From PyeongChang, with Determination

From PyeongChang, with Determination

From PyeongChang, with Determination

With the Winter Olympics just concluded, we can all rest easy for another four years until we once again score a Triple Lutz from our armchairs. There did not seem to be great excitement leading up to these 2018 games. Perhaps there was no real controversy among U.S. figure skaters. Perhaps the Flying Tomato has simply ripened too much on the vine. Perhaps we still wanted to see Apolo Ohno on the speed skating ice rink instead of adding color commentary. Whatever the reason, when the Olympics began, they once more became almost addictive.

As always with the Olympics, incredible background stories of courage, dedication and heartache emerge. Those storylines are usually coupled with monumental Olympic performances by athletes at the pinnacle of their careers. Then there was Elizabeth Swaney.

Swaney, competing for Hungary in the Women’s Halfpipe Freestyle Skiing event, garnered more media attention than most. You might be among the almost 1.6 million viewers of Swaney’s Halfpipe run on NBC’s Olympic Twitter feed. You will recall that Swaney slowly swooshed from side to side on the halfpipe neither attempting nor performing any tricks. Her goal was merely to remain upright on the skis until she reached the end. You may have read some of the thousands of Twitter comments which characterized this Olympic performance as “shameful”, “pathetic”, or even “disrespectful”.

Was Swaney injured or ill and could not meaningfully compete? No. Did Swaney show up at the wrong event? No. Was Swaney capable of performing any tricks which all of her competitors attempted? No. Could Swaney reasonably compete for an Olympic medal? No. As it turns out, Swaney essentially found a loophole or weakness in the Olympic qualifying process and exploited it to reach PyeongChang as an Olympic “athlete”. How could this happen?

Swaney, a 33 year old U.S. citizen with a Masters Degree from Harvard, determined that Women’s Halfpipe Skiing was generally under-represented at the highest levels of the sport. Leading up to the Olympics, she strategically competed in World Cup qualifying events where fewer than 30 athletes competed. She represented Venezuela and eventually Hungary. She maintained her routine of the “slow and steady”, remain vertical approach with no tricks throughout. Inevitably, a few skiers would crash thereby ensuring that Swaney would end up placing around the 24th position, albeit with an extremely low score. Swaney then qualified for the Olympics among the top 24 women freestyle skiing athletes.

“Honored” and “humbled” to be an Olympian athlete, Swaney apparently has no regrets and fulfilled a personal goal. Not all viewed the situation in the same light. “We, the Hungarian Olympic Committee, have to learn the lessons from this case.” Changes to the World Cup quotas and qualifications to be eligible for Olympic consideration are being evaluated in response to Swaney’s achievements.

The vast majority of comments on social media have been negative toward Swaney and her Olympic participation (notably, the Olympics do not give out “Participation” medals). Informally, I inquired of lawyers and non-lawyers as to how they felt about Swaney’s efforts to reach the Olympic stage. The majority of lawyers were OK with Swaney competing. Swaney operated within established rules. She discovered an opportunity presented in the system. The process permitted the conduct and Swaney met the minimum qualifications. If the result is not desired, change the rules — do not penalize the crafty participant. Lawyers — good old rule followers even where unintended and absurd results flow.

For non-lawyers, the majority did NOT view Swaney’s conduct as OK. Even if Swaney met the letter of the rules, she completely abandoned the spirit and intent of the rules. The Olympics remain a special event which comes around once every four years for the athletes. They are designed to promote sportsmanship and showcase the best athletes in the world in each event. Swaney’s presence precluded one real competitor from participating in the Olympics. Swaney distracted from true competition. For non-lawyers, fairness carried the day.

As a mediator, I searched for any takeaways from Swaney’s controversial performance. Swaney knew she possessed no chance of medaling. Swaney knew she would come in last place or barely ahead of only those athletes who crashed on all halfpipe runs. She had to have known that she would be held up to public ridicule for the “scheme” to reach the Olympics in this fashion. She had to have known that her name would forever be connected with future trivia contests. Yet, with all these negatives, Swaney remained determined to reach PyeongChang and be able to forever declare herself an Olympic athlete.

Determination. For good or bad, Swaney showed us determination. It may not have been the rising at 4 a.m. to get in additional practices determination or the “one more run” to work on a new skiing trick determination, but yet Swaney determined that she would succeed within the established system.

Mediators should similarly be determined to move the mediation process forward especially when the optimism of the parties wanes. Mediation participants and their counsel way too quickly and way too often seek to claim impasse in mediation negotiations. A mediator must be determined to keep momentum. Here are a few examples of how to move issues and people forward when parties veer toward the abyss of impasse.

Compel the parties to think through the positions and interests of their adversaries (walk a mile in their shoes). First, have a participant create a list of what is believed to be needed and what is desired in any settlement. Then have the same participant list out what is believed that the adverse party needs and wants in settlement. These lists can be used to illustrate how much agreement has already been achieved, the key issues in dispute can be narrowed, and, perhaps, new areas where one party can compromise may be presented. There could be easy “gives” which become apparent (e.g., offering confidentiality of any settlement) which could rekindle negotiations.

Alternatively, the mediator can change the focus. If parties are hung up on monetary terms, have the parties work on settlement structure for any resolution. There may be non-economic terms which prove critical for one or more parties. Being able to address those matters provides a sense of accomplishment and progress. These non-economic terms may be new areas where parties can demonstrate further willingness to compromise.

Force the parties to confront the best alternatives and worst alternatives to settlement. The litigation process is replete with risks, only some of which can be quantified. The costs of proceeding with litigation are always steep. Finality may provide emotional or financial benefits. A settlement could permit re-establishment of business relations or an agreed upon end of such entanglements. Clearly place all such issues in play for consideration.

There are many other examples of steps to take to not get stuck in impasse (we can save those for further exploration in another article). The point remains that mediators and the participants should be determined to break through perceived impasses. Swaney remained dedicated to the process which she knew would result in her ability to achieve her goal.

As with Swaney, moving beyond supposed impasse will require work and some of those efforts may not be traditional. Some of the parties may not like to work harder. Some of the parties may resent that they are being encouraged to think beyond their comfort zones. Trust, and be determined, in the mediation process to achieve the goal of bringing the parties toward agreed upon, voluntary resolution, even if you receive some less than positive comments along the way.

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