“But, it’s not fair” the party exclaims in response to a settlement proposal proffered by the mediator. To the other party making the offer, it is, indeed, “fair.” It is simply a question of how one defines “fairness.”
 

       In a recent mediation training course, Nina Meierding, Director of Mediation Center For Valley Law in Ventura, CA explained that there are at least three different ways to define “fairness.” The first one, and the one with which Americans are most familiar is defined by the law – what do the statutes and cases say is “fair?” What should be the result according to law?
 

      But other definitions exist. A second one uses “equity”– what would be the equitable way to resolve the matter? This decision is based on what each person contributed in terms of time, or money, or skills or creativity or amount of sacrifice. Consequently, while the law might dictate that two partners share 50% - 50%, equity may dictate that the distribution between them be 75% - 25% because the first partner put much more time and energy into the project than did the second partner.
 

      Finally, “fairness” can be based solely on cultural values; that is, based on the status and/or gender of the person within the culture or based on “need” rather than on the contribution made by the individual. As a result, while ‘Little” John may have contributed the most to the success of the project, “Big” John will be given the lion’s share of the proceeds because he is the elder of the village or the community and deserves it out of respect.
 

      So. . . in determining whether an offer of compromise is “fair,” put it into context: are you defining “fairness” based upon the “law,” or upon “equity” or upon “cultural” values or “need.” Armed with an understanding  of which framework each party is using as her point of reference, you will be able to analyze the “fairness” of the offer and move towards a resolution.
     

       . . . Just something to think about

 The other day, I mediated a case involving subrogation. The property insurer had paid out on a claim of extensive water damage by its insured and was now seeking reimbursement from the alleged “true wrongdoers.” There were three defendants: the supplier, wholesaler and retailer of the faulty plumbing part that leaked and caused the extensive water damage.

 At the joint session, all parties – both the plaintiff insurer and the defendants in the chain of distribution – agreed that this case should be settled. With such a positive attitude, I figured that the matter would be resolved within a few hours. However, I was wrong. . . very wrong.

 After the joint session, I conferred with counsel for the supplier and wholesaler as they were each pointing the finger at each other as the one responsible for the faulty plumbing part. Although I appealed to them to present a united front and work together to resolve this matter – my pleas fell on deaf ears. While each counsel agreed that this case should be settled because the amount at issue did not merit the expense of hiring experts, performing tests and otherwise preparing for trial, they each believed that the case should be settled using the other defendant’s money. Each was willing to contribute some money towards settlement only if the other defendants contributed either an equal or greater amount.

 Upon learning this, I conferred with the third defendant – the retailer. Again. . . the mantra was the same: the case should be settled but with the other two defendants providing the major portion of the settlement funds.

 Needless to say. . . the matter did not settle. While each party agreed that “the case should be settled,” each party had an excuse or reason for not wanting to contribute the needed sum of money to make settlement a reality.
 Is there a point to this story: yes and no. The mediation probably should never have occurred because the parties were not truly in a mindset to settle. While they each proclaimed that a “settlement should occur,” neither they nor the case itself was in a posture conducive to settlement. Their ethereal expectations and beliefs did not match the actual realities of the situation.

 The one positive aspect of the mediation is that it brought this glaring clash to the forefront: front and center. Each of the parties was made to acknowledge, understand and accept that if this is a case that “should be settled,” it will only be done with their own client’s money, not the other defendants’. They each must take a proactive approach to make settlement happen. Otherwise, they will find themselves at trial on a case “that should be settled” because they sat back. . . waiting for the other defendant to put up the settlement funds and make the case go away.

 So. . . if you have a case that “should be settled,” do not just sit back, thinking some other party will do it; take a proactive approach: do what it takes to reach that resolution.      

       In my last blog, I discussed a mediation class I attended by Nina Meierding, Director of the Mediation Center For Family Law in Ventura, CA. One of the first things she mentioned was “bias”, not as a “good” or a “bad” thing but simply as an understanding of ourselves.  Ms. Meierding explained that we, each, carry four different types of “biases” with us. The first is about each of us: Our own underlying, subconscious or even unconscious assumptions that we make about others. When we meet someone, within seconds, we “assume” certain things about her. For example, we may meet someone who is 6’8” and assume that because he/she is so tall, he/she may have played basketball in high school or college. Our “assumption” may or may not be correct.
     

