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  • by Marie Walker

Winning in Mediation

Winning.

Whenever I see the word, by itself, all I can think of is Charlie Sheen’s 2012 manic diatribe.

“Winning! Wow! Winning!”

Which is why I almost dropped my teeth when my friend told me she’d “won” her mediation. I wanted to take her aside, and educate her about “winning” in mediation.

Winning goes hand-in-glove with competition, or with evaluative mediation, which all of us classically-trained facilitative mediators realize is a “no-no.”

Winning in mediation presupposes Charlie Sheen running out of the room, with his hands in the air, shouting, as well as someone significantly less effusive than Charlie Sheen, crawling sadly out of the room, quietly muttering under her breath.

"Losing. Wow. Losing."

There is nothing so elegant as a creative win-win agreement developed in a facilitative mediation. Nothing like the harmony that communication and synchronous thinking brings, when mediation is a ballet, rather than a battle.

So why don’t mediators go for the gold more often? Should any ol’ agreement suffice? What’s in it for a mediator to help people craft a lose-lose agreement?

More than once, I’ve heard a mediator say, “I figure a good agreement means both of you will leave here unhappy.” Or, “You’re both going to leave here with a little of what you want, and a little of what you don’t want.”

What is that? Isn’t that the Worst Alternative to a Negotiated Agreement (WATNA)? Sure sounds like it. The only thing worse would be a “Lose-Win,” not in your favor.

Hell, if that’s the case, avoid mediation.

Avoid court.

And go for a Negotiated Agreement.

Don’t waste money on a mediator.

Let your attorney negotiate the terms of an agreement.

Spare yourself the emotional stress of sitting face-to-face with your “opponent” for hours, in a little room, with bad coffee.

But if a mediator can produce the ballet leading to a win-win resolution, you should choose mediation. You can exceed your WATNA. You can even exceed your BATNA (Best Alternative to a Negotiated Agreement). Part of the answer lies in the style of the mediator; and part of the answer lies in having well-trained legal representation in the mediation.

In their 2004 article, “What’s Going On in Mediation: An Empirical Analysis of the Influence of a Mediator’s Style on Party Satisfaction and Monetary Benefit,” E Patrick Dermott and Ruth Obar discuss their research:

(1) Both the charging party and the respondent rate facilitative mediation more favorably than evaluative mediation;

(2) Evaluative mediation results in a higher monetary settlement;

(3) Mediation models that limit the role of representation are inherently suspect; and

(4) It is a challenge for a facilitative program to prevent some mediators from using evaluative techniques. Note 1.

They conclude that a purist vision of facilitative mediation does not reflect reality. Most excellent mediators end up using evaluative methods, such as reality-checking and proposing resolutions, particularly in caucus.

If that is so, the debate over mediator style may be irrelevant.

McDermott and Obar quote Leonard Riskin, from his article, “A Grid for the Perplexed,” who said:

It is too late for commentators or mediation organizations to tell practitioners who are widely recognized as mediators that they are not [mediators, because they are not practicing purely facilitative mediation], in the same sense that it is too late for the Pizza Association of Naples, Italy to tell Domino’s that its product is not the genuine article. Note 2.

McDermott and Obar’s research showed that both parties felt more satisfied with facilitative mediations. However, under certain circumstances, evaluative mediations resulted in higher dollar values in settlement agreements.

Where evaluative mediation was used, the charging party was likely to receive a settlement amount of almost $5,000 ($14,889 vs. $10,106) more than if facilitative mediation was used. Note 3.

And when a party was represented in an evaluative mediation, settlement agreements were significantly higher: $31,275.56 vs. $5,987.954.

In contrast, when a party was represented in a facilitative mediation, the disparity between settlement agreements was less: $8778.52 vs. 5987.95. Note 4.

McDermott and Obar concluded there is a synergistic effect when representation is combined with evaluative mediation, which leads to higher values in settlement agreements. They speculate that shrewd attorneys may choose evaluative mediators when their client has a strong case, and facilitative attorneys when their client has a weaker case.

Besides that, what is it about representation that leads to higher settlement agreements?

For one thing, attorneys may be selecting “the right” mediator for their case, while an unrepresented client has no clue which mediator to choose.

For another thing, attorneys are likely aware of some of the techniques for managing expectations in negotiations:

  1. Providing facts that indicate your client expects a large settlement.

  2. Reacting with surprise, shock, or a flinch at a low-ball initial offer.

  3. Not appearing “too cooperative” or “eager for agreement”.

  4. Not making a steep concession too early in negotiations, so the other side expects additional concessions.

  5. Agreeing too quickly with demands.

  6. Failing to ask for additional concessions, even if they aren’t agreed to.

  7. Making it look like the agreement is fair – both sides have some gains, and both sides have some losses. If it looks like your side is the winner, and the other side is the loser, there is little incentive to settle. Note 5.

One may not feel as satisfied with an evaluative mediation with representation, even if one has reached a favorable financial settlement, because one’s attorney has managed expectations.

Which do you choose? The financial benefit of an evaluative mediation with representation? Or the emotional satisfaction of a facilitative mediation without representation?

Why did my friend win?

In her case, both sides had legal representation. The mediation lasted 6 hours. It doesn’t appear that either party conceded too early in the process. Though my friend had originally expected three times the final settlement, her opponent managed her expectations by complaining about an inability to pay. Her opponent also made some non-financial concessions that appeared to her to be “losses” to them.

Both my friend and her opponent saw the settlement agreement as a win. Both parties exclaimed, “I won!”

Neither party exclaimed, “They lost!”

Win-win.

That’s the ballet in mediation, be it facilitative or evaluative.

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About the Author

Marie Walker is a family law attorney and mediator in Traverse City. She is a Past President of the Grand Traverse-Leelanau-Antrim (GTLA) Bar Association, as well as a Past President of the GTLA Bar Women Lawyer’s Association. Along with being a member of the Michigan State Bar Association’s ADR Section, she is a member of the 13th Circuit ADR Committee. Sh.e is a regular mediator and training coach for Conflict Resolution Services of Traverse City.

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( Footnotes)

Note 1. E Patrick McDermott, Ruth Obar, “What’s Going On in Mediation: An Empirical Analysis of the Influence of a Mediator’s Style on Party Satisfaction and Monetary Benefit,” 9 Harv. Negot. L. Rev. 75 (2004), available at http://heinonline.org/HOL/LandingPage?handle=hein.journals/haneg9&div=5&id=&page=,

last viewed 01/24/2017.

Note 2. Leonard L. Riskin, “Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed,” 1 Harv. Negot. L. Rev. 7 (1996), @ p 24, available at http://scholarship.law.ufl.edu/facultypub/668,

last viewed 01/24/2017.

Note 3. Op Cit, @ p 11.

Note 4. Ibid.

Note 5. Ibid.

Note 6. PON Staff, “Managing Your Counterpart’s Expectations in Mediations,” Harvard Law School Program on Negotiation Blog, September 27, 2016, available at http://www.pon.harvard.edu/daily/win-win-daily/win-win-negotiations-managing-your-counterparts-satisfaction/, last viewed 01/24/2017.