This semester I am teaching an online Employment Dispute  Mediation course at USC Gould School of Law. Using employment law as the substantive vehicle, I am teaching my students essentially how to be mediators from “soup to nuts.”

In teaching them how to mediate, I note to my students repeatedly that mediation is a process of change. Through the hours of negotiation, the mediator uses persuasion to help the parties  change their perceptions of the events in question and to change their way of viewing the conflict and how to resolve it.

Implicit in this concept  that mediation is a process of change is that the parties actually show up for the mediation. If they  merely show up by proxy, there is no way for this process to work.

I make this observation based on two mediations I had this week. One settled and one did not. One had all of the parties present including the representative of the defendant while the other had the defendant representative available by telephone to its attorney only.

Guess which one settled? You are right- the one in which all of the parties were present  and listening  to everything that was being discussed.

The mediation is which the defendant representative was available to its counsel  by telephone did not settle. Why? Because when I spoke with the defense attorney, I was  preaching to the choir. Without doubt, while counsel did her best to convey what  we discussed to her client, it was simply not the  same as the client being present and listening directly to and taking part in the discussions.   The client was tending to something else and thus was simply being “interrupted” by telephone calls from counsel relating to the mediation.  The client was not “present” or “in the moment” of the mediation.

The odd thing is that the case that did not settle was a much simpler one than the one that did settle.  It should have settled. The more complicated one- with a lot more moving parts- had the better odds of NOT settling. Yet it did, precisely because the parties that needed to be there were “present” and “in the moment.”    They were focused on the task at hand and gave it their complete attention.

So… The moral- show up – both physically and mentally to any negotiation or to any attempt to resolve a dispute.  Being “available by phone” just does not work!    There are some situations where one cannot just “phone it in”: resolving conflicts is one of them!

… Just something to think about.

 

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