Set Your Goals

Before you take a seat at the mediation table, you’ll want to have some idea of what you hope to accomplish. Remember that the purpose of mediation is to find a solution that you and the other party both find acceptable—not to prove that you are right or to sell your point of view.

EXAMPLE 1: House painter Tom paints the interior of homeowner Sally’s house but is not paid for his labor. Tom sues Sally. The law would usually require Sally to pay Tom according to the terms of their contract—unless, of course, Tom had seriously breached the contract. In court, Tom’s goal would be to prove that the contract had been carried out and to get a judgment for the money owed. In other words, Tom’s goal is to establish what happened in the past and then rely on the law to reward him appropriately.

EXAMPLE 2: Same circumstances, but now Tom and Sally decide to mediate. Here they face an entirely different situation. Because they are not limited by the law or legal procedures, there are any number of ways they can resolve the dispute. For example, if Sally didn’t pay because she believes that Tom did a poor job, she might agree to pay Tom if he does some of the work again. Or, Tom might agree to accept only part of what he is owed, if Sally agrees to let him photograph her living room to use in his brochure. Or, Tom and Sally might agree that Sally will pay Tom in installments, or that part of the payment will be in cash and the rest will be in services (for example, if Sally owns a car repair garage, she might agree to repair Tom’s truck).

Your goals in mediation are essentially forward-looking—what will work best for both of you in the future—and need not be as limited as they would be in court. The sections that follow review several methods for figuring out your mediation goals.

1. Consider Potential Legal Outcomes

One way to define or limit your mediation goals is to consider what you could get (or lose) in court. What the law requires may turn out to be a less imaginative or less efficient solution than you and the other party end up devising, but you shouldn’t ignore it altogether. For example, if you were injured in a car accident and are preparing to mediate with the company that insures the other driver, it would be helpful to know what a judge or jury in your area might award for your injuries. If your case went to court, would it most likely be worth $10,000, $100,000, or nothing at all? To find the answer, you may need to consult briefly with a lawyer. (See Chapter 13 for information on how to find a reliable and experienced one.) Some lawyers will provide this type of information as part of an initial consultation for which they don’t charge a fee. Gener­ally, however, it’s a poor idea to try to get good advice for free—some- times, you end up getting exactly what you pay for.

Once you find a good lawyer, lay out the facts of your case and ask, “If this case went to court, how much would I be likely to get?” Al­though many lawyers will be reluctant to give you an exact figure, they should be able to predict a range of likely outcomes. Also with the help of the lawyer, consider how long the legal process would take, what you would have to pay for court costs and other expenses, and how much of your award would go towards legal fees.

HIf you need more than a consultation, consider hiring a law coach. If you want a lawyer to help you figure out what your case is worth, help you prepare for mediation in other ways, and be available for consultation during your mediation, consider using a self-help law coach.

Exercise 1: Legal Rights and Remedies

What could you win (or lose) if your case went to court?________________________________

If your dispute involves money, how much might a judge or jury award to you—or require you to pay?

How much might it cost, in legal fees, court costs, and other expenses, to bring or defend a lawsuit?

2. Consult With Experts

Experts in various fields can provide useful information and opinions that will help you identify your mediation goals. For example, if you and your business partner are coming to mediation to dissolve your partner­ship, an accountant with training in business valuation and/or a broker who specializes in selling businesses could estimate how much the business is worth, either sold as is or carved up in different ways. Or if your dispute is with a person or business in a particular field—electri­cian, gardener, or tile layer, for example—you could ask another person in the same field for an impartial opinion about the validity of your complaint and ideas about how it could be resolved.

QHow to overcome professional courtesy. Some professionals might be reluctant to consult with you once they realize that you have a claim against another person in the same profession. You can probably lessen these concerns by explaining that you are mediating with the other professional to try to work out a settlement, not taking the other person to court. If you have trouble finding a practitioner to consult, think about who else has expertise in that area. For example, if you can’t find an electrician to evaluate problems with a wiring job, try someone who teaches in that field—possibly at a local trade school or union- sponsored accreditation program.

Depending on the facts of your dispute, there will be a variety of experts you can consult concerning possible goals and likely outcomes. Here are just a few who are often consulted as part of preparing for mediation:

• Accountant or business broker. Often useful to deal with problems con­cerning the breakup of a small business. For example, you might want to know the value of a partner’s share of the business, whether you can afford to buy a partner out, and what tax implications a buyout might have.

• Builder or skilled tradesperson. Valuable in helping you decide whether a contract for building or repair has been properly carried out and, if it hasn’t, how the problem should be valued and/or remedied. For example, if a carpenter you hired to redo your stairs botched the design for the handrail and newel post, you might ask how a reason­ably skilled carpenter would have handled the job, how the problem could be fixed, and what the repairs would cost.

• Architect. Can provide a second opinion as to the quality of another architect’s work, whether too many or too few drawings had been made in response to your original request, and whether fees charged were fair based on local practice. For example, if an architect charged you for a preliminary sketch you thought was part of her bid, you might ask if that is customary in the field. You might also want suggestions for working out a compromise.

