I just read a simply phenomenal blog by John Folk-Williams: Mediating on Two Tracks: the Rational and the Rest of Human Nature. In a few short paragraphs he summarizes exactly why some cross-collaborative efforts are not successful and even why so many cross-collaborative efforts are not attempted. In truth, he summarizes really why the alternative dispute resolution process as a whole sometimes fails.
Oftentimes one party is fostering a hostility which is based on raw emotion, misinformation or as John says “past clashes on unrelated issues.” Let’s call this the “irrational party.” If you pair this party with an opposing party, the “rational party” if you will, whose approach is “just the facts, mam,” one who may be too impatient to allow the mediator the time to nurture the other party through their issues, then you have before you the potential for one unproductive day and one unproductive mediation.
John reminds us of the divide that the mediator must bridge in these cases and make no mistake about it, the gap between rational and irrational immediately becomes the mediator’s biggest challenge. The mediator must try delicately to move the “irrational party’ more toward the middle where emotion may not run as deep while also dragging the “rational party” closer to the middle in reluctant recognition of the other party’s perspective and feelings. This happens most often in cases where one party is a corporate entity or a governmental entity and the litigation they are facing is just a part of the daily grind while the other party is an individual unaccustomed to the tension of litigation and with much more personally at stake.
May I introduce you to your mediator, Dr. Jekyll and Mr. Hyde. The mediator must be logical and fact-oriented in one room and play the gentle role of psychologist and trust-builder in the other room. Whether the mediator finds this delicate balance is only apparent at the end of the day when the parties end up shaking hands with a fully executed settlement agreement in hand or gruffly packing up their bags and sheepishly waiting to leave the building until an announcement is made that the other party is gone, empty-handed of course.
To avoid these types of clashes I could counsel you to address the issue in your pre-mediation conference with your clients. I could tell you to prepare your clients to listen with real empathy to the opposing party’s story or I could tell you to coach your client to accept that the other party’s documentation tells a far different tale and that evidence is really what drives the train at trial. I could tell you to request that your client shelf his/her Spock-like demeanor or drama king/queen persona for the day but I know how that works, you know the adage, tigers and stripes… not gonna happen…
So, your best bet is a good mediator, a patient mediator and a persistent mediator. I wonder where you can find one of those…
