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<\/p>\nMediators are trained to detect subtle\u00a0opportunities for value-adding integrative outcomes: separating positions from interests, offering out-of-the-box suggestions,\u00a0and looking for ways that the parties can find mutual benefit.<\/p>\n
For me, that ended in an early-career EEOC mediation where the ADA claimant, having been offered every accommodation to her disability, refused to withdraw the claim\u00a0unless she was paid $600,000 — more than twenty times her salary.\u00a0<\/p>\n
In mediation, as in life, money talks.\u00a0 And Dwight Golann has recently reported empirical research backing up that conclusion.<\/p>\n
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In an article appearing in the Fall 2011 issue of Dispute Resolution Magazine<\/a>, Golann surveyed some leading mediators and asked whether, in their most recent two commercial cases arising from a significant business relationship, those mediators concluded that the parties had repaired their relationship.\u00a0 In\u00a017% of the 60 cases reported,\u00a0the mediator considered the relationship had been repaired, while in 83% it had not been.\u00a0 And even when the relationship continued it was often a case of “too expensive to get divorced” (such as a dispute over a rent arrearage owed by a business tenant).<\/p>\n Why so low?\u00a0 Golann \u00a0lists a variety of factors that encourage business disputants to stick with their positions and look for the money<\/a>, not the love.<\/p>\n For one thing, by the time they litigate, it’s too late.\u00a0 Litigation is itself a signal that the commercial relationship is bankrupt and only damages are left to be determined.\u00a0 Another factor\u00a0is the deep well of mistrust that has grown between the parties over years of disputatious behavior, ant that\u00a0a\u00a0mere mediation is unlikely to overcome.\u00a0 Most business disputants have options to continuing the relationship —\u00a0they can always hire a replacement employee or deal with a different supplier.\u00a0<\/p>\n Not only are incentives and rewards for an integrative outcome missing — authority is missing too.\u00a0 In my experience the “guy with authority” is the guy who can write a check, not the guy who can write up\u00a0a new contract.\u00a0 \u00a0<\/p>\n Golann offers suggestions to mediators who are confronted with money-only negotiations.\u00a0 But his conclusion?\u00a0 “Most training does not prepare students well for what they encounter in practice.”\u00a0<\/p>\n