Mediation in Jewish Midrash – The Mediator as Peacemaker

A friend of mine just called to my attention a wonderful “midrash” – that is, a form of rabbinical storytelling that explores ethics and values in biblical texts — concerning mediation:

“… Alexander of Macedon paid a visit to a king at the end of the world, who showed him much silver and gold. Alexander said, ‘I have not come to see your silver and gold — it is your legal customs I have come to observe.’

“As Alexander and the king were engaged in discourse, two men came before the king for judgment. One said: ‘My lord king, I bought a ruin from this man, and while digging in it, I found a treasure; so I said to him, “Take your treasure. I bought a ruin — I did not buy a treasure.”

“The other replied: ‘Just as you are afraid of the punishment for robbery, so am I afraid of it. The fact is, I sold you the ruin and everything in it — from the depths of the earth to the heights of heaven.’

“The king addressed one of them and asked him, ‘Have you a son?’ He replied, ‘Yes.’ The king asked the other, ‘Have you a daughter?’ He replied, ‘Yes.’

“‘Go then,’ said the king, ‘wed the one to the other, and let the two make use of the treasure.’

“Alexander showed his amazement. The king asked, ‘Why are you amazed? Have I not judged well?’ Alexander: ‘Yes, well.’ The king asked, ‘If such a case had come up before you in your country, how would you have handled it?’ Alexander replied, ‘I would have chopped off the head of the one and the head of the other, and the treasure would have gone to the king’s house.’

“The king: ‘Does the sun shine where you dwell?” Alexander: ‘Yes.’ ‘Does rain come down upon you?’ Alexander: ‘Yes.’ The king: ‘There are small cattle in your country, are there not?’ Alexander: ‘Yes.’

The king: ‘May the breath of life in such a man as you be blasted out! It is only for the sake of the small cattle that the sun still shines for you, that the rain still comes down upon you.’”

[Pesikta de-Rav Kahana 9:1]

There are often a variety of “solutions” to every problem and every dispute. As “peacemakers” we should use our judgment wisely, guiding the parties to choose a solution that will serve everyone’s interest and ultimately promote, not just a resolution, but also the most peace.

Glenn M. Gottlieb is an Attorney-Mediator with Gottlieb Mediation practicing in Los Angeles, CA. More information is available on its website at: http://www.gottliebmediation.com. Mr. Gottlieb can be reached at:  glenn@gottliebmediation.com.

© Glenn M. Gottlieb. All rights reserved.

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Use of Triage in Mediation

Notes from the Front Line

Use of Triage in Mediation

I have recently conducted several complex mediation sessions involving multiple parties and multiple issues, where I found the use of a form of “triage” highly useful. Triage is more often associated with medical practice in disaster or battlefield scenarios, where there are dozens of injured and/or wounded, and there is a need to organize the response due to limited resources. Those needing aid are divided into groups, so those needing immediate attention can be identified quickly, and the maximum benefit can be conferred on the maximum number of victims.

In less emergent situations, the practice might be termed simply as “setting priorities.” I prefer the idea of triage, and its implication of grouping similarly-situated parties and/or issues, rather than making a detailed, item-by-item prioritized list. Whatever term is used, when faced with a complex, multi-party or multi-issue mediation, a thoughtful, pre-mediation analysis of how to proceed can be highly beneficial.

One recent multi-party mediation I convened involved a real estate development deal gone bad. The main lawsuit involved one of the sub-contractors suing for payment for materials delivered to the project. As is often the case in these cases, several other parties had been brought in besides plaintiff’s immediate contracting party (who happened to be one of the sub-contractors); other defendants included the general contractor, property owner/developer, and lender.

My recent practice in most cases is to meet separately with the parties first, and only then (and even then, only if warranted) to convene a joint session. I first decided not to require all the parties to show up at the same time, and thereby avoided forcing several of them to wait while I met in succession with each of the others. I set up a staggered starting time for the mediation, and had each of the parties show up in half-hour intervals.

While standard mediation theory has it that the later parties might fear an imbalance or adverse prejudice from my having met with the earlier parties and heard their story first, my experience has been otherwise. I find most lawyers and their clients in general civil cases prefer to meet individually with me to discuss their cases, and because they trust my neutrality, they don’t mind being heard later in the sequence. In my case, the parties were grateful not to have to sit around for the first few hours, while I worked my way around to each of the other parties.

After meeting with all parties, it was clear the “guts” of the case had to do with the relationship of the two sub-contractors and the owner/developer. Nevertheless, I decided to deal with the relatively minor issue of the lender first. That way, if I could settle those issues, the lender’s representative and its counsel would not have to stay throughout the longer mediation of the main issues. The strategy proved to be effective, and lender and its counsel were particularly grateful upon leaving “early” that I was able to minimize their legal expense, and the use of their time that day.

