Tag Archives: mediation

Two Selves (In Mediation)

Two Selves, in mediation as in life …

It has been said that everyone has two selves – one they know and one they show. The one is kept to ourselves protectively, and the other is shared with others selectively. One cannot suppose to really know the whole truth about another person any more than others can really know the whole truth about us unless we choose to reveal it. Our perception of others, and theirs of us, are usually incomplete and relatively uninformed.

The same can be said of people, interactions and perceptions in mediation during the course of negotiations. Participants in the mediation process tend not to outwardly express or reveal their true feelings. Instead, in furtherance of their goals, they try to be protective of their real concerns, desires and intentions lest they be taken advantage of by opponents. The exchange of monetary demands and offers at the beginning of a negotiation, and through almost all of it, is typically marked by posturing. During that process the parties exchange positional arguments and analysis in an attempt to undermine an opponent’s position and bolster their own. Contemporaneously, they buy time to understand, absorb and evaluate the respective positions. It is not until late in the process as they get closer to actual settlement that the parties reveal themselves, and then reluctantly, incompletely and often unintentionally. Overcoming this reticence is an essential part of the negotiating process and one that an effective mediator fosters as part of helping the parties to achieve closure and settlement.

Mediation: DSM-5 and the RDoC

Diagnosis and treatment of mental disorders in personal injury and insurance litigation can be highly controversial, and important new changes are afoot. DSM-5, the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) published by the American Psychiatric Association has drawn many detractors, including some prominent names in the field of psychiatry. Concurrently, a major new research initiative launched within the last few years by the National Institute of Mental Health, called the Research Domain Criteria (“RDoC”), aims to develop and validate new ways of classifying psychopathology based on neurobiological measures building on recent breakthroughs in genetics and molecular, cellular and systems neuroscience in the hopes of ultimately reaching a point where classification of mental disorders can be neuroscience-based and not wholly dependent on clinical observation. As criticism of the DSM’s methodology predictably increases, accompanied by publication of new scientific findings under the RDoC, the forensic dynamics associated with mental disorders and psychiatric evaluation and testimony may change significantly. Therefore, new developments under the RDoC will be closely monitored by legal practitioners. Sources: DSM-IV-TR; “Another go round in the saga of psychiatry’s bible,” USA Today (May 13, 2013); www.nimh.nih.gov/research-funding/rdoc/index.shtml.

Mediation and Negotiation – Misuse Of Words Is “Problematic” (What?)

Misuse of words is relatively common; we can all do it. Case in point: a U.S. Senator did it the other day when he complained that some of the money generated by Cuban tourism ending up in hands of the Castro government “is problematic.” It seems obvious, in context, that his intent was to express strong disapproval, but his words did not match or accurately convey his intent.

The word “problematic” actually means “in the nature of a problem; doubtful; uncertain; questionable.” Its synonyms are “puzzle, riddle, enigma,” and its antonym is “certitude.” The root word “problem” describes a question, not an answer. Technically, neither the word “problematic” nor its root word “problem” constitutes a conclusion of disapproval. This misuse of the word “problematic” no doubt relates to the similar and oft-used phrase, “I’ve got a problem with that,” by which people mean colloquially that they disapprove of something. Okay, so it’s no big deal when words or phrases are in general colloquial use, and even when misused, people know what you are trying to say. However, a more precise word usage and phrasing is of utmost importance in pinning down the details of negotiation and the finalization of legally binding agreements.

In mediations, one of the mediator’s essential roles is to communicate between the parties with precision and accuracy so no unintended misunderstandings arise in the course of negotiations. This is why conscientious mediators take extra care to assure that they understand exactly what each party wants to communicate with the other party before transmitting the information. A classic example is the word “interest,” as in “We are willing accept in full settlement the sum of $100,000 plus interest.” Really? What type of interest – simple or compound? What recurring period – monthly or annually? By what legal measure – under state law or federal law? By what rate – statutory, contractual, CPI-U, CPI-W or some other?

All of these points need to be clarified as part of the effort to gain, and assure, mutual understanding of the meaning and intent of a word. The parties to a mediation need to know that they actually have reached the agreement they think they did.

Mediation: Thinking Outside The Box

The need to “think outside the box” or be creative in mediating settlement negotiations is reinforced in mediation training courses, and many examples are used to illlustrate the point. Here is a variation of one of the more clever ones.

A man left seventeen camels to his three sons, and indicated the oldest son should get half, the middle son a third and the youngest son a ninth. The sons were preplexed – 17 cannot be divided by 2, 3 or 9. So, they sought help from a wise old woman, who said to them, “See what would happen if you also got one of my camels.” They did as she suggested, and figured half of 18 camels would be 9 camels, a third 6 camels and a ninth 2 camels, and lo and behold 9+6+2=17 camels – problem solved! From Ury, Getting Past No (Bantam Dell 2007 ed.), at p. 159.

(Another solution would of course have been to agree to round up each of the remainders to the next highest whole number as they divided the 17 camels by 2, 3 and 9, but not as clever or as much fun.)