24/6/2022 "Hope is optimism with a plan"I heard this in a podcast recently and it stopped me in my tracks. I rewound to listen to it again. Now a lot of how much truth is in this statement depends on how you define hope and optimism, but the essence is that you need more than just a sunny disposition, and thinking it will all come right in the end. This chimed with me as a mediator, because especially in litigation you need a lot more than optimism about the available options if you are going to turn down the opportunity for a settlement. How often I've heard parties pull out blind optimism as their back-up plan if mediation fails to find a settlement. "The judge will see through him" (why? They will have a few hours at most listening to him being cross examined. It took you 15 years in partnership to see him as you do now) "Our expert will be believed" (why? Both experts have put forward compelling conclusions in their reports, the Judge might believe either, or find some middle ground) "He'll never take this to trial" (why? He’s already taken it this far, and you always swore blind he'd drop it before now.) And on and on the narrative goes. Often part of the journey for parties in a mediation is realising optimism isn’t enough. One of the most powerful tools within mediation when this happens, which can be applied in many areas of life, is reality testing.
This is where a mediator will ask questions to stimulate the disputing parties to review their decisions; provide them with an opportunity to acknowledge any unrealistic beliefs and expectations. So, for example, if a Bob considers he can refuse the offer because Jill will drop the claim when they realise she can't win, I will ask Bob about the advice that he thinks she might have received and why would that have changed; the amount of money that Jill has already spent (and whether he thought that she would spend the money so far); and the costs of discontinuing proceedings that might mean it is not realistic to rely on. The aim is to add objectivity to the already held beliefs, to see if those beliefs survive the scrutiny. As a mediator, it is not for me to change people's minds, just to ask questions that allow people to review their beliefs. But reality testing though has to be handled carefully. The mediator has to first build rapport, build confidence, listen; show the party that they are being heard, otherwise the risk is you are seen as partisan, or not understanding the party. People have to feel some connection with you before they will listen to your questions with the required open mindfulness. Comments are closed.
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AuthorRichard Marshall is an Accredited Civil and Commercial Mediator with over 25 years experience as a Litigation Solicitor, as well as being a qualified Solicitor-Advocate. He is the founder of Striving to Settle, through which he works as a mediator and provides negotiation training. www.strivingtosettle.co.uk Archives
August 2022
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