• Philip Reich

Tis' the Season



The holidays happen to come at the end of the year, which is a great time for reflection. We tend to look at what we have accomplished during the year and how much has transpired since this time last year. And hasn’t it been an interesting year? It’s also a great deadline by which people like to get things done. Everyone could use a little finality.


The holidays also entail gift-giving, holiday meals, family gatherings, and holiday travel, all of which add up to additional expenditures and financial demands. While the holidays come as no surprise, somehow everyone could use a little extra cash this time every year.


The new year brings a new outlook, a fresh start, a clean slate, and the promise of newness. Dragging a nagging bother from one year to the next tends to put a damper on this sentiment. And we’ve all dealt with that baggage.


A mediation rarely involves merely the issues and parties present at the mediation negotiating table. While mediation is confidential and private, the negotiations do not exist in a vacuum. There are outside influences and pressures in every mediation and in every negotiation. The key for all parties is to identify those outside voices and deal with them.


A party must recognize the pressures that they are experiencing. This sounds simple but many times there are pressures which the party fails to appreciate. Exploring their interests can help identify those outside influences. Then the materiality or relevance of those pressures can be evaluated. Some pressures are real and must be addressed. Those are interests that should be accommodated in the negotiation. Others are equally as real but aren’t really interests which can or must be addressed in the conflict resolution. Instead, a way to deal with them or relieve them separately may be in order. For example, a plaintiff might have discussed his case with his buddies, all of whom weighed in on the value of his case and what he must accomplish in the negotiations. If they are unrealistic, then the plaintiff must find some way to deal with them after entering into a settlement based on a reasonable evaluation. The plaintiff needs the tools (a rationale or reason) for his actions in order to explain his decision to his buddies.


Not only must a party recognize the outside influences pressuring him but also those at play with the other side. Determining what interests need to be addressed by the other party helps identify potential win-win resolutions (or at least those with the maximum combined value). Giving the other party the tools that it needs to address those pressures is also helpful.


I often see parties making assumptions about the pressures or interests of the other side. That can be dangerous. While asking may not reveal the pressures actually involved, it certainly doesn’t hurt.


A mediator’s insight into each side’s interests can be very helpful in generating potential settlement options but must be done while preserving the confidentiality of the separate caucuses. It’s a fine line but a good mediator can easily walk it.


It’s not too late. Take advantage of the external pressures that the end of the year brings, whether actual or psychological. Contact me today to schedule your next mediation.