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KEEPING PERSPECTIVE DURING MEDIATION: The “Insulting” Offer or Demand

Posted on November 5th, 2013

As a mediator, I have seen parties and counsel dig in their heels over many things.  It is not always about money, though that is typically what it is about.  My job is to move them out of the predicament they have put themselves in.  The long view is that the case should be settled.  There are, in my view, very few cases that cannot be settled, if the parties and counsel are realistic about the merits of their own case and their adversary’s case.

Trouble can come in many forms.  Let’s consider the following: one party refuses to respond to an offer or demand, considering it an “insult” or so unrealistic that it is “pointless” to respond.  If this happens early on, I stress to the parties and counsel in private caucus the importance of remaining engaged in the negotiating process, as the mediation session is the best chance to resolve the case before significant additional costs are incurred.  Insisting that the other side “bid against itself”, by adjusting the offer or demand before a counter will be extended, can be a short cut to a failed mediation.

In the private caucus with the recipient of an “insulting” offer or demand I will urge the party to step back from the position.  This may take some time, depending on how committed to this position the party and counsel are.  It is important that I establish and maintain rapport with this party.  I will encourage the parties to vent about their views as to the “unreasonableness” of the other side.  This alone may be enough to cause the party to soften his or her fixed position.  It also gives me, as the mediator, insight into why the party is taking this hard line position.

After exploring with the party the reasons and motivations behind their position, I suggest that some sort of monetary response is the right thing to do.  The goal is to keep the dialogue going.  As long as the parties are talking, progress toward settlement can be made.  Key to my role in the process is to have the trust of both parties.  To have this trust it is necessary to treat all parties and counsel with respect and listen actively to everything that is said.  Ultimately, the counter offer I bring to party and counsel in the other caucus room will keep the dialogue going.

Mediation is an art, not a science.