Sheldon J. Stark
This is the first in a series of "From the Field" columns describing mediator techniques you might find useful.
I call this technique "The Value of Closure." I learned it from mediator J. Anderson Little, author of the book, "Making Money Talk" published by the ABA Dispute Resolution Section. Andy Little presented the idea at a session of the Advanced Negotiation & Dispute Resolution Institute co-sponsored by the ADR Section and ICLE.
To begin, regardless of what process the parties have designed joint sessions or shuttle diplomacy and caucus I always meet with the parties and their counsel the morning of the mediation before any other aspect for an introductory, get acquainted conversation. In that introductory setting, I offer parties a chance to ask questions or share anxieties and concerns they may harbor about our process. I ask their litigation/mediation experience; what they anticipate will happen during the mediation; and whether they've done any independent reading or study to learn more about the process. I especially like to ask them to tell me about themselves or their business. I explain that while the mediation summaries provide some information, I actually know very little. "It often happens that knowing more about you or your business can become important as we work through the key issues in the dispute. Tell me about yourself and your business." This display of interest in what the parties know about the mediation process and how the describe themselves helps build trust in the mediator and confidence in the mediator's process.
After getting better acquainted, I ask what I characterize to them as "probably the most important question I'm going to ask you in this introductory session: What are your goals and objectives? What do you hope to gain from the mediation process today? I'm not asking for a dollar figure. In general terms what are your goals for mediation? What do you hope to accomplish today?"
Most people say they are seeking a reasonable resolution. Some say they're looking for a settlement somewhere between their two positions. A few say they are looking for an apology or acknowledgement that a wrong was done. In employment cases, there is often a request to change a discharge to a resignation or the removal of "bad" paper from their personnel file. Sometimes a party is looking for relationship repair or a continuing business connection. Many parties say they hope for an end to the litigation especially if mediation has been scheduled later in the process. I always turn to counsel to see if there's anything they would like to add.
Here's where "closure" comes in: I relate the experiences of my clients when I was a trial lawyer. For many people, litigation is stressful. Big time. Sometimes clients reported just receiving a letter in the mail from my office caused distress, severe anxiety, flashbacks. It could take days to settle back down. If they had to prepare to give a deposition or attend the deposition of other witnesses, they experienced night sweats, appetite disruption, sleeplessness and other signs of anxiety. "For these individuals, litigation was an emotional roller coaster ride," I explain. "Closure was therefore of value to them. Bringing an end to the litigation so as to move on with their lives was worth something. Is there value for you in closure? Should we add 'closure' to the list of your goals?" Surprisingly, not everyone is willing. In commercial cases, for example, some businesspeople consider litigation an expected part of operating their business. Others express concern that saying "yes" will disadvantage them; that they might be willing to settle for less "just to get it over with." In such cases, I promise to keep their goals and objectives confidential. For most people, however, the answer is "yes." Closure does have value. It may be difficult to put a price on closure, but getting out from under a lawsuit even one they themselves brought is almost always a positive.
Later as the dispute has been reviewed and the magnitude of the risks weighed, and the negotiation process has reached its limits, the parties may still be some ways apart.
Take, for example, a dispute where the plaintiff has reduced the demand to $150,000 but not a penny less. The defendant, however, claims it has reached the limit of its authority and is unwilling to offer more than $135,000.00. Both parties represent they have no more room to move. Assume for the sake of the example that the mediator is persuaded there is no more progress to be made.
Starting with the plaintiff, here's how the technique might be put to use:
"When we started this morning, I asked you if you believed closure had value," I tell the plaintiff in caucus. "If you wish to hold out for $150,000.00 that's your right. This is your case. This was your experience. This is your money. Whether to settle or not is your call. No one will judge you no matter what you decide. Certainly not me. $135,000.00 isn't what you wanted, but it is real money, it's a significant offer, and it guarantees an end to the litigation today and promises all the benefits of closure."
"What is the value of closure?" I ask. "The value of closure is different for everyone. I can't tell you what closure is worth to you. Your lawyer can't tell you the value of closure for you. Only you can say what closure is worth. Maybe the value of closure is nominal, no more than a dollar or two. Maybe it has substantial worth to you. We can measure that value right now. Is it worth $15,000.00 to bring an end to this? This appears to be as high as they will go. It's not what you were hoping for but it is a way to resolve this dispute. Is it worth $15,000.00 to you to be able to avoid all the risks we talked about through the mediation process today? To now get on with your life/business and start a new chapter?"
