I had the pleasure of meeting presidential candidate Steve Bullock yesterday and got to listen to his message about “how to get stuff done.” He was a two term progressive governor in a red state with a 60% Republican legislature. Yet, he he was successful in promoting a progressive political agenda while getting re-elected. So what was his secret? It’s pretty simple actually: he listened and did so with respect. He listened to the proponents of a bill or action. He listened to the opponents. He listened to the people. He listened for good ideas and realistic positions. He listened for points of agreement and intractable issues. Then he took the best of what he heard and got things done.
While listening to the candidate, I couldn’t help but think about our own Southern California class action mediation experiences. Lawyers and their clients typically come to us at the later stages of litigation. Positions are well solidified by then. Mediation briefs are typically well written and examples of good advocacy. In fact, it is often easy to discern true believers. In politics it might be defined as being a Republican or Democrat. In mediation, it might be those that believe every employer is evil versus those who believe every employee complaint is attorney-driven.
So how do we get from advocacy to settlement? Apparently it’s the same as a successful politician such as Governor Bullock: by listening. We understand that every position, every claim and every defense has both merit and vulnerability even if your opponent refuses to recognize them. We spend a great deal of time in pre-mediation conferences listening to and discussing the positions of counsel before we ever set foot in the mediation room. Once the actual mediation commences, we advance discussions toward common ground, but we are always listening. The co-mediation structure is particularly well suited for this focus. (See prior blog on advantages of co-mediation). Importantly, we make sure both sides of the dispute are listening to one another. Typically, this concept is a casualty of the adversarial nature of litigation and it takes effort for the parties to overcome. Once everybody is listening, however, the common goal of resolving the dispute becomes not only possible, but probable.