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  • September 03, 2019

    Mediating the Zipper Merge

    Mediation may seem like a traffic jam, but with the right mediation tools situations can successfully merge into a solution. James Mathie lists a few ways lawyers can set up a mediation for success.

    James J. Mathie

    With construction season going on at full speed again in Wisconsin, you are probably familiar with the zipper merge all too well. You’re traveling at freeway speeds and suddenly the construction ahead signs show up: “Right lane closed ahead.”

    Time to negotiate the zipper merge. How do you do it? If the lane is going away in one mile, do you move out of it? Or do you wait until the last possible moment? Maybe you block the right lane after the left lane has slowed to prevent other cars from waiting until the last minute?

    The combination of different driver responses makes both lanes largely impassable. At the same time, the temperature rises for the drivers who disagree with others’ negotiation of the zipper merge.

    Managing the Zipper Merge in Mediation

    Every mediation involves the zipper merge. How it’s managed often determines the success or failure of the mediation, or at least the parties’ experiences during the mediation, whether the case settles or not.

    Parties and their attorneys make assumptions about the motivations of the other side, are critical of the offers or demands made by their opponent, are troubled by the pace of the mediation, and generally are skeptical that the good faith that they are clearly espousing is being returned.

    The zipper merge works best when it operates like, well, a zipper. The vehicles merge at one spot, not many and they alternate turns. A few years back, when part of I-94 was being rebuilt in Waukesha County, the DOT instructed drivers how to use the zipper merge: Signs commanded drivers to “stay in your lane” and when the lanes merged instructed to “take turns.” The simple instructions – which put all drivers on the same page – were key, and the zipper merge didn’t slow traffic much at all.

    The same principle helps with the zipper merge in mediation.

    The parties rarely proceed at the same pace. One party will be willing to negotiate while the other won’t. The party more willing to deal can easily perceive that the other is not acting in good faith. At the same time, the “slower” party can feel pressured unnecessarily, which they blame on their opponent.

    Discuss the ‘Why’

    Providing participants with information about how the mediation will likely proceed, and more importantly, why it will proceed that way, helps to remove the tension that can arise merely from the unfamiliar environment that is mediation.

     So, if joint sessions will be involved, explain how they will proceed and what will be discussed. If the mediation will be largely in caucus, explain that the mediator will go back and forth and spend significant time out of their room. But don’t simply explain the physical process – explain why the timing and progress of the mediation is unpredictable.

    Create New Perspectives

    The parties need to recognize that they approach their dispute from very different perspectives. As invested as they may be in their position, the other room, or other side of the table, is similarly invested. Neither side is entirely right or entirely wrong. Indeed, both are likely correct, from their own perspective. But they may not realize that another perspective exists.

    Explain how the parties can arrive at different views of the same circumstance by simply giving value to different individual facts or by interpreting the same facts in different ways. That is what normally occurs. Attorneys are trained to recognize both edges of the litigation sword, but they don’t necessarily convey that information to their clients.

    James J. Mathie James J. Mathie, Marquette 1986, is the owner of Mathie Mediation Services, LLC, and mediates cases in Milwaukee and throughout Wisconsin.

    Don’t be afraid to talk about the optimistic overconfidence and biased assimilation that gives rise to the differing perspectives – how it’s easier to remember things in your favor and less so opposing facts; how contrary information is viewed hypercritically and helpful interpretations are viewed less critically; how even seemingly undisputed facts can be viewed favorably by both sides. Explain that the parties experienced the circumstances that led to the dispute differently.

    Anticipate that the parties may believe that the other party’s negotiation style is driven by an intent to anger or frustrate them. Talk about the fundamental attribution error, motivated skepticism and reactive devaluation that makes it difficult to accept the position advanced by the other side, even when concessions may be made.

    Be aware that the parties might not even process information in the same way. Knowing whether the parties are multitaskers (polychronic) or work better one thing at a time (monochronic) can make a huge difference in how the negotiation should proceed, or it may not proceed at all.

    It’s not just the parties who may need instruction, sometimes it’s the attorneys. The confidence that can make an attorney a great litigator can sometimes express itself as impatience in the mediation setting. Be prepared to explain that for some people it can just take time to digest the other’s perspective. That’s especially true if there has been an escalation of commitment to a given position, or if a position change requires the consent or acceptance of a third party.

    Information Is Key

    As the mediator, your role is to provide parties the information necessary to manage the mediation zipper merge together. Without that assistance, the parties can easily fall into impasse from simply the pace of the mediation. That shouldn’t be allowed to happen.

    Reaching a negotiated resolution is difficult. If the parties know that, and know why that is, they will be less likely to allow the fits and starts that inevitably occur to derail the process. Instead, they will focus on resolving the case rather than the actions or style of the other side. And by the end they’ll be driving in the same lane.

    See you at mediation.

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    Dispute Resolution Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Lisa Derr and review Author Submission Guidelines. Learn more about the Dispute Resolution Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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