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Trimble: Avoiding and dealing with pessimism in mediation

April 23, 2014
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By John C. Trimble

trimble Trimble

All of us who attend or conduct mediation on a regular basis soon come to realize that pessimism is one aspect of mediation that occurs in every mediation session. We learn that if we let pessimism cause us to quit, we would never settle anything. However, pessimism on the part of the parties and their counsel (coupled with impatience) can prevent a very “settle-able” case from being settled. Conversely, strategic use of pessimism by a mediator or a party can be effective in achieving settlement.

The purpose of this article is to offer a few techniques for addressing pessimism and getting past it. It will also address the strategic use of pessimism.

Expectations: the first hurdle

My experience as a mediator has enabled me over time to observe that all parties come to mediation with an array of expectations. Plaintiffs, in particular, tend to come with high expectations unless they have been well counseled by their attorney. Most often, the parties’ expectations are uninformed and unrealistic.

The earliest signs of pessimism begin to develop when parties realize that their expectations are not going to be met. I have learned that most parties have fallback expectations and further fallback expectations, and so on. It is when the negotiation appears to be headed below the lowest expectation that true pessimism occurs. (This is true for the plaintiff or defendant.)

Identifying the parties’ hidden agendas

While parties come to mediation with expectations, their expectations are usually a matter of what they want out of settlement. Their “hidden agenda,” on the other hand, is what they need out of a settlement or what they fear from not settling.

I have personally been able to ignore pessimism because I have learned that parties almost always have hidden agendas that will prompt them to settle even when their expectations may not be satisfied. Once I learned this and embraced this concept, I became a better negotiator for my clients and a much better mediator.

To identify a party’s hidden agenda, one must step back and study the age, education, experience, occupation, sex, race, ethnicity, nationality, socio-economic, or other characteristic that may motivate them to settle or not settle a case. The same analysis is also necessary for corporations, governmental entities, and other institutional parties. With a little bit of study (and a modest amount of reasonable stereotyping) one can predict the wants, needs, fears and risk factors for most litigants. Once you understand the parties’ hidden agendas, most cases can be settled.

There are many examples of hidden agendas that mediators learn after a case has settled:

• The plaintiff who needed enough money net of attorney fees and liens to buy a new bass boat;

• The middle-aged couple with a child starting college in a year;

• The aging couple needing income for retirement;

• The business that needed to settle litigation so that it could obtain financing to break ground on a new headquarters;

• The business that needed to settle in order to avoid publicity;

• The employee who wanted an apology;

• A plaintiff lawyer who needed to make payroll;

• A defendant who couldn’t afford the litigation.

Many times, settlement that appears hopeless can still occur if the mediator can get the parties talking about their own hidden agendas or can get the parties working on their opponent’s hidden agenda. I have found that there is no harm in me, as the mediator, asking a party what they fear about not settling or what they need out of a settlement. I will often ask the mediator to ask the same question when I am representing a party.

Studying the causes of pessimism

At the most pessimistic stage of the mediation, I frequently ask the parties to put their emotion aside and to engage in a critical analysis of where we are. Usually, we can isolate factors that are causing the parties to see the case so differently. Once I do that, I then try to shift the discussion to the risk that each party may be right or wrong in their respective views and the risk that they may do worse at trial. We then chip away at each conflicting issue, pessimism melts and people begin to more objectively assess their positions.

This is also the stage where I frequently will ask one party or the other to make a breakthrough move that will put the other party at risk. If I cannot obtain a breakthrough move, then I will suggest that the parties make conditional bracketed moves to narrow the gap enough so that a range of settlement can be visualized.

Visualization

One of the reasons for pessimism is that neither party can “visualize” where the negotiation may end. Bracketed conditional moves, whether they are suggested by a party or the mediator, are probably the most effective tool for dissolving pessimism. The second most effective technique is to engage in “what if” conversations. The mediator says to one party, “What if I can persuade the defendant to come to X. Could I get you to move to Y?” If the pessimism is so deep that the parties will not engage in a bracketed move or a “what if” conversation, then I will sometimes ask each party to give me their “take it or leave it” number with the understanding that I will not reveal it to the other party. Before taking this approach, I will ask each party to agree that if their “take it or leave it numbers” are within a certain range, they will agree to reveal their numbers and consider negotiating from there.

Strategic use of pessimism

When we are faced with a pessimistic situation, we cannot ignore the possibility that one or both parties may be using pessimism as a strategic tool. Good negotiators will sometimes hold their ground in a particular range in the hope of bringing the other party closer to that range. They will patiently test the waters until some pessimism arises, and once they are convinced that the range is not going to work, they may move forward. Really good negotiators are aware of the need to dissolve their opponent’s expectations, and exceptional negotiators craft their negotiating strategies to play to their opponent’s hidden agendas. They understand that injecting pessimism may ignite their opponent’s fears, and at a minimum they may lower their opponent’s expectations.

As a mediator, I will sometimes use pessimism strategically to test a party’s resolve. I may indicate I am growing pessimistic and that I am about to end the mediation. Many times, the appearance of quitting the process will spur parties into concessions to keep the process alive.

Conclusion

Because pessimism is such a likely occurrence in mediation, getting the subject on the table, exploring the basis for the pessimism, and dissecting it can make it melt away and cease to be a barrier to settlement. When parties are cautioned at the beginning to expect pessimism, they become significantly more patient and creative later.•

__________

John C. Trimble is managing partner of Lewis Wagner LLP, where he defends coverage and bad-faith disputes, catastrophic injury claims, complex litigation, and business litigation. He has been a mediator since 1989. The opinions expressed are those of the author.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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