Identifying underutilized ways of steering high-conflict individuals to a mutually beneficial resolution: The hallmark of true justice

Mike Tyson has a great quote: "Everybody has a plan until they get punched in the mouth." Every day in law and life, we suffer setbacks. Great mediators--like great fighters--are those who are able to take a negative and see the positive, the silver lining. Great mediators' strength comes by pushing back on high-conflict individuals, their lawyers, and unreasonable and irrational positions, and by never giving up the fight for resolution.

Active listening, emotional intelligence, communication and patience are all important skills for a successful mediator. But I suggest that the most important skill of all is perseverance. The singular trait that has helped resolve the most cases in the face of failure is resilience; never giving up. During any mediation, there are multiple inflection points, where a case can lead to an impasse or resolution. A good mediator will see those obstacles - in advance - address each party's unique issues and steer the parties to a path for settlement. Good mediators don't give up--they hang in there. They have tenacity.

What does a good settlement look like?

We often hear the "best" settlement is one where both parties leave the table disgruntled. I'm not sure when or who originated it, but I've heard that retort since the mid-1990s when I participated in my first mediation. This myth, often phrased as "good settlements leave everyone unhappy," fosters a culture of adversarial compromise that undermines the very essence of justice. There is a better approach.

I suggest what really drives deals and resolution are empowerment and satisfaction. When people believe that they are in charge of their own destiny, then they have "skin in the game" and when they get to define their own justice, is when settlement often occurs. The ideal outcome of a dispute is not a victory pyrrhic in its cost, but a resolution where both parties walk away satisfied knowing they achieved a better result than what statistically could have occurred before a judge or jury. Without satisfaction and a sense of fulfillment by both sides, can there really be a true settlement? I would argue, no.

Ironically, the successful mediator must be the opposite of the best trial lawyer because instead of fanning the flames of litigation, it is their role to play the Devil's Advocate and be like the firefighter, throwing cold water on the litigation fire. The most successful mediators highlight uncertainty in result and the time suck that continued conflict inflicts on all sides.

I would suggest that true justice isn't a singular, preordained outcome imposed by an external authority. Rather, justice is the empowerment of litigants to determine a solution that addresses their core needs and interests. Most experienced trial lawyers know that often a litigant's true needs cannot be provided by 12 strangers or a judge or arbitrator. Money damages are sometimes not enough. In fact, the mediation process is the only one where adversaries get to fashion their own outcome.

What's the alternative? You have a 50% chance of losing. In every trial there is always a winner and a loser. How do you get to a better than 50% chance of losing? By crafting mutually acceptable settlements and achieving outcomes not possible in trial. If you are skeptical of that proposition, look at the arguments that defense and plaintiff's lawyers continually make. On the defense, they scare clients of "nuclear" or "runaway" jury verdicts by people who use "reptile theory" seeking to exact revenge. On the plaintiff side, they argue that the system is rigged where corporate America stacks the odds against the "little guy," the "consumer" the "employee" or the "injured."

The false narrative of an unhappy compromise

The flawed myth of an unhappy compromise stems from a flawed view of negotiation. It assumes a fixed pie, where any gain for one party translates to a loss for the other, sometimes referred to as a "zero-sum game." A skilled mediator can often uncover creative solutions that expand the pie, generating value for both sides.

If you don't believe litigation is sometimes like going to Vegas and putting all your chips on Black, then why has "litigation funding" boomed in recent years? Venture capitalists now make "bets" and invest in litigation outcomes. Years can be spent in costly court battles with unpredictable outcomes, leaving everyone emotionally and financially drained. How many times do clients ask, "When can we end this case?"

Beyond practicality, the unhappy compromise myth disregards the human element of disputes. Litigants often harbor emotional baggage, a desire for revenge or vindication alongside a need for emotional closure. Good mediators recognize this component to a dispute and address it as a means for achieving closure for all. A settlement that ignores these underlying concerns is unlikely to be sustainable or lead to true satisfaction.

The power of mutually beneficial settlements

The hallmark of crafting a satisfactory settlement is one that addresses the core needs and interests of all parties. This not only leads to increased satisfaction and compliance but also fosters a culture of collaboration over conflict. Open communication is paramount.

