Battleships, Litigation and Separate Caucus Mediation
When people used to ask me what it was like to practice law, I compared litigation to the childhood game of battleships ** -- a game I recall playing with great avidity.
So what does battleships have to do with yesterday's mediation?
Until you are negotiating in the zone of possible agreement, you have no way of knowing how close you've come to resolution.
At some point, someone has to have the nerve to step up to the top or bottom of that zone. When you finally enter the realm of reasonable possibility (not necessarily a "reasonable" settlement) you'll get a "sounding" back from the other room. Once that happens, as in battleships, you'll have a pretty good idea of the direction in which you'll need to move to achieve agreement in the "game" of distributive bargaining.
I make every effort not to let the parties conclude a mediation session until I am absolutely convinced that their "bottom lines" do not overlap as shown in the beyondintractability.org chart above.
Remember, however, that I never want to know either party's bottom line because: (1) it will effect their negotiation strategy, i.e., potentially box them in; and, (2) it will effect me and I don't want to sub-consciously drive the negotiation deep into anyone's actual flotilla. (reasons one and two here)
Is THIS All You Do All Day, Ms. Pynchon?
That would be so boring!
Facilitating a distributive bargaining session to resolve litigation is not actually a game of ping-pong or battleships. Remember, nothing is ever only about money. Lawyers translate injustice into money for their clients because it is all we generally have to work with to make a bad situation right again. Mediators translate money back into justice, fairness, or, in some cases, stark, raw, unjust reality -- take it or leave it.
I do not drive the process as a mediator. I nurse it. And because the process is hard on people, it did not surprise me yesterday to hear one of the attorneys tell me that he "didn't want to be sexist" but thought he might just start retaining women mediators because lately they'd been the only ones who'd been getting the job done for him.
Patience. Persistence. And just a little bit of tenderness for everyone involved. It's a tough business and all the parties and their counsel can use a kinder touch -- male or female.
** If you've forgotten how to play and are on an endless and tedious conference call, I recommend either this mindless computer version of the game or "stumble upon," the latter akin to gazing out the window at some pretty surprisingly interesting terrain.