Negotiation News: Volume 3, Issue 4
In the previous issue, I discussed the issue of forgiveness and how you might go about approaching and dealing with it in mediation. In this issue, I’m offering a few thoughts on the companion to forgiveness, reconciliation. These are very different concepts and should be carefully considered in addressing the right type of dispute.
Last month’s article dealt with forgiveness, and how it is a powerful tool in transforming the dispute into one that allows the parties to move on with their lives and achieve peace. It may be conditional or unconditional, and must be carefully managed when the wrongdoer is ready to ask for it, and the aggrieved party is ready to receive it and forgive.
“Reconciliation” is defined as “the action of making one view or belief compatible with another.” This is far more common than forgiveness in mediation, and in many ways encompasses the very definition of mediation itself.
Reconciliation may involve reviving and continuing a broken relationship or simply resolving a dispute with the agreement of each party to go its separate ways. Regardless, the mediator should endeavor to create an atmosphere where reconciliation can be accomplished. Both counsel and the parties should work together so that if reconciliation is desired, they are in the best position to be open to it.
Some things to encourage are as follows:
- An atmosphere in which truth and candor may be expressed
- An opportunity to acknowledge that each side has heard the other’s concerns or grievances
- Mutual ownership of the roles and responsibilities of each party
- Sharing in common past successes
- Expressing positive ways going forward
- Assigning common tasks to achieve a way forward
(Moore, Christopher W., The Mediation Process, Jossey-Bass, 4th Ed. 2014)
In personal injury matters involving a third party claimant in which the defense in handled by an insurance company, this type of reconciliation is rare. For the mediator, there is much more “managing mixed messages” than true reconciliation. However, in such circumstances, it is often incumbent upon the mediator to communicate to both sides that the progress of negotiation itself is a sign of reconciliation, and an acknowledgement that the matter should resolve rather than proceeding further. In simplest terms, a lowered demand or increased offer may acknowledge a problem with liability or damages. However, in instances where there is a serious injury or wrongful death for example, it may be appropriate for the parties to get together and express themselves in a non-accusatory and constructive manner (see also the discussion of “Forgiveness” from last month).
In summary, where classic reconciliation is warranted, the mediator and counsel should encourage an open and constructive environment in which any or all of the six goals expressed above may best be achieved. It may lead to a way forward in the parties’ relationship or it may not. In any event, it is far more likely to lead to resolution and to give the parties the closure they are seeking when the come to mediation.
- Reduced Fees For Smaller Cases
I offer reduced fees for smaller cases. Under the former LASC ADR program, cases in which the claimed damages were $50,000.00 or less were eligible for court-ordered or party pay mediation. In an effort to continue to serve the parties who have cases with claimed damages under $50,000.00 with one plaintiff and one defendant, my fees will be reduced for the duration of the mediation, with no increase after three (3) hours. ;My hourly rate remains the same for cases where the claimed damages in dispute are above $50,000.00 or with more than two parties. Please feel free to contact me to discuss at 818-616-8500 or [email protected].
A portion of mediation fees generated will be donated to a charity of your choosing. When booking your mediation, please direct me to the website of your charity.
Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at (818) 610-8799, at www.judgemediation.com or via email at [email protected].