Most attorneys can recall attending amediation when, suddenly and usuallywithout warning, it appears that theclient’s rationality and decision-makinghave been hijacked by an invisible forcethat is easily agitated and myopicallyfocused on an outright victory. When thisinvisible force is in play, it limits yourclient’s patience, capacity for listening,and ability for evaluating risk.

As a private mediator with an ongo-ing law practice representing both plain-tiffs and insured defendants, I see thishappen all the time, and I am certainthat this is a near-universal experienceamong litigators. Given that the term“invisible force” rouses notions of sci-fisuperpowers or paranormal activities, Ihave opted to use the term “inner child”as a means of describing some of theemotional, unproductive, and often mer-curial responses that your clients mayexperience during mediation, how thoseemotions are triggered, and how theytypically manifest. Once the inner childis seated at the negotiating table, themediation itself becomes its playground,which serves only to sabotage theprospects of a deal being made. Afteranalyzing the inner child’s modus operandiin the context of mediation, I will alsoendeavor to present some possible solu-tions on how to deal with it and itsintractable ways.

Understsanding the “inner child”

Since I will be focusing on the “innerchild” of a hypothetical client of yours, Ishould first explain what I mean whenreferring to that term. By “inner,” Imean dormant, inconspicuous, and oftendisguised; and by “child,” I mean unpre-dictable and quick to react without con-sideration of all the facts or factorsinvolved. To be clear, reference to theinner child in this article is not meant tocast a negative light as to one’s age,

maturity or intelligence, and there are noinnuendos intended in that regard.Rather, I refer to the inner child as aconcept to understand and explain cer-tain emotions that your clients may expe-rience during the course of mediation.

I began observing the inner child inthe context of litigation and mediationvery early in my legal career. Without aformal education in psychology or sociol-ogy, it occurred to me that in order tounderstand the inner child, I first had todefine it. I was not content with adoptingthe terms “ego” or the “voice in yourhead” − terms that are often overusedand frequently misused in the main-stream vernacular. Understanding theinner child required me to look beyondage, gender, nationality, socio-economicsand other factors, because those conceptswere too generic, lacked flexibility, andultimately only scratched the surface ofhow the inner child often revealed itself

during mediation. Even though everyperson has an inner child, it can be frus-tratingly elusive, and thus difficult to define by using rigid conventionalparameters. Thus, rather than definingthe inner child (a task for which I foundmyself wholly ill-equipped), I focusedupon describing it. A fortuitous byproductof observing and describing the innerchild was that I began to notice patternsemerging during my mediations as towhen, why, and how a client’s inner childwould show itself.

For the purposes of this discussion,consider the inner child as a force that:insists on being right, and in doing soseeks to make the other side wrong;wants to win, often just for the mere sakeof winning; has a strong attachment towhat it regards as its “morals and princi-ples;” is not flexible and not willing tocompromise; does not cope well with

Mediation: Playground for the “inner child”Handling the emotion that can be triggered in clients during mediationand manifests as irrational behavior

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uncertainty or unpredictability; is impa-tient, controlling, and suspicious; is emo-tional; has a poor sense of timing;prefers to speak rather than to listen;and is quick to quit or balk as soon asthings are not going its way. These arejust some examples of the many charac-teristics of the inner child as I haveobserved them.

Though its presence during a media-tion session can rapidly derail the negoti-ations, the inner child itself is neitherinherently good nor bad, neither desir-able nor undesirable. The goal is not,and should never be, to destroy or con-trol your client’s inner child, but ratherto be aware of it and to have its finger-prints, so to speak, on your radar so thatyou are ready to timely and appropriatelyrespond when it shows itself. Most impor-tantly, a client must never feel judgedbecause his or her inner child has beentriggered. If you observe your client dis-playing any of the foregoing behaviors orreactions, or otherwise acting in ways thatare commonly associated with the main-stream notions of the ego or pride, thenthere is a good chance that the innerchild is trying to turn the mediation intoits playground. And in case you ever missan appearance by your client’s innerchild during a mediation session, sometell-tale signs are when your client tellsyou (or the mediator): “I don’t care howmuch it will cost to go to trial,” or “I’lltake my chances with the jury,” or “theydon’t know who they are messing with.We’ll show them.” Fortunately, there are anumber of methods that you can use todirect your clients away from their innerchild’s mischievous intentions andtowards the deal points that will settle thecase. The following three scenarios illus-trate the inner child’s playbook when itcomes to settlement negotiations.

