The Slip


SLIPPERY WHEN WET! Beware the slippery slope of focusing on the past. Photo credit to Skitter Photo 

Recently, I mediated a dispute. Beforehand, I did some research. I looked up a couple of articles by well-known experts in the field. I wanted to get ideas on how to ask the very best questions to really get both sides thinking of interests rather than positions.

Right away, I could feel the frustration from one side. The plaintiff was owed some money for a period of time. The defendant stopped communicating about why the payment wasn’t forthcoming.

Then the defendant spoke, and I could instantly tell, he knew he owed the money. The heart of the dispute wasn’t really in dispute. He was at a loss. He felt like his insurance company should have covered him. But they didn’t because he was feuding with them over a (wrongfully?) cancelled policy.

The defendant clearly articulated that he was confused about what to do and didn’t have a clear idea of what his legal rights were. Further, he didn’t have the money up front because his income was tied up in commissions that hadn’t yet been paid.

The offer: Defendant acknowledged that he owed the money and felt bad about the whole situation. He offered 40% more than the plaintiff was asking for. In return, defendant wanted a release of liability and 60 days to pay.

The counteroffer: Plaintiff berated the defendant. The plaintiff’s frustration over the lack of communication boiled over. Plaintiff accused the defendant of being irresponsible and unwilling to make any sacrifices to make good on obligations.

As the mediator, I redirected and refocused the discussion. I made it clear to the defendant that the plaintiff was frustrated over the lack of communication over a long period of time, while reality checking the plaintiff to show her that this line of “discussion” was going nowhere fast.

It was for naught. The damage had already been done, and anyways, the plaintiff was unwilling to let go of the past and focus on the 40% increase she had gained for herself.

The result: Defendant shut down, went into fight-or-flight mode. It was a visible change in demeanor, from open and willing to insulted and disrespected.

That’s how an easy settlement gave me The Slip. But with every experience, I’m learning and growing as a professional. I can’t say the same for my wayward disputants.

Fellow mediators and conflict management professionals: what could I have done differently?

Disputants, do you see how focusing on past behavior may run contrary to your own interests?

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