Negotiation News: Volume 3, Issue 3

Summer is very much in the air, and I hope those of you who have vacations planned will enjoy wherever your travels take you (even if it’s to your own back yard!). In this issue, I’m offering a few thoughts on the often difficult subject of forgiveness in mediation and how it may best be achieved.

Forgiveness

From time to time, the issue of forgiveness arises in mediation. Whether in a personal injury case (and more likely, a wrongful death case) or in a business dispute, it is a subject that must be carefully managed. If done so properly, it is a powerful means toward attaining lasting agreements.

Forgiveness is defined in Webster’s as “the cessation of anger or blame toward another.” In different religious traditions, forgiveness may be given when one seeking it expresses genuine remorse to the person wronged and a promise not to repeat the offending conduct. (“conditional forgiveness”) Other religions teach that forgiveness is a state of grace to be given regardless of the remorse of the wrongdoer. (“unconditional forgiveness”). These traditions, if they are relevant to the parties, should be a part of any consideration of forgiveness in mediation.

The parties need to indicate that forgiveness is either desired or possible. The parties, the mediator and counsel should discuss with each other what issues may allow for forgiveness as a possibility in mediation. Once the possibility for forgiveness is identified, it can’t be pushed. The mediator and counsel may introduce and guide parties toward forgiveness, but the parties themselves have to want to do it, and eventually get there themselves. (Moore, Christopher W., The Mediation Process, Jossey-Bass, 4th Ed. 2014)

In guiding the parties who desire it toward forgiveness, the mediator and counsel should carefully explore whether the conditions for forgiveness actually exist. Generally, forgiveness is conditional under these circumstances. Is the wrongdoer genuinely remorseful? Has the aggrieved party requested an expression of remorse? Are there statements or actions that the wrongdoer may make or do so that the aggrieved party is made whole? Will the wrongdoer accept the consequence that the aggrieved party may demand or request as a condition to achieving an agreement? Does the expression of remorse contain a pledge not to repeat the offending conduct? (Moore, 2014, p.470)

If conditions for forgiveness exist, the value and benefits of doing so should also be carefully explored. This value may be psychological or emotional. Having a weight lifted from one’s shoulders, no longer carrying around anger, having said what they need to say to the wrongdoer, may all free the aggrieved party and allow them to move on with their lives.

Another benefit may be monetary. The wrongdoer may offer a better financial agreement than had been offered beforehand as a way of communicating an apology. Likewise, the aggrieved party may accept less favorable compensation in exchange for an expression of remorse.

In summary, forgiveness may be “transformative” for the parties, and as such all of the participants (the mediator, counsel and the parties or those who are party-affiliated), should take great care to determine whether it is proper to explore during a mediation. But with open communications that are carefully managed, forgiveness is an extremely powerful means by which a lasting resolution to conflict may be obtained.

• Reduced Fees For Smaller Cases

I offer reduced fees for smaller cases. Under the former LASC ADR program, cases in which the claimed damages were $50,000.00 or less were eligible for court-ordered or party pay mediation. In an effort to continue to serve the parties who have cases with claimed damages under $50,000.00 with one plaintiff and one defendant, my fees will be reduced for the duration of the mediation, with no increase after three (3) hours . My hourly rate remains the same for cases where the claimed damages in dispute are above $50,000.00 or with more than two parties. Please feel free to contact me to discuss at 818-616-8500 or [email protected].

• Charity

A portion of mediation fees generated will be donated to a charity of your choosing. When booking your mediation, please direct me to the website of your charity.

I hope that the summer is off to a great start for you. I look forward to working with you in mediation soon!

Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].