Abstract
As a professional neutral specializing in the mediation of employment disputes, the author is intimately familiar with the techniques employed in the process of mediation. Consequently, she believes that the parties themselves can employ many of these same techniques – without a mediator – in order to break down the impasses encountered when negotiating directly with the other side. In the following article, the author briefly expounds on a few favorite mediation strategies that she believes translate well into two-party negotiation without the presence of a mediator. By understanding the situation, the attorney advocate will better understand the motivation of his adversary’s position, resulting in negotiations that will facilitate the settlement process and bring the client an effective conclusion. Following the article are checklists of mediators’ techniques which may be useful to negotiators.
Introduction
Settlement often serves the interests of employees and employers better than the cost, delay and uncertainty of trial. Yet sometimes even the best lawyers encounter barriers to settlement that are difficult to overcome. Some barriers can best be addressed by bringing in a neutral third party to assist the negotiations. However, mediators’ strategies for breaking an impasse can also be used effectively by lawyers themselves in direct negotiations to help them reach resolution. This paper will explore several barriers to settlement that lawyers may encounter, and strategies for overcoming them.
Cognitive Barriers
The lawyer’s standard “philosophical map”1 assumes that disputants are adversaries, and that disputes are resolved by application of a general rule translated into largely monetary terms. While money is usually an important component of a settlement, there are other remedies that can be valuable to your client. Adopting a problem-solving approach to your case and being creative can help avoid an impasse over dollars.
Effective negotiations involve convincing the other side that you have a strong case should the matter go to trial. However, adopting a problem-solving approach when negotiating settlement reframes the issues from a discussion about liability and damages to a discussion about the parties’ underlying needs and concerns.
In one case, a high level executive with an age discrimination claim was terminated after having been transferred to a different state. The executive had moving expenses to complete his family’s move. He also had concerns about selling his house, and fears about finding another job. Framing options for settlement in these terms and being creative helped narrow the gap between the dollar amount he was demanding and what the employer was willing to pay. Relocation expenses could be paid out of a special company budget. The employer was able to assume some responsibility for the home. Keeping the executive on the payroll for a set period of time gave him the ability to look for a job from a job. Similarly, if a client with an employment discrimination claim is concerned about her career and is thinking about changing professions or obtaining further training, a discussion about tuition and transitional support is likely to be more productive than a discussion solely about damages.
Creativity and discussion about nonmonetary remedies can also be helpful when there have already been negotiations over dollars and a gap remains between the parties’ respective “bottom lines”. For example, in a case involving a claim of gender discrimination, the employer had a monetary ceiling that it considered inviolate because of a concern about precedent should other cases emerge. The plaintiff was concerned about her own career, but also wanted to ensure that women in general were not held back in this particular profession. The monetary gap was closed when the employer agreed to make an additional donation to a mentoring program for women run by an outside professional organization.
Psychological Barriers
As lawyers, it is also tempting to treat barriers to settlement as legal issues. When an opponent turns a deaf ear to what we consider a reasonable offer or refuses to move any further, it is tempting to respond by arguing our case even more forcefully. However, it is useful, instead, to try to understand and respond to the psychological reasons behind the perceived intransigence.
For example, lawyers may dislike or mistrust each other because of an encounter in a previous case or in some other context. Alternatively, the lawyer or client may be reacting negatively because of emotions carried over from some other past situation. Identifying the particular emotion, drawing it out, showing that you understand, and defusing it may be the solution to help get the negotiations back on track.
Sometimes the lawyer or client may be misinterpreting the motives of the lawyer or client on the other side. The other side may appear illogical and rigid in refusing to budge from a position. Rather than arguing back, you can enhance your effectiveness by taking the time to listen, understand the way the other side sees the situation, and check to make sure you have heard accurately. Parties are apt to become less rigid once they feel heard. In addition, you may come to find there is specific information the other side was missing that will help them reconsider their original analysis.
Finally, most of us suffer from what is known in the psychological literature as loss aversion. That is, we will go way out of our way to avoid a loss, while we are unlikely to go to the same lengths to obtain the same result when we consider it a gain.2 Understanding this phenomenon as negotiators, we can frame the terms of a proposal for settlement carefully and stress its benefits in such a way that the other side will not perceive its acceptance as a loss or as requiring a retrenchment of position.
Process Barriers
It may be that the barriers to settlement have more to do with the process of the negotiations than with either cognitive or psychological issues. For example, the wrong people are at the bargaining table, the timing of a settlement proposal is off, or a party feels pressured to respond.
If you think the other side is improperly evaluating the merits of its case, consider persuading them to include another lawyer at the firm or someone with a more objective view in the settlement discussions. If a lawyer has not adequately probed the client’s real needs and interests, or helped them understand fully the real costs associated with litigation and the value of a certain and immediate resolution, consider scheduling a negotiation session at which the clients are present.
Sometimes when people adopt a rigid stance they simply need time to change perspective. Pressure may only intensify the tendency to cling to a fixed position. As mediators, we see over and over again the power of process, and the value of allowing seeds of doubt or kernels of ideas the space to sprout. Being thoughtful about when to push and when to simply back off will serve you well during your settlement negotiations.
Conclusion
In sum, you can always bring in a mediator to help you settle your case if you are at impasse, and there are many kinds of barriers that only the presence of an effective neutral party can address. However, there are also many ways mediators approach settlement that you can adopt when negotiating directly with the other side. Identifying, understanding and addressing the cognitive, psychological and process barriers to settlement will help make your settlement efforts more successful.
Ms. Shaw is a principal of the firm of ADR Associates, L.L.C. in New York, New York, a firm of neutrals providing alternative dispute resolution services. Ms. Shaw specializes in the mediation of employment disputes. This article first appeared as part of materials at a March 2002 Seminar of the National Employment Lawyers Association in Philadelphia, Pennsylvania.
1
L. Riskin, “Mediation and Lawyers,” 43 Ohio St. L.J. 29 (1982).
2
See Max H. Bazerman, “Negotiator Judgment: A Critical Look at the Rationality Assumption, “ 27 A Behav. Sci 211 (1983).