In trust/probate disputes the participants [P’s] often loathe each other & refuse to meet face to face.
That is Ok because if they did, in all likelihood tempers would be inflamed & the P’s positions would become even more polarised.
That does not mean that the P’s Mediation Advocates [‘MA’s’] should not meet face to face & eventually with the other P.
In a Zoom Mediation, the Mediator [‘M’] may set up a ‘Coffee Room’ [‘CR’] in which the MA’s can meet without their lay clients being in attendance.
The CR is a private room in which the MA’s can meet & speak candidly to each other, thereby establishing a working relationship which eventually engenders respect & trust.
So, toward the end of their 1st/2nd private session with M, i.e. after M has completed the ‘house-keeping’ & initial exploratory ‘getting to know you’ stage of the Mediation process, a MA [‘MA.1’] can be proactive by asking M to speak to the other MA [‘MA.2’], in order to request a CR meeting so that the MA’s can introduce themselves to each other as professional negotiators, i.e. as ‘fellows’.
If MA.2 agrees, then, MA.1 can seize the initiative in the 1st CR meeting to switch the dynamic between them from ‘confrontation’ to ‘collaboration’, by saying something along the following lines to MA.2:
‘Thank you for meeting with us today.
I will be corrected if I am wrong, but what I think you say about the facts and the law is … [i.e. to demonstrate to MA.2 that P.2’s arguments have been heard & understood].
It is not my job to persuade you that your arguments will not succeed at trial.
As you know we say that we will succeed.
I am not interested in having an argument with you about whose view is right.
I suggest that litigation is not going to be a great outcome for either you or for my client. The risks are …
I am here because I believe that we can reach a principled and fair deal that is not only good for my client but also better for your client.
I hope that you will work with me to achieve this today.’
If M facilitates an acknowledgment by both MA’s, that there is always an unquantifiable element of risk in all litigation for both P’s, then he can steer them away from ‘wishful thinking’ & toward ‘constructive problem solving’.
M can thereby bring about a paradigm shift in the P’s/MA’s approach to the resolution of the dispute.
Subsequently each MA, in the presence of M, can take instructions from their lay client about how to switch the focus away from the ‘people’ & toward the ‘commercial problem’ which divides them.
Once the proverbial ‘penny has dropped’, i.e. about ‘litigation risk’, M can then facilitate an exchange of proposals in order to narrow & eventually close the gap between the P’s positions.
This is when M can say privately to each P/MA or to both MA’s in a CR meeting:
‘In practice, there are only 3 types of opening offer a P can make …’
For the full quote see: https://lnkd.in/eF_4KtcJ