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Settlements Are Like Sex

October 10, 2021 9:25 PM | Dan Simon (Administrator)

This article was originally posted on February 21, 2019. Guest blogger, Tara West, is a certified transformative mediator. She won the Dorothy Della Noce Writing Prize for her book, The Mediator's Approach: Five (and a Half) Paths Through Conflict (2021), and she is co-author of Self-Determination in Mediation: The Art and Science of Mirrors and Lights (expected 2022).

Many mediators say their goals are the parties’ goals. According to these mediators, if the parties begin mediation saying they hope to reach an agreement, then it’s the mediator’s job to get them there. But what does it mean to hope for an agreement? Does it mean any agreement, by any means?

In my view, hearing someone say they hope to reach an agreement is like hearing someone say they hope to have sex. If you heard such a thing, would you assume the who and the how did not matter? Clearly, there are implied conditions, such as mutual desire, and these cannot be forced. Moreover, goals are not static, but often change over time as experiences and information accumulate. If the proper conditions are not met, a person would probably rather not have sex than have sex with someone they’re not attracted to, or who is not attracted to them. Or they may find they simply have something better to do.

Likewise, there’s a mutual psychological state implied by the word, agreement. People who hope for an agreement are hoping to find themselves on the same page, willingly accepting the same outcome. Even if they are merely “settling,” rather than enthusiastically “agreeing,” no one enters mediation hoping to be pressured, manipulated, or misled into a settlement. And while a mediator might not be able to prevent the parties from pressuring each other, the mediator can serve the parties well by understanding they each might prefer no agreement to one that was reached through misinformation, manipulation, or the mediator’s heavy hand.

Settlements, like sex, require self-determination, and the details matter.

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