Mediating Within a ‘Win-Lose’ Paradigm and Moving Beyond It
Abby Tolchinsky and Ellie Wertheim
New York Law Journal
Mediation practitioners may come upon a particularly challenging brand of case—that which entails negotiating over a single dominant asset or issue. In these cases, at first glance, one party will win and the other lose, a dynamic on its face anathema to the compromises inherent in mediation. Consider, for example: a parent who wishes to relocate a great distance with the children; business partners who each wish to retain sole control of a company; a divorcing couple whose only asset is a heavily mortgaged home; or, perhaps, siblings debating which one shall be named guardian of an ailing elderly parent. On its face, each scenario suggests a zero-sum proposition.
In a typical mediation process, managed according to an understanding and non-caucusing model, the sessions move forward by mutual agreement. Participation is fully voluntary and confidential. Therefore, the parties first define the conflict and the mediator helps identify the various elements to be negotiated. The mediator then elicits each one’s perspective, values and needs around each issue.
A goal of this early phase is to bring mutual understanding and insight into the conversation. Thereafter, the parties and the mediator brainstorm a broad range of options that will resolve the issue with varying degrees of satisfaction. In examining the list of options, the mediator and the parties move on to cross-reference the initial examination of needs and values with the list of options, in order to help the parties determine which resolution most closely meets both of their goals. Ultimately, of course, they will choose just one.
In a typical mediation, in any area of the law, the process we describe above happens in the context of a complex, interdependent range of issues. A final resolution on any one issue often depends on give and take in some other area. Thus, the global settlement is a series of compromises where each party prioritizes his or her goals and may demonstrate a willingness to be flexible in any single area in dispute. The mediation process progresses on a foundation of understanding one’s own, and the other’s needs and interests and the ability to take into account the other’s perspective when formulating a proposed settlement.
In some instances, a single issue dominates above and beyond all the rest. That is, there is no counter-balancing issue that provides a basis for negotiating or trading. While nine out of 10 other issues may be relatively easy to agree upon, the 10th, and most contentious one generally pollutes the potential for resolving the rest. The parties may throw up their hands in frustration, understandably unwilling to reach a resolution that doesn’t encompass their highest priority.
In even less common instances, parties to a mediation negotiate over just a single issue. And, finally, as mediators we occasionally work with parties for whom each and every aspect of a multi-issue conflict is approached with intensity and uncompromising tenacity and more than a measure of mistrust, thus mimicking aspects of a single issue mediation.
Nuances and Benefits
For attorneys advising clients in a mediation that revolves around one dominant issue, consider some of the following nuances. What is the client’s motivation for mediating? Most people immediately point to the cost savings in staying out of court and minimizing attorney fees. Where the issue has a relatively predictable legal result, the cost/benefit analysis comparing the two processes is fairly straightforward, particularly if your client is the party more likely to prevail in court.
However, where your client may be facing an uphill battle in court, it is clearly beneficial to try to work out a settlement in mediation. The party with the stronger legal case may have other motivations to mediate, such as a desire to retain a relationship, saving time, and maintaining a reputation, among others. In other words, under the surface a range of factors contribute to each one’s view of the best solution.
Take, for example, a marital home that one party wishes to sell and divide and the other wishes to retain. For the attorney representing the party who cannot afford, but wishes to remain in the home, the mediation provides a forum to explore other factors, apart from a legal result, that can drive a settlement. Thus, lacking other assets to trade, and with the likelihood that a judge would order the home sold and divided, the party wishing to retain ownership is at an obvious disadvantage from a legal perspective. Here the parties seem to face a classic win-lose dynamic.
The consulting attorney plays an important role in helping generate creative compromises. And the role of the mediators, in turn, is to explore with each party the implications, financial and emotional, to each potential result. And, as in any case, to fully understand from each party his or her willingness or unwillingness to compromise. In other words, the “game of chicken” of negotiating over one issue necessitates one party’s seeming capitulation. If ultimately one party does make the greater compromise, the mediator must ensure the foundation of that compromise includes core values, full disclosure and an understanding of all pertinent information—financial, legal and otherwise—as well as time to reflect upon the decision to come to yes. Thus, the mediator is helping ensure a lasting settlement.
Quite apart from a single item settlement with a clear winner or loser, some conflicts, if unresolved, assure the dissolution of a business or other relationship. In other words, some form of both parties losing. In this dynamic, the motivation to compromise may be stronger on both sides. Consider, for example, two business partners who have deeply divergent views on how to proceed in building a business, one party a risk taker wanting to take on significant debt and to expand rapidly, the other more restrained and wishing to study the markets and proceed slowly.
Where they agree that they cannot continue to work as partners, each wishes to retain control of the business. In such a scenario, only one partner shall prevail. However, if they cannot agree, they shall dissolve the business altogether. For a consulting attorney advising a client facing this dilemma, a full analysis of the alternative is the cornerstone of the negotiation. In other words, helping the client to evaluate his BATNA (Best Alternative to a Negotiated Agreement).
Can your client obtain other work, buy into another business, obtain a fair price in a buyout, etc.? Even with comprehensive forethought, is there a willingness to walk away, given the mutually exclusive visions for the future?
For mediators, while we nearly always have clients attracted to a cost-effective, time-efficient process, checking in and understanding additional motivating factors is key to achieving resolution. Particularly in a win-lose scenario with somewhat predictable legal results, understanding the goals implicit in participating in mediation can help break an impasse because it brings an understanding of everyone’s values into the room.
Take for example, parents computing child support. The law provides a clear formula based upon the parents’ income and the number of children. The formula yields a result that tends to benefit one party more than the other. Nevertheless, in mediation, both parties, even the one who stands to benefit from the application of the formula, consistently work to examine budgets, based upon their children’s needs and actual expenses. The parents also consider their own expenses, income and potential earnings going forward. To be clear, they do not need to take these extra steps. Rather, there is a motivation to find a “fair” and, perhaps, more importantly, reality-based result that will meet the needs of the whole family going forward. So too, in a win-lose scenario, the mediators must explore the values and motivation of the parties, particularly those of the apparent winner, for staying in the process and negotiating an alternative result.
More generally, conflict is the essence of misunderstanding. So the mediator must employ a range of tools to move beyond the win-lose paradigm. In most cases, around one issue or more, parties reach an impasse and positions become entrenched. Some tools in our toolbox:
• Caucusing. While we generally prefer open communication, occasionally the parties feel freer to express a concern outside of the presence of the other. While the mediator, in the understanding-based model, will not withhold information of substance, the one-on-one communications can foster trust and open discussion.
• Asking each party to try and express the other’s point of view can also be an effective way to stretch a party to think beyond their own best result.
• In complex areas of the law, the use of a single neutral expert can influence thinking and narrow differing perspectives.
And sometimes, a mediator who cannot fully “understand” and empathize with a party’s position inadvertently contributes to the impasse. We bring to bear our own histories and judgments. With that in mind, we must not only use legal information, but, more importantly, tap into our own neutrality and the desire to connect to each party and allow them to choose their own “right” result.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.