       The second type of bias are those “assumptions” that others may perceive we have – even if untrue. Again, upon meeting a new person, that person will make assumptions about the assumptions she thinks we are making about her. To take our example, that really tall person we just met, may “assume’ that we are assuming he/she plays or played basketball because of his/her height. Again, that assumption may be right or wrong.
 

      The third type are our own “biases” that we bring with us to any mediation. These “biases” may involve cultural, religion, age, experience, knowledge, skill or other concerns. For example, a party may prefer a female rather than a male mediator or a mediator knowledgeable in a particular area such as real estate or construction defects. Thus, if confronted with a male mediator who know nothing about real estate, the party will, in all probability, be “biased” against the mediator before he even says hello and introduces himself.
 

      The last “bias” is based upon our assumption of what biases we perceive or assume the others bring with them to the mediation. For example, we may learn that the other person was born in a rural area of the Deep South in the United States. Thus, we might assume that the other has a bias against “Yankees” (i.e. those born or living above the Mason-Dixon Line) and big cities. Again, our “assumptions” may be very wrong. . . .
       

      So . . . when you walk into a mediation, be aware of the assumptions or biases that you bring with you: Do not let them derail you from reaching a resolution of your dispute.
     

       . . . Just something to think about

       The other evening, I had an epiphany. I suddenly and really understood why I easily “connect” to some people but not to others. I was in a mediation training class being taught by Nina Meierding, Director of the Mediation Center For Family Law in Ventura, CA. She explained that there are two types of people in the world: monochronic and polychronic. Each type processes life differently. The monochronic person will process events in a linear, sequential order. “She may have difficulty processing in a multifaceted non-orderly way.” She will want to finish one thing before starting another. She will tend to be a very focused person. So, the notion of discussing several different ideas or issues at the same time, e.g. brainstorming, makes her extremely uncomfortable and ill at ease. Ms. Meierding explained that approximately 60% of us fall into this category.
      

       In contrast is the polychronic person (i.e., roughly the remaining 40% of us) who loves to discuss several different things at the same time. She takes a non-linear, non-sequential approach to life, and in fact, finds it quite boring and frustrating to plod along discussing and resolving one issue before proceeding to the next. To the polychronic person, there is no agenda to follow and the items to be discussed need not be in any particular order: It is easier to discuss several different if not seemingly unrelated issues at the same time in order to reach a resolution. To the polychronic person, juggling several things at once is what gives life its spice: Life is, indeed, a “free-for-all.”
 

      Consequently, how a person processes life matters in mediation and in resolving a dispute. If you are a monochronic person who wants to resolve a dispute, you will tend to try to resolve one issue at a time. Thus, mediating with a polychronic person (who wants to mediate all of the issues at once) will drive you nuts: You will feel frustrated, uncomfortable and quite ill at ease. Without doubt, the polychronic person will feel the same way about the monochronic person: She wants to have a brainstorming session, discussing all issues at once and even throwing unrelated ones into the discussion for good measure: To the polychronic person, this is the way to resolve the dispute. To the monochronic person who is listening to this, such a discussion is nothing less than disorganized, disjointed chaos and a waste of time: Nothing will ever be accomplished, including resolution. Obviously, the polychronic person thinks just the opposite! “We are on the road to resolution.”
 

      Will these two very different approaches to life lead to impasse? Not if you are aware of what is going on and make allowances for it. If you can be aware of how both you and the other person processes life’s events and alter your own processing if need be to make allowances for it, a resolution to the dispute is still possible. This means, if you are monochronic, allow yourself to become a part of the “free-for-all” while if you are polychronic, bite your tongue and tolerate the very boring plodding along step-by-step methodology of the monochronic person. By being cognizant of both how you and the others in the dispute approach life and process it, you can turn a seemingly clash of personalities into a means of resolving a dispute.
 

      . . . Just something to think about.