“Feelings, nothing more than feelings”


             We all have them, feelings, strong feelings or emotions that color our lives and perceptions.  While Courts don’t often acknowledge this, and jurors are told to make their decision based on facts they find and the law as told to them by the judge, a successful mediator must recognize his/her own emotions as well as the emotions of each participant in the mediation.  A good mediator must be empathetic and intuitively understand interpersonal dynamics to the extent that he or she may have to empower an otherwise reticent party to express their needs. The goal of mediation is not justice, it is resolution.  “Justice,” which theoretically occurs when the law is applied to specific facts, may leave one party angry and bitter about the result in a case that goes to trial with that party vowing to “take it all the way to the Supreme Court.”  In contrast, mediation for dispute resolution allows the parties to craft their own solution which meets their needs with the assistance of a neutral mediator.  A mediated resolution is not necessarily an equal deal but it is an equitable or fair one.  A party can achieve things in mediation which a Court would not order. 

            For example, suppose there are two partners in a business who can no longer get along with each other.  A court could order a partition and an accounting but there is a risk that neither half of the business is strong enough to survive. Selling to a third party in a down economy would be tantamount to giving it away and would hurt their loyal employees.  Early in mediation it is apparent to the mediator that neither partner has sufficient money to buy the other one out and neither partner trusts the other to run the company well enough to use the company’s assets nor its future receivables as security for payment over time.  The mediator may explore the availability of loans to one of the partners but discovers that one partner will not agree to increase his debt and the other has poor credit so a bank loan is out of the question.  Although there are strong feelings of anger and distrust between the parties and a need to terminate any regular communication between the parties, they both respect and trust the mediator.  Using this trust, the mediator, in a caucus discovers that one of the parties, Mr. Adams, has been thinking of retiring but doesn’t want the other party, Mr. Brown to know about it because Mr. Adams would lose his bargaining power.  The mediator, armed with this knowledge could then suggest to Mr. Brown that he offer to purchase Mr. Adams interest and pay Mr. Adams over a five-year period.  Mr. Brown would also offer to purchase a term life insurance policy on his life with Mr. Adams as the beneficiary to secure the payments.  It is unlikely that a court would reach the same result.

             Another example would be an employment discrimination case in which a supervisor grabbed a female subordinate's buttocks in a meeting however there was little  in pecuniary damages.  She believes her second and third line managers think what her supervisor did was a joke. The mediator might start trying to identify the issues.  The Human Resources Representative, trying to minimize the incident and legal exposure focuses on the lack of out of pocket damages making it a low value case and said the plaintiff should just forget it.  The mediator realizes that the plaintiff feels violated and demeaned.  She is afraid that after this she will never be taken as a  serious professional by the company. No matter how successful the plaintiff was in Court, she would only be awarded a limited amount in damages and never get what many plaintiffs in discrimination suits want, an apology.  This can and is often obtained in mediation where the parties have a wider range of solutions available.  Through mediation there is the opportunity for the supervisor to apologize, the HR representative to withdraw her callous comment to just forget the incident and for the company to agree to train all management officials about sexual harassment. The parties can then move forward to a more productive relationship.  Moreover, instead of a public trial, mediation is confidential, so that what was said and done to her does not become public knowledge.  This benefits both parties.

           One final example, in a divorce a judge or jury (Georgia still has trial by jury in divorce) will divide assets without any thought of the emotional attachment to an item.  Mary and Tom own a house worth $400,000.00 with a $325,000.00 mortgage on it.  Tom has a 401k which he started ten years before they got married. They have almost no liquid assets. The portraits of the children which the couple paid $1,500.00 for and the silver service worth $48,500.00 they got as a wedding gift means more to Mary than the limited edition Mustang car worth $100,000.00 which Tom restored and wants.  But Tom also insists he get the children’s portraits. Every time the portraits are discussed settlement talks break down.  Mary wants an additional $50,000.00 from Tom’s 401k over and above what she would have gotten as her marital portion to make up the difference between the value of the Mustang and the value of the portraits and silver service.  Tom wants to keep his retirement intact and wants to even the distribution by having Mary keep the house which has $50,000,00 in equity, but also has a large mortgage and is too big for her needs.    A judge or jury would most likely use a ledger and balance assets.  If the silver and the portraits are worth only $50,000.00 Mary might get a greater percentage of Tom’s retirement to make up the difference because that would be the easiest way to split the assets.  The house would be ordered to be placed on the market to be sold. After paying to put it in condition to sell and paying realtor fees and paying off the mortgage, split the proceeds.

    Sensing the emotions attached to the portraits and that Tom is used to getting his way, a good mediator will seek to level the field so that relative power in the marital relationship is irrelevant.  A mediator will also take into account that Mary is still very angry and can’t move passed Tom’s adultery.  In caucus the mediator will let Mary vent and rage about Tom and try to help Mary see that while she can’t undo the past, she can insure he and his girlfriend won’t benefit from the divorce. Furthermore, a creative mediator will note that Mary may be willing to give up the excess 401k money, take $5,000.00 less in cash, allow Tom to live in the house for up to three years as long as a person of the opposite sex did not live there with him, or until it sold, whichever came first provided, he pays all expenses and wait until Tom sells the house to get the additional $45,000.00 she would be entitled to, if she could keep the portraits.  Moreover, the $45,000.00 from the house would most likely be tax free if she invested in a new house whereas if she took  money out of the 401k it would be taxable.

             A good mediator recognizes the emotions in the room and uses her people skills to determine whether a direct or indirect approach is better. She is adept at relating to a variety of personalities.  She knows when to be hard-nosed and when a softer approach is called for.  A good mediator is able to gain the confidence of the parties, reality test proposed solutions generated by the parties, propose other solutions they may not have thought of, and where appropriate, cajole parties to settle their dispute. This does not mean the mediator should force a settlement against the wishes of a party.  Instead, the mediator and the parties must always remember that a hallmark of  mediation is self determination.

            In conclusion, feelings are important.  Pride, anger, grief and fear are emotions that can appear in almost every mediation regardless of the subject matter.  A mediator who recognizes this and deals with it can manage emotions even when tensions are high, and in some cases, use these emotions to help resolve a case. Mediators who allow the parties to express themselves, including their emotions, can usually work through them.  Studies have shown that mediation which takes the parties’ feelings into account resolve 80% of cases and, more importantly for the parties, people who reach a mediated resolution are much more likely to adhere to the agreement.


                        Mediator ~ Arbitrator


Copyright © Joyce F. Glucksman, P.C.  All Rights Reserved.