It is my observation that the bully approach is not effective in mediation, although it may be in court. In mediation, if one side begins with a lot of chest pounding and intimidation, the other side will usually react negatively and the likelihood is that the matter will not settle, or will settle less favorably for both parties than it would have without the “bully factor” involved. The opposite may be true in court, however. A jury may agree with the bully that the other side is not to be trusted, not to be liked and deserves neither empathy nor damages. A good trial lawyer may actually spin the case to win over the jury’s sympathy and award substantial damages and punitive damages, designed only to “punish” the wrongdoer. The Courts are a good place to achieve stunning wins and losses. The mediation is a good place to achieve peace and resolution to conflict in the least public, least risky and least expensive way.
Perhaps the difference between bullying and what I see as effective mediation also begins to differentiate between running a successful business (where leadership may include a form of “bullying” of employees to achieve the greatest possible market share of financial success for the entity involved) from diplomacy (which always requires a degree of humility in trying to achieve some mutual goals for the benefit of more than a single Company).
I am wondering whether any mediators actually are successful in settling cases with an element allocated for punitive damages. I am guessing it is routinely requested or threatened but seldom considered in the final analysis of damages.
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