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ADR: Keep Them Talking

By Kari Santos | Aug. 2, 2012

Expert Advice

Aug. 2, 2012

ADR: Keep Them Talking

When mediation becomes difficult and the parties are deadlocked, maybe what they need to do is keep talking.

All too often, lawyers assume that lawsuits are just about money. But when a legal dispute really is just about money, usually it gets resolved through business-like negotiations outside of the legal system. For cases that actually reach litigation, it's likely that far more

is involved, and barriers to settlement usually exceed the narrow consideration of dollars and cents. Lawyers and mediators who don't appreciate this distinction are missing a very good chance to forge a constructive settlement.

By the time the parties reach mediation, it's likely they are solidly entrenched in their respective positions. As battling adversaries, they won't be able to hear - much less process - what their opponents have to say. In a very real sense, the parties may be speaking different languages, and so it is the mediator's task to act as an interpreter, deciphering the contested perspectives in a manner that opposing sides can absorb and understand.

Hidden Interests
Successful mediation often depends on unmasking the undisclosed interests that underlie each side's demands. Resourceful mediators may use a probative technique, asking the parties questions about what a particular result would mean to them. This can help everyone to move beyond the stated positions that block productive negotiations.

Lines of Inquiry
But a mediator must be more than a conduit for offers and counteroffers between the parties. While preserving each party's dignity, the mediator must pose questions that encourage the participants to reconsider core elements of their respective claims. This process may reveal considerations above and beyond financial concerns that may move the parties toward a more integrated resolution.

Assessing the Impact
What might happen if the case goes to trial? That's an important question to keep in mind during mediation. Outside factors may influence the outcome, including recent verdicts, the credibility of witnesses, and even the fact finder's mood that day. Consider also whether any important parties or opportunities have been neglected in the heat of the dispute.

Realistically, there are times when the most contentious issue in mediation is indeed the amount of money the defendant will pay and the plaintiff will accept. Nevertheless, the exercise is not just about numbers. A mediator who helps the parties explore the possible range of monetary awards, the probability of obtaining such an award at trial, the time and expense required to arrive at such an outcome, and the present value of money can assist them in moving beyond an impasse.

The Value of Resolution Now
Settlement isn't always possible, no matter what strategies a neutral deploys. But when impasse seems at hand, it can be helpful to weigh the benefits of a mediated resolution today against the prospect of leaving the dispute to fester pending resolution on another day, in another forum. Parties should be reminded that when they agree on a settlement, they jointly control the outcome. In contrast, placing their case in the hands of a third-party decision maker - such as a judge, jury, or arbitrator - surrenders the ability to dictate the resolution of their dispute.

Ultimately, however, even the most skillful mediator may not be able to break a true impasse. Even so, the key to an effective mediation is for the neutral to help the parties weigh their underlying interests against what is at risk. Then each side can make an informed decision to their best advantage, rather than remaining mired in their stated position.

Impasse in mediation is less an obstacle than a challenge to be overcome. When adversaries are intransigent, remember that as long as the parties are talking, resolution is possible.

Laura Kass-Moreno is a San Diego mediator with expertise in matters of employment, real property/HOA matters, intellectual property, and insurance law.


Kari Santos

Daily Journal Staff Writer

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