Mock Mediation reactions Mar. 11th, 2010

The three person panel mediation that was performed in class included Kelly, Valerie, and myself.  This mediation was ill-prepared.  The panel was not given any information before the mediation was set to begin.  During this improvisation, we assumed the roles of mediators.  The conflict consisted of two disputants.  The issue that was apparent prior to opening statements was embezzlement by one of the disputants from the company that both parties owned with equal share. 

Upon entering the room, the two disputants were arguing, thus causing my colleagues and I to backpedal and immediately problem solve in order to restore order.  We were not given ample opportunity to explain the mediation process.  From the start, we were at a disadvantage.  I had written in my notes, "violent dispositions".  This became my focus in order to find a path towards gaining control of the process and start our explanations to the disputants informing them of the mediation process.

My colleagues and I worked well together in bringing order from the chaos.  The first disputant; Hal, that had much to say throughout the entire mediation; was given priority for his opening statement since his obnoxious and angry demeanor needed to be addressed.  We offered a confidentiality agreement so the disputants would be more at ease. 

The panel had decided before the mediation that Kelly would give and allow the introductions, I would pursue information gathering through open questions.  During the questioning we were informed the issue was embezzlement.  The embezzlement accusation from Hal was directed at his partner Jarod.  At that time, I continued questioning to clarify the specifics concerning the legal side of the conflict.  I wanted to make sure there was not a criminal case pending.  This might complicate the issue of a resolution due to subpoenas and ethical concerns from the mediators' perspectives.  After confirming there was no criminal cases pending, we moved onto finding out what was taken, how much in terms of a dollar amount, and what wanted to be done.  Even though the statements of what the disputants wanted was still being questioned since this is the reason they were in mediation.

After letting them have their say, and asking questions about the amounts of money, why and how it was spent, what the company agreements were concerning decisions, etc.  The information the panel had gathered was that the amount taken from Jarod equaled $360,000.00 from the business.  Although, he argued they were related business expenses.  This expenses included a Bentley, airplane tickets, and lodging expenses.  Jarod maintained these expenses were all part of a plan to acquire new clients.  The questioning also allowed Hal to raise concerns about Jarod's use of prostitutes and the money not being used for business activities. 

Our questioning was limited, and I made a choice to move past the accusations of prostitutes, but I should have kept moving forward with a line of questioning about his accusation.  After gaining all the information we thought was pertinent, we excused the disputants so we could confer on possible solutions.  The panel easily designated embezzlement as the issue.  We tried to find a rule that would apply to this, but there was no criminal case open, therefore the rule that we decided upon was a dissolution of the company.  In order to dissolve the company, all assets would have to be sold.  This would include the vehicle.  As for the rest of the money lost, we decided to offer up a solution of dissolution with percentages of the company being separated at a 60-40 split.  The 60% going to Hal. 

When the disputants returned to the room, we had trouble getting Hal to agree to this split.  Then 70-30 was offered, and it was again turned down.  I took it upon myself to try and persuade Hal to take the offer by using WATNA in order for him to see a possible negative result if it was to go back to court.  I was unable to persuade him.  My tactic was the 3 step drop that I have used in sales positions in my professional life.  The 3 step drop allows for the first offer when selling to be the one the salesperson wants to be agreed upon, but if there is a refusal, then the 2nd offer is one step down, usually for less money and less products/services.  The 3rd step is the last thing a salesperson says to a potential customer.  This last one is something to be avoided since it is the bare bone minimum that a salesperson has to offer.  I didn't want to go the 3rd offer because of this mentality, however my persuasion skills did not work on Hal, and a 80-20 split was offered by Jarod and Hal. 

By coming to this solution, the panel had felt it was good enough to end the mediation.  Although there was a lot of problems with this mediation from the very start, it was a success in my eyes.  I felt that we accomplished our objective to find a reasonable solution, thus a win-win situation from the disputants points of view.  There were a lot of emotions present with the disputants, and this week's readings explain how this situation could have ended with no solution, or even worse than it began.

In conclusion,