One of the most gratifying things I did as a judge on the trial court in Orange County was helping people voluntarily resolve their disputes. Over the years I developed some insights into what helps increase the chances of a resolution, and what pushes people further apart. So since there are opportunities in everyone’s life to help to resolve disputes, whether they are their own or those of others, I wanted to pass along to you some suggestions — and maybe in turn you can pass them along to your children.
The first thing to be aware of in trying to resolve disputes is not to promise more than you can deliver. If anything you do gets people’s expectations to be unrealistically high, you will probably torpedo your chances of achieving a resolution even before you even get started. So always stay cautiously optimistic, but also stay realistic.
In addition, when you are involved in discussions in the presence of the opposing parties, never allow anyone to use what I call “poisonous words.” These are words like “liar,” “cheat,” or “scumbag,” and their use will almost always move people further from a resolution.
Similarly, as a mediator you should stress that only one person can get mad at a time during the talks. (And, of course, you can never be the one!) And if one side does get upset, allow that person to “vent” for a short while, but then make a comment like, “I understand how you feel (which will ratify but not necessarily agree with their emotions), but may we now get back to trying to alleviate the source of your frustration and resolve this dispute in a fair manner?”
And don’t underestimate the power of an honest apology. Several years ago an insurance company that provided medical malpractice insurance to doctors actually encouraged their insured doctors to apologize to their patients when the outcome of a medical procedure was disappointing. That does not always mean that the doctors were admitting that they made a mistake, but if the apology for the bad result is genuine, many people will understand that their doctors did not go to medical school to hurt people, and also that they are human. Thus many people will be forgiving, accept the apology, and simply go on with their lives. Of course, this approach can apply to all kinds of disputes.
Another important thing to determine is whether this dispute is being addressed as a business decision, or one based upon emotion. If some parties would “rue the day” that they ever settled the dispute because they want to see their counsel cross-examine that jerk on the other side, or they want to be able to “tell the world” about how they have been wronged, they should go to trial. But if the dispute involves a business decision, then I can help them in a resolution.
But having said that, often just giving people the opportunity to tell their story to a neutral party, whether it is a judge or any other neutral person, can be sufficient to allow them to move on to making it a business decision. Why? Because those people will now feel that they have had “their day in court.” So often mediators are in the psychotherapy or even hand-holding business. Don’t shy away from it, because you will be fulfilling an important human function.
Sometimes you will be faced with what I call political decisions. For example, if the people who are the decision-makers for one side of the dispute are also the ones who made the mistake that gave rise to the dispute in the first place, those people will often hesitate to offer a settlement because then it will then look like they are acknowledging their mistake. So you as the mediator must frame the matter to look like any reasonable person under the same circumstances would have done the same thing. In that way the decision-makers will be free to provide redress without looking like they were careless, or worse.
Often mediating disputes calls for creativity both from the parties and the mediator. For example, when two people or companies that have done business with each other for awhile have a dispute, often it can be resolved by forming an agreement between them for future business at more favorable rates for the aggrieved party. That in effect will result in a victory for both sides, because not only will the business relationship be continued, but over time it will probably be strengthened, and at the same time the aggrieved party will receive some redress.
Creativity in disputes involving the “loss of face” can often be resolved by having the party who made the mistake or failed to perform make a contribution to the charity of the aggrieved party’s choice. That way both sides will be seen as being caring and responsible citizens, and the dispute will also be resolved.
Of course, if you are looking for solutions to problems, you should become a mathematician. Why is that? Because almost all human disputes only have resolutions. For example, if someone ran a red light and hit your car, breaking your arm, nothing can be done to keep that injury from having occurred. Thus there is no solution to the problem, only a resolution, which frequently results in the culpable party paying money to the aggrieved one.
So at the outset of your mediations, make sure the aggrieved parties understand that all you can do is resolve the dispute by picking them up, dusting them off, and helping them to get on with their lives. That will help them to look at the situation much more realistically.
As you probably know, helping to resolve disputes is a truly gratifying thing to do, but it takes work and some insights into human nature to do it effectively. I hope that some of these tips will help you in your future efforts.
Judge Jim Gray (Ret.)