Douglas E. Noll, Esq.
February 2005
Nancy had rented a small
cottage on Tom and Tracy’s ranch. The cottage was old and the
previous tenants had left it a mess. Over the period of several
months, Nancy became frustrated at Tom and Tracy’s apparent
unwillingness to fix the cottage.
One hot summer evening, after a difficult day at work, Nancy returned
to her cottage to find that she had no water. She called over to
Tom and Stacy’s home and learned they were having dinner. Tired
and completely frustrated, Nancy became angry. Tom, tired of
Nancy’s incessant requests, hung up on her.
Nancy withheld her rent ($550) that month and placed it in a separate
escrow account. She told Tom and Tracy they could have the rent
when they completed repairs on the cottage.
Nancy’s action led to an eviction, followed by her small claims action
against Tom and Tracy, followed yet again by their lawsuit against her
for defamation, trespass, and breach of contract.
By the time the matter reached court-ordered mediation, each side had
spent over $15,000 in attorneys’ fees and costs. Tom and Tracy
were demanding $50,000 from Nancy. Nancy was demanding $8,000
from Tom and Tracy.
The mediator arrived at the mediation conference. The hostility
and anger in the room was thick enough to cut with a knife.
Clearly, the parties did not care to be sitting across the table from
one another.
The mediation started with agreement to how it would be
conducted. Everyone agreed that one person would speak at a time
without interruptions from others. Each agreed to speak the truth
from his or her heart and mind. Each agreed to be respectful of
the others and to use respectful words, tone of voice, and body
language. Finally, everyone agreed that the conference had to be
fair at all times.
The mediator asked if each person would be willing to share his or her
perspective on how the conflict started and what it was about.
The mediator pointed out that three perspectives were usually in
play: a personal perspective, a legal perspective, and a business
and economic perspective. No perspective dominated, but each
might provide valuable information for everyone to consider.
Everyone agreed to tell their story keeping those perspectives in
mind. As the stories unfolded, the mediator could see that two
very different realities had been created. From Nancy’s
perspective, Tom and Tracy were not interested in providing a habitable
cottage and were intentionally ignoring Nancy’s requests for
repairs. From Tom and Nancy’s perspective, Nancy was unreasonably
demanding, wanting action instantly at her whim. Both sides
agreed that the water had failed that one night and was the final straw
for all.
When one person finished, another would jump in to refute the story
point by point. Both sides kept repeating that they had
“evidence” to prove their case and the other side was lying. For
awhile, the conference seemed to heat up rather than cool down.
The mediator kept the conversation flowing, allowing everyone to speak
without interruption.
This was a critical strategic decision. By letting the parties
tell their stories and argue their respective cases, the mediator gave
them an opportunity to be heard. Many people mistakenly believe
that this “venting.” Venting is actually a throwback to Sigmund
Freud’s early model of the human psyche as boiling with sexual
energy. If not properly vented or displaced, this energy was said
to cause neurosis or psychosis. Thus, talking things out was
thought to be a way of relieving psychic pressure. Today, the
concept persists despite the lack of any empirical evidence
establishing venting as effective. The value in letting people
speak is in listening to them in such a way that they know they have
been heard.
By the fourth round, the emotions in the conference room finally began
to cool off. The mediator led the parties through an
identification of their interests. As is very common in heated
conflicts, the parties had identical interests. Each wanted the
lawsuits to end. Each wanted an apology and retractions from the
other. Finally, each wanted to be made financially whole.
The parties were shocked to see that they had the same interests and
needs, and this was the second critical turning point in the mediation.
By now viewing the conflict as one of mutual injustice requiring mutual
apology, the parties could step off of their positional demands for
money. With another hour of work, the parties agreed to dismiss
the lawsuit. Nancy agreed to pay $450 for past rent.
Everyone agreed to apologize and retract disparaging statements made
about the other. All other demands for money were dropped and
everyone agreed to pay their own attorney’s fees and costs.
This mediation presented a classic class in conflict
de-escalation. During the five hour mediation, four hours were
devoted to de-escalating the parties and only one hour to actually
negotiating a settlement that all were happy with. While the
conflict seemed superficial and trivial from the outside, it could not
have been resolved satisfactorily unless the parties had been
de-escalated first. De-escalation moves parties from emotionality to
rationality, allowing them to make sound choices. If parties are
pushed too quickly to be rational, they will balk and impasse will
result. De-escalation is therefore a key element of peacemaking.
Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation of difficult and intractable conflicts throughout California. His firm, Noll Associates is based in Central California. He may be reached through his website and email at doug@nollassociates.com
© 2005, Douglas E. Noll