The details are not important. There was an immediate fight-or-flight response to the first offer. It was taken as insultingly low, and an old wound was re-opened by a counter that precipitated fury. I’ve seen virtually the same scenario in joint sessions with lawyers, where the clients’ defensive reaction is to fight, or just flee the building. These are the un-thinking immediate responses that occur in mediation when something touches a nerve or core value. For some reason, nobody had anticipated this through pre-mediation preparation.
Such mediations are all amygdala driven and they often fail. Doesn’t anyone see this coming? About as far as some attorneys seem to get is to insist on separate rooms for tense clients. The calming demeanor of the mediator can sometimes help save the day, but pre-mediation client preparation can add a great deal more.
Less frequently, I’ve seen parties in mediation who just have no concept of negotiation (period). I’ve watched the hapless attorney explain that the client’s proposed offer won’t buy them anything because the other side is virtually certain to win that point in court, and everyone else knows that. The parental responsibilities expert saw nothing diagnosable with the person’s mental health, but something was missing. Perhaps it was just the distress of the day, yet the concept of negotiating away something of value to get something precious in return was a seed left unplanted, and negotiations went nowhere except toward trial.
Then there are the clients whose belief’s are absolutely factual. They have no concept that the facts in a legal case are what the judge believes, and not what the client knows to be true. The facts in these cases are always different in the next room. It comes as a shock that there will be no separate rooms at trial, and the judge will actually want proof if she is to believe anything!
These situations creep up on the most gifted attorneys. I have recently taken a two-day basic training in Conflict Coaching, and that has set me thinking about how much more could be done to help mediation clients prepare for the difficult conversations that they will have to have in reaching a negotiated settlement. Simply coming in with clarity about what is important would help in many cases.
The problem for the mediator is preserving neutrality. It is the rare family law case where there are the resources to hold significant pre-mediation meetings. A mediator cannot champion the individual clients the way that a coach or counselor can, and so it helps to consider coaching when the resources are there.
Lawyers can do some of this, and some do it naturally. Figuring out how to cope with their emotional hair-triggers will help some clients. Broaching the topic of uncertainty in court, and bargaining in the shadow of the law could all be usefully discussed before the mediation begins. Scheduling the mediation after a cooling off period is a good idea, when one party or the other has just had a bad experience from a judicial officer, CFI, PRE or other report. Even the validated party needs the other side to come into the negotiation mentally able to make a deal.
Drawing upon the client’s expertise about how the other party will react, can help plan how to get a message across. Its not for every client, but getting the client to role play the opposing party may bring out enough detail to help counsel and client effectively put their points across without precipitating a mediation-terminating melt-down that send’s everyone to court.
For un-represented parties, who have no support, mediation is tough, no matter how desperate they are to have the case settled and over. You can see they want settlement, yet when the emotions run high they can find themselves on autopilot, frightened, and out to sea, not waving but drowning.