Most mediations have a component of caucusing, where the mediator and one side will sit down together to discuss the case. Some parties and some mediators will negotiate in caucus during the entire mediation.
I’m going to suggest that you could be missing the boat by caucusing. We could start the laundry posts I've recently completed on persuasion:
1. Appreciation
2. Affiliation
3. Storytelling
4. Respect
5. Likeability
6. Out-Listening
It’s very difficult to use these persuasive negotiation skills to your client’s advantage when you are sitting in a room with your client and not sitting in a room with the other side. Not to mention the fact that you’ve ceded most of your power to the mediator, who is conducting the shuttle diplomacy. (Admit it. Don’t you cringe a little bit for the legal profession when you see a lawyer for the other side sitting reading a newspaper during the caucus phase of a mediation? Wouldn’t you at least want to keep your head in the game?)
In addition to not using the skills above, you and your client are missing out on a crucial part of any negotiation: information gathering. When the other side is doing the talking, you can look for and listen for nonverbal clues and verbal leaks. Mediators rarely leak like the other side because they are neutral and not emotionally attached to the information.
The challenge is in the joint session. Hone your persuasion and negotiation skills and rise to the challenge. Try staying in the joint session as long as possible. Impress your client by your skill at negotiation, not your small talk in caucus while the mediator is talking to the other side.
I’m going to suggest that you could be missing the boat by caucusing. We could start the laundry posts I've recently completed on persuasion:
1. Appreciation
2. Affiliation
3. Storytelling
4. Respect
5. Likeability
6. Out-Listening
It’s very difficult to use these persuasive negotiation skills to your client’s advantage when you are sitting in a room with your client and not sitting in a room with the other side. Not to mention the fact that you’ve ceded most of your power to the mediator, who is conducting the shuttle diplomacy. (Admit it. Don’t you cringe a little bit for the legal profession when you see a lawyer for the other side sitting reading a newspaper during the caucus phase of a mediation? Wouldn’t you at least want to keep your head in the game?)
In addition to not using the skills above, you and your client are missing out on a crucial part of any negotiation: information gathering. When the other side is doing the talking, you can look for and listen for nonverbal clues and verbal leaks. Mediators rarely leak like the other side because they are neutral and not emotionally attached to the information.
The challenge is in the joint session. Hone your persuasion and negotiation skills and rise to the challenge. Try staying in the joint session as long as possible. Impress your client by your skill at negotiation, not your small talk in caucus while the mediator is talking to the other side.
2 comments:
So interesting, this art of helping parties resolve conflict. I find persuasive argumentation the least effective joint session activity and small talk the most effective. I find that anger and fear are more responsible for impasse than a failure to get the number "right." The "right" number is the number that feels fair under the circumstances. The number that feels like rough justice. It's difficult to continue to demonize the other side when talking about the platform diving at the Olympics the day before; sharing the fact that your neighbor's son was on Phelps' winning relay team; the claims examiner finally asking the plaintiff if she can take a closer look at the scar arising from the alleged malpractice. The examiner later saying, directly to the plaintiff, "I see it now; I acknowledge your injury; I'd like to increase our offer by X." The defense not wanting to feel 'taken' or shaken down or robbed. The plaintiff not wanting to feel disrespected or ignored. The reason it's difficult to settle, for instance, P.I. cases, is because there's no metric against which to measure the damage. Everyone SAYS that the money is a substitute for that which cannot be restored but hardly ANYONE actually BELIEVES what they say. It's a substitute for acknowledgement, for disrespect, for relief from suffering, for a sense of being wronged. Yet when I tell the defense that they'll pay LESS if they provide more of what the money is meant to be a substitute for -- if they humanize themselves to the plaintiff and the plaintiff humanizes himself to the defense -- that impasse will dissolve and the case will settle for less than if numbers are simply being exchanged in separate caucus. We ARE negotiating, of course, but we forget WHAT we're negotiating -- injustice. Even a MONKEY will refuse to take "money" (cucumbers/grapes) if it feels like unfair recompense for the "work" researchers ask the monkey to do for the reward. Money is a substitute for resolution, for forgiveness, for apology, for fellow feeling, for happiness. It isn't the thing itself. Sorry for the rant, but I've been in a joint session ranting mood lately -- encouraging it and getting so much push back and yet managing somehow to finally get the parties together and settling the case as a result. Just the other day I said to my litigants -- "you're paying me for my dispute resolution skills -- wouldn't you like to see me use them in your favor?"
Hi, Vickie!
Feel free to come by and "rant" anytime! There is so much truth to what you say.
Best,
Nancy
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