of the process. Some parties and even some attorneys need to be enlightened as to the rhythms of mediation. Sometimes it turns out that the previously demanded “bottom line” was due to unfamiliarity with mediation. It may be that the position was a good faith attempt to settle; it’s just that it is not a good place to begin discussions.

What to do if your skillful attempts at illumination are fruitless and you are unequivocally told to deliver the offer just as stated? In my opinion, you are then ethically obligated to do so and re-focus your damage control efforts on the recipient. If, in spite of your best efforts, you are ordered to convey the “final” offer, the case may not be amenable to settlement at that time.

However, although you cannot “soften” the offer, without revealing confidences, you are free to generally discuss the dynamics of the dispute that has led to such a hardening of positions. In almost every case the parties have known each other, and been fighting for what seems like a long time and they have, “heard it all before”. If presented in its proper context the impact of such an offer can still be a positive step in a successful negotiation.

Is this a compromise of mediator neutrality? I think not. I wouldn’t deliver a message that was couched in salacious or patently offensive language, why should a message that is latently offensive be any different? What is more, my position in such matters is even handed and I always treat both sides equally. I am neither sides advocate, I like to say I am the Devil’s Advocate. When acting in the limited role of assisting others in creating their own conflict resolution plan, a professional neutral brings a special skill set to mediation and should utilize every tool to assist the parties in finding a solution. I will freely tell all participants to start painting at the far end of the floor and work towards the door. That in many ways is the true value of a mediator.

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