News from Maisano Mediation LLC

Maisano Mediation LLC Newsletter

December 2010

Greetings!

I hope you had a wonderful Thanksgiving.

In a recently published article I wrote for the King County Bar Bulletin, Matters of Principle Require a Measured Approach, I discuss considerations for participants in emotionally charged mediations. In this issue I'll discuss the importance preparing clients for the emotional terrain of the mediation process.

After more than a decade of driving a car from the last century, I reluctantly admitted to myself that I needed a new car. With this decision came an unexpected emotional process that gave me new insight into some of the dynamics present for parties in employment mediations. While buying a car is certainly not as intense an experience as mediating an employment dispute, I was surprised by the parallels in the experience.

As I began the process, researching the vast array of car choices available, contemplating dealer vs. private seller, determining my own financial bottom line, I found myself adrift in a sea of information, overwhelmed to the point where I couldn't move forward.

I sought the advice of a friend who is a car aficionado, an expert car shopper, the go-to for many of our common friends who need help traversing the car buying jungle. In talking to my friend about my struggles, I gained some clarity about how my emotions were getting in the way of moving forward with the process. I also identified some of the potential hot spots that might emerge in the negotiation once I made my decision about what car I would buy.

In preparing myself emotionally for what to expect in this odyssey of buying a new car, I was able to navigate the process with a level of calm that was not present when I initially began my search. In much the same way, attorneys can help their clients come to the mediation table amply equipped and better able to negotiate if they prepare them for what might emerge emotionally during the process of mediation.

I look forward to seeing many of you this month and in the new year.

Sincerely,

Nancy Maisano
[email protected]

Tip from the Trenches -- Maisano Mediation Logo

Prepare your client for the emotions that will likely arise during a mediation.

To be best prepared for difficult decision making and problem solving during a mediation, the client in a mediation -- typically a party or party representative in litigation -- should be prepared for the strong emotions that will likely arise during the process. In preparing your client for mediation, it is important to plan for and address the difficult emotions she may experience in mediation. In my role as mediator, I typically observe participants feeling angry, disappointed, anxious, disrespected at different times during the course of a mediation. For example, experienced mediators and attorneys can and should predict a party's frustration and disappointment in response to the opposition's opening offer. A participant who anticipates these negative emotions and navigates through the experience without getting side-tracked is more able to remain objective and self-determined in decision making and problem solving.

In a recent mediation of a bitter, drawn out race discrimination and retaliation lawsuit, the plaintiff came prepared for the back-and-forth of the negotiation. especially for the emotional reaction to defendant's initial low-ball counter-offer. She vented for a few minutes and took a few deep breaths, then returned to the negotiation with an objective, problem-solving approach. The defendant on the other hand, spent the entire day in intense emotional reactivity and seemed to not anticipate or have the ability handle the roller coaster aspect of the process. Planning with your client for the emotions that inevitably arise helps diffuse them when they do come up and keeps your client less reactive and more self-determined.

Of course there are positive emotions in mediations as well. Participants often experience relief, vindication and even liberation upon reaching closure and resolution. To achieve that goal more smoothly and objectively, preparation for the negative emotions is essential.