Why Bullying Doesn’t Work In Mediation

From the blog of Nancy Hudgins

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.

                        author

Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

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