Framing The Problem

In this video, I explain how to frame “The Problem” everyone faces when mediating a litigated dispute as a shared problem.  I explain what that shared problem is, in its three constituent parts, and I point toward how recognizing this shared problem can draw all sides into positive negotiations that can benefit everyone.   

Video Transcript

Positive negotiations begin by framing “The Problem” everyone faces at a mediation as a shared problem.  

Now this only makes sense if the parties are truly facing a shared problem, but in most litigated cases they are. 

That shared problem is this: if the parties don’t come up with their own resolution, someone else - or, more likely, several other people sitting as a jury - will impose theirs on them.

More succinctly, the problem they all share is the RISK of what might happen if they end up in a trial.  

Now it is easy to throw around the word “risk” and to tell people to settle their disputes because trials are risky - but to ensure everyone gets to make their own decision, and to help them believe they are making the right decision, they need to know why everyone faces risk with a trial. 

So to frame this problem fully, we also need to be sure everyone understands WHAT these risks are, and this can be the mediator’s responsibility. 

Everyone should appreciate there are in fact three types of risk they each face.  

There is Evidentiary Risk - That is, how will the conflicting evidence the parties can present at trial impact the decision of a purely objective fact finder.

But there is also Systemic Risk - Which covers the vast array of inherent flaws in the complex and very human - and therefore fallible - decision-making system we call trials, and how those may undermine or distort any objective, evidence-based decision.

And then there is Advocacy Risk - That is, how the advocacy of the lawyers - who are intent on winning their own client’s case - may impact the decisions, and even the decision-making, of those charged with determining the facts.    

Now, because the American legal system allows discovery, each side’s Evidentiary Risk is something all sides should be able to identify, appreciate, and, if they so wish, manage through negotiations.  

It is, however, extremely difficult - if not impossible - to predict if and how Systemic Risk and Advocacy Risk may impact any given case, but these two types of risks can have a dramatic - and even catastrophic - impact on one side or the other.  

Also, we can all be victims of our own desirability bias, and ignore certain realities in preference for those things we want to happen, and it is especially easy to discount or ignore Systemic Risk and Advocacy Risk because they are very hard to evaluate and they can trigger results we would rather not think about, but those risks are very real and everyone would be wise to keep them in mind as they figure out how they want to proceed. 

So why frame the problem all sides face at a mediation as these various risks of trial?

Well first of all, it's just a matter of being honest and fair.  No one wants to see anyone go into a trial without a clear appreciation of the risks they face.  There is nothing wrong with knowingly accepting risk, and there can be rewards for doing so, but it is only fair to ensure everyone is fully aware of the potential adverse consequences in making that choice.  

The real benefit is once everyone appreciates they all face this shared problem - the array of these different risks that come with a trial - they can take positive steps not just to manage their own risks, but also to help their opposing party to identify, appreciate, and manage their risks.  And as challenging as that can be, it is a fundamentally positive exercise for everyone.  

Now, how framing this shared problem can transform negotiations into this positive exercise will be the topic of my next video.  

Until then, Goodbye.