The insulting offer

At some mediation sessions, openingoffers or demands are exchanged withinthe first hour. At others, it takes severalhours just to pin down the facts, the con-tentions, and the applicable laws. Ineither situation, your client will at somepoint during the mediation be presented

with the adversary’s initial demand oroffer. If that offer is outside of yourclient’s expectations such that it causesyour client to be surprised, threatened,or even worse, insulted, then be sure thatyour client’s inner child is about to rearits head. Some common inner child reactions to what is perceived as aninsulting offer are: “Are we mediating thesame case?” “Looks like the other side ison another planet;” “They are not takingus seriously;” or “They are playinggames.” Such responses become moreintense and exaggerated when the caseinvolves a serious personal injury, afamilial relationship, large sums ofmoney, or other types of cases thatinvolve both emotions and money.Invariably thereafter, the client’s innerchild decides to send a message to theother side by giving them a dispropor-tionate and overly aggressive counteroffer. “I’ll show you!” says the innerchild, “you will not do that again!” In theshort-run, such responses momentarilymake your client feel good because he orshe feels fully engaged in what is per-ceived to be the sport of litigation andnegotiation. However, in the long-run,such reactions do nothing but perpetuatethe cycle of perceived insults which, if notimmediately addressed (by you or themediator), can diminish the credibility ofthe parties, as well as lead to entrench-ment and a breakdown in communica-tion.

Situations like these can be preventedby counseling your clients prior to themediation so as to manage their expecta-tions, especially as to what can happenduring the initial rounds of negotiations.This will reduce the element of surprisewhen the first offer or demand isreceived. Sharing with your client yourpredictions about the adversary’s openingoffer often serves to soften the first blow.You can also share your prior experiencesin mediations involving similar facts andissues, as well as your prior experienceswith the particular lawyer or law firmattending the mediation. As the mediator,I tell the parties that opening offers, oreven subsequent offers, are rarely intend-ed to insult, but rather are intended to

relay a message about the other side’s valu-ation of the case. Thus, the offer shouldbe viewed objectively. I often explain tothe parties that the offer is a fact in andof itself, and it must be addressed as it is,and without the interference of one’s per-sonal feelings and emotions.

Another approach in dealing with aperceived insulting offer is to advise yourclients that while they should take seri-ously every offer that is made, theyshould also look beyond just the amountof the offer (as well as their feelingsabout that amount). Rather, your clientsshould focus on presenting to the media-tor facts and evidence that either sup-ports their case or negates their adver-sary’s case – facts and evidence increaseor decrease the value of a case signifi-cantly more than does posturing and cre-ative negotiation techniques. Frequentlyduring a mediation, I advise clients thatthey should not be distracted by theiradversary’s opening offer or the incre-ments in which the adversary’s offers aremoving (either up or down). Instead, Iadvise each party to remain equanimousand to negotiate the deal that they want,as opposed to negotiating the deal thattheir adversary is trying to advance.

When things don’t go as plannedFrequently during mediation, one or

more unexpected events occur – that is tosay, an occurrence for which one cannotprepare or anticipate. For example, anew piece of evidence comes to light thatis adverse to your client’s position, or anew theory of liability or damages isadvanced. For some clients, the innerchild may be brought out by the slightestdeviation from their anticipated gameplan, while others are more resilient inthe face of the unexpected. In eithercase, a new development may cause yourclient to be caught off-guard, and inlooking for someone or something toblame, your client may conclude that youare not adequately prepared even thoughyou have dotted every “i” and crossedevery “t.” The inner child is quickly trig-gered in these situations, and it immedi-ately goes into self-defense mode in

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order to cope with the stress and uncer-tainty that comes with a new or unexpect-ed event.

Your clients may also be distractedby certain logistical issues for which theymay not have been prepared. Theseinclude questions such as: who goes firstin extending an offer; when one side’smonetary concessions are not perceivedby the other side as having been reward-ed; when the negotiations are taking toolong; or when the increments in whichthe offers and counter-offers are movingdo not telegraph that a settlement is like-ly. Irrespective of the thing that is notgoing as planned, the inner child feelsblind-sided and becomes suspicious oftrickery or other underhanded tactics.The inner child says, “They have beenholding back information from us,”“They are trying to scare us,” or “Let’sthrow new allegations and evidence atthem and see how they like it.” Ratherthan working through the new develop-ment – which is usually more challenging– the inner child first builds a wallaround itself and then proceeds toengage in futile tit-for-tat exchanges.

In these types of situation, a produc-tive approach is to direct the client’sattention on whether the new develop-ment or fact is even relevant to the reso-lution of the case. Your client can be putat ease, and thus will be less guarded, ifhe or she is advised that new develop-ments often turn out to be red herringsupon which little energy and time shouldbe expended. As for new developmentsthat are material to the case, the pre-ferred plan of action for your clientshould be to accept the new piece ofinformation and to formulate a responsewithout generating a feeling about thewhole process.

For those attorneys that habituallytake their entire case file with them to themediation, new developments can quicklybe addressed by accessing the file to eitherfind counter arguments, or to confirm thesubstance of the new development. Otherattorneys quickly enroll the assistance oftheir colleagues and staff back at the officeto do the same. In either case, a newdevelopment should be viewed by your

client as something that happens all of thetime and which can be addressed, ratherthan an occurrence that is unique to themor their case or otherwise proof of badfaith negotiation techniques.

