Beware Hidden Motivations

     Often, the motivation to settle or to sue has nothing to do with the case that is before a mediator or Judge.  For example, a party may feel disrespected by her family members, may feel let down by her personal trainer or frustrated by her former spouse.  The motivation to sue someone is sometimes an enigma that doesn't completely reveal itself to the lawyer who brings the claim.  Then, many months or years later, the motivation to settle can derive from something altogether different, such as an impending divorce, a series of bad investments, a desire to quit a job or leave the country.  A business may be positioning itself for sale or acquisition.  A lawyer may be leaving the practice to write novels or open an art gallery.  When you probe with open-ended questions, you can find out all kinds of factors that may have driven the litigation and will be the engines that drive towards ending the conflict.

     This week, I mediated a case brought by a very wealthy woman against her former business partner in a business centered around her daughter's sport.  Now that the woman had a falling out with her daughter, (who was a freshman in college), she was angry at the considerable investment she had made in her childhood activities.  Rather than sue her own daughter, she sued her daughter's fondest coach.  Once it became evident that the lawsuit was not motivated by a desire to collect considerable damages, but by a hope that she could be heard and understood now that she was alone, she could put the dispute in a proper storage bin, alongside all of the complicated emotions and memories that empty nesters put the worldly possessions of their children's childhood in once they move away and spread their wings.  Having your last child move out on his own is a huge adjustment, but, like aging itself, there is no easy way to turn back the clock and change history.   Mom and Dad just have to keep looking forward, not back and re-frame their children's childhood in the most favorable light possible.

     Even a black cat can not consistently spot the mouse in the grass.  Once she makes peace with that, she can just begin to enjoy the long grassy garden for it's own sake.

Make no Assumptions in Mediation

     The problems encountered by the Plaintiff are generally laid bare in pleadings and through discovery by the time of a mediation hearing.  After reading and reviewing a comprehensive mediation brief, we mediators can get to a place of thinking we know the darkest secrets which lead to the conflict.  But as a wise mediator said to me once, "you don't know what you don't know".  For this reason, it's unwise to make any assumptions. 
     In last week's mediation against a governmental agency and a former employer, both of the Defense lawyers independently and separately revealed true and shocking facts regarding their own personal backgrounds during the course of a long day's mediation.  One of them, who had flown in from a well established large defense law firm, had grown up abjectly poor and understood the depths of the Plaintiff's financial plight more than anyone may have imagined.  The other had suffered a similar legal issue as a young man and knew firsthand how his past had haunted and plagued his efforts once he changed his life, went back to school and then law school and finally sought a job with a governmental agency, where his legal record threatened to derail the plans he made for himself as a prosecutor many years later.
     On this day after the Jewish Yom Kippur, where the Book of Life is laid open and we are asked to confess our sins and repent for our transgressions, it is a good reminder that not everyone is an open book.  There are dark secrets in every person's past.  If we accept that we don't know the participants in the mediation, we can remain more open-minded, more generous and more creative about the particular dynamics that converge to resolve the most vexing disputes.

Make No Assumptions

There is some logic to wearing a mask when you are about to commit a crime:  you don't want to reveal your true face.  We all wear masks from one time to the next.  I appear different when I'm at the gym than at the office and even differently when I'm arbitrating a case than doing case follow ups by phone.  As a mediator or a litigator, it's important to remember that every individual is unique and may defy your expectations of their characteristics.  For example, a very young woman with a soft voice may be very powerful in the context of her family-owned business, or an elderly, frail looking man may be one of those "Super Agers" who has unbelievably accurate recall of facts and events that may exceed his lawyer and paralegals put together!  A banker may be less facile with numbers than with literature and a school teacher may be defiant about learning lessons.  Mediation works best when we indulge every participant in a genuine interview designed to understand what lies beneath the mask that they may have donned for the hearing.  Once we determine the critical driving factors, very often the dispute can be resolved with less pain and shame than the masked hold up that it sometimes appears to be.
     May this New Year, for those who observe Rosh Hashanah, bring a renewed commitment to treat every individual as unique and valuable, without pre-judgment.  L'Shana Tova.