As published in The Chicago Daily Law Bulletin.
The other day, Holly and I had our boat out in a pea-soup thick fog. We couldn’t see one inch past the bow. As we “discussed” the situation, we kept looking back at our wake— the only thing visible outside the boat. From the seemingly straight lines of the wake, we felt confident we were going dead ahead. Of course, it turned out we were going around in circles.
The other day, Holly and I had our boat out in a pea-soup thick fog. We couldn’t see one inch past the bow. As we “discussed” the situation, we kept looking back at our wake— the only thing visible outside the boat. From the seemingly straight lines of the wake, we felt confident we were going dead ahead. Of course, it turned out we were going around in circles.
That little adventure reminds me of one of the biggest problems in mediation: lawyers and litigants so focused on something past they can only look backward. Not only can’t you see where you’re heading, you can’t see obstacles or how to get by them. You’re in a fog.
Those fixations arise before and even during mediation.
For litigants, it’s often something collateral to the actual claim. The sticking point could be some unforgivable rudeness or perceived disrespect accompanying the occurrence. Some behavior at the scene of an accident. Some thoughtless remark by a doctor or nurse. Some course of conduct by a neighbor or partner. A failure to admit any wrongdoing. Something perceived as disregard for the other’s rights and feelings.
The offense might well be real. It might even be relevant. But real or not, relevant or not, those hard feelings blind parties to what’s ahead, pushing resolution further out of reach.
Fixating on past events is by no means limited to litigants. Zealous lawyers are frequently embroiled in their own personal fights. A nasty objection at a deposition. An unmerited motion. A hyper-technical denial. Some accusation of unprofessionalism. Threatened contempt or disciplinary complaint. Abrupt reversal on an agreement. Anything that implies deceit.
Or, it could be the opposite. The roadblock to moving forward could be a stroke of good fortune. Maybe it was a fabulous verdict in the first trial but now, after appeal, the case has to be tried again. Maybe there was a big win on a motion, a killer admission at deposition, or a foiled spoliation. When you’re still savoring a really sweet moment, it’s awfully tough to see upcoming hazards.
Cases come to mediation with these hang-ups. The parties or lawyers are just stuck and can’t move forward. Stripping out the emotions, most claims are very solvable. A mediators’ skill and art involves knowing when to let litigants and lawyers vent, how to get them re-focused, and how to use humor and perspective to help them achieve their most critical needs and wants.
Even during the actual mediation, parties get easily blown off course and lose their way by another sides’ negotiating tactic just moments before.
Every mediator has heard, “Their demand/offer was ridiculous. I will not respond to that.”
Or,” They’re the ones who asked for this mediation. They have to be the ones to move.”
Or, “We’ve moved 18% off our initial number, but they’ve only moved 7% off theirs so we can’t respond.”
Or, “If that’s what they said, they can’t possibly be here in good faith.”
Or, “We told them not to come if they were going to take that position.”
Or, “if they had really wanted to resolve this, they would have brought in their client/adjuster.”
Or, “They never told us they needed confidentiality. Forget it now.”
Or, “What? They already agreed to that! We’re not resolving this.”
Or, “They said they want to leave? Let’s go.”
It’s very easy to get distracted by the other sides’ behavior. Just looking backward, the parties aren’t watching where they are going. Cases settle every day despite statements like the above. It just requires refocus. Just as the stockbrokers say, percentage of past movement is not necessarily indicative of future performance. Keep working with a clear vision to get to your destination.
Sometimes I look back at my offer/demand ladders and wonder what one side was thinking in the steps they took to get where they ended up. It can be obvious that moves were emotional knee-jerk reactions as opposed to constructive goal-oriented action.
Sometimes the problem stems from not starting with a clear goal or plan. As with everything else in litigation, preparation is key to getting the best result. Parties need to go in with a map of where they are trying to go and how they plan to get there.
When I work with parties and lawyers to try to help them focus on where they want to go, I tell them frankly I’ve often made their very same mistake of getting stuck in the past just to end up regretting it. I definitely know that it’s really hard work and I know that people may need time, space and some gentle coaching to do it.
