The longer a mediation lasts the greater the likelihood that it will be successful. This conclusion is anecdotal, but based upon long experience. A mediation is successful even when the case does not settle if substantial progress is made that will keep the door open to future negotiations. It takes time to accomplish this result. This does not mean that the mediator[i] or counsel should intentionally drag out negotiations unnecessarily. This is counterproductive. The mediator must be given the opportunity to effectively manage the time allotted. Knowing when to speed up or slow down the process. And the parties must understand that settlements cannot be achieved quickly.
In negotiations counsel and their clients must realize that patience is a virtue. All too often they become easily frustrated with a slow pace and wish to rush if not abandon the process prematurely. Small incremental moves especially during the early stages of negotiations are interpreted as an indication that the case will not settle. It takes time for the mediator to give each side an opportunity to be heard; carefully filter communications while ensuring confidentiality; and relay demands and offers accurately and diplomatically. If you are making progress no matter how limited, you should continue. In almost every mediation the parties are very far apart at the outset; otherwise they would not need a mediator to help them resolve their differences. High demands, low offers and unreasonable terms are put forth. These starting points bear little resemblance to the final negotiated settlement. Why does the process take so much time? There are several reasons that are important to understand.
Acceptance of Compromise
The parties come to mediation with great expectations and a firm view of what terms they will agree to or not. They are often myopic in their evaluation of the strengths and weaknesses of their case. It is often a “my way or the highway” mindset at the outset. From the neutral's perspective the parties rarely have an objective view of their case. Further, even though discovery in a matter in suit may be complete, they do not fully understand the other sides position.
The mediator has read the mediation submissions and listened to each parties' arguments during the joint session. However ample time must be taken by the mediator to speak face to face with counsel and their client during the breakout sessions. To obtain a true understanding of a party's position is a slow process. It takes time to give each side the opportunity to be heard and for the mediator to process information that has not been previously revealed for tactical purposes. This dialogue assists the mediator in gathering information which aids in the facilitation of negotiations and assists in evaluating and making recommendations as to compromises that will lead to settlement. This also allows the mediator the time to reduce expectations which will lead to concessions. For a party to understand that they are not going to get what they want takes time. They cannot be rushed into changing their positions rapidly. If they feel like this is happening, they will become immovable which is intertwined with the next factor.
Another reason a mediation will proceed slowly is due to the concept of face. As Maya Angelou said, “I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”
In Eastern cultures face means having the respect of others. Face involves honor, prestige and dignity. If you lose face you appear weak and feel that you have lost the esteem that others hold you in. In Western cultures you rarely hear anyone talk about losing face. The mere recognition of this concept is seen as a sign of weakness. In Eastern cultures you do not want to cause someone else to lose face. It hinders negotiations. In Western culture brutal honesty combined with aggressiveness are designed to intimidate and make the other side feel weak. This behavior is offensive to the person on the receiving end and does not help the process. They will dig in and become inflexible. The goal is to get what you want without confrontation. How do you do that?
Allowing a party to save face is directly related to the acceptance of compromise. No one wants to feel like they are being bullied into making concessions. It will cause a client or party to walk away from the bargaining table. To allow people to change their position without looking weak takes time. This leads to the acceptance of concessions without feeling like you have the lost the respect of not only opposing counsel but the mediator. The loss of face will doom the negotiation process. “They don't want a war, but they don't want to lose face.”[ii] Each side must blink. How a party feels about that, may lead to success or a war, which in our world is a trial.
The Best Bargain
Early on in my career I learned that if a settlement is achieved quickly, both sides will believe that they did not get the best deal possible. One side believes that they left money or concessions on the table, the other side believes they gave up too much. Attorneys want to achieve the best result for their client. There is always the fear on both sides that they will get “taken”. Hence negotiations often proceed at a snail's pace out of an abundance of caution. Often one side will start to become frustrated because of the slow pace and small incremental movements. They have a “let's get to it” attitude and if that doesn't happen, they want to abandon ship. It is part of the mediator's job to keep the parties at the table and negotiating regardless of the pace. A neutral's ability to appease the more anxious and restless side is often the difference between a settlement or not.
My philosophy is embodied in a statement made by counsel at a very slow difficult mediation. A series of initial small incremental offers were made by the defendants against what they deemed was an outrageous demand by the plaintiff. They became increasingly agitated as plaintiff's counsel showed little sign of bending. Instinctively I decided to bring the parties back together, as I often do, if I sense we are coming to an impasse. The plaintiff's attorney was an old-timer with a great sense of humor. Upon re-convening he announced that he only had one thing to say and wished to speak first. He said the following in a loud serious voice “your offers are completely insulting, and I promise you one thing, if you keep insulting me, we will definitely get this case settled”. And yes, the insults continued for several hours and the case was settled. The point being, each side needed to work slowly to ensure that they were doing the best they could for their client. The accumulation of small moves over time led to progress, engendered trust and led to a settlement that everyone could live with. Again, this takes time.
Testing the Word “No”
The word “no” can have many meanings and uses. Sometimes no means no, sometimes no means maybe and sometimes no means yes. No, we will not do that. No, we will not pay that. No, they can go to hell. From experience I never accept the fact that no means no. A no must be tested. Sometimes a no is not absolute and merely a tactic to get further concessions from the other side. A no slowly becomes a maybe and then a yes. However, typically what happens is that the party who is being told no becomes angry and wants to walk away from the table. Here is where the saying do not take no for an answer becomes relevant. When confronted by a no, that does not mean you end the mediation. Again, it takes time to determine if it is an absolute or a ploy. Usually towards the end of negotiations a no becomes an absolute or very close thereto.
An experienced mediator will take the time to go back and forth as many times as necessary and make the ask even in the face of an absolute no. If a party knows a mediator has done everything possible to move the other party, they will be satisfied and usually agree to settle. At the recommendation of the mediator the party saying no will often make some minor final concession to allow the party making the ask to save face. The goal is for each party to believe that they have done everything in their power to get the best deal possible and each side has reached the end of the road in terms of acceptance of compromise. It all comes together. Acceptance of compromise, saving face, getting the best deal possible, and testing the word no. A complex process fraught with human emotion that takes time. Often the very end of the mediation can be the most frustrating as the smallest details are negotiated out. After many hours, people are inclined to quit. But if they hang in, the case will usually settle.
So be patient, understand what is going on and do not give up until you know there is absolutely no way forward. If you must quit take stock of your progress, leave on good terms with the door open to further negotiations. The four factors above may need some more time to play out before you reach a settlement.