Jack Rosati, Jr.


    Schadenfreude's mirror image

    Deep seated resentment and animosity are often the natural byproducts of litigation. Many parties to litigation feel that they have spent a great deal of money, time and emotional energy because, in their view, the other side has forced them to do so. Consequently, their math skills and logic can be overwhelmed by their desire to make sure the other side does not unduly benefit from a settlement. Schadenfreude is not exactly the correct term. That German word means deriving pleasure from the misfortune of others. What you encounter more often in mediation is the tendency of parties to feel pain or anguish if the opposing party does well—a mirror image of schadenfreude. 

    What should a mediator do when dealing with this aspect of human nature?  During caucus with each of the parties:

    • Try to impress upon the parties the need to keep their own interests foremost in their minds. Do they really want to continue to subject themselves to financial, emotional, and lost opportunity costs just to make sure the opposing party does not get something that they do not deserve? At what cost?
    • Remind the parties that, often, both sides will find the compromise less than completely satisfactory. If the mediator can assist the parties in seeing it from the opposing party’s perspective and demonstrate why that party may not, in fact, feel fully satisfied with the result, that can sometimes help. However, there will need to be some credible analysis of the facts and law to back up those observations.
    • Help the parties imagine their lives “post litigation.”  In most cases, they will be unlikely to do business with the opposing party again so what difference will it make in their lives/businesses if the other side obtains satisfactory settlement terms?  Once the terms have been fulfilled, won’t everyone’s quality of life be improved by not having the costs and risks of litigation hanging over their head?
    • Do the math for them.  Write it down on a board in front of them during caucus. Analyze multiple possible scenarios. Seek “audience participation.”  Tell war stories of similar cases where the verdict a party obtained was totally unexpected (there are plenty of those). I don’t believe in doing this in open session where all of the parties are present at the same time. That approach is counterproductive and unfair, in my opinion.  Moreover, the math and analysis will be different for each of the parties.

    The side benefit of the foregoing strategies is that it will be very natural for you to demonstrate your concern and compassion for each party while doing this analysis. The mediator must be trusted and respected to be successful.  It is easy to blame reality TV and social media for the hostile, “take no prisoners,” scorched earth culture that seems to be the norm these days. As mediators, we must be prepared to address this problem by appealing to an ancient, universal counterweight to this tendency—the parties’ own self-interest.

    This is for informational purposes only. It is not intended to be legal advice and does not create or imply an attorney-client relationship.

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