I used the concept of triage in another complex, multi-issue case I handled recently. There was one, main issue involved in the case and several minor issues. While everyone was initially focused heavily on the major issue, I convinced the parties to tackle and attempt to resolve the minor issues first. This helped build confidence and trust among the parties, a positive momentum in settling issues, and acted as a foundation for settling the more difficult, major issue that was the primary subject of the litigation.

This can be particularly true in a divorce mediation, or any other case when there is “high conflict” or a lot of emotion on one or both sides. By starting with less difficult issues that can be more easily resolved, tensions and emotions can be lowered, and the parties can start to build some trust, if not in each other, at least in the process! You can then build on that foundation and create some momentum toward achieving an overall settlement. In a divorce mediation, where the parties may have to continue to deal with each other even after the initial “settlement” is concluded, how the early stages of the mediation are approached can be crucial to setting the tone for making progress later.

That is not to say that in another type of case or another fact pattern, it might be a better to consider resolving the big, major issue first. The hope might be that once the main issue is resolved, the other, more minor issues would then fall into place more quickly and easily. As with most things in the mediator’s “toolbox,” there is almost never one answer that fits every situation.

The point is that, when faced with a complex case, whether due to multiple parties, multiple issues or otherwise, it is wise to think about triage, or priority setting, before just jumping into the water and starting to splash around. A thoughtful, strategic decision how to approach the mediation can be critical in the early stages. The choices that are made can prove to be pivotal as to whether a case settles or not.

Glenn M. Gottlieb is an Attorney-Mediator with Gottlieb Mediation practicing in Los Angeles, CA. More information is available on its website at: http://www.gottliebmediation.com. Mr. Gottlieb can be reached at:  glenn@gottliebmediation.com.

© Glenn M. Gottlieb. All rights reserved.

Use of Web Technology for Long Distance Mediation

Notes from the Front Line

Use of Web Technology for Long Distance Mediation

I have been engaged in a long distance divorce mediation recently – the wife is currently residing in another country with the children, and the husband is here in the U.S. The challenges, of course, have been to bring the parties together for the mediation sessions, along with being able to share information on a real-time basis to facilitate the negotiations.

Dealing with Time Zone Differences
In terms of bringing the parties together at all, the time change has been enough of a challenge. In this case, the country in which the wife is located (Australia) is across the International Date Line, so she is already into the next day when we meet. With that much of a difference in time zones, and with two working spouses, finding matching times led to difficult negotiations at the outset! We found the most successful time during weekdays has been to convene during our afternoon here in the U.S., when it is early morning there in Australia. Saturday evenings also seem to be a good choice, when it is the middle of the day on Sunday there.

Using Skype for Video Conferences
To facilitate joint sessions, with the help of Skype and my webcam we have been able to conduct our mediation sessions via video teleconference, so that all the parties can see each other. The call clarity is quite good, and although the video is sometimes a little out of phase or jerky, and even freezes occasionally, in general it works pretty well. The best thing, of course, is that it is free!

We have found two small inconveniences – one is that the webcam does not have a very wide “field of vision.” If one of us sits in the foreground, and the other in the background (for example, on the other side of my desk), the one farther away from the camera really cannot be seen very well at all. So the husband and I have to sit fairly close to each other to both be seen on camera. At this point, Skype does not support three-way video conferences (although several parties may have a teleconference with voice only).

The other is that the microphone built-in to the webcam does not have enough fidelity to capture both of our voices very well. So we are forced to use a separate mini-microphone and pass it back and forth between each other, depending on who is speaking.

Using Google Docs for Visual Aids
We also found that trying to keep a flip chart visible and readable in camera range was not really practical. So we have been using googledocs (http://docs.google.com) to keep track of issues and resolutions. Googledocs really is a marvelous tool. Again, signing up for an account is free. Once you have an account, you can upload a word processing document or spreadsheet, and it will be converted into googledocs format. You can then allow others to view or edit the document over the internet by sending them a link to their e-mail address.

The fabulous thing about editing a googledocs document is that it updates itself in real time while it is on everyone’s screen. So if text or data is inserted into the document by one party, it shows up after only a few seconds’ delay on everyone else’s screen who is viewing the document. Agreements on particular issues can immediately be recorded so that everyone has the ability to keep it in front of them during the negotiation.

We found that by minimizing the video image into one corner of the computer screen – and by using the zoom feature of the spreadsheet we were using to compress the spreadsheet we were working on – we were able to both see each other and the data we were working on at the same time.

Needless to say, even the best of technology cannot substitute for a face-to-face meeting. But when that is not practical or feasible, the tools available can at least provide “the next best thing to being there”!

Glenn M. Gottlieb is an Attorney-Mediator with Gottlieb Mediation practicing in Los Angeles, CA. More information is available on its website at: http://www.gottliebmediation.com. Mr. Gottlieb can be reached at: glenn@gottliebmediation.com.

