The other side just aren’t making sense…

As a mediator, the above concern is a reason you may hear for why there wasn’t a settlement or even a mediation at all: “We can’t get them to the table and even if we could they wouldn’t negotiate – they’re just so unreasonable, difficult and confusing.”

The Other Side

So, what is wrong with the other side?

Shedding light on this question and understanding where they are coming from will frequently be a big part of developing a conversation that can eventually take you to a resolution.

This means not only trying to understand how they are perceiving their legal case but also what is driving them (is it money and if so what do they need or want?) and what are the personal factors in play that are influencing the way that they behave (security, status, a personal moral viewpoint, etc.?).

This is helpful as if you get to a deal eventually you will find that all of these relevant elements in some form have been addressed in the settlement agreement.

Yet it is all very well to say you have to understand this other person or team of people better when the reality is they are already very difficult to deal with.

One of the solutions is to listen more closely to them. My colleague, the mediator Eileen Carroll, once pointed me to the quote by the author, André Gide, who said,

“Everything has been said before but since nobody listens we have to keep going back to the beginning all over again.”

There are a few things that can improve our ability to listen and help remove barriers to understanding:

  • Assume that you may be already filtering and prejudging what they are saying based on what you believe. What might this situation look like to a truly neutral observer, can this help you see a different perspective?
  • Focusing on blaming the other side in a dispute is unlikely to help you take the strides towards a resolution. So, as much as possible, try to put blame for what has happened to one side when focusing on getting to a negotiation.
  • While being ‘in the right’ is key to litigation, in a mediation, it can be a barrier. Obviously, lawyers will have their view on what will happen in court, however, in a mediation, it can sometimes be more productive to affectively agree to disagree over what has happened if it enables dialogue on settlement.
  • Finally, it is all too easy to underestimate the need of individuals for respect and acknowledgement in furthering the conversation. When responding to what the other side have said, know that a few well-chosen words (whether it is acknowledgement, concern or thanks) can ease the path in discussions.

If interested in more reading in this area I can recommend the slim volume Dealing with Difficult People by Dr R Kirschner & Dr R Brinkman (2007).

Mediate to Mediate

Be prepared: getting the other side to the table may be a project in its self, particularly if the other side are challenging to deal with.

Hopefully, by reflecting a little on the above ideas you will know some more about what’s driving the other side and can motivate them to use mediation by stressing the most salient points for them.

At the heart of ‘selling,’ a mediation is the central fact is that most mediations settle and so do a large number of those that do not resolve on the day (as the path to a deal has been explored). Whatever happens, after a mediation you will always comprehend more about the other side’s case and most likely see how they perceive yours.

Whilst lawyers in countries where there is commercial mediation law or regulations will know the requirements under which mediation should be considered (for example the Civil Procedure Rules in England & Wales) but they may not be as familiar with the business rationale. Essentially mediation is a business management tool for the disputant, and should be described as such because it does the following:

  • Prioritises commercial reality
  • Reduces management time
  • Manages reputational risk
  • Clarifies legal positions and potentially minimises litigation risk
  • Reduces the cost of litigation (with settlement before trial or appeal)
  • Enables the client keeps control of resolution (not passing it to a judge or arbitrator)
  • Recognises personal imperatives

Can’t Mediate or Won’t Mediate?

There are very few reasons why a civil case should not be mediated. However, when are these actual reasons or rather excuses? As we have explained, there is almost always something to gain from mediation so why (given that mediation is relatively low cost and low risk) wouldn’t you:

  • Negotiations are progressing satisfactorily?
  • When the requirement for a legal precedent is paramount over settlement?
  • Over an injunction?
  • Where public policy involves negotiations that must stay in the public domain?
  • The case is complicated and needs more information e.g. experts’ reports?
  • There is an allegation of fraud?
  • There is no genuine interest in settlement or mediating (so no real prospect of success of mediation)?

CEDR has seen mediations successfully happen in all of the above-listed circumstances, so even here mediation should not be automatically discounted.

Particularly in the last instance which relates to the outdated English case law in Halsey (Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576) which coming just a few years into the Civil Procedure Rules did not benefit from the knowledge of what it is possible to achieve with mediation, a reason for its very infrequent citing in the last decade.

