Clients generally choose mediation for several reasons -mostly good ones- occasionally not so good.
It’s sometime hard to know when a client is acting in good faith or when they are trying to manipulate a situation. That’s why you have to be observant and aware of intentions.
Good Reasons Clients Choose Mediation
They control the process, how quickly or slowly it moves along. They control the outcome. They are the decision makers, after all, we mediators don’t get a tie breaking vote. We are not Judges and don’t render decisions. Clients often choose mediation to avoid the stress and anxiety of court. The cost is lower. It’s private. There may be information they don’t want made public: such as substance abuse issues, mental health issues for themselves or their children, trade secrets or tax concerns.
Not so Good Reasons Clients Choose Mediation
One party believes they can use the mediation process to manipulate the other party, taking advantage of them to achieve an outcome that is inconsistent with what would occur in court.
This sometimes manifests as one party making several suggestions for settlement of individual issues. But when asked if that’s a proposal, the client responds with responds with, “It depends on what happens with everything else.” The result is that nothing gets agreed to. Each individual idea may sound OK, but when a client won’t link them to other issues, the other client can be confused and overwhelmed.
What’s a mediator to do????
Not sure what to do when a party insists on global settlements only on their own terms? Here are some suggestions for keeping the negotiations safe and balanced for both sides.
Clarify the clients’ proposals.
Ask questions about who does what, where, when and how. Ask if they both know what an asset is worth. Do they both understand the numbers? Many times, the “global settlement” person is trying to circumvent the gathering of information; the actual values of accounts, real estate or a pension. They are playing lets make a deal for door number two when the other person doesn’t know what is behind any of the doors. They often make it sound like this will “save time and money, be so much easier and we’ll be done.”
Focus on gathering information. Here, the law is our friend. Insist on financial disclosures with supporting documentation. Point out that no agreement can be signed without disclosures. This is a legal requirement. Feel free to blame the State of California. Explain that agreements made prior to disclosure often fall apart once the numbers are in. Especially, if the numbers are quite different from what one party expected. Encourage getting the numbers up front. Then you, as the mediator, know any decisions made are done knowingly and with informed consent. Don’t make any accusations. Just focus on required procedures, like disclosure.
Focus on the law.
Once the information is gathered, the “global” client then often switches tactics and starts to explain why 50/50 isn’t fair or now insists on forensic accounting or an actual appraisal. He or she couldn’t get around the facts, so now they want to deviate from the norm and explain why the rules just aren’t fair.
The law is your friend. You can remind both parties what the legal outcome would look like. Then suggest if they both agree to something different that’s ok. The trick is the agreement part. Then ask them “what do you think?”
Balance the power.
Even with the best of intentions, a mediation can be unbalanced in terms of knowledge. Remember, knowledge is power. In these types of cases, the more knowledgeable party has often already researched the law, done the numbers and didn’t like them. Now, they want to manipulate the outcome to something better for themselves.
You need to assess:
- What does the other party know?
- Do they have a clear understanding of the math, the taxes, etc?
If not, you can refer them both to counsel, encourage them to work with a financial neutral to explore the options, or encourage the less knowledgeable spouse to consult a financial advisor on their own.
If worse comes to worse, you can also withdraw from the case. This is often not necessary if you can maintain your neutral tone, use your neutral language and keep the focus on what is required under the law.
While the more knowledgeable party may not like that their strategy is not working, you can remind them that you have to advise them both to seek counsel even if just to have the agreement reviewed. If the agreement is inherently unfair when the other party takes it to their attorney for review, the deal will likely blow up. The other spouse may no longer trust them enough to continue mediation and “xyz” will follow.
Other good reminders to share:
- Without disclosures the agreement is worthless
- They are at a disadvantage being the one with more information and could be held to account for withholding it. Therefore its in their best interest to disclose.
- They don’t want the other person changing their mind down the line and looking to set aside the agreement, drop out of mediation etc.
Assess through caucus.
In some cases you may want to caucus (meeting with one side alone). In caucus with the knowledgeable spouse you can discover what they really want. Are they willing to move anywhere, give on anything. Is resolution of any worth to them or is winning the only important outcome?
In caucus with the less knowledgeable spouse you can assess just what they know and don’t know. Are they willing to seek outside resources? Are they intimidated or frightened by the other spouse? Once you know where the problem lies, establish what their priorities are and what they are willing to do to achieve them. Refer them to the appropriate resources if necessary. Sometimes, people need the additional support. Sometimes, they know they are being manipulated and their greatest concern is ending the relationship and don’t mind losing out to a certain degree. Either way, you want to know.
These cases can be a challenge. But the last weapon you have is your patience. Time is almost always your friend. With time and calm persistence you can assist these clients in reaching settlement. Global settlements can lead to confusion, overwhelm, power imbalances and manipulation. Keeping the clients focused on one issue at a time is the way to go. Remember, the best way to eat an elephant is one bite at a time.