Mediation is not a dispassionate exercise. That’s part of the genius of it.
Mediation has its genesis in dispute. If there were no dispute, there would be no mediation.
By its very nature, dispute leads to emotion. Disagreement can lead to frustration, which can lead to anger, all of which involve emotion. It can be easy for parties to feel like the other side is missing the point, playing games or being unreasonable. If the situation seems unfair or the other side is pushy then emotions can spiral upwards quickly. If the other side is stubborn, unyielding or “dug in” then the parties may find it nearly impossible to stay cool, calm, collected, and dispassionate.
Effective mediators know this and actively work to lower the temperature in the room.
But what about the mediator’s emotions? Mediators are people too. Unless a case is completely poised to settle before mediation even begins, the mediator will pay a key role in the success – or failure – of a mediation. Mediators don’t have a stake in the outcome – but they do want to see the case settle (if possible). Effective mediators do become involved in the case – in the emotions, the perspectives, and the feelings of the parties.
What happens when a mediator gives it their all only to have a party be completely unyielding? What does a mediator do when one of the sides just won’t give an inch?
This can be a key juncture at mediation. Mediation involves an emotional climax. Everybody comes to mediation knowing that their case may settle that day. The prospect of settlement can be attractive since settlement means people get to move on with their lives. Results hang in the balance during mediation, so even if they don’t expect their case to settle, people still experience an emotional climax when they come to mediation.
And in reality, the mediator is also involved in this. The mediator has spent time reviewing briefs, talking with counsel and preparing for the mediation. A good mediator hopes and expects that the case will settle. So while talking details, position, strategy, risk, exposure and cost with the parties, the mediator always hopes for a settlement.
As a result, when things get tough it’s easy for a mediator to get frustrated. If a mediator spends all day working with the parties and then one of them simply digs in, it’s easy for a mediator to feel stonewalled. After all, the mediator has invested not only time, but a substantial amount of emotional energy in the process. When someone simply turns off, or refuses o budge at all, or suddenly gets unreasonable it can be easy for the mediator to throw up their hands and announce to the parties that the case isn’t going to settle.
But what good does that do? Sometimes the parties may need to cool off outside of the mediation before they will negotiate further. But sometimes a mediation can be unnecessarily cut short if the mediator simply gives up because they are frustrated with one of the parties. Sometimes a case really could settle if only the mediator hadn’t thrown in the towel too soon.
If a mediator has an ego about their own value or their own importance in the case, then it can be easy for them to give up when the going gets tough. There are already several people at mediation who are working hard to control emotions and the mediator can’t afford to be one of them. An effective mediator must be willing to divest themselves of all personal emotion with respect to the negotiations. A mediator can’t effectively mediate if they take offense, feel rebuffed, or feel stonewalled by one of the parties. In short, an effective mediator must be the master of their own emotions. If not, then they lose their ability to think clearly and help the parties and their counsel make deliberate decisions based on primary values such as risk, exposure, and cost.
When the mediation starts, a mediator needs to check their own ego at the door and focus instead on the needs, feelings, interests and values of the parties and their counsel – even when some of those parties or counsel may be acting unreasonably or may be spun up on emotion.
Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, construction, personal injury, wrongful death, trust and probate cases. He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell. He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. From 2018 through 2021 he was an update author for the CEB treatise Real Property Remedies and Damages. Reach him at [email protected].