“When You Negotiate/Mediate BEWARE WHO YOU BRING!?!”
By Stanley Zamor
I was recently called by a mediator colleague who seemed hushed, rushed & speaking in a whispering tone. He was at the commencement of a mediation and excused himself to secretly call me in private. He nervously explained that as he was about to start a commercial mediation conference, and while ushering the Plaintiff and his attorney into the conference room, they abruptly stopped, turned around and refused to enter after seeing the Defendant and the Defendant’s attorney were sitting with a third person unrelated to the lawsuit. The Plaintiff was highly upset and marched into a smaller conference room stating that he refused to mediate if the other person stayed in the mediation. The Plaintiff felt that the third person is largely responsible for most of the dispute. The Defendants insisted the third person stay. The Defendants being sued is a small family business and its principal individually. The third person identified himself as an Attorney-CPA but wanted to participate in support of his cousin (the business owner) and as a friend of the business; he initially assisted with the company’s accounting, vendor accounts and setup.
My colleague stated that he knew the intricacies of the Florida Mediation rules/statutes/ procedures but was stuck. He did not know quite what to do since both sides appeared so ridged and this mediation took months to set up. What to do?
INSIGHT, PARTY SELF-DETERMINATION
Mediation is a consensual process whereby parties have the unique opportunity to be in control of their own destiny. Unlike being in court or an arbitration parties can determine how they negotiate and with who. Often one side may bring someone to the mediation that they other side feels disrupts negotiations. A skilled mediator will know the difference and will encourage a constructive process and dialogue.
MY SUGGESTION, HOW TO DISCUSS PARTICIPATION
With the Defendant, discuss that only named parties/parties of interest participate in mediation. However, if the Plaintiff agrees there will be restrictions that must be adhered to. The mediator will ask the third party to leave if his behavior less than constructive.
With the Plaintiff, discuss how a third party may have a value and influence on how the Defendant negotiates by setting them at ease. People usually negotiate better when they feel supported, less stress and anxiety doesn’t cloud their judgement.
OUTCOME
I was later told that the third-party participated in the mediation conference and offered several strategies regarding how to resolve the matter while maintaining vital portions of the business relationship. They settled in four hours.
Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultants he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.
szamor@effectivemediationconsultants.com
www.effectivemediationconsultants.com
www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600
