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How to Encourage Progress in Mediation

In mediation disputes where feelings of animosity and distrust run particularly high, the mediator should consider asking this question: What could [the other party] do that would be a sign of progress to you?

Asking the parties how their opponent can make a show of good faith allows them to come back down to reality and stop making demands motivated by anger and calculated to punish. The question generates clearheaded brainstorming geared to solve the mutual problem the parties’ undeniably face — the expense, duration, and strain of the litigation itself.

Don’t give up the fight if someone continues in a hostile vein, saying something like, “He could pay me everything I’m asking for!” or “She could dismiss her frivolous lawsuit.” That’s an occasion to inject a little levity. Say something like, “I’m sorry, I forgot to add the word reasonable. What could the other party reasonably do to signal his good faith and the potential for progress?”

Then be silent. Wait, wait, wait. Your patience will be rewarded. One of the parties is poised to divulge to you something that he really wants his adversary to do or say. Don’t speak too quickly or you’ll cut him off.

If you’re mediating a litigated case, remember that his attorney long ago monetized the injustice he suffered. He can barely recall what he really wanted in the first place. He’s going back in time to consider how he was feeling before the dispute fossilized into a fight over dollars and cents — back when he would’ve been happy with an apology, or 20 percent of the profits, or something equally reasonable.

“They could at least offer . . . to pay my attorneys’ fees, or begin the next round of negotiations in the six-figure range, or admit that they were partially at fault for the loss of my shipment of leather jackets from Hong Kong.” Now you’re getting somewhere.

Too many people walk out of a mediation not knowing that they’re willing to accept just about the same amount of money their adversary is willing to pay. You just need to jiggle their brain cells to get them thinking.

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