Improvisational Negotiation” is a fun little book by Jeffrey Krivis. Essentially, it is a breezy collection of stories that could loosely be called mediation case studies. The subtitle sums up the tone and content: “A Mediator’s Stories of Love, Money, Anger – and the Strategies that Resolved Them.”
Each story sets forth the nature of the people and their conflict, from a rock & roll band member jilted by the star, to wealthy people battling over a multimillion-dollar New York building. Medical malpractice cases, car crash cases, toxic mold in a rental home. . . you name it, and there was an example among thirty case studies. The almost jocular tone kept me reading along.
After each story, the author has a section called, “What Happened?” in which he highlighted the key turning points in the mediation. To wrap up each study, Author Krivis listed the take home points in a section called, “What strategy can we learn?”
What I found most interesting was all of the various approaches on exhibit in this book. Typically, mediators find a comfort zone. For example, some mediators always keep the parties in separate rooms. Others always start with the parties in the same room. The overall impact of the thirty scenarios is to emphasize that a good mediator will try to read the parties, identify what are their needs, and modify his or her approach to meet those needs. For some situations, letting the parties hear what the other side says unlocks the emotional barricade preventing closure. For other situations, letting the lawyer ask a few questions of the other party proved pivotal.
The point, I believe, is to be flexible and creative. If the parties give you something to work with, then use it. Perhaps the best example of this was the gambling approach. When the parties were packing up to leave, defendant told plaintiff his case was lousy, and no jury would award more than $10,000. “Don’t bet on it,” said the plaintiff. “I can’t wait to see your face when the jury returns a verdict for $150,000.”
The mediator’s light bulb went off as he proposed that the parties make that bet. $20,000 paid to the party who guesses closest to the verdict. This would help cover attorney fees. That got the the parties thinking. They were willing to bet, but each wanted to re-think their positions. So, the mediator gave them until noon the following day to fax their betting numbers. Sure enough, the gap narrowed to $40,000 and $90,000, leading to a $65,000 settlement.
Overall, “Improvisational Negotiation” was an entertaining and educational read that I’d recommend to mediators and others interested in mediation.
Merrick Mediation Services