A Mediator’s Pet Peeves – Part III

In my previous blog posts on this subject, I discussed lack of preparedness on the part of counsel and/or client, and the counterproductive use of the opportunity to make an opening statement, as two of my pet peeves as a mediator.

In no particular order, my third pet peeve has to do with unreasonable settlement positions.

At some point in every mediation, and usually fairly early on, a party will be called on to take a formal settlement position by making an offer to settle.  Most of the time in commercial cases, the offer will involve either the payment or the receipt of money.  Invariably, the offer is made in the setting of a private consultation between a party, his or her counsel and me and it is intended that I convey the offer to the opposing side in a separate private consultation.

From time to time, offers are provided to me with the accompanying caution that this is that party’s final position or, alternatively, that while it may not be the final position, there is very little room to move.

Nobody ever believes that.  Mediators don’t believe that, and opposing sides certainly never believe it.  If the party making such an offer is actually telling the truth, then the offer has to be revised in order to leave more room for movement before it is presented to the opposing side.  The nature of the process, and human nature generally, is such that a party receiving an offer will assume that there is room to move and simply will not believe anything to the contrary.

The difficulty that arises, and therefore a pet peeve of mine, is that from time to time a party will make an offer that is so outrageously excessive as to cause a complete loss of credibility.  If the offer is ridiculous, the opposing party will respond in one of a number of ways and none of them enhance the possibility of settlement.  Firstly, the opposing party may conclude that the offeror simply has no reasonable or rational appreciation for the probabilities of the offeror’s chances of success or failure in the action.  An offeror held in such low regard will generally not receive a reasonable counteroffer.  Secondly, the receiving party may conclude that the offeror has no sincere interest in settlement so that the entire process is a complete waste of time and that it might as well conclude on the spot.

Where the receiving party responds with a reasonable offer and the next number put forward by the offeror betrays the fact that the offeror obviously knew that his first number was outrageous, the receiving party will invariably resent the offeror for having wasted everyone’s time.  If the offeror’s response to the counteroffer shows only a slight movement, once again the opposing party may conclude that the entire exercise has little or no chance of success.

The bottom line, of course, is that there is no substitute for the conduct of a thoughtful and reasoned analysis by each party of the likely outcome or ranges of outcomes at trial.  Once that analysis has been conducted, there is certainly no harm in aiming at the high or low end of that range so that a party comes in within shouting distance of a reasonable result, while leaving room to move in the subsequent negotiation.  A party who shoots for the moon will likely end up shooting himself in the foot.

A Mediator’s Pet Peeves – Part II

Recently I published a blog post in which I reflected on lack of preparation on the part of parties and their counsel as a serious impediment to settlement at mediation.

Another serious impediment, and one which frequently arises at the very start of a mediation, involves opening statements.

In the classic mediation scenario, the parties and their counsel will begin the mediation by convening in a meeting room with a mediator. The mediator will begin the session by introducing himself/herself. He/she may ask the others in the room to introduce themselves as well. He/she may make a brief statement about why settlement is a good thing and going to court is a bad thing. And then he/she may ask counsel on each side to make an opening statement, an opportunity which most counsel simply use to reiterate what they’ve already written in their mediation briefs filed in advance of the mediation. The mediator may or may not invite the parties to speak as well.

The extent to which these opening statements will increase the tension in the room and the degree to which each party has demonized the other, on one hand, or contribute positively to the process by increasing the other side’s understanding of the opposing position, on the other hand, will vary from case to case.

Obviously, it is in the interests of all concerned (or at least the attendees who are seriously interested in settling the dispute) to make a positive contribution to the process through the mechanism of an opening statement. An opening statement which makes clear the position of the party delivering it, either personally or through his counsel, will be particularly helpful if the opposing party does not have a full and complete understanding of the opposing position – presumably because he has not been properly prepared (see my earlier blog post on poor or no preparation). Unfortunately, this is not always the case. More often than not, counsel take the opportunity to show their clients how tough they are by making opening statements that are simply inflammatory. In such cases, the mediator is faced with the prospect of dealing with parties who are even angrier with each other than they were before the mediation started.

A few years ago, I conducted a small survey involving a total of ten mediators: six from the United States, three from Canada, and one from Argentina. In the course of the survey I asked the mediators whether or not it was their normal practice to invite opening statements from parties or otherwise invite them to participate in open discussion at the outset of their mediations.

