Emotional Hurdles in Mediation: Setting Up Camp

By Laura Melton Tucker, July 22nd, 2010

Listen to this entry.

In last month’s blog entry I talked about impasse in mediation, and how to go under, over or through it.  But  not all clients are willing to make the trek.   When one side offers to settle, and the other won’t – even when his original terms are very nearly met, the clients may need to end the mediation and go before the magistrate.  I call this intractability,  “setting up camp.”  Setting up camp in a mediation happens when one party finds a spot to focus his anger, frustration, or hurt, and prefers pouring energy into preserving that spot, rather than picking up and moving on.  Here’s a mediation story to illustrate what that looks like.   Names and details have been changed to protect the parties’ privacy.

The claim in this case was filed by a woman who purchased a car.  Let’s call her Mrs. Car.  Her story starts when she tells a friend and business colleague that she is in the market for a car.  She is told by her associate – let’s call her Mrs. Friend – that her husband, Mr. Friend, is great with cars, and happens to have an extra one that he would sell for a song.  After an email exchange, Mrs. Car test drives the sporty coupe, likes it, and agrees to purchase it for a good price, without warranty, though Mr. Friend promises that he’ll make it right if there are problems.  What this means, exactly, is never spelled out.  At the mediation table, both sides agreed that this meant that Mr. Friend. a professional mechanic, would do any work on the car needed within the first 30 days.  Sure enough, Mrs. Car’s vehicle makes a strange noise the day after she buys it.  Mr. Friend diagnoses the problem and offers to replace a part that Mrs. Car buys.  Unfortunately, this happens several more times before Mrs. Car breaks down and finds a new car to replace the sporty coupe.  The mediation has gone smoothly up to this point.  Both sides agree to the facts presented.  As the car buyer moves into the next part of her story, the feeling in the room intensifies.  She has filed her claim because of what happens next.

When Mrs. Car goes to trade in her sporty coupe, she hears from the dealership mechanic that the water pump, replaced before she purchased the car, has been incorrectly installed.  The faulty installation most likely caused the problems Mrs. Car had been dealing with.  The bad news is that the car isn’t worth as much to the dealership.  They must adjust the trade in value. Mrs. Car, continues, “I just didn’t want to deal with any of this anymore.   I wrote Mr. Friend an email telling him to come and get the car, and  return my money, including the cost of the parts I replaced.”  Mrs. Car pauses at this point in her story, overcome with anger.   Looking at Mr. Friend she says, “I was sure you would make it right when I told you about this. Instead, you insisted on talking to my husband instead of dealing with me. My husband didn’t buy the car from you, I did! ”  Mr. Friend put down his pen:  “When I called you back your husband answered the phone. I made my proposal to him.”   Mr. Friend  explained that he and Mrs. Car’s husband reached an acceptable compromise.  Mr. Car agreed to drop the car at Mr. Friend’s and get  his money back.  The cost of the replacement parts would not be repaid, but the deal was better than what the dealership offered.

If this had been the end of the story, the case wouldn’t have ended up in small claims court.  Here’s what happened next.  (Get out the camping gear, this is when one of the parties sets up camp!):

Mrs. Car cancelled the agreement the minute she heard about it.  Furthermore, she wrote Mrs. Friend an angry email to let her know that they needed to avoid each other at work because Mr. Friend is a bad businessman who must also be a bad guy.  This, we hear, has caused marital headaches for Mr. Friend.  Now that both sides have told their story, they are still at odds.  Mr. Friend would like to make the situation right and regain his wife’s favor and his reputation.  He will honor the previous agreement with Mr. Car, even though he says he was not responsible for the water pump since he sold the car as is.  He produces the original bill of sale to prove it.  Mrs. Car, however,  will not compromise.   She has set up camp.  Can you predict the outcome for Mrs. Car and Mr. Friend?  The reveal is coming soon.

There are many lessons to this story.  As a mediator, my job was to let each side tell their perspective while also getting clear on the facts of a relatively complicated business deal.  I was able to ask questions and take notes which slowed down the storytelling process, and gave both sides an opportunity to listen carefully.  The conversation also gave both sides a chance to explore their feelings and the consequences of the conflict.  Both parties described the ill effect of the feud on their spouses.  Both sides described feeling more was at stake than money.

Ultimately, whether you’re involved in a small claims court case or navigating a dispute in your family,  setting up camp is akin to emotional entrenchment.  At some point, all of us can confuse hanging out in our anger, marinating in our essential rightness, with taking a moral stand for what we feel is a principal,  only to have it lead to a problem bigger than the original conflict.  But, if we’ve avoided moving on and have chosen to stay locked in the conflict, have we won? For Mrs. Car, the case didn’t conclude happily.  She didn’t recoup the money she  paid for the car, the car parts or the court costs, nor did she recoup the time she spent preparing and arguing the case.  Perhaps most importantly, she lost her friendship with Mrs. Friend, who now goes by the name, Mrs. Ex-Friend. The takeaway is that sometimes being right is less important than moving on and being well.

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