What do Others Think?: The In-House Counsel View

In April of 2019 the Institute for Conflict Prevention & Resolution in New York, in conjunction with CEDR, announced the results of research into in-house lawyers’ attitudes to Alternative Dispute Resolution in international companies. What these lawyers valued about mediation may well be worth sharing with those wondering why they should mediate a dispute, as it was as follows:

  • The ability of the parties to shape a resolution tailored to their needs
  • Avoidance of the courts
  • Preserving confidentiality
  • Neutrally-aided discussion on the issues
  • The flexibility of the process.

Interestingly, the reasons why they might not use mediation indicate not knowing how to ‘sell’ it to the other side, such as the counterpart’s perception of it being a waste of time and money, the concern of appearing weak by wanting to negotiate or the absence of contractual mediation clause to force them to mediate.

Understanding what the other side wants and being able to share the benefits of mediation should help overcome these obstacles.

Get the Mediator to do Some of the Heavy Lifting

If you are still trying to get the other side to the table or worry that they won’t know what to do when they get to the table, ask the mediator to speak with them. Most commercial mediators will be happy to do this, even if they haven’t been appointed to the case yet.

A mediator will be used to explaining the process and reassuring individuals about doubts they may have and doing so in a way that does not come across as a high-pressured sell. In my experience, as well as that of colleagues, after a conversation with the mediator and a little time for reflection, most parties do decide it is worth mediating.

What to do in the Mediation with a Difficult Party: Your Checklist

So you have managed to get your difficult opposition to the table, possibly after much tribulation and possibly by employing some of the techniques mentioned here, but what next?

You will need to put a number of elements in place to negotiate with the other side. Here is a checklist of what you should be doing and thinking about both before and on the day of the mediation.

  1. Come prepared having done the groundwork on where the other side is coming from (as we have described already)

  2. Share as much data and information as appropriate in advance

If you think the other side has been difficult or nonsensical to date the last thing you want to do is surprise or confuse them with new information or arguments. Let them have access to anything if you think it will help (but not hamper) their decision making. Depending on when you mediate in relation to a trial, disclosure may be an issue, but do try to share information when possible.

  1. Mediate in a comfortable environment

It may seem a little obvious to say it but if relations have been awkward to date they are unlikely to get better in the mediation if the other side feels disadvantaged or inconvenienced. Fortunately, with online mediation, hopefully participants can feel ‘at home’ (often literally) but in a face-to-face mediation ensure that meetings rooms are as equal as possible to help everyone focus and commit.

  1. Have a well-constructed team

As always in a mediation think about the roles different individuals will play. In these circumstances though ensure that you have one team member, who as part of their role, is to challenge your team so as to anticipate the ‘different thinking’ likely to come through from the other side. The mediator is there to help with this but by doing this in your own team you can hopefully predict any upcoming bends in the road likely to derail discussions.

  1. Tell their own story back them

Hearing that you have been heard and understood (even if not agreed with) can be very powerful. It can diffuse a difficult situation when done in a constructive tone and change the dynamic from “I need to get my point across” to a conversation that is more focused on the immediate future (and a resolution). This can be done in an opening meeting or even through the mediator in private meetings.

  1. Be patient

If you have found the other side to be difficult to date don’t expect it to be different in the mediation right away. Stick with your strategy and work with the mediator and the process to see what progress can be made.

  1. Deploy your listing skills to what is being said

As listed at the beginning of this article, be aware of your own filters, try to avoid blame and provide acknowledgement where possible.

  1. Try to stay creative

Ask questions that can uncover more information, probe possibilities and be willing to generate ideas around settlement. As the mediation goes on and particularly if at times if feels like the other side are ‘sounding like a broken record’ it can feel more difficult to stay engaged and focused. However, it is frequently the effort that is put into the mediation at moments like this that see the genesis for a deal emerging.

Don’t give up.

Mediating with Difficult People, is it Worth it?

It is not easy overcoming the challenge of mediating with those whose point of view, arguments, outlook or conduct you do not understand.

Difficult people and the disputes that they are part of rarely go away by themselves. Nevertheless, with the appropriate effort and skills employed it is possible to get such people to the mediation table, and with the help of a mediator, negotiate a settlement that will put an end to the conflict.