• Prosecutors. Though they generally won’t give legal advice, prosecu­tors (also called district attorneys) sometimes will tell you what procedures they would typically follow in a given situation, or how they recently responded to a similar situation. For example, if you were mediating with a local nightclub owner over excessive noise,

you might want to ask what would happen if you filed charges against the club for violating the noise ordinance, or whether others have succeeded in forcing clubs to turn down the volume.

• Acoustics expert. Helpful in suggesting a range of practical solutions to a variety of noise situations.

• City official. Local government employees may be willing to advise you in the areas they help regulate, such as zoning, trash collection, roads, property maintenance, and the like.

Exercise 2: Ask the Experts

What information could an expert provide that might be helpful in understanding or resolving your dispute?

What types of experts could provide this information?

List all experts consulted and their opinions on your dispute.

3. Create a Timeline

A useful way to help identify goals for mediation is to examine your dispute in terms of time—past, present, and future. This approach can help you understand your dispute from different perspectives and prompt you to think of a range of possible remedies that might satisfy your needs.

EXAMPLE: An office secretary is so emotionally stressed by her boss’s sexual harassment that she quits and threatens her company with a lawsuit. Now she doesn’t have to put up with her boss’s dirty jokes and lewd behavior any more, but she’s also out of a job and is worried about her chances of finding a new one. Before filing her harassment lawsuit, she agrees to mediate with her former employer. Here are her goals for the past, present, and future:

• Past: To settle what happened in the past (the boss’s inappropriate behav­ior), the secretary might want cash compensation for her mental suffering and a written apology from the boss.

• Present: To deal with the fact that she is currently without income, the secretary might want a consulting position with the company for several months to cover living expenses while she looks for a new job. In addition, she might want temporary use of a company desk, phone, and fax to help with her job search (or the company can rent space for her elsewhere).

• Future: To be sure that the dispute will not affect her future job prospects, she might want the company to remove any critical material from her personnel file and provide a favorable job reference.

Exercise 3: Timeline

My goals for dealing with what happened in the past:

My goals for handling ongoing problems in the present:

My goals for avoiding or coping with the effects of the dispute in the future:

4. Analyze What Each Party Wants and Needs

Another way to look at your mediation goals is to do what’s often called a “wants vs. needs analysis.” People in the midst of a dispute generally think they know what they want: “I want my job back with full pay,” “I want the money you owe me for the work I did,” or “I want your dog to keep quiet and let me sleep.” But long-time participants in the mediation field know that what people say they want is not necessarily the same as what they really need. The truth is that people’s needs are often different from, and easier to satisfy than, their desires.

EXAMPLE: Ted wants to erect a six-foot solid wood fence between his backyard and Joan’s, a plan that Joan opposes for aesthetic reasons. Ted’s desire (want) for a fence reflects a need for privacy. But privacy can be achieved in many ways. A hedge, a stone wall, or perhaps even a porch or patio screen can also provide privacy. If Ted and Joan can see past Ted’s wants (a fence) and focus on his needs (privacy), they may be able to come up with alternative, aestheti­cally pleasing ways to separate their backyards.

It’s usually fairly easy to identify your wants: think of the demands or requests you made in your last phone call or impassioned letter to the other party—for example, a sum of money, the right to live in a rental house, or getting your old job back.

Your real needs may be harder to identify. To help you get started, here is a short list of needs that are often reflected in disputes:

• emotional security

• financial security

• respect and self-esteem

• safety

• privacy

• recognition

• vindication

• protecting your reputation

• avoiding needless expense, aggravation, or stress

• preserving stability and predictability in your life, and

• keeping your options open for the future.

Many disputes involve the very common (but sometimes over­looked) need to maintain a relationship. You may need or want to have a long-term relationship with one or more people involved in your dispute, such as a customer, boss, co-worker, fellow church-member, sibling, parent, relative, friend, or the parent of your child’s playmate. For example, if your father’s will left management of the family business to you and your sister and the two of you can’t agree on how to run the company, you need to resolve this in a way that preserves your relation­ship, or you and your respective families risk losing something far more valuable than the business itself.

Fortunately, mediation offers the best chance to meet this need while resolving your dispute. Unlike a lawsuit, where the very process of creating a winner and loser will probably weaken or destroy any under­lying relationship, mediation offers you the chance to work together to solve your problem—an experience that can make your relationship stronger and better able to weather problems in the future.

Wants and needs are both legitimate goals to pursue in mediation. It’s fine to get your wants met, but it’s important not to lose sight of your needs as well. Some apparently simple disputes (such as our example of the neighbors and the privacy fence) can be resolved only when the disputants understand what they really need and why. By knowing both what you want and what you need, you stand the best chance of coming up with a solution that will work in the long term.

It is also useful to try to identify the other party’s wants and needs and then compare them with your own. (See the exercise below.) You may discover, for example, that some of your needs overlap (avoidance of legal fees, protecting reputations, working together in the future) and that others don’t necessarily conflict (economic security for one; recogni­tion for the other). This information can provide a more realistic sense of possible outcomes for your mediation.

