Pushing too hard

Posted Sunday, July 1st, 2012 by Gregory Forman
Filed under Mediation/Alternative Dispute Resolution, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I conducted a mediation last week in which, with quite a bit of more arm twisting of both parties, I suspect I might have been able to achieve a settlement.  Days later I am still ruminating over whether I helped or hurt the parties by declaring an impasse rather than pushing harder.

For most attorneys, parties and mediators, a successful mediation is one in which an agreement is reached rather than an impasse declared.  Even a mediation that results in an impasse can have some benefits for the parties and their counsel: narrowing the contested issues; differentiating contested facts from uncontested facts; ascertaining the strengths and weaknesses for each party’s position; determining what evidence needs to be obtained to prove or disprove disputed issues.  However most folks are paying mediators to settle their dispute and, except for those misguided litigants who treat mediation as merely a hurdle to overcome before they get their trial date, litigants typically blame a mediator (and the opposing party or attorney) for failing to settle the case.

Yet often cases that “settle” in mediation become unsettled between the time the mediation ends and the time the formal agreement gets drafted.  A few cases become unsettled after the agreement is executed but before the parties go to court to obtain approval.  And many cases that settle in mediation lead to “buyer’s remorse,” in which one or both parties work diligently to overcome the agreement in subsequent litigation.  Too often I see modification cases filed within a year of court approval of a mediated agreement.  While attorneys frequently blame the parties for these “agreements” that don’t lead to long-term resolution, I believe some of the blame falls to the mediator.  In my years of practice I notice enough correlation between the mediator–and the mediator’s “success” rate in reaching agreements–and repudiated agreements to make me believe that some mediators develop agreements that leave both parties satisfied and others do not.

I think the key is how mediators balance fear and hope in conducting their mediations.  All mediators need to use a combination of the two: hope to make the parties believe that reaching an agreement will provide certainty, economy, and achieve at least some of the party’s important goals; fear to make the parties believe that rejecting resolution will result in interminable litigation, protracted expense, and failure to achieve any important goals.  Employ enough fear as a mediator and one can settle almost every case: a mediator can always spin scenarios in which a rejected proposal leads to a worse result at trial.  Employ no fear and the case will not settle even if both parties are able to obtain many of their important goals: without fear of doing worse at trial there is often insufficient reason to reduce one’s demands to reach settlement.  However settlements achieved mostly through fear are very prone to falling apart.  In my experience, settlements achieved mostly through hope tend to endure.

At the point I declared an impasse the parties were not that far apart on the one contested issue.  The sticking point was the income of a self-employed parent.  Experience and case law demonstrates that this “fact” is subject to a wide variety of potential outcomes at trial.  The self-employed parent was convinced his income was minimal and his child support offer was reasonable.  The other parent was sure he was understating and hiding income and that her support demand was reasonable.  Employing hope–the desire of the parties to reach an end to the litigation, have some certainty as to their financial support and obligation, and obtain at least some benefit over the previous offers and demands–was able to get them closer to an agreement but it could not get us all the way there.  Employing a bit of fear–that failure to achieve settlement would add more costs, more uncertainly, and might lose them the benefits that they would achieve by agreement–could not get us to a settlement either.

So we reached a point in which only the pushing of fear could potentially achieve settlement.  I could have hammered on father the issues mother was raising about his income in an attempt to convince him that her demand was very reasonable.  I could have hammered on mother the arguments that father’s claimed income was actually greater than his actual income in an attempt to convince her that his offer was very reasonable.  Perhaps I could have gotten both parties to come closer in their proposals and perhaps we could have reached an agreement.

But if we had settled the case that way, one or both parties would have been very unhappy.  There is a strong possibility that one or both parties would have repudiated their agreement even before the court approved it.  There is a stronger possibility that someone would be filing yet another child support modification action within a year or two.

Experience and emotional intelligence may provide a mediator some insight into how much and how hard to use fear in order to achieve resolution.  A mindset that blames the mediator when the dispute does not settle but blames the parties when a mediated resolution falls apart encourages fear as a dominant motivator.  However pushing fear as the motivating factor to achieve settlement seem antithetical to the philosophy of alternative dispute resolution.

No mediator takes pleasure in a mediation that fails to achieve settlement.  Mediators rarely become aware that a case they have “settled” failed to end the contested litigation or resulted in new litigation being filed shortly thereafter.  If there was a mechanism for mediators to learn when the “agreements” they have helped the parties reach failed to lead to long-term resolution, some might be more reluctant to use fear to overcome an impasse.  Still this doesn’t resolve the dilemma of employing fear to achieve an agreement.  Every mediation in which I declare an impasse rather than pushing harder leaves me second guessing my decision.

The desire to be considered a “successful” mediator by my attorney-peers is constrained by my distaste to elevate fear over hope in achieving settlements and the balance between the two is always discomfiting.