Saying the Right Thing at the Right Time
Sometimes saying the right thing at the right time helps a party to reconcile her feelings, to shift the focus from the conflict to the resolution, and to allow for a successful negotiation. But timing is everything, and it involves intuition and a willingness to take risks. So it was in the mediation session I will describe:
In the mediation of a business dispute in which the defendant happened to be a medical professional, I convened a private caucus with the defendant and her attorney and did what I imagine most mediators do: I gave time to allow the defendant to focus on the past, for catharsis (i.e., to get the story out), and then attempted a shift in focus to the present and the future (i.e., to get to the introspection, the risk/reward, cost/benefit analyses, etc., that lead to compromise, a willingness to settle, and negotiated terms).
Every time I attempted to shift to the future, however, the defendant returned to the past, each time elaborating more on the details and becoming more agitated, more repetitive, and more rigid and resistant to the ideas that help people let go of the conflict, find peace and/or settle their litigated cases.
Even pointed questions like “What do you want to do today?” or ”How shall we get this case settled?” or even “Why are we here?” never were answered. The defendant returned over and over again to her feelings of outrage, of being victimized, of wanting to rant.
After acknowledging the defendant’s feelings as best I could, and affirming my clear understanding of her feelings, I tested for whether she really wanted to litigate the matter in the face of the cost of trial, the uncertainty of outcome, the exposure to public scrutiny of her actions, and so forth. Recalling for her that mediation is voluntary, as is settlement, I allowed her to terminate the session and depart. She did neither.
But clearly she was stuck, the conversation was at a standstill, and no progress was being made.
After a pause, I remembered having heard something at an Alternative Dispute Resolution symposium that I attended last year, and decided to share it.
I told the defendant that I remembered a presentation in which a psychiatrist suggested that the behavior of parties in conflict is much like the behavior of sufferers of Obsessive-Compulsive Disorder (OCD). (As I write this I remember that the presenter was Jeffrey Schwartz, M.D., an Associate Research Professor of Psychiatry at UCLA, whose discussion was fascinating).
I suggested to the defendant that, like people with OCD, she might be similarly stuck and that we had to find a way to de-rail her pre-occupation with the drama of the conflict, to re-frame and to move on.
Once I suggested that her behavior was OCD-like, I saw in her face a clear recognition of what she had been doing, probably because of her medical training and experience, and this allowed the shift to the discussion of resolution that ultimately led to a negotiated settlement agreement being signed by the end of the mediation session.
My intuitive decision to discuss the OCD parallel, I believe, led directly to resolution, but I have a few observations:
∙ The party in conflict must have time to vent first; then a discussion of risks and rewards, costs and benefits needs to occur, to introduce the concepts; then, as at all times, the intuition of the mediator must be engaged on what to discuss next – so timing IS everything – and finally the mediator must be willing to take a risk that he or she might say something wrong that would inflame the situation. Also,
∙ One never knows whether a comment made or a concept introduced by a presenter at an academic symposium will actually be useful in practice, but there is value in attending such presentations. I have since learned, in writing this article, that “relabeling” and “refocusing” are actually concepts or tools in the self-management of OCD. See, e.g., http://hope4ocd.com/foursteps.php . Now, that is interesting.