Friday, June 22

The legitimate use of fear to encourage settlement

Do some mediators scaremonger the parties at mediation in the name of reality testing?

Maybe I did yesterday... or did I just disguise it as a legitimate neutral intervention and label it;

1. BATNA, MLATNA, WATNA
2. Shaming ('well, 90% of people manage to work these things through at mediation...are you really in the 10%?)
3. Becoming evaluative
4. Trivialising differences ('will you really spend the next two years at war for the amount of difference now between you after a day in mediation?')
5. Creating doubt in every one's minds - 'well, I know how that Judge approaches these kinds of cases...'
6. Threatening parties with what lies ahead of them (costs/2am wake ups)
7. RAA (Robust Risk Analysis)

Where's the line/What are the ethics of this?

2 comments:

Christopher Annunziata said...

Excellent question, Geoff. I'm merely a fledgling mediator, but a veteran of numerous mediations as an advocate. I've heard most of the phrases/questions you have listed some out of the mouths of mediators at one time or another and cannot think of a time when they weren't welcome. In fact, as I've been spreading the word among former colleagues about my new practice, I've received lots of unsolicited advice. What I hear most often is "Please don't be one of those mediators that simply moves between rooms and says 'They're at $50k, what are you going to counter with?' Do something to help the parties along."

To answer your question, for me, the line is drawn when I, or any mediator, starts making a value judgment about a party's position in terms of "I think."

"I think that's not a good argument."
"I don't think a jury will believe that."

Once you stop making the parties think critically for themselves and tell them what to think, you've lost.

Geoff Sharp said...

Chris, great comment and puts my MAVAL (mediator adding value at last) theory very nicely. Love your blog at http://www.ckamediation.com/wordpress/ and will link to it in a post as soon as I can.