With speed and freedom comes danger. A small thing goes wrong on your bike and BAM!!! You are down and injured. You can always play it safe and never get on a bike. You can ride slowly in fear, but then you will never know the awesome feeling of flying down that hill with a sense of freedom.
So you have that party who insists they are correct. What can you do now? They are SURE they will win. They are "right." They have dug in so far and with so much pressure, the entire mediation is about to disintegrate.
I am going to discuss some simple type cases. Obviously as attorneys and additional parties get involved, things get much more complicated. How do you handle a party who is, for lack of a better word, "stubborn." Let's start with things you can do BEFORE the mediation even begins. Please add additional ideas in the comments.
2. Morning. Plan the mediation for morning. People tend to be more wake and fresher in the mornings. They might have a better ability to come up with original ideas.
3. Separate or Together. Determine before you even get to the mediation if you will have the parties in the same room or in separate rooms. I am a big believer, for the most part, of having the parties start in the same room. It gives them a chance to see each other as humans and not merely as numbers.
4. Do research. I am an attorney but cannot give legal advise in mediations. It may be helpful, however, to know what the laws say. You might even ask the party to "remind" you what it says. Additionally, know the most recent information on the issue. If the parties are fighting over a paint job on a vintage vehicle, do some research on the "proper" method of painting, the prep work, the issues, reasonable length of time to do a job, etc.
You are in the mediation and there is a party, or both, that insist they will not be settling since they will "win" in court. What can you do DURING the mediation?
1. Speak to each party separately. This is your chance to remind the stubborn party that there are weaknesses in their case. Although as a mediator I won't know what a judge will do, I can say that the other party will likely use some sort of evidence against them.
2. What they don't have. The stubborn party might also need to be reminded of what they DON'T have such as an estimate, pictures, receipts, etc. Judges like to see evidence. They like to see estimates and not have parties, especially if they are not experts in an area themselves, just guess what a cost might be.
4. Public Information/Precedent. If the stubborn party is a company, HOA, etc. remind them if they lose, that the matter will be public record. They may be setting themselves up for a bad reputation if there is a lawsuit out there which they lost. There might also be a precedent that others may use in similar lawsuits.
5. Creative Settlement. One of the great things about mediation is being able to get creative settlements. If you go in front of a judge, a party might win, but what if the other side is unable to pay? What if you push someone to the brink of bankruptcy? At that point, you might have to garnish, which is time consuming although sometimes necessary, and costs additional money and stress. If the other party files bankruptcy, you may end up with nothing. A bird in the hand...
6. Need to be Heard. Some parties will not budge or might even go in the opposite direction and ask for more. Maybe they really are not there in "good faith" as is required. Sometimes a party is angry and just wants a judge to decide partly so they feel they can be "heard." Let them vent. They may get it out of their system during the mediation but if not, sometimes it is best to just let the parties go to court.
You had the wreck after the entire mediation seemed to explode because of your stubborn party. There are some ways to get back on track, replace the tire, and go again. Sometimes you don't have a spare or another idea and need to just walk the darn thing home to the courthouse.
ADD COMMENTS: How do you handle a "tough" party who will not budge?
As a Part II to this topic I will discuss what you do when you have a party that is TOO willing to give the other party whatever they want. I call this to be the "underinflated" party.