Agreeing to Disagree in Mediation

Is there a place in mediation for the concept of agreeing to disagree? The short answer is no.

In a recent article in The Los Angeles Times, “Why I never agree to disagree”, Michael Hirtzik, makes a number of points I think are relevant to understanding the role of mediators.

Mediators are impartial seekers of objective truth. They stand as a bulwark against illogic and reliance on alternative facts. Many mediators employ the Socratic method to help the parties test the logic of their beliefs. Mediators use questions that rest on the mediator’s knowledge and her critical thinking skills. Mediators do not suppose equivalency among competing arguments. Mediators operate from the premise that their questions and the parties’ answers will reveal one argument to top the other in ways that can be assessed and that lead to a negotiated settlement.  

The methods used by mediators to affect change are difficult to master and require experience, skill, and courage. Mediators have no power—real or inferred—to compel anyone to do anything. The only thing they bring to a mediation is a commitment to being unconditionally impartial and helpful. In a sense, the mediator’s intentions are critical. If the mediator needs to be right, he or she becomes a kind of uninvited party to the negotiation.

Trials do not end with the parties agreeing to disagree. Arguments are won or lost in courtrooms. Trials are designed as a kind of crucible where judges and juries look for facts that reveal the truth. A trial is not a negotiation. Professor Kingsfield of The Paper Chase, would not make a good mediator as evidenced by this video.

In a mediation, it can be a painful and frustrating experience for a lawyer and/or her client to accept the fact that what they thought was a winning argument is, in fact, groundless, fatally flawed, or unlikely to prevail. As a result, it takes a particular kind of empathy from a mediator to create opportunities for lawyers and their clients to climb down off the cliff of certainty and begin to acknowledge uncertainty. After all, every mediation starts at an impasse and, if things remain the same at the end of the day as they are at the beginning, the parties will remain at an impasse. In other words, something must change to make room for the parties to negotiate productively. The mediator is the source of the motivating energy that helps create change.

These essays are part of my newsletter series, offering real-world insights into how attorneys can elevate their practice and improve outcomes in mediation.