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Law Rules

How we resolve our disputes

Entries in privilege (2)


Fly on the wall

How many times have you finished a negotiation and wondered how much more you could have gotten the other participant to agree to? Have you ever wished you could have been a fly on the wall in the other side’s conference room?

My website claims that a mediator can help people negotiate better than they can negotiate on their own. I’ll go one step further. A mediator can help people negotiate better than they can with other advisers, like attorneys, business coaches, accountants and public adjusters. This is not to say that those professionals are not helpful or worth consulting. They are often essential. You can tell your attorney both the strengths and weaknesses of your position in confidence because you have a legal privilege not to have that information disclosed to anyone else without your consent. That is not true of any other business adviser or coach. Only doctors, clergy and spouses have a similar legal privilege. But even your attorney gets the story of your dispute or conflict only from you. Your attorney or business adviser or consultant can serve only one master. Your opposition will not tell your advisers their real bottom lines.

In contrast to this adversarial model of negotiation, mediation has a great advantage. A mediator can talk confidentially to both (or all) sides in a dispute or conflict, and no one—not even a court—can compel the mediator to disclose what is said in confidence. Thus, the mediator can be the proverbial fly on the wall who listens to each participant’s strengths and weaknesses, hopes and fears. By hearing and seeing the bottom lines of all participants, the mediator can determine whether there is an overlap, where everyone’s interests coincide, or whether there is a gap and, if so, how large and important it is. In this way, the mediator can encourage the participants to move toward those positions or solutions where agreement is possible. The mediator can also suggest when a settlement proposal or offer may be worth exploring, and when it may not be worthwhile. As a result, the mediator can prevent the parties from leaving money on the table or from giving away the store.

I am not so naive as to believe that everyone is entirely truthful, even when speaking with a mediator in confidence. I have been lied to. I have played poker, where bluffing is part of the game. But getting people to talk in confidence often discloses real interests and hidden agendas, even when they are prepared or guarded by their own attorneys, consultants and advisers. Sometimes, as a mediator, I am most useful when people ignore me, like the fly on the wall. By simply listening to and observing both participants, together or separately (in confidence), I can spot opportunities for settlement and prevent people from giving up too soon. So let a mediator be your fly on the wall. The mediator cannot tell you all that he or she sees and hears. But the mediator can make your negotiations more productive, with less second-guessing and buyer’s remorse when it is over.



Who was inappropriate -- the Queen or King?

A 22 year-old beauty queen scolds a veteran TV newsman for asking what she considers to be an “inappropriate” question. Not exactly a man-bites-dog story, but it raises an interesting legal question. Did Carrie Prejean have the right not to answer Larry King’s question about why she settled a lawsuit in mediation rather than going to court against the Miss California Organization? Apparently, she thought she was on the show to promote her new book. King did what any good reporter would do — ask a question that might get a response that would be interesting to his readers, listeners or viewers. However, Prejean responded that “it’s completely confidential.” While many mediators tell the parties to mediation that what they say during the settlement negotiations is confidential, that is not exactly correct in many states. I am not licensed in California, but here in Wisconsin the only legal protection is a rule of evidence that prohibits the admission in a judicial or administrative proceeding of communications relevant to a matter in mediation. The rule defines such evidence as irrelevant and, therefore, inadmissable. It does not create a “mediation privilege.” Even if the settlement agreement provided that the terms of the settlement were confidential, King clearly did not ask about the terms of the settlement. He asked why Prejean decided to settle. And, of course, Larry King was not a party to any confidentiality agreement. So was he being inappropriate? Or was Carrie Prejean practicing law without a license?