Mistakes are a fact of life. It is the response to the error that counts.
Consider the range of emotions parties sometimes experience as they become embroiled in litigation: frustration, regret, self-doubt, aggravation, anger, bitterness, depression, anxiety, disappointment, vulnerability, fear, confusion, to name just a few. Very often, what is driving these emotions is a feeling of having been disrespected. And that's just when the litigation begins!
By the time parties reach the mediation table, their emotions may have escalated to an unbearable level. Every mediator has observed parties so anxious and distracted they can’t stop fidgeting, can’t sit down, can’t focus on what is said to them.
Underlying everything, of course, are the profoundly personal issues that brought on the litigation in the first place: employment termination, the falling out of business partners, a commercial deal gone bad, a challenged estate plan, etc. If depositions have been taken, the parties may have experienced a meat grinder cross examination, where they were forced to answer detailed, carefully crafted, no-win questions painting them into one corner after another. They may have been ordered to disclose their most intimate personal and financial information to hostile scrutiny. Individuals on whom they were counting for support may not have come through, leaving them with additional feelings of abandonment, isolation and betrayal. Adding insult to injury, the litigation process may not have gone well: they have been treated disrespectfully by opposing counsel, their own lawyer may not “get it”, they’re before an overly busy or indifferent court, their own requests for discovery have been stone-walled, delayed and dragged out, while attorney fees and costs are mounting.
To many litigants experiencing the roller coaster ride of litigation for the first time, mediation can look like a safe harbor. Until, that is, they receive a copy of the other side's mediation summary. If they felt victimized before, they may now feel mugged! “That’s not me! That’s not what happened!” And so, they arrive at the mediation table emotionally escalated, in “fight or flight” mode, sometimes vengeful, no longer thinking straight. The last advice they want is encouragement to view their matter in a businesslike fashion to make a thoughtful decision about settlement.
What to do? From my vantage point as mediator, the key to managing these emotions may well be in the hands of the parties and lawyers on the other side. If resolution is their goal, the best approach may be found in a song made famous by Aretha Franklin:
"All I'm askin' is for a little respect...."
In case after case, lack of respect, failure to show respect, and outright disrespect have fueled the flames and increased the antagonism. When these same attitudes are on display at the mediation table, they are insidious and destructive, reducing the likelihood of amicable resolution. Bruising comments, harsh judgments, maximalist positions and high handed negotiation tactics all contribute to creation of a toxic environment. In caucus, as the lawyers vent their grievances against each other and the other side, the emotional escalation is palpable. Trust is destroyed; a desire to “work things out” lost. The most skilled mediators using the best time-tested techniques cannot bring the parties together when there's no trust, no quarter, no respect.
On the other hand, when a party demonstrates respect, the result is highly constructive increasing the likelihood of resolution dramatically. It happens again and again. Indeed, respect is infectious. Once a party begins to show respect, the other side reciprocates. In the middle of a bitter and intractable dispute this principle may be difficult to recognize. I know it is not easy when the parties or their lawyers can’t stand one another. Sometimes the lawyers have more grievances than their clients have in the underlying dispute. Often, yes, these grievances have merit. Being respectful may be the last option these disputants want to consider. Clearly, litigators tend to be competitive. Few are willing to risk being first to send out peace signals. This is understandable. Treating someone with respect who has treated you miserably is a very tough assignment. No doubt the clients have become more escalated, righteously indignant or vengeful. Lawyers sometimes anticipate loss of credibility if they attempt to de-escalate. Nevertheless, sometimes the goal of settlement requires swallowing a bitter pill.
Again, if resolution is the goal, the path to reaching that goal is spelled "R.E.S.P.E.C.T.!"
• In an employment case, the personal participation at mediation of the CEO and General Counsel demonstrated to an emotional plaintiff that management was taking her claim seriously. Once it dawned on her that two of the top individuals in management were in the other room considering her story, seeking to understand her complaints and formulating offers, she focused on her own risks, began to look at her damages realistically — and the dispute settled.
• In a retiree health care benefits class action where direct negotiations had driven the parties farther apart, management was persuaded by the mediator to come to the mediation table with a fresh, respectful attitude. Negotiators for the company were helped to understand the extent to which class representatives felt aggrieved. The process began with opening statements. Each individual on the management side verbally expressed his or her respect and concern for the retirees sitting across the table, “You are all former employees," was the message. "Some of you were colleagues. We want to do the right thing here.” Having brought all the necessary finance and benefits people - plus actual decision makers - management demonstrated the truth of these representations. Their very presence at the table underscored the credibility of their words. The class representatives recognized what was happening, felt respected - for the first time - and relaxed. The dispute settled.
• In a bitter non-compete and disclosure-of-confidential information suit against a competitor who had recruited away several top producers from plaintiff, the dispute was so escalated the federal court ordered the parties to mediate. Defendants were convinced the suit was brought in bad faith to destroy their business. Executives of plaintiff flew to Michigan from around the country, including the CEO. After several hours, the CEO offered to meet privately with the mediator and CEO of the local defendant. After a respectful private conversation, we returned to the mediation table and hammered out an agreement that worked for both parties. It was all about respect.
• In an action for long term disability benefits, the claims representative who preferred an all caucus mediation, readily accepted when plaintiff’s counsel expressed his client’s desire for an opening joint session to speak directly to the carrier. Plaintiff’s opening presentation expressed his frustration and chagrin that the company seemed to believe he might be faking or exaggerating his disability. The claims representative listened respectfully without interruption. In his response, the claims manager acknowledged the extent of plaintiff’s disability and assured plaintiff no one believed his claims were exaggerated. Instead, he explained in businesslike fashion the time limit defenses the carrier had been asserting. He concluded by assuring plaintiff he had come to mediation to “get it settled,” and settle it did.
It doesn’t take much to demonstrate respect. Sometimes it may simply be bringing the right people to the table. It is a rare case that does not settle when the key decision maker or CEO is present in person. The principles of interpersonal respect are well known to all. We’ve been trained since pre-school or kindergarten to treat others respectfully. We know how to do it. It takes listening. it takes not interrupting. It takes choosing the language of diplomacy. It takes interest in understanding what the other side is saying. It takes recognition that there are two sides to every story.
Not feeling it? Okay. Sometimes it may be necessary to fake it; to swallow our pride in support of saving money, reaching better outcomes and putting unproductive conflict behind us. If the question is "should this dispute be resolved", we should listen carefully to Aretha Franklin’s advice for the answer.