I have observed parties receive andanalyze a new development without cre-ating any drama about the situation or otherwise getting emotional. These individuals view the situation as a call toaction and they continue to move the set-tlement talks forward. However, I havealso observed the opposite, wherein anew development is viewed by the clientas gamesmanship, which serves only tothwart any meaningful progress towardssettlement. My view on handling a newdevelopment at a mediation is: the partyadvancing it should not view it as a dealmaker (or a smoking gun); the partyreceiving it should not view it as a dealbreaker (or a nail in the coffin); and bothsides should see it as just another issue inthe case which, with the assistance of themediator, can be discarded if irrelevantor be monetized if material to the valua-tion of the case.

Reluctance to accept a “last andfinal” offer

Towards the end of a mediation ses-sion, the parties exchange their respectivebottom lines, or what is commonlyreferred to as the “last and final” offer. Atthis stage, your client, who is likely tiredbut still doing his or her best to remainengaged in the process, is presented withthe proverbial fork in the road: is theadversary’s last and final offer really justthat or is there more wiggle room for fur-ther negotiation?; or will further litigation,including going to trial, end with an out-come that will be better than the deal thatis on the table at the mediation? Theseare difficult questions for clients toaddress, especially given that they have“lived” the case more closely and morepersonally than anyone else, includingtheir counsel. When one or both of theparties are close to accepting a deal that isoutside of their comfort zone, the innerchild invariably says: “Don’t give in;”“They don’t mean it, they have more;”“They will take less, they always do;” or

“They will not turn away a settlementbecause of a couple thousand dollars.”The inner child doesn’t want to concede apenny, and because of the emotional valueof a symbolic victory, it will hold out foreverything that it wants, even if it meansrisking the best deal that the client canreasonably expect.

What your client usually needs insuch a circumstance is an objective cost-benefit or risk-reward analysis, i.e.,whether a mediated settlement is indeedthe best possible outcome for him or heror, at least, a better outcome than contin-ued litigation. A great example of this iswhen counsel informs the client aboutthe upside and downside risks associatedwith going to trial, or when counsel cal-culates (or estimates) the costs of furtherlitigation. I have also observed counseleffectively deal with this issue by provid-ing their client with the amount thattheir client will “net” from a settlement.

To assist a client in deciding whetherto settle or proceed with litigation, I havefound the following inquiries to be helpful:What is the ultimate monetary outcome foryou if you settle the case today? How aboutif you proceed to trial and win? How aboutif you proceed to trial and lose?

These examples represent only a fewof the possible approaches to assist yourclient to decide whether to accept orreject a so-called “last and final offer.”However, I have observed one commonelement in every case, i.e., if a last andfinal offer is not properly explained tothe client, his or her inner child may getcold feet and balk at what is otherwise agood (or the best possible) deal in lightof the facts of the case, or the inner childmight become fearful or distracted andthus enticed to accept what may turn outto be a less than optimal offer.

Ideally, once both sides exchangetheir respective last and final offers, yourclient’s attention should not be uponreceiving a higher amount or paying alower amount. Rather, your client shouldfocus on whether the considerationsexchanged are worth the benefits ofrelinquishing their attachment to the liti-gation. At times during mediation,

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I make reference to the benefits andstresses associated with further litigationas well as those associated with the finali-ty that a settlement brings to the case. Ithas been my experience that the innerchild is pacified by this type of objectiveevaluation, and as a result it becomes lesslikely to present an obstacle to rationaldecision-making.

Turning down the volume on theinner child

Many of the issues addressed in thisarticle may appear as common sense, especially to seasoned litigators who havesharpened their skills and their intuitionin handling both predictable and unpre-dictable events that commonly transpireduring mediation. Nevertheless, even fora veteran litigator, the obvious can in factbecome obscured in the heat of a negoti-ation. This is the exact time (when pres-

sures are intense, and tensions are high)that the opportunistic inner child creepsinto the mediation, turning it into itsplayground. Being aware of your client’sinner child, understanding its motiva-tions and agenda, and having a strategyready for dealing with it, should itemerge, will greatly increase the proba-bility of reaching a fair and mutuallyagreeable resolution.

When you realize your client’s innerchild is seated at the negotiating tableand is trying to govern or even dictateboth the process and the outcome of themediation, I offer the following advice:First, assume that the inner child willmake itself heard at some stage duringthe mediation. Second, recognize thatsuppressing, ignoring or combating theinner child only serves to engage andagitate it even further. Third, acknowl-edge that the interests of the inner child

are largely emotional and not alignedwith the best interest of your client. Andfourth, be aware, and make your clientaware, of the things that will likely triggerhis or her inner child at the mediation,and be ready to respond quickly so thatthe inner child can be pacified.

Mitchell M. Tarighati is a foundingpartner at Sepassi & Tarighati, LLP, basedin Encino, California. In addition to conduct-ing private mediations in the areas of personalinjury, employment, and real estate matters, healso manages a balanced law practice repre-senting both plaintiffs and insured defendants.Mr. Tarighati holds a BS degree fromCalifornia State University Northridge, with amajor in Business Law, as well as JD fromAlbany Law School, New York, with a concen-tration in Business Law, and an MBA fromUnion College, New York, with a concentra-tion in Finance.

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