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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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