Stage Five: More Joint Negotiations
At any point during the caucus process, your mediator may conclude that it would be more productive to bring the parties back into one room for another round of joint discussions.
1. Purpose and Procedure
If your mediation is making progress, it should begin to show now. After honest exchanges with the mediator during private caucuses, the parties should be focused on a narrower range of forward-looking issues. As you and the other party search for a workable settlement, your relationship may begin to change. For example, you might start working together more collaboratively, rather than seeing each other as adversaries. Mediators often notice at this stage that the parties start using each other’s first names.
If you and the other side are able to conduct your own negotiations, the mediator may decide to be quiet at this point, adding a suggestion or word of caution as necessary. Or, the mediator may be an active orches- trator of your negotiations, proposing new ideas for settlement and using information learned in private caucus to let you know when changes in bargaining positions might be helpful. If necessary, the mediator may call another round of private caucuses, or perhaps caucus with just one of you again.
During this stage, the mediator’s goals will be:
• to keep the negotiations focused on the real issues in dispute.
Lease Dispute: Mediator to Mr. Nehru and Ms. Sherman: “The question you’re discussing—how efficient the Postal Service is at forwarding business mail—is interesting, but not within our ability to influence. Let’s stay focused on the things we can do something about.”
• to help the parties confront any new issues that must be addressed before a settlement can be reached.
Neighbor Dispute: Mediator to Mr. Rafferty: “This fence we’ve been talking about that separates your backyard from Ms.
Ferraro’s yard—did you just mention something about it protruding onto your property? Is that an issue we need to look at today?”• to make sure that the negotiations do not head towards an unworkable settlement (one that is likely to fall apart or be difficult to honor later). A settlement would be unworkable, for example, if requires a party to do something illegal or something that is not within the party’s power.
EXAMPLE: A company and former employee are mediating the employee’s wrongful termination claim. The company offers to find the employee a new job at another firm. It’s a nice offer, but probably unrealistic. The company owner can certainly try to help the employee find a new job, but can’t guarantee success. A more sensible solution might be for the company to offer a letter of reference and outplacement assistance to help the employee find a job.
DON'T RELY ON THE MEDIATOR TO BLOCK AN UNFAIR SETTLEMENT
Some mediators will try to discourage the parties from settling their dispute on terms that the mediator believes are clearly unfair to one side. In divorce mediation, particularly if one spouse appears to be overpowering the other psychologically or in terms of financial knowledge, many mediators will intervene against what they see as a highly one-sided settlement. (See Chapter 10 for more on divorce mediation.) Most mediators will also intervene against unfair settlements in disputes involving children. Indeed, in California, where the law requires divorcing parents to try to reach agreements about child custody and visitation through mediation, rules require such intervention.
But in disputes that don't involve family relationships, particularly business disputes, most mediators do not see their role as protecting one side or the other. Therefore, you should not rely on the mediator to protect you from making a bad bargain—it's up to you to protect yourself. One way to do this is by having a lawyer or other adviser review any settlement agreement before you sign it (see Chapter 7, Section E, for more on this safeguard).
2. Changing Your Negotiating Position
Sometimes, you will learn something during the mediation that makes you want to change your bargaining position. You might fear that you will lose face if you announce a major change in front of the other side. One way to solve this problem is to use the mediator to help you communicate the change. For example, in our neighbor dispute case, Ms. Ferraro had been insisting all along that her neighbor, Mr. Rafferty, adhere to strict “quiet hours” as set down by the Town’s noise code. Later in the mediation, she realizes that it may advantageous to be a little more flexible in order to strike a deal with Mr. Rafferty. Because she usually stays at her boyfriend’s on weekends, she doesn’t really care about noise after the weekend noise curfew, but because she often has to get up early for work, she would love to see things quiet down a bit earlier on weeknights.
Neighbor Dispute: Ms. Ferraro: “Well, the mediator has convinced me that the ‘quiet hours’ in the town’s noise code that was written 80 years ago are a little unrealistic on Friday and Saturday evenings, so I’m not going to insist that you follow that law to the letter on weekends, but....”
P**β Make the mediator a scapegoat. Although it may seem unfair, it sometimes works well to blame last-minute changes of position on the mediator. (“The mediator’s really pushing me on this and I’m just tired of fighting over it...”) The mediator can take it; it’s part of the job. A more positive way to achieve the same result is to credit the change in your position to the persuasive powers of the mediator.
3. Consult With Outside Advisers, If Necessary
In some types of disputes, you may want to have a lawyer, law coach, or other adviser on call during your mediation, so you can consult by telephone as needed. If you do have an advisor standing by, this is the time to check in and get some advice. For example, in our business ownership dispute, Ted, who is considering accepting a cash buyout offer for his stock from his partner, Mike, may want to step out of the mediation to call his accountant and find out what the tax consequences of the proposed plan might be.
Business Ownership Dispute: Mike to mediator: “I need to take a break at this point. You know, I didn’t really expect us to be talking today about a cash buyout, and I’d like to run the idea by my accountant before we discuss it further. There may be more or less beneficial ways to structure it from a tax point of view. I think I can probably reach him at his office. Is there a phone available where I can make a private call?”
In disputes that involve lots of money or important legal rights, the parties should condition their agreement on a more thorough review of the legal, tax, and business consequences by their respective lawyers and other business advisers. But for now, getting at least an initial opinion from his accountant will probably be enough to help Ted decide whether he should continue negotiating a possible cash buyout of his stock. (For more on having your agreement reviewed before you sign, see Chapter 7, Section E.)
F.