Their responses varied widely. Five mediators indicated either that they never ask for opening statements, or that they would not do so unless counsel specifically requested it. The other five indicated that they always, or almost always request opening statements. One of them made it clear that while his preference was to have opening statements, he would refrain from asking for them if counsel were clear that they would be counterproductive.

There was no apparent correlation between the responses from these mediators and the level of experience or training among them.

It is easy to dismiss the idea of opening statements as a source of information because mediation briefs are filed prior to the session and in theory, parties should be familiar with the position being taken by the other party. Nevertheless, an unprepared party would benefit from hearing an articulation of the opposing position at the outset – assuming that it is expressed in a reasoned and business-like fashion.

My own practice is to contact each counsel prior to every mediation and obtain their input as to whether or not they feel that an opening statement would be helpful. Where opening statements are going to be provided, I do insist that counsel refrain from making statements or adopting a tone that is aggressive or obnoxious. Counsel who do behave that way may feel that they are winning points with their client(s). That may be true. However, if an inflammatory opening statement means that the odds of a successful resolution are diminished, the client’s interests will not have been well served.

A Mediator’s Pet Peeves – Part I

If you are a party to litigation in Toronto, Ottawa or Windsor, you’re going to find that mediation will be required before a matter can proceed to trial. In other Ontario jurisdictions, mediation is available, and usually advisable, but it is not mandatory.

Either way, Ontario litigants are likely to be involved in mediation in some point during the process. A mediation is simply a settlement meeting presided over by a third party neutral who has no decision making power but who has been trained to assist parties to resolve their dispute.

In addition to my litigation practice, I have been working as a mediator for the last two years. As a counsel representing clients at mediations, I had developed my own habits, practices and tendencies. My exposure to the approaches taken by other lawyers was limited to my observations of the lawyers across the table from me at each mediation.

As a mediator, I have been exposed to much more in terms of the way lawyers conduct mediations on behalf of their respective clients. It has become very clear to me that in many cases, parties could achieve better results if they and their lawyers adhered to some specific rules.

In my view, the first rule that must be followed in every case has to do with preparation. There is simply no substitute for proper preparation for a mediation just as there is no substitute for proper preparation for any other type of court proceeding. A lack of preparation on the part of either party is a serious impediment to success, and therefore a major pet peeve for mediators.

Your counsel will prepare a mediation brief on your behalf and send it to the mediator and to opposing counsel. The purpose of the brief is to present your case in the most positive light possible. Normally the brief will include some reference to the legal basis for your claim or defense and may include copies of documents which support your position.

Hopefully your counsel will review a draft of the brief with you before it is submitted, at least for factual accuracy. Whether you see a draft in advance or not, you should definitely make a point of reviewing the brief submitted on your behalf before the mediation.

Even more importantly, you should be reviewing the brief submitted by the opposing side. I am amazed at the number of times parties that show up for a mediation with very little understanding as to the other side’s position. I cannot understand how anyone can formulate a view as to the strengths and weaknesses of one’s own case, and the probabilities of success or failure, without a thorough understanding of the position being taken by the opponent and the basis for it. You do not want to be hearing about the other side’s position, and the evidence that is going to be put forward to justify it, for the first time at the mediation itself.

Finally, and for the same reason, you will want to obtain from your lawyer, before the start of the mediation, a candid assessment of the case and the range of settlement options to be considered. You will want to understand the range of outcomes reasonably available to you at trial, and the probabilities of obtaining results along that spectrum. For example, in a claim for $100, you may be told that that you have a 10% chance of obtaining nothing, a 10% chance of obtaining $100 and an 80% chance of being awarded $50. In such a case, obviously, the most reasonable settlement result would involve a payment to you of $50.

The difficulty is that the defendant may not see it the same way. He or she may feel that he or she has a 70% chance of walking away from the case without paying anything and only a 30% chance of paying you as much as $50. And that, of course, is why we have lawsuits and mediations. The role of the mediator is to try to persuade the parties to agree to a result that bridges that gap.

The likelihood of a mediator being successful in doing so is directly related to each party’s understanding of the differences between the two positions, among other things. That is the essence of the preparation that is required.

