Don't underestimate the value of recognizing weak points or negative facts in your case during mediation.    

 

In a recent mediation of a disability discrimination lawsuit, the defense counsel began the first caucus by unequivocally stating that the employer botched the accommodations process for the plaintiff while she was still employed. He made clear that they had legal arguments to defend their actions in litigation, but for mediation purposes, they wanted to acknowledge up front that they could have and should have done a better job in the ADA's interactive process with the plaintiff. What music to a mediator's ears!  The defense counsel and his client readily authorized me to share this in caucus with the plaintiff and her attorney.  

Granting me permission to deliver this message to the plaintiff accomplished several important goals. First, it validated and affirmed the emotions of the plaintiff -- a key to reaching resolution.  Some advocates wrongly fear that validating the plaintiff in this way only raises her ire and leads to irrational or inflexible bargaining.  The contrary is true.  By directly validating and affirming the viewpoint of the plaintiff, the level of emotions is reduced and the parties can then negotiate with more objectivity, trust and flexibility.    

Second, taking responsibility where appropriate or recognizing the weak spots of the case leads to reciprocal behavior from the opposition. I have observed this occur countless times in mediations. Where a party is objective and recognizes their share of responsibility for the situation that gave rise to litigation, the other side is more likely to take responsibility and be reasonable as well. In the recent mediation involving the disabled plaintiff, she ultimately acknowledged that the employer's performance concerns were legitimate -- that she faced difficulty meeting the job requirements even before her disability arose.  This reciprocity spills over into the actual negotiation as well. When a party recognizes that her opponents are flexible, she is more willing to compromise to reach agreement.       

In many mediations, I have also observed the opposite behavior -- refusing to take responsibility where reasonably due -- leads to the same refusal by opposing party. Just as a rational, problem-solving approach leads to reciprocity in a mediation, unreasonable positions and refusals to acknowledge case weaknesses engenders the same litigation-type, warfare response in mediation.     

Third, acknowledging a weak spot in the case redirects the discussion towards the future rather than staying focused on the past.  Problem-solving and focusing on the future is the main province and value of mediation. In litigation, the focus is on the past -- proving or disproving claims. Mediation provides the opportunity for a different discussion and directly acknowledging case weaknesses is an important component for that discussion.

In my recent mediation, once the plaintiff heard a clear acknowledgement of the employer's mistakes she was able to soften her approach to the discussion and ultimately take responsibility for her own actions that led to the termination.  Once validated, she was able to look to the future and problem solve in a collaborative, flexible way rather than obsess about what occurred in the past.