After 10 hours mediating a catastrophic injury case resulting from a construction accident, the parties are tired and want to go home. The ball has been moved up the field considerably, but not to the goal line. The mediator can see daylight on the horizon if he can get a few of the insurers to reassess their exposure. Rather than terminating the mediation, he considers adjourning for the purpose of resuming the discussion on electronic mail. The parties will continue to engage in the process, except it will be done asynchronously (not occurring at the same time).
The universal proliferation of email is the single greatest weapon in the mediator’s arsenal in cases that don’t settle or need extra stimulus. The advantages to moving into a non-real time environment are considerable. Information about a case can be exchanged instantaneously and saved for historical purposes. Disputants can easily search through archived messages and recall case data which is not accessible in real time communications. Messages can be distributed to several people at the same time, with appropriate links to other pieces of information. Filters can be set up so that case information doesn’t get mixed in with the typical litter that sometimes fills up email boxes.
The gamesmanship that instinctively springs from competitive negotiations is partly muted since the parties are not watching the clock and planning their next moves. The control of the gamesmanship is now in the hands of the mediator. The mediator decides how much information to provide, what suggestions are made and at what moment in the process. This allows for strategic moves by the mediator that are well thought out with closure always in mind. The mediator plants ideas in the minds of the parties which gives them the sense that they are making their own decisions. While this can all be done in person in real time, asynchronous communication takes advantage of the freedom of time. It permits a dispute to brew for a longer period while parties revisit their settlement goals in a new light. More importantly, parties can’t run into each other in the bathroom!
In managing the flow of information, the mediator can demonstrate the appearance of vulnerability or strength on the part of parties to the dispute by providing key data that surfaces conveniently when the parties aren’t prepared for it. For example, the mediator might have been aware that a similar case went to jury trial and resulted in a $5.7 million dollar verdict, which is substantially higher than the insurers are willing to pay here. This verdict can be forwarded to the insurers with “For your information” in the subject line and no comment. They will get the message.
In addition, the selection of appropriate language to communicate to a party is enhanced when the mediator has time to bypass the spontaneity inherent in caucused communication. To begin with, the mediator can utilize reusable language i.e. language which has been used successfully in another case to persuade a party to modify their position.
Assume the lawyers might forward your message to the client(s). In that case, the language selected will have significant meaning in the negotiation. While maintaining neutrality, the mediator can offer subtle recommendations and advice that establishes boundaries in the negotiation. These boundaries might be very different than that which was discussed at the in-person mediation. If the lawyers continue to participate in the email discussion, the mediator has successfully moved the boundaries to a range which gives rise to potential settlement.
Communicating in writing brings out a human element in some people, particularly insurance adjusters, that they might keep hidden in the caucus room. Many of these professionals are active in chat rooms, use instant messaging services and are computer savvy. In essence the mediator is putting the parties in a socially desirable setting through email where they can put on a relaxed face. They sit at their desks and reflect upon the dispute while not feeling dominated by the other side. At the same time, the mediator is quietly moving them toward the finish line.
The use of email in continuing efforts to settle cases exercises the very approach which mediators thrive on, namely the ability to serve as a confidential listener. Without disclosing the content of the email messages, the mediator receives and delivers messages in a concentrated way with little or no side chatter. It permits the parties to focus exclusively on settlement options at a comfortable pace.