One of the areas we cover in my online Employment Dispute Mediation Class is what is mediable or negotiable and what is not. For example, disputed issues of fact and law are not negotiable because they will be decided by a trier of fact, be it a judge or jury. The parties to a dispute cannot affirmatively decide and include in a settlement agreement that Ms. X ran the red light. (See, Frenkel, Douglas N. and Sark, James H., The Practice of Mediation ( 3rd. Ed., Wolters-Kluwer, New York, New York 2018 at pp. 228-9)

Similarly, a party’s basic values and beliefs are rarely negotiable. It is almost impossible to convince someone to change their deeply held values and beliefs for the sake of a settlement. A profoundly religious party will not agree that her child can skip Bible/ Sunday School as part of resolving a child custody issue. (Id.)

Likewise, a party’s needs and interests are not negotiable. Indeed, those needs and interests are the issues in the dispute. A party’s concern for her personal safety in the face of a neighbor’s supposed biting dog cannot be ignored in any potential settlement. (Id.)

A party’s habits and character traits cannot be negotiated away. For example, a party’s habit of being habitually late is not negotiable per se, although ways to combat perpetual lateness can be discussed. (Id.)

I had never considered this negotiability issue until a recent mediation involving a homeowner’s dispute with the Homeowners Association (HOA) Board. While the dispute itself was minor, it somehow got blown out of proportion to the point that the homeowner was told not to communicate with any Board member for any reason whatsoever. Any issues were to be communicated to the property manager. This act of persona non grata was communicated to all other homeowners, making the owner a pariah.

As expected, the homeowner made a claim against the Board and thus its insurer for these actions. While the homeowner sought monetary damages, it soon became clear that what was paramount was her reputation. By its actions, the Board had ruined her reputation among her fellow homeowners, and no amount of money would fix that. What was required was some action by the board that would restore her reputation in the eyes of her fellow owners, be it a public apology, retraction, or the like. In speaking with the owner, it suddenly became clear to me that one’s reputation is one of those non-negotiable items. No matter how much money the Board might offer, it would not restore her reputation. Her need and interest in restoring her reputation would not be swept aside for any money. Instead, this need and interest had to be dealt with directly. It was simply non-negotiable.

The moral: consider what is negotiable and what is not in any dispute. Some issues, like reputation, cannot be negotiated away to reach a resolution. And so be mindful of this distinction.

… Just something to think about.

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