Friday, August 22, 2008

Anger Management in Mediation

The best way to control anger in mediation is not to get mad in the first place. And the best way to accomplish that is to come to the table with no preconceived notions or expectations about what the other side is going to do or how long the session is going to take. If you don’t expect anything, you won’t be upset when you don’t get it.

This admonition should not suggest a lack of preparation. As I have indicated in the past (e.g., "To Every Thing There Is a Season"), thoroughly knowing one’s case is crucial to success. But knowing one’s case is not the same as knowing what the other side is going to do.

Some people come to mediation with expectations that are based more on hope than reality. Such folks regard unreasonably high demands or low offers right out of the box as evidence that the other side sees the case so differently that settlement is unlikely. This can be frustrating and often prompts angry reactions — particularly if the parties have allowed only a couple of hours to get the job done. Typical comments are: "They’re obviously not bargaining in good faith!" or "This is a complete waste of time!" or "We might as well end it right now and go home!" or (perhaps worst of all) "I’ll show those cowboys/cheapskates," followed by an equally unreasonable counteroffer.

But unreasonable positions do not always indicate unreasonable expectations. Often the other side is simply trying to find out in what ballpark you think the game ought to be played. Just testing the waters, so to speak. After all, until things shake down a bit, your opponents need to know whether you are more worried about your case than they are about theirs. Most plaintiffs' attorneys, for example, know that if they don’t ask for a lot of money they will never get it.

I generally regard the early stages of a mediation session as a time for testing. Sometimes this phase has a lot of posturing, can resemble a game of "Chicken," and can last for hours before the parties move into settlement territory. For this reason, I have found it best when scheduling mediations to allow plenty of time. Open-ended scheduling is best. When people start looking at their watches, the chances for resolution go down.

When you feel the other side is making unreasonable demands or offers, don’t get mad at them. They have a perfect right to ask for as much or offer as little as they want. If it turns out that they have just been testing you, the case will probably settle. On the other hand, if they really believe in their position and you don’t, the case won’t settle, but nobody will be any worse off for having made the effort. See my earlier post, "The Goal of Mediation Is Not (Necessarily) Settlement," and Chris Annunziata’s on the same subject.

1 comment:

Stephen said...

I have to say that when people are pitching unreasonable positions, my only thought is am I going to get a single or a double collapse out of them.

I'm still waiting for a genuine triple collapse, though I'm sure I'm going to finally see one.