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Snyder: Tolstoy on Mediated Settlements

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All successful mediations are alike. Each unsuccessful mediation is unsuccessful in its own way.

Teddy Snyder

Teddy Snyder

OK, maybe you are more familiar with the actual first sentence of Leo Tolstoy’s 1878 novel "Anna Karenina":

All happy families are alike; each unhappy family is unhappy in its own way.

The 'Anna Karenina' principle

This mantra is so vital to our understanding of psychology that it led to a theory called the "Anna Karenina Principle.” It holds that though no one factor can guarantee success, many factors can lead to failure.

Anyone who has participated in a bunch of mediations can attest to the relevance of the principle to settlement negotiations. In all successful mediated settlements, parties prepare for and embrace the negotiation process. They take full advantage of the mediator’s role as sounding board, experienced knowledge source and pacifying influence. In unsuccessful mediations, one of the participants has gone off on their own path.

Unhappy in their own way

Some participants come to mediation without having taken the time to thoroughly research the facts and applicable law. They lack an understanding of the foundation for the negotiation to succeed.

Another aspect of this dynamic is the party refusing to consider how the opposing negotiators view these same elements. Their preparation ignored the steelman arguments.

No participant should be surprised by how mediation works. It is the advocate’s job to educate the clients. Thoroughly educating the client includes a discussion of a range of potential reasonable outcomes. Yes, there may be surprises, but an attorney can tutor a client to expect the unexpected.

Conversely, the client who is surprised by the mediation process or who hears important information for the first time, though that information has long been in the file, is likely to balk at even the most generous settlement terms. The resulting lack of client control can derail any mediation.

Everyone wants to be happy

In "Anna Karenina," characters seek personal happiness, sometimes sacrificing an important desire in favor of one the seeker wants more. Sadly, when passions are out of control, the result can be tragic.

In mediation, a party may have to surrender a deal point he previously considered necessary in order to achieve the best settlement.

Every mediation participant wants to leave feeling happy. Getting to settlement avoids anxiety, expense, delay and uncertainty about the outcome. Settlement is better than throwing yourself in front of the moving train of an impending trial.

Attorney Teddy Snyder mediates workers' compensation cases throughout California. She can be contacted through snydermediations.com.

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