20/5/2022 "Hope is optimism with a plan""Hope is optimism with a plan" It immediately caught my attention. I rewound the podcast to listen to it again. It’s true to say much depends on your definition of ‘hope’ and ‘optimism’, but the essence is that in order to succeed, you need more than just a sunny disposition, and some positive thinking. This chimed with me as a mediator. How a party considers the offers to settle can depend on their outlook on the litigation facing them, and what they consider to be their other options if they don’t settle.
The issue, though, is that I often see parties pull out ‘blind optimism’ as their back-up plan. "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. And when it comes to making that journey, one of the fastest vehicles to get there is Reality Testing. Reality testing 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 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 to make her drop the claim. I’ll ask Bob the amount of money he thinks that Jill has already spent (and whether he thought that she would spend the money she has done so far); and the costs of discontinuing proceedings that might mean it is not realistic to rely on her just walking away. 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 analyse their beliefs. But reality testing has to be handled carefully. It certainly can’t be rushed. As a mediator, I have to first build rapport, build confidence, listen, show the party that they are being heard. Otherwise the risk is I’ll be seen as partisan, or that I am being too critical of their case. People have to feel some connection with me before they will listen to my questions with the required open mind that leads them to fully engage with the process. o edit. 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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