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.