© Glenn M. Gottlieb. All rights reserved.

“Waiting for No” and Other Ineffective Bargaining Strategies

Notes from the Front Line

“Waiting for No” and Other Ineffective Bargaining Strategies

One of the most valuable roles an effective mediator can play is that of “educator.” Parties caught up in a dispute – hardened in their adversarial positions – naturally tend to retreat to “safe” ideas and  “tried and true” strategies. Unfortunately, to paraphrase Will Rogers, “It isn’t what we don’t know that gets us in trouble; it’s what we know for sure that just ain’t so!”

I often make an effort to educate parties involved in a distributive negotiation (the so-called, “zero sum game”) that, contrary to popular myth, negotiated deals don’t resolve at the mid-point of any set of the parties’ successive offers. They tend to resolve toward the mid-point of the parties’ first two reasonable offers.

For this purpose, “reasonableness” must be viewed from the eyes of the opponent.  As I am fond of reminding parties, “You have to hang the meat where the bear can smell it!”

Recently I conducted a mediation with a seriously injured plaintiff whose opponent’s liability would not be easy to establish. Plaintiff’s first offer – in the mid-$200,000 range – was met by the defendant’s “nuisance” offer of $10,000. Plaintiff’s counsel readily admitted that her offer was too high, even if the defendant gave full value to her client’s claimed injuries. She confided in me that she simply didn’t want to be the first one to move toward a realistic number. On the other side, I already knew that the defense was willing to go as high as $85,000.

After a couple of rounds of bargaining, the plaintiff had come down only marginally to the low-$200,000 range, while defendant had edged up to only $20,000– with neither breaking into the “reasonable” range of the other party. To attempt to move things forward before impasse was reached, I walked both sides (in our separate caucuses) through a “decision-tree” analysis, assigning values and probabilities to the various outcomes.

On the plaintiff’s side, we agreed that plaintiff’s injuries might be more or less in the low to mid-$100,000 range.  Discounting for the less-than-slam-dunk liability case, we settled on a reasonable value in the high-five to low-six figures.

Over the next few rounds of bargaining, I persistently, but diplomatically, urged  plaintiff’s counsel to “anchor” the bargaining range by making the first reasonable demand. Nevertheless, plaintiff stubbornly continued to answer defendant’s “unreasonably” low offers with her own unreasonably high demands. Defendant, similarly, refused to put meaningful dollars on the table until plaintiff became “more realistic” about the value of the case, reasoning that he didn’t have as far to move before he started “running out of room” with his authority.

It didn’t take too long for me to realize that what plaintiff’s counsel was really waiting for was the defense to “just say no.” As long as defendant was increasing his offers, no matter how small the increment, she would stay at the table. She appeared to believe that the defendant would ultimately go to the limit of his authority, regardless of her own bargaining moves, and appeared prepared to simply wait until the defense ran out of authority and put its last dollar on the table.

Though I rarely encourage the giving of an ultimatum, I told the defense that plaintiff might simply be waiting for their “final” offer. Despite the considerable jump it would take to test my theory, defendant was willing to gamble on my intuition and make a “take it or leave it” offer of $45,000. Sure enough, plaintiff’s counsel quickly caved, and accepted what she believed to be the defense’s “bottom line.”

By failing to move into the reasonable range, too many negotiators leave a substantial amount of money on the table – in this case, nearly half of what was admittedly available, and perhaps even more than that. I have run into this “Wait for No” strategy quite a number of times. In virtually every instance, I felt a more effective strategy – bargaining in the zone of reason – would have yielded a considerably better result, as it would have tested the other side’s true limits.

These individuals share a common misapprehension: that hard bargaining means starting the negotiation at an excessively high or low number and staying there until the other side is forced to enter the range of reason. This kind of bargaining, however, can be counterproductive, as it cedes the advantage to the other party to set the bargaining range at its end of the scale. If, for example, plaintiff in my example had made an offer of $100,000, still above defendant’s claimed limit of authority but within the policy limit, defendant would have been virtually constrained to put considerably more on the table.

Once again, practical experience confirms the fallacy of the “never make the first offer” folklore that remains so entrenched in some legal circles. The reality is that the “winner” – the one who will walk away with the greatest share of the bargaining surplus – will be the one who creates a “realistic” bargaining range toward his or her end of the scale.

It may sound self-serving, but I strongly recommend listening to your mediator, and letting him or her do their job! In doing so, remember to check your pre-conceptions at negotiation’s door. Otherwise, you take the chance that what will get you in trouble is “what you know for sure that just ain’t so!”

Glenn M. Gottlieb is an Attorney-Mediator with Gottlieb Mediation practicing in Los Angeles, CA. More information is available on his website: http://www.gottliebmediation.com. He can be reached at: glenn@gottliebmediation.com.

© Glenn M. Gottlieb. All rights reserved.