There are lots of opportunities for unreasonable people to be an obstacle to a compromise settlement. When discussing this topic, everyone has stories of that unreasonable client who was a problem or that lawyer who got in the way of a good settlement. What do we do with such challenges? Can cases be resolved despite them?
The reality is that everyone involved in mediation (and influencing the outcome) must be dealt with in the course of the mediation. Ignoring the problem doesn’t make it (or them) go away. Pretending they do not exist can actually magnify the problem. A direct approach is usually best. Most people don’t set out to be contrary or unreasonable (bear in mind I said most). There is some reason that they are taking a position that others view as unreasonable or are exhibiting emotions that do not appear to be warranted.
I find that a gentle exploration of the root of the “unreasonableness” will sometimes resolve the problem. People want to be heard.
Once you hear the basis for their position or feelings, their dogmatic insistence upon them will falter. Likewise, actually hearing their reasoning allows the obstinate party to process their thoughts and feelings in a different way. And they may see that their position could be subject to a little adjustment. This is a prime use of reframing questions. For example, the mediator says, “Let me make sure that I understand your position…[and repeats or restates the unreasonable position].” It’s amazing how that simple act can soften one’s position.
The other byproduct of teasing out the basis for an unreasonable position or feeling is that you identify potential solutions to the problem.
Once you determine the root of the problem it can be addressed. For example, if the unreasonable opinion is based on erroneous facts or assumptions, it can be corrected. You can also identify outside influences (such as third parties) that are impacting someone’s position. You can’t deal with those if you don’t know about them. Those outside influences may themselves be based on erroneous facts or assumptions, which can be corrected. Those third-party influences may pre-date the mediation or may be going on at the same time. It’s also a good time to remind those present that actively disclosing what is going on at the mediation may breach applicable confidentiality obligations.
Most unreasonable positions aren’t. Rarely does an objective or measurable rule of reason apply in situations that are the subject of mediation.
Positions that are seen as unreasonable have some basis, though they may not be reason or logic. Most positions taken at mediation have some subjective component, such as risk tolerance and other motivations which are unique to the individuals involved. Reasonable people, with the same influences or pressures, may still disagree.
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