Several weeks ago, I posted a blog about a book I recently read, Negotiating the Impossible by Deepak Malhotra (Berrett-Koehler Publishers, Inc., Oakland, Ca. 2016). In it, the author notes that three things are paramount to resolving the most intractable disputes: Framing, Process and Empathy.

By “framing”, the author means presenting a proposal objectively so that it can be made more attractive than otherwise. (Id. at 11.) In sum, it is all about how a proposal is presented- in an objective manner  that makes it more attractive to the other side. (Id. at 12.)

By “process”, the author means “…shaping the process that will ultimately determine whether, when, and how the substantive discussions will take place.” (emphasis original) (Id. at 63.) Or, shaping the process ahead of time so that the parties have a roadmap about “… how they will get from where they are today to where they want to be.” (Id. at 64.)

And “empathy” means understanding the different perspective of the other party.  It is the ability to see the conflict from the other party’s point of view, to understand the other party’s motivations, interests and constraints. (Id. at 125-127.)

I revisit these points due to a recent mediation that did not settle. It was a simple breach of contract claim. However, the defendant had also filed counter-claims or claims against the plaintiff.

Although the mediation lasted an entire day, it did not settle. Why? There was no framing, process or empathy.

Framing: From the start of the mediation, the plaintiff continually framed the litigation as a breach of contract action. According to plaintiff, the way to settle was for defendant to pay some amount of money to plaintiff to be negotiated during the mediation. Indeed, during the opening joint session, while plaintiff was very conciliatory, its whole discussion was about the money owed by defendant to plaintiff. When it was defendant’s turn to present its case at the opening session, it began to discuss its counter claims. After a few minutes, plaintiff attempted to shut down the presentation, stating it was not conducive to resolving the breach of contract action.

After a while, it became clear that while plaintiff was aware of the counter claims, plaintiff had given them short shrift. Indeed, plaintiff requested that I consult with defendant first to see what it was willing to offer to settle the breach of contract action. When I presented defendant’s demand that plaintiff pay the defendant $X dollars (rather than defendant paying $Y dollars to plaintiff), I was met with much upset and  disbelief. To put it mildly, plaintiff took great umbrage at being asked to pay defendant. To plaintiff, the counter claims were totally without merit.

And what was more interesting, is that for the rest of the day, plaintiff continued to make a demand that defendant pay it on the breach of contract claim, ignoring and totally discounting any legitimacy to defendant’s demand on its counter claims. To plaintiff, at the end of the day, the counter claims still totally lacked merit.

And thus, the absence of the three elements. Neither side “framed” the discussion or demands in a way that made it more palatable to the other side.  Each party’s respective proposal was far from objective and thus totally unattractive to the other side.

Process: While there was an opening joint session, the parties failed to discuss how they wanted to use the process to get from being in a dispute to resolving it. Indeed, when Defendant tried to raise the issue of its counter claims and that they  must be addressed, Plaintiff did not want to hear it. To plaintiff- the counter claims were simply not part of the “process