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Overcoming Barriers to Settlement

By Drew Peterson

One of the common dilemmas facing mediators is in dealing with the common barriers to resolving cases outside of a courtroom. Indeed, all of the professionals who try to settle legal disputes face similar barriers in our attempts to find constructive solutions to problems outside of the full litigation process. John J. McCauley, a mediator in Newport Beach, California, has written an interesting article discussing methods for overcoming some common barriers to settling cases. (

McCauley asserts that there are three different needs of disputants that parties tend to believe are more reasonably satisfied in litigation than they are in mediation. They are the need to inflict pain on the enemy ("Retaliation"), the need to secure public vindication ("Reputation"), and the need to find refuge in the rule of law ("Refuge").

At first blush, McCauley asserts, mediation appears to be a paltry response to such needs of the parties. Far from satisfying Retaliation needs, for example, mediation actually stops the fun. Mediation by its nature is gentle and non-authoritarian – hardly the way to seek revenge against a wrongdoing party. Reputation needs fare little better. The use of mediation eliminates the possibility of public vindication. It is not only private, but in the end there is no one to declare who is "right" and who is "wrong." Finally, mediation would appear to be antithetical to the Rule of Law. Not only is there no judge to be the neutral acolyte of the law, but also in mediation the real decision-maker is the adversary, the very person whose evil necessitated the imposition of law in the first place.

Not to worry, however; McCauley asserts that good mediators can indeed open the way for settlement despite such needs, while addressing them at the same time.

Retaliation Needs. As for the need to retaliate, McCauley asserts that this urge tends to fade rather quickly on its own accord after the heat of the opening salvos of litigation has dissipated. The pain of litigation on the party themselves quickly begins to dull the pleasure of inflicting pain on the other. What remains is often nothing more than a serious need to "vent" before serious progress can be made in the settlement process. Mediation is an excellent method for allowing parties to vent in a controlled atmosphere, and good mediators encourage such venting as long as it does not get abusive or destructive to the negotiating process.

Reputation and Refuge Needs. According to McCauley, the remaining needs, are often more serious barriers to settlement. The good news, however, is that they only thrive in the presence of two perceptual distortions, which the mediator can harness to assist the mediation process, either directly or indirectly.

The Myth of Predictability. The first of these perceptual distortions is the myth of predictability: the common, but false belief that our system of justice has reached the point of development where there is a predictable outcome at trial of complex civil disputes. Those of us in the legal profession all know that such predictability is often more illusion than reality. Yet as the champion of our clients' causes, it is often difficult for us to effectively communicate such unpredictability to our clients, who are much more likely to believe such myths to be true. A neutral mediator is in a much better position to help the parties understand the reality of this myth.

Partisan's Distortion. The second perceptual distortion is the universal phenomena of advocates involuntarily over-assessing their own likelihood of prevailing in court. In this case the misperception is that of the attorneys, which only feeds the client's unrealistic belief in the corollary myth of predictability. Once again the neutral mediator is in the ideal position to reestablish a more reasonable perception of the true value of a case.

The Mediator's Role. The mediator does not need to fight these basic human needs for retaliation, reputation and refuge. He or she only needs to counter the perceptual distortions that drive these needs toward continued litigation. The need for refuge may remain, but a courthouse provides no place of refuge if there is a serious risk of an adverse judgment not on the merits.
Countering the partisan distortion must be done in a way that does not impair the mediator's neutrality. Close questioning about the elements of claims and their supporting evidence, accompanied by subtle skepticism, is usually enough to impact the distortion. This is particularly so where applied with equal force to all sides to the dispute, in a neutral way, so parties can hear each other's partisan versions of the same facts. Whatever the partisan's belief on the merits, they can be moved by the stubborn reality of a neutral sincerely unmoved.

Finally, McCauley points to a paradox: while the Rule of Law is surprisingly absent in litigation, it can be surprisingly present in mediation. The parties each have a self-interest in paying close attention to what the law is, because their only alternative to settling is to proceed to court. Each party's own tangible yardstick by which to gauge an acceptable outcome in mediation is his or her own perception of what a court would otherwise do.

In sum, all three strong needs of the parties, for retaliation, reputation and refuge, can be met and satisfied in mediation, often to a much greater extent than in litigation. Needs that are initially seen as insurmountable to a successful settlement of a dispute, evaporate as parties simply give mediation a chance.

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