February 15, 2010
First, a reminder of the Rotary Four-Way Test – of the things we think, say or do
1) Is it the TRUTH?
2) Is it FAIR to all concerned?
3) Will it build GOODWILL and BETTER FRIENDSHIPS?
4) Will it be BENEFICIAL to all concerned?
This is a follow up to my January 12 post on employment/personnel decisions and whether or not these principles are useful in mediation.
As I noted before, the test seems at odds with the self-determination component of mediation. In other words it’s not the job of the mediator to decide if an outcome is fair or beneficial to all, rather the question is whether the parties agree. That said, going back to these basic principles could aid the mediator, advocates/attorneys and the parties to move toward a lasting resolution to their dispute. Some thoughts:
Mediator. Mediators can get stuck in a process/technique rut. However, for the best mediators, dispute resolution is never one size fits all. This is well illustrated in Jeff Krivis’s book Improvisational Negotiation. Consistent with the Four-Way Test, mediators should focus on the process, creating an environment that is fair, gives all sides an opportunity to be heard and to receive necessary information without being unduly pressured. Encourage the parties to consider the global impact, asking whether there are business or personal relationships that will be affected – damaged or enhanced – by continuing with the dispute versus resolution. This approach is more conducive to creative solutions that litigation cannot provide.
Advocate. What is an attorney advocate’s ethical obligation of candor in a negotiation where there’s also a responsibility and a commitment to get the best deal possible for the client? Every continuing legal education program involving negotiation or mediation involves some form of this hypothetical:
A party to a lawsuit tells her lawyer to go out and get the case settled so long as it’s under $35,000. Can her lawyer make a counteroffer to the opposing party for $25,000 saying “that’s all the authority I have” or “that’s our bottom line”.
Lawyers can spend hours of discussion time parsing out whether their ethical obligations of candor are violated under these scenarios. So put on that ethics hat during the negotiations and ask: Has any information been withheld or communicated that would void the deal if it ever got out? Remember, also, that a client’s definition of winning may not be the same as the lawyer’s. Recognize – and help the client articulate – interests beyond the monetary outcome, including business and personal relationships.
Party. One benefit of mediation and a negotiated settlement can be the ability to keep information private – but will it come out? Is it something that makes something material you’ve said untruthful? When evaluating the deal you’re willing to make, how will it impact not just you, not just the opposing party but people in your family, your organization and your reputation. There will be a tomorrow and the next day and the next day to live through. Whether or not you reach an agreement, you’ll be interacting with people, businesses, and the public – is this a decision you’re prepared to live with?