The power of crafting win-win solutions lies in the hands of skilled facilitators who guide the negotiation process and are not afraid of using evaluative skills in steering the parties to a mutually desired result. Mediators have the power to suggest out-of-the-box ideas like apologies and other non-monetary terms not available before a judge or jury. Five sometimes overlooked mediation strategies for building win-win solutions:

• Look to see what's driving a party's position: Shift the focus from positions to underlying interests and needs. For example, in a sexual harassment case, the Plaintiff may have a desire to ensure that others wouldn't be subjected to similar conduct in the future. Hearing that desire, a mediator could attempt to facilitate non-monetary terms such as establishing and training all employees about an "800" phone number for complaints, or outside HR coaching for all supervisors.

• Use active listening: Create a safe space for parties to express their concerns without interruption and ensure that all people feel respected and heard. Sometimes people get stuck into negotiating patterns that lead to impasse. A mediator can break that pattern by taking time out for one-on-one communications or a lawyers-only conversation to decrease the tension and better reveal true objections. Another underused practice is floating a number range and seeing the reaction from the party. The mediator needs to ensure that the party understands the number is coming from them, not the other side. This technique could reveal how much room they are willing to compromise to reach a settlement.

• Brainstorming solutions: Explore creative options that expand the range of possibilities beyond the parties' expectations. When parties are stuck on a certain number, using a decision tree approach for assessing risk and quantifiable value may get parties to go beyond the number they first thought was a "good" outcome. When you estimate the probability of each outcome and express it as a number, then perspectives can change about the "real" likely outcome of a case. Another useful technique is to ask to write down and show the mediator what they think their opponent's offer will be. This number could reveal a lot about expectations.

• Facilitative communication: Help parties articulate their needs and bridge communication gaps, by rephrasing what they really need. Oftentimes, mediators are much more persuasive when they mirror back to the parties the current state of negotiations in real-time. This allows the mediator to roll play and ask each side to put themselves in the other party's shoes and presents opportunities for a party to see the case from the other side's perspective. Role-playing and asking one party what they would do if faced with the offer from the other side for a moment may get them to re-think their position.

• Realistic expectations: Set realistic goals and avoid pursuing unobtainable outcomes. Knowing that the parties selected the mediator because they are the "expert," the mediator shouldn't be afraid to make candid assessments of the dispute and likely outcome or even the projected costs of obtaining a certain outcome. By providing the "expert" opinion, it could call a parties' bluff about the true nature of the likely financial outcome when faced with impasse. Moreover, stressing the value of immediate financial security, over a possible outcome after many more months or even years of litigation.

By employing these strategies, mediators can create an environment where parties can work collaboratively towards solutions that meet their essential needs. All parties have to be in a compromise mindset. As the Rolling Stones 1969 song goes: "You can't always get what you want. But if you try sometime, you'll find you get what you need."

A good mediator has the courage to be a catalyst whose presence and skills with feuding parties enable change. The type of change the mediator seeks is the most difficult of all - a change of mind. Good mediators have the ability to be truth-tellers. Mediators shouldn't be 100% "neutral" because if a mediator were truly neutral, there would be little point in seeking their assistance. In other words, they have to be evaluators and help educate both sides on the potential for failure and disappointment. This can be summarized best by Winston Churchill's famous quote, "Courage is going from failure to failure without losing enthusiasm to go on."

Justice isn't a one-size-fits-all outcome delivered by 12 strangers you've never met. That's why I doubt that Artificial Intelligence and computers will ever replace human mediators. Because true justice is looking someone in the eye and empowering them to craft solutions that address their unique circumstances and concerns where they believe they will obtain a result that is beneficial to them. The common myth of the unhappy compromise hinders the possibility of achieving genuine justice. By embracing the power of mutually beneficial settlements, we can all create a more just system for resolving disputes.

Leonid M. Zilberman is a partner at Wilson Turner Kosmo and specializes in employment law, mediation and alternative dispute resolution. He can be reached at LZilberman@wilsonturnerkosmo.com. The views and opinions expressed within this article are solely the author's and do not reflect the opinions of the firm.