Dancing Alone or Together: The Two Step

If you watch the news, you notice there are a lot of high stakes negotiations going on around the world. A lot is said about the importance and usefulness of shuttle diplomacy—a neutral meeting with one side of a dispute alone to obtain information and, one hopes, agreement on points that can be reconciled between the parties, followed by the neutral meeting separately with the other side to do the same. This may take many trips back and forth before potentially ending in a settlement.

We see this process used between great powers to determine agreements on such important issues as peace talks. Most of us will not be involved in such high stakes, public or newsworthy negotiations but for those conducting civil litigation mediations, shuttle diplomacy is an everyday event. Mediators using the same process, moving from room to room, talking to each party independently, and privately conveying offers and counter-offers trying to reach  a resolution that all sides can accept.

It is an especially useful process if the parties are so distrustful or angry with one another that merely being in the same room with each other will spark even more disagreements. How, when or even if, the parties should ever meet face-to-face is best determined by the mediator. For instance, in cases of a simple neighbor dispute it may be better to hold a joint session with all parties in the same room negotiating with each other. It does not work as well, however, if the parties are involved in a hotly-contested, complex, corporate break-up, or if there is a chance of coercion or violence.

A mediator is perhaps most useful when preventing emotional outbursts by one side against the other. Unfortunately, the mediator is sometimes the target of the parties’ anger when conveying an unpopular offer and takes the brunt of their ire. That is not fair and does not help their cause. By meeting separately with each side, the mediator can provide a more constructive atmosphere for discussions and prevent combative personalities from scuttling a settlement.  Putting everyone in the same room can risk grandstanding by the lawyers or the parties or both, which further entrenches each side into their original positions. This is not helpful for successful resolution.

Often the parties want to read something into how long the mediator spends in the room of their opponents. The mediator must explain to the parties ahead of time that if the mediator spends more time in one room than the other, it doesn’t mean the mediator favors one side over the other, but rather it just takes longer to work out a detail with the other side over a particular negotiation point. Especially as movement towards settlement stalls, a mediator must ask, “Are the parties going to make better progress alone or together?” The honest answer is, “It depends on the specific circumstances and dynamics of the parties.” It depends on the type of case, the history between the parties, whether the parties expect to continue a working relationship after settlement, and the emotional intelligence of the parties and the attorneys. Perhaps most importantly, it depends on how sensitive a mediator is to all of the above. A well-qualified mediator is the best person to make that call.