The Master Mediator, Fourth Installment, ‘Lagom’: Meeting in the Middle (Web)
July 1, 2008
This is the fourth installment of The Master Mediator, a CPR web column featuring commentary by Robert A. Creo, describing and discussing mediation room techniques and practice issues.
‘Lagom’: Meeting in the Middle
Unfortunately, I could not attend the CPR 2005 Spring Meeting in Chicago in June, since it conflicted with a Court of Arbitration for Sports seminar at the Domaine De Divonne, located near the airport in Geneva, Switzerland. Nevertheless, let me share some thoughts from there while many of you were at the CPR Chicago confab.
The title above comes from a Swedish word which is roughly translated as “meeting in the middle satisfied.” My new Swedish colleague, Conny Jornklin, a lawyer and neutral, taught me the word and its meaning over lunch at the conference. It is an adjective used to convey a positive solution to a dispute or an outcome that is between the polar positions taken by the parties.
Inherent in the Swedish word and its usage, however, is the implication that this solution was amicable and met the needs of the parties. It involves compromise without rancor or remorse. In Sweden, a successful society built upon fundamentals of people obtaining consensual resolutions to political, economic and social problems, it is not surprising that the word exists not only as an adjective, and perhaps a verb and a noun, but as a fundamental concept of civil harmony.
This is in contrast to English-speaking cultures based upon adversarial justice models, where the word compromise bears negative connotations. Many have spoken of compromise for and against. In fact, my review of common parlance and proverbial wisdom on compromise itself yields a compromise.
In the United States, compromise involves giving up something, perhaps an interest that may be protected as a legal right. Compromise is often sneered upon by politicians, lawyers, community and association leaders, commentators and popular culture. The English statesman, Lord Edward Cecil defined compromise as “an agreement between two men to do what both agree is wrong.”
People are “compromised” when their behavior falls below acceptable standards. This “compromises” a person’s reputation or position.
Upon first hearing the word “compromise” most react initially as expecting something negative or bad as about to be described by the speaker or writer. All compromise is based on give and take, but there can be no give and take on fundamentals. For example: “Any compromise on mere fundamentals is a surrender. For it is all give and no take.” Mohandas Gandhi.
There is, however, a significant amount of folk wisdom supporting compromise. The Pittsburgh industrialist, Andrew Carnegie--whose mills provided me summer employment and college funds) said, “the 'morality of compromise' sounds contradictory. Compromise is usually a sign of weakness, or an admission of defeat. Strong men don't compromise, it is said, and principles should never be compromised. I shall argue that strong men, conversely, know when to compromise and that all principles can be compromised to serve a greater principle.” Compromise can be applied to principles and to economics. Compromise should not merely be viewed in at least a neutral, if not positive manner. Compromise is essential to successful political processes in a pluralistic society. Edmund Burke, the English political commentator said, “All government, indeed every human benefit and enjoyment, every virtue, and every prudent act, is founded on compromise and barter.”
The founders of the United States recognized this and acted in a compromising manner to create lasting foundations for the American society. The U.S. Constitution was drafted in a long process of compromise. When I go to Philadelphia to mediate, as often as possible, I attempt to visit Constitution Hall and the Liberty Bell. As a college history major, I relish the U.S. of debate and compromise.
This theme is common and repeats over the years. As a lawyer speaking in 1850, President Abraham Lincoln said, “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will be business enough.”
The frame of the lawyer as compromiser is appropriate to the key role of lawyer as problem-solver. How do we solve problems? We research, marshal facts and arguments, and then try to persuade someone of something. I think of this as fitting the definition of the classical argumentation process (i.e., meeting to agree to form a consensus--after discussion, debate and dialogue) involved in creating durable resolutions that respect diverse legitimate interests.
Mediation is ultimately a process based upon the express premise that parties are coming to the table to compromise. This is the key shift in the paradigm from trials to verdict and arbitration to awards.
Parties are not to compromise in adjudicatory processes while mediation is at heart a compromising process.
I often prime the parties for compromise in the opening statement that I make as a mediator. I tell them that compromise is not a bad thing at all, and that to be successful today, participants will engage in a meaningful shift of positions toward each other.
In economic disputes, I often say that my experience is that the final resolution is not going to be at the “happy” numbers each party in their preparation have made their “target” for today. In fact, I would not be surprised at all if the settlement is a compromise between true walk-away numbers that each party has made a commitment to prior to the start of the mediation.
I may use the analogy of the parties’ positions as being akin to two magnets: If the magnets truly are far apart, there isn’t much attraction. But, after we remove the posturing, if the magnets are in fact close together, it makes sense to close a narrow gap. Trials are for big gaps, not small ones.
Later in the mediation, doing the negotiation phase, I refer back to the magnets, often holding my hands close together to illustrate what should be a logical pull to closure. By pushing and pulling at the magnet of each participant, we can break impasse and close.
Mediation participants need an incentive to settle. Writer Christopher Morley noted, “There is no quarrel so violent as that between people who accepted an idea yesterday and those who will accept it tomorrow.” I sometimes think this of this perspective during the opening presentations of counsel at the mediation, and during some of the give and take of a passionate debate between advocates. If a person has nothing to lose by continuing the conflict, and something to gain, the conflict will continue. Offers to compromise shift something of value to the persons who perceive they have nothing to lose. People do transform their opinions, risk assessments, logic, economic benefit or emotions during a successful mediation process.
Robert Stevenson said “Compromise is the best and cheapest lawyer.” This leads to many settlements in direct negotiations and mediation. Often resolution is no more than a “business decision” based solely upon transaction costs or risk assessment; this is the true “compromise” in the normative, and negative, sense of common usage.
A good frame for a mediator is what the late German economist and chancellor Ludwig Erhard noted, that “a compromise is the art of dividing a cake in such a way that everyone believes he has the biggest piece.” Nevertheless, the art of the deal, is the art of compromise.
Although English is a rich language, full of words of nuance and the sublime, we lack the simple legom.
by Robert A. Creo
The author, a Pittsburgh attorney, is a mediator and arbitrator. He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators (see www.iamed.org), and served as its president between 1997 and 1999. He can be reached at firstname.lastname@example.org.