As the Rolling Stones once said, “You can’t always get what you want... but if you try sometime, you just might find, you get what you need.”

Exercise 4: Wants & Needs Analysis

List your stated wants. (What have you said you want out of this dispute?)

List the economic, emotional, relational, and other needs that underlie your stated wants in this dispute

What are the other party's wants? (Do the best you can with this one. One good place to start is with any formal written or oral demand or offer to settle the other side has made.)

What do you think might be some of the other party's important underlying needs?

In the table below, list your own and the other party's wants and needs.

Comparison of Wants & Needs

Are any needs—yours and the other side's—the same?

Can any of the other party's needs be satisfied without harm or cost to you?

WHAT DOES A TODDLER NEED?

Anyone who has had a two-year-old knows that they sometimes cry when you leave the house. Why do they cry? Because they want you to stay with them. But what are the needs underlying this want? Of course, every toddler is different, but they all need:

• Emotional security: someone to protect them and make them feel loved and cared for.

• Responsible care: someone to help keep them safe, to make sure they don’t pull any lamps over on their heads or tumble down the stairs (or, if they do, to give them care and comfort). Most two-year-olds also like a nice lunch and a good nap afterwards.

• Playful companionship: someone with whom they can play, talk, sing, learn, walk, and explore the world.

The only way their desires can truly be satisfied is by you staying home. Nevertheless, responsible and loving caretakers, relatives, or grandparents can do a good job meeting their underlying needs.

5. Find Your Bottom Line

Once you have identified your goals, your next step is to determine the minimum for which you would be willing to settle—your bottom line.

Knowing your bottom line is important because mediation is a fluid, ever-changing process where compromise is encouraged. While it is almost always in everyone’s interest to maintain a conciliatory and collaborative mood, you will also want something firm to hold onto— some way to make sure that any solution you come up with, no matter how creative, clever, or completely unexpected, meets your minimum goals. In other words, you don’t want to be bamboozled into agreeing to something that you’ll later regret.

One way to determine your bottom line is to take all of the information you have gathered as part of the written exercises above and then consider what would be 1) the best possible outcome, 2) an adequate outcome, and 3) the minimum acceptable outcome. The last one is your bottom line.

EXAMPLE: Edna was hired to do some interior painting at a private home. The contract called for Edna to do $5,000 worth of painting, but as the work began, the homeowner kept insisting on small changes that took extra time and required a different kind of paint. Then, when just over half the work was done, the homeowner criticized Edna’s work and refused to pay. Edna thinks that her work was fine and wants full payment. After several acrimonious conversations, Edna and the homeowner agree to mediate.

After checking with a friend who is a lawyer, discussing the situation with a couple of other painters, and doing both a timeline (Exercise 3) and wants & needs analysis (Exercise 4), Edna identifies the following major goals:

Money: $3,000for work completed, plus $750 for extra labor and materials required by homeowner’s changes; be allowed to finish job and be paid balance of $2,000 as per contract.

Future Work: Be allowed to bid on painting for Phase II of homeowner’s remod­eling plan later in year.

Reputation and Future Opportunities: Maintain good professional reputation so this problem does not hurt word-of-mouth referrals.

Relational Needs: Avoid major feud with homeowner, as we belong to same church and know lots of the same people.

Edna then breaks these goals down into “best,” “adequate,” and “minimum acceptable” results.

Best possible outcome: I get paid $3,750 immediately for work already done; I’m allowed to finish job with no further hassle (maybe half the money up front and a written agreement on how the homeowner wants the new work done); I get to bid on Phase II; the homeowner acknowledges that the work I’ve done is of high quality and is willing to recommend me to others who may call for a reference; and this dispute ends in a friendly way so that we can see each other at church without feeling awkward or uncomfortable.

Adequate outcome: I get paid $3,000 immediately for work already done; I’m allowed to finish the job (maybe half the money up front and a written agreement on how the homeowner wants the new work done); and a chance to bid on Phase II (if I decide after the mediation that I am willing to do more work for this person). We agree not to badmouth each other in the future.

Minimum acceptable outcome (Bottom line): I get paid $3,000 immediately for work done. We agree not to badmouth each other in the future.

A solution may emerge that does not exactly meet Edna’s bottom line. For example, suppose the homeowner adamantly refuses to pay anything for the work Edna did because he claims she used the wrong color. However, because Edna otherwise did excellent work, he will agree to pay her promptly if she redoes the painting (the prep wouldn’t have to be redone) and hire her for the much bigger job of painting the interior of the office section at a new factory he owns. Painting at the factory would be done during the coming winter, Edna’s slow season, and she would receive a generous up front deposit. If the factory painting goes well, she would stand to make $15,000—way more than the $3,000 in immediate cash she had identified as her bottom line. Obviously, in this case, Edna may choose to change her bottom line and consider doing the required repainting.

Even though Edna may ultimately choose to change her bottom line, that doesn’t mean it was wasted effort to determine it in the first place. It will provide her with a clear and thoughtful measurement against which to evaluate any new proposal, and act as a useful brake on any tendency she might have to agree to a solution that doesn’t really meet her needs.

C.