JAMS ADR Blog by Chris Poole
Rule number one in any mediation? Don’t tick off the mediator.
First and foremost, effective mediation advocates collaborate with their mediators to prioritize and advance their client’s interests. Mediators help people resolve disputes that they can’t resolve themselves, organizing and managing a negotiation process that usually results in a settlement or deal. When lawyers (or their clients) negotiate in unproductive ways—making it harder than it already is to resolve a thorny dispute—the process becomes less efficient, less productive, less enjoyable and more likely to reach an impasse.
Second, according to social science research, people work better with people they like and trust. Robert Cialdini, an expert on the science of persuasion and influence, writes that we are more likely to be influenced by and comply with people we like. So, when you ask the mediator to help you achieve a certain a goal at the end of a long day, you’ll be better positioned to influence her—and your adversary—if you haven’t breached anyone’s trust or otherwise deeply disrupted the mediation process.
As Perry Rogers, NBA Hall of Famer Shaquille O’Neal’s agent, once said: “My negotiating advice to getting a deal done is to be likeable. Being obnoxious is easy.”
Mediators’ Top Pet Peeves
Mediators are preternaturally patient people who remain calm and focused in complicated, emotionally charged situations. But here’s a little secret—even Master Mediators have pet peeves.
So, what annoys or aggravates mediators the most?
I presented each Master Mediator with my “Top Ten List of Unhelpful Behaviors” that make the mediation process less enjoyable, less efficient and less productive. When parties commit too many of these “process no-no’s”—often because they think a particular behavior provides a negotiating advantage—they risk alienating the mediator and the other side, leading to suboptimal outcomes or, worst-case scenario, an irreversible impasse.
The best mediators remain calm and decisive as they identify and address process roadblocks, such as strong personalities or irrational intransigence. Nonetheless, we all have our triggers.
So, I asked each Master Mediator to rank each unhelpful behavior on a 1-10 scale, from least to most problematic. Below I share the Top Three Unhelpful Behaviors.
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