|Mike Daisley Attorney & Certified Mediator, NCDRC|
What are your best options for diffusing irrational and illogical behavior at mediations?
After more than a decade of mediating Superior Civil Court claims in North Carolina, I am still struck by how often emotions can so easily overrule logic, and derail successful settlements at mediations.
It's not that emotions are bad; far from it. We are human beings after all, not Vulcans (see below), and as I wrote in a previous Mediation Minute last July, it would be strange if folks were NOT angry over lawsuits. Plaintiffs are upset because they feel they shouldn't have had to file an claim in the first place, and defendants are angry over getting hauled into court.
|Most litigants are NOT like Spock.|
To be as cool and calculating as Mr. Spock would be, well, illogical. Even so, when emotions an tempers get out of hand, and a broken or angry heart overrules the head, your clients can suffer.
During the last several weeks, I've had some online discussions with other mediators from around the country on this and related topics, and I've come up with a synthesis of some of the best thoughts that have been shared. It's something I am calling the "QUERY" method. I hope you'll find it useful, and will keep it in mind for keeping things under control (if not always calm) during your next test mediation.
In future negotiations where the litigants are losing their cool, here are some techniques and tactics that you and the mediator might want to "QUERY" in order to get back on track:
- QUESTIONING. Whenever parties at mediation are getting overheated or getting derailed, I've found the art of questioning to be a tried and true technique that has proven very useful through the years. (Long time readers of "Mediation Minute" may recall that I devoted a whole newsletter last summer to the subject of THE POWER OF AN HONEST QUESTION, and did a short video on the topic.)
- UNDERSTANDING. One of the standard comments I often make in opening session is one of Stephen Covey's Seven Habits of Highly Effective People mediations have a better chance of succeeding if litigants "Seek first to understand, then to be understood." I have been amazed at the enlightening dialogue that ensues when I ask in private session, "Why do you suppose the other side feels/thinks/acts that way?"
- EDUCATING. This is a two way street. Not only is it important to allow a litigant to educate the mediator on the source of his/her frustration, it is frequently essential to educate the litigant on the downsides that could result from their behavior and response.
- RELATING. This is (no pun intended) related to the "Understanding" step above, but it is more situational. That is, this part of the "QUERY" process calls for delving into the human relationships involved. I find this to be true in almost every mediation: There are legal issues and then there are the "real" issues such as when someone feels slighted or misunderstood or misled or disrespected or devalued. These are separate and apart from the legal causes of action and damages being alleged. If the case has any chance of being settled at mediation, those issues usually need to be uncovered and at least acknowledged, if not resolved.
- YIELDING. To yield in this context does not mean to rollover or cave-in. Rather, it is a discussion technique that I sometimes use in very tense situations where one person is really trying to control all the dialogue. It is simple, but surprisingly hard for some people to execute. It is an agreement by all participants to yield to the person talking until that person has completely finished and acknowledges he/she is done with that thought. (Try it sometimes in a group discussion in non-legal context. You may have to impose pre-set time limits, but I promise you will be amazed by the results.)
Is the QUERY technique the be-all and end-all to redirecting irrational, illogical and/or destructive behavior at mediations? Of course not. Does it help? Well, it has helped me both as a mediator and an advocate, and if it does the same for you in one of your mediations, I'll be glad.
Feel free to email me with any of your comments. Or better yet -- just pick up the phone and dial 704-887-6776. Even if I can't help you directly, I'll always do my best to steer you in the right direction. Thanks!
Michel C. Daisley
Attorney & Certified Mediator, NCDRC
DAISLEYLAW, PLLC 2412 Arty Avenue
Charlotte, North Carolina 28208
phone: (704) 887-6776
fax: (704) 887-6790
New to this e-newsletter? Check out earlier e-ditions and videos of Mediation Minute & "Legal Trends, Odd & Ends."
This "MEDIATION MINUTE" newsletter is meant to offer just a few quick insights to keep in mind and perhaps consider for mediation advocacy. Some earlier editions have looked at Opening Statements (with videos specifically
If you are a true glutton punishment, check out some of my LEGAL TRENDS ODDS & ENDS eNewsletters as well, and some of the videos attached. Again, they can be found under the DaisleyLawGroup page of YouTube.