Good Things and Good Riddance to 2020. Despite the dumpster fire that was 2020, it was encouraging to see so many people resolve their disputes through mediation in that year. There was a large influx of people using mediation as a tool to resolve disputes. There was also a lot of civility between the parties, despite the external stresses bearing down on everyone. And let’s state the obvious as well…the courts were either closed or extremely backlogged and the option of threatening to engage them wasn’t as sexy a threat as it was in years past. People had to work together to resolve their problems because the other options weren’t great ones. Nonetheless, participants, despite the stresses around them, absorbed, embraced and effectively utilized concepts that helped many achieve resolution through the mediation process.
Why, Not What. One such concept I encouraged parties to focus on during mediations in 2020 was the concept of why people were taking the position they were and not just what the dollar amount they were seeking. It is human nature to focus intently on the amount of money people are demanding to settle a case at the outset instead of why the party has brought the dispute and what they need to resolve it. Otherwise bright and rational people are often blinded by emotion at opening demands and opening responses. It’s like clockwork, the look on people’s faces when they get the news of the inflated demand and the lowball initial response.
Opening numbers in a mediation can often be just noise. Not to say that the numbers are willy- nilly or unsupported by facts and law, but much of the opening inquiries by the parties should be why the party is asking for things, not what the dollar amount is. No matter how many times I pop into a Zoom room to deliver an opening demand or opening counter and preface it with “this is just their opening number but let’s focus on why they are asking/offering this to begin with,” I am predictably faced with outrage, headshaking, laughs, crying, cursing and other various expressions of unhappiness and incredulity. Getting stuck in that initial, emotional loop can be the kiss of death for the mediation.
The Beast. By focusing on the other party’s interests, beyond their demand amount, you can find out what they really want and what they will actually settle for, which can sometimes be pleasantly surprising. People predictably respond with “ I AM NOT PAYING THAT” instead of saying approaching the matter with curiosity by asking, “what do they need and why?” People’s emotional brain kicks in when they feel threatened, especially by a high opening demand and their predicable low-ball responses. Social scientists Roger Fischer and William Uy, the founders of The Harvard Negotiation Project and authors of Getting to Yes, refer to the emotional brain as “that animalistic, unreliable and irrational beast.” This irrational beast has a hard time focusing on why and will often flee, fight or freeze. Our brains are built that way for good reason but we are not served by that part of our brain when we need to calmly problem solve. A brain that is fleeing, fighting or freezing is not thinking straight. Thinking straight is required to find solutions.
Plan Ahead and Let the Beast React In Advance of the Mediation. Help your clients to stay focused on the why and not the “what amount.” Prepare them in advance for the usual opening demand and opening response dance that happens. Let them have their initial response to the demand (if you have it in advance) with you, outside of and in advance of the mediation process. Consider spending 15 minutes in advance of the mediation with your clients where their beast runs wild, and then refocusing them on the why, may cut out hours of wasted time the day of the mediation.
Time and again, parties who focus on the why are able to come up with a wider range of solutions that those who are hyper-focused on the money aspect at the outset. When parties spend the time to query the why, they can meaningfully respond to data and arguments. The why sometimes leads to non-monetary solutions. The why sometimes leads to resolutions that parties did not even imagine existed.