When “Compromise” Isn’t Helpful

My goal as a mediator is to help people reach their own negotiated resolutions.  Time and again - not least when I was representing a plaintiff or a defendant - I would hear judges and mediators call for compromise.  No doubt many meant well, but they weren’t helping. Here’s why.

We all need a sense of self respect.  And it can be tough to get by without an occasional nod of respect from others.  

Disputes, however, challenge these basic human needs.  Someone has called into question the conduct, statements, and sometimes even the integrity, of someone else.  Whether you are a plaintiff confronting skepticism or apparent indifference about your claim, or a defendant facing allegations of wrongdoing, you can feel the very person you are is at stake.  The natural - and healthy - response is to stand up for yourself.  Those who don’t are the ones I worry about.  Do they have so little sense of self esteem that they even question their self worth?  Very sadly, some do.

For those who do stand up for themselves, however, the last thing they want to hear is someone else - and especially someone with any level of authority - telling them to compromise.  That person has just suggested they do the one thing they absolutely do not want to do - that is, give up on themselves.  

The same goes for the lawyers who represent each of the parties.  They don’t just invest their time, knowledge, skill and expertise in standing up for their client.  They dig into the courage it takes to stand up in front of others for the sake of someone else.  I never appreciated it when someone else suggested the person I was advocating for should compromise.  By that time I had invariably dedicated a lot of time and effort to “winning” that person’s case - whatever a “win” might have been in that particular dispute.  I had as little interest in giving up as the plaintiff or defendant I was representing.  

So how do you encourage the give-and-take of negotiations without asking people to compromise?  

You do the opposite.  You encourage them to take charge - not just of their case, but of themselves and their lives.  You give each side the freedom to present their evidence.  You give them the freedom to explain why they believe their evidence proves the points they have been trying to make.  And you give them the encouragement and the opportunity to listen to, hear, and appreciate what each other has to say.  Why?  Because someone will resolve their dispute based on the evidence and arguments they can each present, and the only question is who: a judge, a jury, or themselves?  

And here is the rub every lawyer knows: the risk with leaving this up to a judge or a jury is they will likely interpret that evidence, and those arguments, in a way that one side or the other did not expect or want.  

So the decision for each person involved in a dispute should not be whether to compromise, but whether to take charge and manage this risk.  

Yes, managing risk involves give-and-take.  But it does not mean giving in.  It involves, instead, carefully considering - and appreciating - the risks each side faces in leaving the adjudication of their collective evidence to others and then working together to find a solution to this shared risk. 

Instead of asking everyone to compromise, we are encouraging everyone to take control.

By empowering them with this opportunity to take control, we leave their self respect in place and take a significant step toward helping them resolve their dispute.