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Pushing the Boundaries of Facilitative Mediation

Pushing the Boundaries of Facilitative Mediation

How far are you willing to push the boundaries of traditional facilitative mediation?

 

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I’ve got one attorney that I work with a lot who, every time I walk into his room, it’s a money negotiation. He represents hospitals, oftentimes, and doctors in malpractice claims and every time I walk into his room, as we’re going back and forth with dollars with the other room, not to say that there aren’t non-economic terms at work, but just focusing on the dollars, he’ll say, ‘Well, Lee Jay, the way that I look at this, our next move could be X or it could be Y. Which do you think I should do?’ He’s testing. He’s the defendant so if I took the higher amount every time, he would say, ‘Oh, Lee Jay’s just trying to get the case settled. He’s not really giving us a sincere answer.’ So sometimes, and first of all, the act of telling him what I think is one that I would think might get under your skin a little bit.

 

I tell him, if he says, ‘Well, my next move is either $150,000 or $160,000, what do you think we should do?’ I’ll tell him, ‘Sometimes, I think you need to put the $160,000 on the table because I think they need to see more movement from you in order to have the psychological confidence to continue to work with you.’ Or I’ll tell him, ‘No, I think $150,000 is enough this round. I don’t think that going to $160,000 is going to get you any better response from the other side. Keep the other $10,000 in your pocket. Play the $150,000 right now,’ as though we’re playing poker or cards of some sort, ‘and use the $10,000 next time. Your last move was $20,000. They moved $60,000 in response to it. You’ve got three for one on your money. I don’t think you need to put the extra $10,000 out there.’

 

That’s me responding to him challenging me and testing me to be his coach in negotiation. Now, this brings up a really important point and this may be another one that gets under your skin, and if I succeed at that, I’ll be happy because as you know, and I think as you do too, I like to provoke us to think differently. I like to stretch our imagination a little bit. I think Einstein said, ‘A man’s mind, once stretched, never regains its original form.’

About the mediator

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Lee Jay began as a full-time mediator and trainer over 18 years ago, and has successfully mediated over 1,700 matters. He is a national panelist with the American Arbitration Association, a Distinguished Fellow with the International Academy of Mediators, internationally certified by the IMI, and a Dispute Resolution Expert with the United Nations Development Programme. In 2008, Lee Jay founded the American Institute of Mediation offering “W... View Mediator