Big, all-consuming emotional issues out of the far or recent past have to be recognized and dealt with. Either those issues need to be put out on the table and aired out or they need to be packed away and set aside to move on.
Next time you’re stuck in a mediation, just stop for a moment and take a GPS reading of exactly where you are and exactly where you want to go. Forget what’s behind you. That’s how Holly and I made it home.
Those fixations arise before and even during mediation.
For litigants, it’s often something collateral to the actual claim. The sticking point could be some unforgivable rudeness or perceived disrespect accompanying the occurrence. Some behavior at the scene of an accident. Some thoughtless remark by a doctor or nurse. Some course of conduct by a neighbor or partner. A failure to admit any wrongdoing. Something perceived as disregard for the other’s rights and feelings.
The offense might well be real. It might even be relevant. But real or not, relevant or not, those hard feelings blind parties to what’s ahead, pushing resolution further out of reach.
Fixating on past events is by no means limited to litigants. Zealous lawyers are frequently embroiled in their own personal fights. A nasty objection at a deposition. An unmerited motion. A hyper-technical denial. Some accusation of unprofessionalism. Threatened contempt or disciplinary complaint. Abrupt reversal on an agreement. Anything that implies deceit.
Or, it could be the opposite. The roadblock to moving forward could be a stroke of good fortune. Maybe it was a fabulous verdict in the first trial but now, after appeal, the case has to be tried again. Maybe there was a big win on a motion, a killer admission at deposition, or a foiled spoliation. When you’re still savoring a really sweet moment, it’s awfully tough to see upcoming hazards.
Cases come to mediation with these hang-ups. The parties or lawyers are just stuck and can’t move forward. Stripping out the emotions, most claims are very solvable. A mediators’ skill and art involves knowing when to let litigants and lawyers vent, how to get them re-focused, and how to use humor and perspective to help them achieve their most critical needs and wants.
Even during the actual mediation, parties get easily blown off course and lose their way by another sides’ negotiating tactic just moments before.
Every mediator has heard, “Their demand/offer was ridiculous. I will not respond to that.”
Or,” They’re the ones who asked for this mediation. They have to be the ones to move.”
Or, “We’ve moved 18% off our initial number, but they’ve only moved 7% off theirs so we can’t respond.”
Or, “If that’s what they said, they can’t possibly be here in good faith.”
Or, “We told them not to come if they were going to take that position.”
Or, “if they had really wanted to resolve this, they would have brought in their client/adjuster.”
Or, “They never told us they needed confidentiality. Forget it now.”
Or, “What? They already agreed to that! We’re not resolving this.”
Or, “They said they want to leave? Let’s go.”
It’s very easy to get distracted by the other sides’ behavior. Just looking backward, the parties aren’t watching where they are going. Cases settle every day despite statements like the above. It just requires refocus. Just as the stockbrokers say, percentage of past movement is not necessarily indicative of future performance. Keep working with a clear vision to get to your destination.
Sometimes I look back at my offer/demand ladders and wonder what one side was thinking in the steps they took to get where they ended up. It can be obvious that moves were emotional knee-jerk reactions as opposed to constructive goal-oriented action.
Sometimes the problem stems from not starting with a clear goal or plan. As with everything else in litigation, preparation is key to getting the best result. Parties need to go in with a map of where they are trying to go and how they plan to get there.
When I work with parties and lawyers to try to help them focus on where they want to go, I tell them frankly I’ve often made their very same mistake of getting stuck in the past just to end up regretting it. I definitely know that it’s really hard work and I know that people may need time, space and some gentle coaching to do it.
Big, all-consuming emotional issues out of the far or recent past have to be recognized and dealt with. Either those issues need to be put out on the table and aired out or they need to be packed away and set aside to move on.
Next time you’re stuck in a mediation, just stop for a moment and take a GPS reading of exactly where you are and exactly where you want to go. Forget what’s behind you. That’s how Holly and I made it home.