ripeness | Mediation Matters

By Steven G. Mehta

A new study published in Economic Inquiry addresses the question: “If we can make a deal, why fight?” The authors conclude that a combination of each side recognizing the probable outcome and both sides considering the use of time similarily allow a potential loser of a conflict to use small concessions to successfully appease an expected winner. Given those conditions, small negotiated concessions can work, but in situations where clear and specific inequities exist, small concessions to avoid a fight won’t work.

The article offers support for their theory that “in the baseline case of common beliefs and identical time preferences, if the size of indivisibility is sufficiently small, conflict can always be avoided by a series of small concessions, with both parties recognizing that there will be additional concessions in the future.”

According to the research, both sides to the conflict must recognize the relative strengths of their positions and conflict can only be avoided when both parties agree that peace is preferable. However, if the perceived winner is more impatient than a likely loser, then this factor is a major consideration in talks failing and conflict being inevitable.

Although this research is not in the field of mediation, some of this research can be translated to litigation. First, the research supports the concept of ripeness for mediation. See my prior article on ripeness. There is a time that is better for mediation than others. Both sides must recognize their strengths and weaknesses, and must be willing to consider peace.

Second, how each side views time is also important to resolution. Recently, I had a mediation that nearly failed because of time perception disparities. The defense had a very strong case to demonstrate that there was limited to no liability. The plaintiff, however, was extremely emotional about the underlying facts, regardless of whether liability was good or bad. As the mediation progressed, the defense got increasingly more impatient with the progress of the mediation because the defense could not understand why the plaintiff wasn’t making more concessions and would not accede to what the defendants thought was a fair offer.

Each side had a different perception of time: Plaintiff believed that the process was about her and her emotions. She was not looking at the clock. She was not paying hourly to her attorney. Defense on the other hand felt that if the mediation was not going to work, why waste time when they would eventually win at trial. Only after both sides could understand the other’s perception of time, then the case became ready to resolve.

· Practice Point — In all aspects of litigation and life, people will have different times in which they can handle a certain matter. No two people react to the same scenario in the exact same way. If you are finding yourself stressed because of time constraints, step back and pause to consider why the time constraints are important. Are the time constraints necessary? Consider whether the other side has the same perceptions as you and whether they perceive time in the same way as you. If they don’t, and if time is critical, consider letting the other side know of your time constraints. Often a little patience can go a long way.

Reference:

Jack Hirshleifer, Michele Boldrin, David K. Levine. The Slippery Slope Of Concession. Economic Inquiry, Volume 47 Issue 2 , Pages 197 – 393 (April 2009) DOI: 10.1111/j.1465-7295.2008.00154.x