Honest Conversation – Mediation and the Pandemic

{5 minutes to read}  First some business: I am available for video and/or audio mediations and conferencing. 

Next: I don’t know where things will be when this blog is published. At the moment, everyone probably wants a break from the coronavirus conversation. However, it is the 500-lb. elephant in the room. In fact, as of this writing, it’s the only elephant in the room. 

So what, if anything, can mediation teach us about where we are? What can we draw upon to make things better? Two things come to mind: the need for honest conversation, and making the best of imperfect situations. They’re related but let’s take them one at a time. This blog will address honest conversation, the next, making lemonade. 

Most mediation sessions don’t begin with fully honest conversations. A mediation is not a therapy session, even if mediation can be of great emotional value. Initial conversations often involve opposing sides vying to improve their bargaining position. They spin each other, and they spin the mediator. Assuming the parties are represented by attorneys, they’re just doing their job. In my divorce mediations, usually only the couple is present, and they each, of course, have their own take on things, often more reactive than planned spinning.

In the mediations I do where the parties are represented by counsel, I almost always have a preliminary joint phone call with the attorneys followed by separate phone calls. In the separate calls, attorneys are often remarkably honest about their positions, describing the case’s strengths and weaknesses, and what they think their client may be willing to do. These conversations are confidential and therefore attorneys know they can reveal more than they might otherwise. Now there is a limit to such honesty, and at this point I rarely push counsel to reveal more than they willingly do on their own. This is partly because what parties are willing and able to do often changes during the mediation, so there is no point in pushing too much early on.

As a mediation proceeds, the talk becomes more “honest”, meaning parties tend to reveal more fully what they’re willing and able to do. And the mediation itself influences that. As discussions unfold, time is invested, possible litigation and non-litigation outcomes get considered, trust develops between the mediator and the parties, and everyone becomes a bit more honest with themselves and each other. What do I really want? What do I really need? 

Of course, not all mediations are successful, though I cannot recall a mediation that was unsuccessful due to a lack of truthfulness. Nor do disputes fail to resolve because a client is lying to his lawyer or the lawyer is lying to the client. No one has a perfect crystal ball for predicting outcomes, though certainly clients and counsel may overestimate their chances of success through litigation. One benefit of mediation is that even when unsuccessful in fully resolving the dispute, it helps the parties proceed with a greater understanding about what future litigation will entail. They can more honestly evaluate the situation.

Problems, including disputes, require truth if they are going to be resolved. Even though bluffing can be a part of negotiations, disputes can rarely be resolved on the basis of falsehoods. The other side sees through it. And a dispute that is resolved based on falsehoods can be doomed to failure. If one side agrees to do X to resolve a matter and then reneges, they may be back in court, unhappy and paying more counsel fees. If an agreement in a divorce mediation falls apart later on because the parties were dishonest with each other, the consequences can be long standing and affect later generations.

Back to the pandemic. Many of us have been enormously frustrated and angered by the dishonest rhetoric that surrounded the pandemic. It has cost lives and billions, maybe trillions, of dollars. An ounce of honesty would have been worth many pounds of the belated cure. Mediation can provide an avenue for honest discussion with enormous benefits. It is a lesson ignored at our peril.

We’re in this together.

Time to patch things up.

Honestly. 

Gary Shaffer
Shaffer Mediation
Gary@ShafferMediation.com