Index

January 6, 2017

Incomplete Disclosure

December 15, 2016

Mediation

November 23, 2016

Is Contract Interpretation Law?

 

Côté’s Commentaries

 

Mediation

Lawyers constantly work to induce people to agree to things. Lawyers often see their task as bending the will of the opponent, and the very word "persuade" seems to reinforce that.

But recent psychological research on mediation strongly suggests that that is not quite correct. Indeed, an opponent who is not very interested in his or her own welfare and position, or evaluating it, is less likely to reach an agreement or stick to such an agreement. Why is not clear; doubtless there are several reasons. Therefore, charitable feelings are not needed for compromise. Surprising as it may seem, an opponent very interested in his or her own position and the terms of any agreement, is actually a mild positive factor favoring settlement. And of course the same is true of your own client.

So what is the critical factor which you want for productive mediation or negotiation? Two parties capable of empathy.

Empathy is not at all the same as sympathy or agreement. It is the ability and willingness to try to discover and understand the feelings and thinking of the other side. Even if you firmly disagree with those feelings and thinking. Most of us tend to be not very empathetic, but many people can exert themselves or educate others to become more empathetic. No matter how harsh and uncharitable a view you take of negotiation, that is still true. The Duke of Wellington and Basil Liddell Hart said that the most valuable ability of a general in combat is to imagine what it is like on the other side of the hill.

A stubborn opponent who seems unwilling to listen to facts or reason is often not irrational or even emotional. Your opponent simply has concerns or aims which you have not yet guessed. Maybe he or she is reluctant to express them. Your opponent may be giving them too much weight, but some of your client's aims or concerns probably are overvalued too.

Some successful negotiators take a long time to get to the point. They may make you come to them and socialize for days before they will get down to business. They are probably trying to get to know you and your thinking.

Therefore, a lot of successful negotiation consists of keeping quiet, listening, and watching. Drawing on the experience of some non-party who has been in your opponent's shoes helps too.

Trying to get agreement without knowing your opponent's real aims and concerns is like playing darts in a dark room. You do not know where the dart board is, and your dart might even hit your opponent's arm, annoying him or her.

Sometimes a mediator will bring a flashlight.

– Hon. J.E. Côté