Thoughts and Observations of a Toronto Mediator About Culture and Conflict

Based on my research and my experience, it seems to me that cultural influences can bear significantly on the topic of conflict resolution.  I am not sure that mediators are typically sensitive to this point.

Certainly, generalizations concerning the manner in which an individual is likely to behave based on any particular culture with which that individual is affiliated will be problematic.  That would be true even if, for example, a mediator was completely familiar with a particular party‘s predominant culture.

Firstly, even members of a clearly defined culture may not behave in a manner that is consist with the type of behaviour that might ordinarily be expected from members of that culture.

Secondly, any attempt by a mediator to analyze how a party is likely to view a conflict or behave in the context of an effort at conflict resolution will itself be coloured by mediator’s own cultural affiliations.  That will be true whether or not the mediator identifies himself as a member of the same cultural group as the party.

Nevertheless, it would be an error for a mediator to ignore cultural influences on parties.  While there will always be a risk of stereotyping a party, there is ample evidence in the literature of relatively common traits that can be identified in connection with various cultural groups.  In my view, it would be a mistake to ignore the evidence that exists.

To illustrate the point using a fairly superficial example, and based on my own experience, we can look briefly at the way in which people approach bargaining.  Bargaining, of course, is a fundamental part of conflict resolution – certainly in the vast majority of mandatory mediations in our jurisdiction.  People from different cultural backgrounds will exhibit a different level of comfort with the bargaining process itself.  In Western culture, for example, in my experience, parties tend to be highly bottom-line oriented. They may find the bargaining process itself to be somewhat frustrating and see it both as a necessary evil and is something to be expedited to the extent possible. They are not particularly used to it and appear to have no desire to become used to it. After all, a consumer in a Western country will go into a store to buy an item off the shelf and, if the price is acceptable, pay the price at the checkout counter without further ado. Typically, the consumer will have no interest in bargaining with respect to that product.

However, in other cultures, the bargaining process is seen completely differently.  In the Middle East, for example, it is perfectly understood that in many marketplaces, no consumer buys a product at the price initially articulated by the vendor.  It is understood that the quoted price is nothing more than an invitation to negotiate.  People from such cultures, therefore, experience bargaining on a daily basis.  They appear to me to be entirely comfortable with the bargaining process and, whether or not they enjoy it, they accept it as a necessary and routine part of life.  While the bottom line remains critical, they may well exhibit a higher level of patience and tenacity than their Western counterparts in terms of getting there.

In my view, one of the factors most fundamental to the question of conflict resolution is that described in the literature as high and low context.  This is the distinction between cultures which emphasize protocol and promote subtle and indirect communication as opposed to direct “get to the point” communication.  This is a key factor simply because it impacts directly on communications between the parties and between each party and the mediator. In Asian cultures, for example, the research indicates that indirect communications are favoured.  Messages are embedded in the implicitly shared and cultural knowledge of members of the group.  Non-verbal communications are as important if not more important than verbal communications.  In the literature, Asian cultures are considered high context.

In a low context culture such as that of the United States, communications and meanings are more literal and direct. Additionally, members of Western cultures seem to be better able to separate the people involved in disputes from the conflict issue itself.

A high context approach to conflict is oriented towards cooperation and problem solving.  A low context approach is more competitive and self-serving. The relevance of these distinctions for the negotiating process involved in a mediation is obvious.  It follows that the greater the sensitivity on the part of each party to the approach dictated, at least as a generalization, by the opposite party’s cultural membership, and the greater each party’s sensitivity to the cultural norms influencing the opposing party, the greater the chances of a successful resolution to the conflict.

The goal for the mediator and any legal counsel genuinely interested in resolution should be to address these cultural influences with the parties so as to raise each party’s consciousness and expedite each party’s progress along a continuum of what has been referred to as stages of the acceptance of cultural differences.  The literature suggests that four such stages exist:

  1. a disinclination to acknowledge the existence of other or competing groups;
  2. regarding the other group as inferior in some manner;
  3. trivializing the differences between the party’s own group and the opposing party’s group;
  4. shifting from a state of being group-centered to a state of being group-relative, in which a party sees differences not as right or wrong, or good or bad, and ceases to see his or her own group as the reality against which all else must be measured and judged. At this stage, differences are accepted and at least understood if not valued.

