Do We Need to Conduct a Personality Assessment Before We Can Mediate Effectively?
This post has been viewed 2,954 times.
Recently, I had two back to back mediations which ended very differently. The first was triggered when an employer challenged his employee’s right to receive unemployment compensation after being laid off without notice. The case was set for trial within the next month. The mediation was ordered by the Court and was set for 1/2 day. After 8 hours of negotiations, the employer left the mediation without responding to the mediator’s proposal and without giving the process a full chance to settle the case. In the second hearing, arising out of an allegation of sexual harassment, the employer urged his lawyers and insurance carrier to attempt to resolve the claim before it was filed as a lawsuit. Set for 1/2 day’s mediation before any lawsuit had been filed, that case settled within 2 hours. Same mediator. Same week. Both parties represented by competent and experienced counsel. So what’s the difference?
My conclusion is that the attitude or personality of the defendant (or plaintiff) can make the difference as to how to negotiate. In the first, the employer/owner initially displayed his general vindictiveness when he first challenged the unemployment ruling by the Labor Commissioner. By never offering anything to settle this case pre-litigation or even up until the eve of trial, he was signaling that he was unwilling to compromise, for the sake of making peace and saving expense. Instead, he continued to demonstrate a greediness that overwhelmed all sense of fairness or reason. Whereas in the second, the businessman, who had probably stepped over the line of acceptable behavior towards a young, female employee, chose to avoid those expenses, the embarrassment and distraction from the business for a year or two litigating a case out of state, and instead took the “high road” and agreed to pay a significant amount of damages to avoid being in the place of the first defendant a year or two down the line. Although his misconduct towards his employee may have been egregious, in the mediation, he acted with a modicum of grace.
Both cases will eventually settle. The question is: how do we mediators assess the personality of the parties and once we’ve done that, is it possible to shape the negotiations differently depending upon our assessment?
Read original articleTags:
