The Options We All Have/Martin Rosenfeld, JD

Posted on August 11, 2018


Two asylum seekers on August 9, 2018 had been deported to El Salvador. When DC District Judge Emmet Sullivan learned of this plan, he expressed great displeasure with the fact that people fighting for their rights to stay in America were deported before a Court ruled on their request. The government decision of deportation had been preceded by its assurance that no action would take place until the end of that day. This clearly was not accurate. Judge Sullivan directed the government to either turn the plane around back to America or to do so when the plane landed. Indeed, Mom and child were brought back to America.

Few of us are judges and have the power to order what we want to be done. But there is a lesson here for us all. When a negotiation hits a “brick wall”, we can all display our displeasure in several ways. We can walk away from the negotiation. We can re-state our desired outcomes, and demand a discussion on them. We can tell the other party why they are not being fair or reasonable or responsive, etc. In short, we can refuse to play ball when we are not being heard.

Judge Sullivan refused to hear how the two individuals could not be brought back to the US. He simply refused to accept that option. He eventually prevailed. Mediators and parties alike should not be satisfied to see unacceptable proposals seem to carry the day. No one can compel you in a mediation to accept an unfair resolution (unlike in a court of law.). Stand your ground, express your concerns, and be resolute. There are always more options than anyone realizes, in mediation situations. Settling for a one-sided option should surely not be one way to end a mediation. Stand up for what is right. Let the other party do the same. With the help of a proactive mediator, the result will be acceptable to both parties. Mediate don’t litigate. Do not settle for unjust outcomes.