In my view, this is the essence of what a mediator must strive for in a mediation involving parties of markedly different cultural backgrounds:  sensitivity, understanding and the willingness to move parties along this spectrum to a point in which the opposing party is no longer demonized or disregarded, and the possibility of an empathetic response begins to emerge.

Some Thoughts and Observations By a Toronto Mediator – Part 2

In this post, once again, I thought I would provide some additional observations on an aspect of the mediation process.  This post will comment on the relationship between neuroscience and conflict.

There are a number of studies in the booming area of neuroscience that focus on how the human brain relates to conflict and specifically on how male and female brains differ in that connection.  For example, psychologically, females are usually thought to be superior in inter-personal sensitivity than males.  That is a factor that is highly relevant to the issue of empathy, a critical element in the mediation context.

The entire issue of neuroscience is attractive because it deals with physical phenomena.  It produces pictures of brain activity which may suggest universal behavioural features.  In turn, this might enable mediators, counsel and parties to better understand decision-making processes and predict responses which people of a given gender, for example, may exhibit.

In my view, this type of study is particularly valuable to pick up where a mere economic analysis leaves off.  Economics gives us expected value calculations and litigation risk analysis.  It is based on the theory that decisions are made by rational people, who will act in a rational and logical manner in all circumstances.

Anyone with any life experience at all knows that this is simply not the case.  Firstly, people do not act on a rational basis in every case and every time.  Secondly, even where a party strives for rationality, what is rational behaviour to one person will not be rational to another.  Put another way, many if not most decisions are capable of more than one approach which may appear to be rational to some but not to others.  Variables in this connection likely include both culture and gender.  They will also include neuroscientific considerations.

For example, according to neuroscience, people speak in a universal emotional language.  The entire theory behind parties to a mediation gathering in a room and delivering opening statements is probably based on, or at least supported by, the theory of mirror neurons.  The assumption is that people are hardwired for empathy which, as we now know, probably varies with gender. Taken at face value, this may suggest that as a practical matter, the extent to which mediators should permit parties to engage in face-to-face discussion may be influenced by whether or not one or both is male or female.

Unfortunately, the literature is not at all consistent in this area.  Perhaps this is not surprising given the relative infancy of this area of study.  For example, one author suggests that the ability to interpret facial expressions is unconnected with culture.  On the other hand, there is evidence that suggests that the manner in which people perceive the facial expressions of others will indeed differ across cultures.

There is even controversy in the literature as to what mediators ought to do with this type of information.  There are those who consider face-to-face discussion to be important to any party interested in convincing the opposing party of his or her sincerity.  On the other hand, others consider face-to-face discussion to be highly problematic, at least in instances in which there is a perceived power imbalance between the parties.

While these nuances may be controversial, however, there appears to be solid evidence from neuroscientific studies as to the manner in which the brain reacts to emotionally charged issues such as those typical of conflict and efforts to resolve conflict.

For example, while it is normal and natural for a party to a legal dispute to feel angry, it would appear clear that such feelings represent an obstacle to settlement at least in the sense that angry people are less likely to make decisions in their own best interests.

Feelings of anger generally begin with a triggering event which causes a party to assess the relevance of a given situation to his own aspirations and the likelihood of achieving his own goals.  The party will then focus on who is to blame for the problem and assess whether or not the person will be able to cope with the situation as well as the likelihood that the situation will improve.  In the meantime, however, the party dealing with feelings of anger will be subject to an excessive amount of adrenaline produced in the brain.  This hormone is produced by the adrenal glands when the body is in a state of high anxiety, fear or excitement.  While it enhances alertness, and while neuroscience teaches us that emotion of this nature is an integral part of reason and the decision-making process, anger will affect cognitive processing and interfere with the ability to solve complex problems.  It has even been suggested that regardless of personal levels of intelligence, during anger arousal, people perform generally as if they have a learning disability.  Even subtle forms of anger impair problem-solving and general performance.  In addition to increasing error rates, anger narrows mental focus, obscuring alternative perspectives.

The angry person has one “right way” of doing things, which, if selected in anger, is seldom the best way.

Neuroscience tells us that this limitation to a person’s access to rational cognitive functions will arise whenever a person is under stress or threat or feels shame.  On the other hand, when the body senses safety, the nervous system becomes receptive to new information.  This suggests that there is a need for mediators, counsel and parties to be aware of physical dynamics in order to reduce a party’s perception of threat and thereby increase the chances of a successful resolution.