October 26, 2023
By Tom Crosby
Boxing and mediation? What could be more different? Combat v. Resolution? The purpose of this article is not to suggest boxing and mediation have anything in common. However, the purpose is to suggest that, under a particular light, important analogies can be found in comparing the two.
I am not a boxing fan. However, both a famous boxing quote and a boxing truism resonates with me as they relate to success at mediation. Success is defined here to mean that a mediator has afforded the parties all the support, information, guidance and, if needed and requested, direction, to allow the parties to control their own destiny rather than leaving the same up to a judge and/or jury.
“In boxing, you create a strategy to beat each new opponent. It’s just like chess.”
“By investing in body shots early, fighters can drain their opponents of stamina and by the later rounds, they will be ripe for the picking.”
Mr. Lewis is right, there is not one strategy to employ in fighting…it depends on the opponent. Similarly, there is never one strategy for a mediator to use in mediation. Strategies must change with different personalities, changing interests, varying moods, fears, and insecurities (justified or unjustified). Strategies may change based on how far down the litigation track the parties have traveled. Strategies will change based upon different economic and emotional positions.
Beyond the basics of developing ground rules and trust, the list of strategic arrows in a mediator’s quiver is substantial. Strategies include things such as: reframing issues, cost-benefit analyses, joint v. separate caucusing, caucusing just with attorneys, decision trees, bracketing, mediator’s proposals, reality testing with BATNA/WATNA, and more.
The trick is knowing what strategies to employ and when.
What is the right strategy to employ at any given time? If you ask a mediator this question and they answer confidently and with certainty…you have every right to question the answer. It would be much like asking a trial lawyer to tell you the result of an upcoming trial and the lawyer telling you that they “know” how a judge or jury will rule. There are no “certain” mediation strategies.
The first step for a good mediator is recognizing the problem and being attuned to the need to change direction and to use new strategies as the conditions change. A good mediator remains open and willing to change their approach during a mediation.
The second step? A good mediator has good instincts, stays authentic and does not let their ego get in the way of adapting to the changing circumstances. Sometimes it is as simple as letting attorneys and parties vent, present, argue or otherwise get stuff off their minds! Good mediators find that extra pause, that reservoir of patience, to let it happen…knowing that it usually helps lead to a mutual resolution for the parties…the goal.
Body shots in boxing involve punches to the stomach. In mediation, there will be no actual punches to the stomach. The analogy calls for emotional body shots. So, what are the (emotional) body shots in mediation…and why “throw” them?
A good mediator leans into conflict. They are not afraid to discuss feelings, injuries, interests, and anger. They will ask open-ended questions like: “How are you feeling?” “Did that make you angry? Why?” “What is most important to you today? Why?” These questions, asked empathetically, are the (emotional) body shots of mediation and are often necessary for mediation to reach a conclusion. Many parties first need to be heard by an empathetic mediator and to explain, without judgment or the constraints of a deposition, how they feel (physically/emotionally) before they are ready to consider a monetary settlement and the reasons (both positive and negative) for agreeing to a settlement.
A party might cry. Good. A party might get angry. Good. A party might threaten. Good. Lawyers too can get angry and make threats. Good.
All these things can be good if the mediator can patiently and authentically listen…not always easy! But necessary.
In the boxing truism above body shots are said to “drain their opponents of stamina and by the later rounds, they will be ripe for the picking.” In mediation, the idea is not to drain the parties of stamina (although, honestly, this sometimes has positive side-effects) nor to make the parties “ripe for the picking.” Rather, in a mediation the (emotional) body shots are intended to drain the parties/attorneys of their hurt, anger, and threats in a manner that they will be “ripe” for constructive and helpful negotiations.
After the (emotional) body shots the parties/attorneys are emotionally free to logically weigh and balance the BATNAs, WATNAs and MLATNAs1 and make decisions that are in their best interest.
One more from boxing…boxing is referred to as the “sweet science.” It is called the sweet science because it requires the fighters to be fierce, tactical, and have a certain amount of anticipation for their opponents’ next move. It takes logic and science to be able to create an environment where it’s all possible.
Mediation…”an environment where it’s all possible.” The Sweet Science of Mediation? It has a nice ring (pun intended) to it!
“Best Alternative to a Negotiated Agreement,” “Worst Alternative to a Negotiated Agreement,” and “Most Likely Alternative to a Negotiated Agreement."