Monday, June 29, 2009
I mediated an interesting case today because the two opposing counsel played poker together with some regularity. What this meant is that they both had a friendly degree of distrust, as well as respect for the other's ability to bluff, on the one hand, and to win on the other. I often see and even describe the negotiation process in a mediation as a game (usually of chess, implying strategic moves in anticipation of reciprocal moves designed to bring the opposing party to where the other wants them to be), but rarely do I overtly reference the bluffing that takes place in poker. Yet it is so apt! Consider the risk taker, the card counter, the one who is too obviously risk-adverse, or fearful of losing it all. These are frequently prototypical personalities represented in a mediation. So it was with much amusement that these two gentleman deftly conveyed their positions to me and then to one another and back and forth until they were fully engaged in the process--leaving with plans for more when additional parties (presumably not represented by part of their poker group) return to the table! There is much to be learned from excellent poker players, but when two of them meet--it's probably best to grab a beer and let it unfold! Happy 4th of July!
Sunday, June 14, 2009
I have been struggling with a few Mediator Proposals lately. At the point at which the parties invite me to propose the solution, typically the negotiations have threatened to break down, with a gap that would appear insurmountable. Often, it signals that the parties and their advocates are willing to leave their destiny to fate. Peter Adler, in his new book "Eye of the Storm Leadership", calls these breakdowns "not aberrations, but solutions in progress". A mediator's proposal is not supposed to reflect the likely jury result. That is a measure of fate, with a winner and a loser. It is high stakes, and high risk to both parties. The mediator's proposal, instead, is supposed to be a reflection of what will work to settle the conflict (the solution in progress): a measured consideration based upon a series of confidential communications reflecting the downsides on both sides of a conflict as well as the potential. I am no palm-reader, but when I arrive at a mediator's proposal that is accepted by both sides, I know that it is not reflective of a jury's deliberation, but of my own assessment of the likeliest solution to the conflict presented.