A few weeks ago, I conducted a “lemon law” mediation. Over the past few months, most of these have been conducted by using separate sessions only; counsel have not wanted to participate in joint sessions. However, this time, plaintiff’s counsel wanted to hold a joint session. Defense counsel who had worked frequently with plaintiff’s counsel in the past and had a cordial relationship with plaintiff’s counsel, agreed.

Plaintiff’s counsel explained that she wanted to go through each repair order rather than discuss the concerns with the vehicle in a general sense. Evidently, she believed that by going through the details, this would have greater impact on her client, making it easier to settle the matter.

So, we sat down together for the joint session and started going through each repair order. After a few moments, defense counsel asked a question of the plaintiff, whereupon plaintiff’s counsel intervened by asking a different “softball” question. Defense counsel said nothing, letting this intervention go. However, after 2-3 more incidents of this, defense counsel and her client displayed their upset, claiming that plaintiff’s counsel was “playing them” by setting up the joint session to be very one sided in the story telling (obviously, plaintiff’s side) and not allowing any frank, candid discussion to occur. Defense counsel and her representative left the room. And, needless to say, the matter did not settle.

The episode left a bitter taste in everyone’s mouth. After the mediation was over, plaintiff’s counsel asked me what she had done wrong. I opined that if one invites a joint session, one must be prepared for the open, frank, candid conversation that follows. Counsel advised that she “took over” the questions, because she did not know how her client was going to respond. I noted that perhaps then more preparation for mediation was needed, or else, some ground rules needed to be set out, such as no questions, or that in response to defense counsel’s first question, she should have simply stated that she would not allow her client to answer questions. To simply “high jack” the questions by interrupting and asking a different question, was, obviously, not the way to handle her own wariness in letting her client answer the question.

I noted that because counsel work together frequently, something needed to be done to salvage this relationship, including possibly an apology. The cordiality that counsel enjoys depends on trust and a good working relationship. I suggested that she have a “difficult conversation” with defense counsel to clear the air and attempt to rebuild the trust and cordiality that is so vital to their ongoing business relationship.

In a Special Report entitled “Working Together Toward Conflict Resolution on the Job and at Home” published by the Harvard Law School Program on Negotiation, the authors note that sometimes, “tough, honest conversations are critical…”. Such tough conversations are made up of three parts; (1) the “What happened?” (2) the “feelings” involved; and (3) the “identity” or how it affected each party personally. (Id. at 5.) (Difficult Conversations)

As explained by the authors, the first part of the conversation (“What happened?”) “…focuses on the substance of the discussion, with the intent of separating impact from intention.” ( Id. at 5.) (Emphasis original.). Before getting angry at what was said, determine what the other person’s intent was in making the statement as it may be far different than what you imagined.

The second part of a “difficult conversation” is the “feelings” part; emotions play a very important role here. Determine what feelings- both yours and the other person’s- are involved here. Is it anger, frustration, annoyance, disappointment, hurt? And readily acknowledge such feelings. ( Id. at 5.)

The third part of the conversation is the “identity” part; “…consider what a particular conflict represents to you personally.” (Id.). Often, there are deeper issues at play or that underlie what is going on such as one’s own self-image, or self worth, or self-esteem.

The hoped for result of such a conversation is for both parties to end it, feeling “fundamentally good about themselves while remaining open to improvement.” (Id. at 6.)

I do not know if the attorney took my advice; I sure hope so since they will have many cases together in the future and up until this incident, they enjoyed working with each other!

…. Just something to think about.

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