A Secret About Mediators

I hope not to get drummed out of the mediation profession for revealing this.

Mediators strive to be neutral, or as Ken Cloke so eloquently puts it, “omni-partial.”

But mediators are human, too.

If you come to mediations prepared, respectful and open-minded, you will go a long way towards gaining the mediator’s respect. Should that make a difference? No. Will it make a difference? No guarantees, but it might just be worth your while.

Here’s why. Years ago, as a young lawyer, I was selected as a juror in a criminal case. I think I was left on the jury because I was so young. (The lawyers figured I didn’t know enough do any harm in the jury room. Turns out, they were right.)

I learned an enormously important lesson during my jury service. I liked the prosecutor. I didn’t like the defense attorneys. It should not have had an influence in my decision-making about the case. But it did. That’s when I realized that as a trial lawyer, I wanted to be the nicest person in the courtroom.

The same holds true for mediations. As I lawyer representing a client, I want to be the nicest lawyer at the mediation. Why? Because I am more likely to persuade…not only the other side, but the mediator, too.

Robert Cialdini, a social psychologist at Arizona State University, has written the definitive book on persuasion which includes a chapter on likeability called Influence: The Psychology of Persuasion. It includes a chapter on likeability.

I’ve written prior posts on likeability here and here.

At your next mediation, try being likeable. Let me know the result.

Mediation: Why Bullying is a Wasted Opportunity

Further to my post below….

As a mediator, I see w-a-a-a-y too many lawyers play the bully card in joint session. I think it works against their clients’ interests. Here’s what I’ve observed:

· Most bullied lawyers just ignore it (so nothing is gained)
· Most bullied clients become further entrenched in their position, i.e., bullying pushes them away, rather than coaxing them to a position closer to yours (so an opportunity is lost)
· Everyone else in the room thinks you’re a pain in the derriere (so your ability to persuade is diminished)

None of these outcomes resulting from bullying tactics enhances your clients’ position, which is what they hired you to do. Mediation is a venue where you can show off your skills to your clients with whom you are spending the better part of a day. So show off your intelligence. Be positive, creative, deft, nuanced. Your clients will appreciate you all the more.

Why Bullying Doesn't Work in Mediation

Ever been bullied? How did you react?

I’ve always reacted to bullying by digging in my heels. I don’t think I’m alone in this. Does this strategy sound like it will settle a case? I wonder, then, why so many lawyers resort to bullying in mediation?

I’ve seen the bully “card” played many times in mediation.
I’ve never seen it be effective.

Sometimes it’s played in a calculated way at the very start. When this happens, much valuable time is wasted in bringing equilibrium back into the joint session or the caucus room. The person bullied is upset, but rarely cowed.

Sometimes it’s played in reaction to a perceived insulting counter-offer from the other side. When this happens, it’s really a reaction to being frustrated. There are more constructive ways to negotiate.

Sometimes it’s played as a false impasse, in an attempt to signal a real impasse. The classic standing-up-and-packing-one’s-briefcase is the prime example. Although this is the time when it can be the most effective, it’s also a calculated risk, as it may create an impasse when there is more room to move by the other side.

Think before you bully. Invariably, there is a more imaginative and productive way to get to your intended result.

Dear Reader:

I know this blog has been looking like this computer screen: blank. 2009 has been a challenging year. I wore my trial lawyer hat the entire month of January and I’ve been playing catch up ever since.

I’m happy to say I’m back in the blogosphere. Thanks for being patient. I look forward to continuing the discussion with you on civility and negotiation strategies and dispute resolution through mediation. We’ll be talking about mediation advocacy in the weeks to come.

Negotiation When Times are Tough

I wrote a previous post on practicing negotiation in everyday life, here. Like any other skill, your negotiation skills will improve the more you use them.

Now, with the economic downturn, there are even greater rewards for practicing negotiation. Many merchants, especially smaller merchants, would prefer to negotiate a lower price than to lose a sale altogether. Times are tough.

I wrote about my recent negotiation of a smog inspection over at Real Divorce Mediation. You can read the post, here.

Plan to Attend ADRNC's Annual Conference!

Join us on Saturday, March 7, 2009, for The Association for Dispute Resolution of Northern California's Annual Conference. It's just two weeks from today!

We have a wealth of great speakers and fascinating topics.

Rene-Marc Mangin, Ph.D., M.B.A., is our keynote speaker. He will be speaking on "In Plain Sight: The Subliminal Influence of Non-Verbal Communication. I heard Rene-Marc speak at the ABA's Section on Dispute Resolution's Annual Conference in Seattle last year. He is engaging and thought-provoking. A must-see.

Our afternoon line-up of all-star speakers include Patty McManus of Interaction Associates, Melyssa Jo Kelly, Michelle Cesario, Eileen Barker, John Ford, Cameron Hunter and Leija Mavris of Global Majority.

You can sign up for the Annual Conference here.

Best Wishes to George Mitchell

I find George Mitchell, the former Senator from Maine, inspiring.

President Obama has asked Sen. Mitchell to be his administration's special envoy to Israel and the Palestinian Authority. Sen. Mitchell mediated the 1998 Northern Ireland Peace Agreement which effectively ended decades of sectarian violences. He said this about that experience:

"In the negotiations which led to that agreement, we had 700 days of failure and one day of success. For most of the time, progress was nonexistent or very slow. So I understand the feelings of those who may be discouraged about the Middle East... From my experience there, I formed a conviction that there is no such thing as a conflict that can't be ended."

And here's the money line:

"Conflicts are created, conducted and sustained by human beings. They can be ended by human beings."

Best wishes to Sen. Mitchell in his new role at the State Department.

Photo credit to Thomas College.