It is well-recognized, by both practitioners and academic commentators, that mediation

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1 MEDIATING THE HIGH-EMOTION CASE By: James B. Chaplin, Deborah G. Cole, and Val H. Stieglitz * International Association of Defense Counsel Mid-Year Conference February 11, 2013 It is well-recognized, by both practitioners and academic commentators, that mediation involves a far different dynamic than trial. Given the fact that mediation continues to expand as a primary means of resolving disputes, and trial continues to recede as means of resolving disputes, lawyers must become conversant with, and comfortable with, the special dynamics of mediation. One of the main forces woven throughout all aspects of mediation is Emotion. Many commentators observe that lawyers are trained in logic and rationality. These skills are, of course, essential to analyzing our cases and identifying potential outcomes. But taken too far, a devotion to logic and rationality can lead to dismissing or ignoring the role that emotion plays in all human interactions, and all disputes; whether those disputes involve intense personal matters, professional matters, or business/commercial matters. While lawyers may like to assume that the resolution of problems is mainly a rational process rationality exists in a broth of emotion, and this emotional context greatly affects how people approach disputes. Instead of something to be ignored, or gotten past, emotion is a dimension that is present in virtually every case we handle, and every mediation in which we participate. As mediation has become more widespread, more academic attention has been paid to the role of emotion in mediation. The field is full of articles providing tips on dealing with emotion, recognizing emotion, managing emotion, turning emotion in positive directions, and the like. Many observers point to the 1976 publication of the New York Times bestseller Emotional Intelligence: Why It Can Matter More Than IQ, as a critical point in spurring greater focus on the

2 role of emotion in dispute resolution. Certainly, that book introduced the term emotional intelligence into the popular lexicon. And while the term has been overused, it does provide a useful construct for thinking about the dynamic that comes into play in mediation settings, and the skills that lawyers must be prepared to employ in mediation. The primary attribute that lawyers are urged to develop and deploy as they plan and conduct mediations is this emotional intelligence. In general, emotional intelligence has been described as the ability to listen, interpret non-verbal cues, see others perspectives, project empathy, connect with your negotiation partner, anticipate how emotion will influence the decisions that will need to be made, and use all the above to manage and direct emotions toward a desired end which, in the case of mediation, is consensual resolution. In trial, we use information and intangible data to convince the finder of fact that we are right; in traditional negotiation, we seek to prevail on bargaining points and get a better deal than our negotiating partner. In mediation, in contrast, we use tangible and emotional data to create consensus. This is a big difference. What does this mean in practical terms? 1. Acknowledge that there is an emotional strain in whatever dispute is occupying you, and try to identify and understand the emotional drivers or factors at play among all the parties (including your client.) 2. Give careful thought to how to address these emotional drivers in the mediation preparation, and the mediation. Consider the pros and cons of addressing them openly, or simply being alert to their presence but have a plan for how you want to react when and if they arise. 3. Do not minimize or ignore expressions of emotion by others in the process.

3 4. Search for the resolution that will satisfy the parties emotional hot-buttons, and not just the resolution scenarios that seem the most logical or rational to you. This means putting time into trying to understand the emotional landscape that both your client and the opposite side is bringing into the process. This is where things can get interesting. The superficial approach is to only dissect the emotional profile of your adversary, and leave it at that. But every practitioner knows that their own clients bring their own emotional dimensions to their cases; anger, chagrin, anxiety, disgust, humiliation, fear, pride. And because so many of our cases have an insurance component, with a carrier present in some role, carriers must necessarily deal not only with the emotional dimensions of the underlying case and the claimant, but of their own insureds as well. These issues make for interesting thinking, and below are perspectives and observations from several different angles that may be useful to readers preparing for their own highemotion mediations. I. An Experienced Practitioner s Tips for Handling Clients and Opposing Parties in High-Emotion Mediations: In preparing a client for mediation in high-emotion cases, it is essential for the practitioner to meet with the client in advance of the mediation and ask the simple question - what do you want out of the case? After hearing and considering the client s expectations, the practitioner may be able to diffuse emotions by carefully identifying and discussing with the client the strengths and weaknesses of the case. An analysis of the economics of the case is critical in managing the client s expectations. It is particularly important for the client to understand that, while you may be willing to fight to the end for what the client wants, the

4 economics may warrant consideration of something less than the moon (if you represent the plaintiff) or an outright win (if you represent the defendant). In high emotion cases, clients often continue to resist rational and logical settlement options even when advised of the weaknesses in their position. Once the practitioner has explained why the client s goal may not be achievable, it is important to listen to the client s reasons for pushing forward. The practitioner s role becomes that of a counselor. Understanding the human psyche and the client s need to tell his/her story is critical. Mediation can be a route to resolution of a high-emotion case where a client is resistant to settlement for less than one hundred percent of their goal. The process of shuttle diplomacy presents a unique opportunity for the parties to meet with the mediator to express their view of the case without having the opposing parties present. Clients in high emotion cases need to be able to tell their story. If utilized properly, mediation may afford a client the cathartic opportunity that is otherwise unavailable in litigation. It is important, however, to anticipate and to discuss with the client any emotional discord with opposing parties or, in some instances, the mediator, in advance of the mediation. Like any other aspect of litigation, preparation is key if the mediation is to be successful. In some instances, the opposing party (or opposing counsel) is driven by emotion in the case. When this occurs, use the mediator to control the emotion. Talk to the mediator about this ask why the opposing party is taking this position and making resolution impossible. Why are they so angry? Understanding what drives opposing parties in high emotion cases is critical in analyzing whether the case can be resolved in mediation, or whether a trial is necessary. II. A Mediator s Tips on Successfully Mediating the High-Emotion Case:

5 Trial counsel should be watchful for the high emotion component, especially in cases involving child injury or death, estate litigation, wealthy parties litigating over matters of principle, discrimination claims, business or professional breakup cases, and similar matters. They need to screen for the high emotion component in their pre-mediation checklist. ANTICIPATE based on the subject matter be extra vigilant. RECOGNIZE the signs during discovery and in conversation with plaintiff counsel. NEUTRALIZE with empathy and attention acknowledge in mediation presentation employ the light touch. Do not overdo it. TELL THE MEDIATOR the concerns in the private written summary or the premediation caucus. An experienced mediator also screens for high emotion participants, especially in these likely cases. The pre-mediation caucus is the best opportunity for the mediator to make subtle inquiries with open ended questions, designed to bring out the high emotion participant. That private caucus is either several days in advance of the mediation or just before the mediation convenes. Trial counsel needs to be sure the mediator has a plan to acknowledge the emotional element, allow the participant to explain his feelings if he chooses, discuss the mediation process as it relates to resolving the emotional component and get the party to express readiness to resolve the case. For instance, in a discrimination case, the party may not be ready to settle until certain things happen that can be arranged as part of the mediation, such as the party being allowed to express how the unfair treatment impacted her life, apologies, letters of recommendation, jointly drafted press releases, etc. Do not hesitate to involve the mediator is

6 exploring out-of-the-box steps like these which can address a party s emotional needs and help create a favorable emotional climate. * Jim Chaplin is President of Mediation, Inc., headquartered in Ft. Lauderdale, FL. Deborah Cole is the founder of DGCole Law, in Chicago, IL. Val Stieglitz is the coordinator of the litigation group at Nexsen Pruet, LLC, in Columbia, SC.