How to Prioritize the Problems in Mediation

After you have helped the parties in mediation develop a comprehensive list of problems, lead them through the process of ranking the problems from most to least important so they can deal with each problem in turn instead of trying to tackle them all at once.

Prioritizing issues is a judgment call. Sometimes, starting with easier issues is the best approach because you can build on the parties’ success to solve bigger problems. In other situations, you may want to start with the most difficult issue, especially if the resolution of a certain issue is a prerequisite to solving other problems.

In pure money cases, consider encouraging the parties to defer issues such as payment plans and the due date for the first payment. The parties invest a lot of time and emotional energy to reach an agreement, and you don’t want them to throw all that hard work away simply because they disagree over the timing of payments.

A potential drawback of deferring the discussion of payment issues is that the parties may express anger at you for doing so. Why? For three reasons:

They’re tired and they want closure.
They feel blind-sided. The plaintiff may think he’ll receive the payment immediately in one lump sum, whereas the defendant may think he’ll pay it over time and perhaps not owe a payment for several weeks.
They feel betrayed. If they demanded clarity of terms before agreeing to a settlement, but you responded by saying, “Let’s deal with that issue after we reach agreement on a number,” they may feel duped now that you’re springing new terms on them. Explain why you deferred payment issues.

If the parties are angry, you may be able to defuse that anger by saying something like this:

I thought you might never reach agreement if we started talking timing issues before we had an agreement in principle on the substantive issues. I know it’s disappointing to have to deal with these ancillary issues now, but we’ve demonstrated our ability to tackle the toughest disputes, so let’s dig in together and solve these in the same manner.

Payment terms and timing then become an entirely new negotiation, and if the parties still harbor resentment about having to continue negotiations, they often try to take out their frustration on their opponent by being even more intractable.

This is where your people skills come in. The devil is often in the details, and the details give the parties the opportunity to save the face they lost in the negotiation of the settlement amount.

To help the parties navigate lost face and buyer’s remorse, try the following:

Acknowledge how hard all parties have worked to reach a deal and how much everyone gave up to do so.
Normalize a party’s attempt to carve an ounce of flesh out of the final details in an effort to save face — not as an opportunity to demonize the opposition again.
Let the parties know that you understand their feelings and, if possible, let them share those feelings with each other without acting them out. Sharing is often marked by the words “I feel,” and acting out is often marked by “You did,” sometimes punctuated with shouting or sarcasm.

Ask the party who’s creating impasse to explain his reasoning to the other party using words instead of emotional responses. Advise the other party to listen attentively, restate what his opponent has said, indicate that he understands it, and then explain what’s motivating his request.