A few weeks ago, an unusual and thought-provoking article appeared on Mediate.com: "Mediating in the Shadow of Faith: Personal Beliefs, the BATNA Analysis, and Dealmaking," by Gregg Relyea. Presented as a fictional story that was based on fact, Relyea discussed a client's explanation for refusing to accept a reasonable offer: "Last night I prayed, and God told me not to take a penny less than $1 million." Religious conviction, faith, belief... the label may change, but the consequences for mediators can be equally confusing. As Relyea states,
"Beliefs and values are generally considered to be non-negotiable. What good would it do to question or challenge the plaintiff's faith-based estimation of the settlement value? Scanning the long-term memory banks from mediation training, was there a technique for this type of situation?"
Relyea is correct: mediation training typically does not provide tools for negotiating situations like these. Further, religious belief is often seen as inappropriate and irrational within the context of a mediation. Where does this approach leave the mediator? And, perhaps more importantly, where does it leave the client?
The author goes on to explain how he "reality tested" the client, pointing out that-- if the client did not come to a resolution through mediation-- his conflict would be dealt with in court. Court, of course, is a man-made system of justice. After considering this, this client decided to accept the offer. Relyea goes on to explain his choices, providing us with a useful tactic for framing the role of faith in mediation:
"Using acknowledgment ("I can see that you sincerely believe the case is worth $1 million") and a BATNA analysis (asking the plaintiff to predict what might happen at trial) were key stepping stones in the process. The mediator did not challenge the plaintiff's sincerity or his faith, both of which were respected and recognized. Even after the breakthrough when the plaintiff conceded that there were no guarantees of doing better at trial, the plaintiff was asked for his final decision regarding acceptance of the pending settlement offer, thereby preserving his right to self-determination. The plaintiff was able to hold onto his personal and religious beliefs. At the same time he was invited to take a close look at his alternatives to a negotiated settlement and to come to terms with those alternatives himself."
This is a fascinating article, and I believe that Relyea has done a fine job tackling a very difficult and fraught issue.
Read Mr. Relyea's full article here.