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Article of the week from Michigan Lawyers Weekly:
Hitting home runs
Steps can be taken to help parties resolve issues and become more satisfied
By Dale Ann Iverson, Esq.
In mediation, lawyers and mediators help negotiate resolutions that we think should leave parties satisfied and thankful for our efforts. We hope that, for the money and effort, mediation will produce higher levels of satisfaction compared to trial courts and traditional negotiation.
But we know from experience that parties do not always feel as satisfied about their settlement - and us - as we hoped.
Why isn't settlement alone enough to ensure party satisfaction?
One reason may be that there is no psychological closure to the dispute for the parties. In "The Mediation Process," Christopher W. Moore defines this type of closure:
"Psychological closure means that parties to a conflict have gained enough emotional satisfaction as a result of participation in the dispute resolution process that they are willing to emotionally disconnect themselves from the historic antecedents and actions that provoked the dispute, the conflict itself, contested issues, and former opponents."
Opportunities for this type of closure can be missed when lawyers and mediators see possibilities for closure only in the form of apology, forgiveness or reconciliation - the "out of-the-park" home runs of dispute resolution.
In fact, there are opportunities for "in-the-park" home runs standing right at the plate if we recognize the possibilities and coach the parties to make them happen.
Many mediators will not force the issue of psychological closure. But a mediator can consider the possibility, and then work with parties and counsel to determine if closure is possible, what form the parties can and want it to take, and then prepare them to take the right steps. When lawyers and mediators work together toward closure, they probably have the best chance of achieving all of the parties' goals.
The best first step for lawyers and mediators is to understand that closure is not an all-or-nothing proposition. There are different actions that can move people toward closure. Moore identifies six "levels" of closure:
Acknowledgement: Agreement about what happened is not required. Rather, each side comes to better understand that the situation is more complicated than they originally thought, and expresses that in some way.
In their book, "Difficult Conversations," Douglas Stone, Bruce Patton and Sheila Heen stress that this appreciation of complexity can come from one of three conversations - in this case, the "What Happened Conversation."
Acknowledgement is more likely if time is devoted in mediation to the parties' "stories," not just legal arguments. Even when disputants can't meet in the same room, closure can occur when a mediator and/or lawyer effectively communicates acknowledgement to the other side.
Ownership: For some, closure can best occur where, in addition to acknowledgement, there is recognition by each side of their role in the dispute, the actions that occurred, and the negative or positive consequences that resulted.
Stone, Heen and Patton recommend "mapping the contribution system." In their mediation, a former employee and employer discussed the history of their dispute at length. Settlement discussions concluded successfully after the employer clearly stated that, while they did not feel there was any legal liability on their part, they sincerely wished they had handled the situation differently.
Affirmation: Actions that promote this type of closure are expressions of hope for a more positive future for all disputants. These can include statements about the prospect of future relationships, or potentially positive disconnections where the parties are severing a relationship or had little relationship to begin with.
Statements such as, "I'm glad we can put these differences behind us," or, "Good luck to you (or the company) in the future" often take place as a settlement agreement is being written, or as parties shake hands at the conclusion of a mediation session.
Apology: Acceptable and genuine apologies are the next level of ownership for what has happened and can bring closure, for the giver and receiver. This involves including ownership and usually includes expressions of regret or remorse, and may include requests for acceptance and forgiveness.
For effective closure, an apology must be sincere, framed in language acceptable to the recipient, and delivered in conditions that are mutually acceptable. In a mediation among extended family members to resolve eldercare and estate issues, a grandmother and granddaughter asked for a private opportunity to express their love for each other. They hugged and cried. Their apology was made public later when lawyers, other family members, and the mediator were invited to return to the room.
Forgiveness: Requests for acts of forgiveness move beyond apology. With forgiveness, the giver moves beyond her anger and the receiver can move beyond her shame. In this way, both seem to regain their humanity, self-respect, and ability to connect with others meaningfully.
This form of closure can't be forced on disputants, but mediators can be transparent about the possibilities for this. Lawyers can be helpful when they anticipate and prepare for this possibility.
Reconciliation: In "The Mediation Process," Moore describes two different types of reconciliation. One is a long-term process of relationship change that is unusual in typical court-connected mediation.
A second is a form of closure that we see more often in mediation, like acknowledgement and affirmation; a disputant becomes reconciled, or comes to accept and move forward with an outcome different than his wished for outcome.
In mediation, the plaintiff alleged that she and other African-American employees were discriminated against in opportunities for promotion. When her discrimination claim was settled without any offer to change company policy, she reconciled herself to a settlement that would not meet her hopes for companywide change, but would allow her to leave the company and move on to a better situation.
If lawyers and mediators work more intentionally to identify the types of psychological closure that are possible in any dispute, they can work effectively together to achieve higher levels of party satisfaction with settlement outcomes.
Dale Ann Iverson, J.D., is founder and principal of Grand Rapids-based JustMediation PLC, where she mediates matters in various state and federal courts, government agencies, and dispute resolution centers. She has served on the Michigan Supreme Court Dispute Resolution Task Force, chaired the ADR Section of the State Bar, and is a former president of the Grand Rapids Bar Association. Contact her at (616) 560-2243 or daleiverson@justmediation.com.
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