Sometimes, the plaintiff recognizes the value of closure and looking at the offer in this light helps them get to yes. Alternatively, they have assessed closure and don't value it as highly.
The technique can be equally successful in the defendant's room. In my employment and commercial practice, it has little utility for large businesses. For smaller employers and enterprises, however, litigation is costly, distracting and stressful. The decision-maker is typically in the caucus room. He or she knows full well how many checks have been written to the attorneys; how much disruption the lawsuit has caused; how frequently it has distracted from the core business. Yes. There is as much value in closure for many business entities fending off a suit as exists in the plaintiff's room where suit was initiated.
"They're not budging from $150,000. You don't want to pay that much. That's your call. This is your business. Your money. Yet, there is a chance to make today the last day in the life of this lawsuit. To reach closure is going to require an additional $15,000. Does closure represent that value to your business? With confidentiality and non-disparagement in your settlement agreement and release, you can eliminate the possibility of bad publicity and media attention, further disruption in the workplace, the risk of a greater verdict, additional attorney fees, a bad precedent. If closure has value to you, is that value $15,000?" Framed in this fashion, the decisionmakers on the defense side are often empowered to make good business judgments about whether to settle and on what terms.
The "Value of Closure" can be a powerful closing technique in each room.
The technique has additional benefits. First, these questions help us gain trust and build confidence because parties appreciate the time we take to learn their goals and objectives. Often, surprisingly, their own lawyers have not asked questions about what they hope to gain from the process. Second, goal questions add clarity to ideas the parties might have about where they would like to end up. Some parties haven't given the question the time and attention it truly deserves. Third, the answers we get help us as mediators better understand the parties with whom we are working. Fourth, the answers may reveal unrealistic expectations or erroneous misunderstandings about the process, thereby creating an opportunity to provide helpful process information. Whether or not "The Value of Closure" works on the back end to resolve the case; I can attest to its power on the front end. I hope that it works as well for you as it does for me.
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Sheldon J. Stark offers mediation and arbitration services. He is a member of the National Academy of Distinguished Neutrals, a Distinguished Fellow with the International Academy of Mediators and an Employment Law Panelist for the American Arbitration Association. He is also a member of the Professional Resolution Experts of Michigan (PREMi, http://premiadr.com/). He is past chair of the council of the Alternative Dispute Resolution Section of the State Bar and former chair of the Skills Action Team.
Stark was a distinguished visiting professor at the University of Detroit Mercy School of Law from August 2010 through May 2012, when he stepped down to focus on his ADR practice. Previously, he was employed by ICLE. During that time, the courses department earned six of the Association for Continuing Legal Education's Best Awards for Programs. He remains one of three trainers in ICLE's award-winning 40-hour, hands-on civil mediation training. Before joining ICLE, Stark was a partner in the law firm of Stark and Gordon from 1977 to 1999, specializing in employment discrimination, wrongful discharge, civil rights, business law, and personal injury work. He is a former chairperson of numerous organizations, including the Labor and Employment Law Section of the State Bar of Michigan, the Employment Law and Intentional Tort Subcommittee of the Michigan Supreme Court Model Civil Jury Instruction Committee, the Fund for Equal Justice, and the Employment Law Section of the Association of Trial Lawyers of America, now the American Association for Justice. He is also a former co-chairperson of the Lawyers Committee of the American Civil Liberties Union of Michigan. In addition, Stark is chairperson of Attorney Discipline Panel #1 in Livingston County and a former hearing referee with the Michigan Department of Civil Rights. He was a faculty member of the Trial Advocacy Skills Workshop at Harvard Law School from 1988 to 2010 and was listed in "The Best Lawyers in America" from 1987 until he left the practice of law in 2000. Stark received the ACLU's Bernard Gottfried Bill of Rights Day Award in 1999, the Distinguished Service Award from the Labor and Employment Law Section of the State Bar of Michigan in 2009, the Michael Franck Award from the Representative Assembly of the State Bar of Michigan in 2010. In 2015, he received the George Bashara Jr. Award for Exemplary Service from the ADR Section of the State Bar. He has been listed in DBusiness Magazine as a Top Lawyer in ADR for 2012, 2013, 2015, 2016, 2017, 2018, 2019 and 2020.
