Every mediation has obvious issues- and there can be other important underlying issues. To settle some cases, the parties and the mediator might need to keep in mind the advice of a famous General turned President.
Sometimes the underlying issues are the most important obstacles to settlement. Everything else seems to revolve around them. The parties and the mediator have to be careful and selective as to how and when they address the underlying and emotional issues. Sometimes it is best to just react when a party brings up the issue.
If handled properly, the underlying or emotional issue can give one or more party the chance to feel like they are having “their day in court” by disclosing and discussing it without really getting into proof that would be allowed in court. In a typical personal-injury case the underlying issues could be as simple as being treated unfairly about car repairs or a car rental bill. In more complicated family matters the relationships, how one party feels about another, have to be addressed with all the other factual and legal issues to get all involved ready to settle.
This is where Eisenhower’s famous statement that “plans are nothing; planning is everything” really applies. A party and it’s attorney must plan to address underlying issues and have a plan, but be able to adjust if the emotional issue all of a sudden comes out in a totally unexpected way, such as during the opening statement when all eyes turn to you or your client. The mediator must also have a plan. The reaction is key, and you can’t be prepared to react without a plan.
Factors used to successfully deal with these issues are often respect, understanding, and a “bite your tongue” attitude. Since mediation is confidential, it really doesn’t matter how you feel about what is said. What does matter is how the other party feels about resolving the case once your client or you hear them out and say something – or do not say anything – in response. Make a plan and be ready to adjust it. Sometimes no reaction or a limited reaction is the best reaction. Let someone have their say, let them feel like others are listening to how they feel, and the parties can then get back to the issues that will be addressed in court and on which where compromise can be had. Then a settlement is much more likely to be reached.
Sometimes just acknowledging the issue exists is important. It gives credibility, even self worth, to at least one party and can go a long way toward you gaining their respect. The mediator can then do what he/she needs to do best; ask tough questions. The answers given are often times more conducive to settlement once the emotional, underlying issue becomes part of the mediation process, even if it would not be part of the legal process.
Make dealing with the emotional, underlying issues part of your mediation plan.