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Mediation: It Pays To Be Civil

By Brian R. Jerome

Over the past 25 years I have had the distinct pleasure to serve as mediator in a large number of cases involving a wide variety of subject matters and I have had the opportunity to observe the differing demeanors, styles and presentations of parties, their attorneys, insurance and business representatives and other interested participants.  Why I love my job so much is that every day is different, every case is different and the interactions between the many participants at mediations vary so greatly.

I’m often asked to give advice on what works and what doesn’t at mediations, and how participants can maximize their chances for a successful outcome at these sessions.  ADR literature on this has felled many forests of trees.  Yet often overlooked in my judgment is the simple virtue of showing civility at all times during a mediation process.

I recently concluded a mediation involving a man severely handicapped at birth who allegedly suffered injury while in the care of a special needs provider.  The plaintiff’s family was angry and emotionally charged at the mediation session and reportedly had never heard an apologetic or sympathetic word from the defendant since the incidents involved had occurred.  Negotiations were not going particularly well.  At one point mid day the handicapped man was first brought to the office.  The attorney for the defendant was distinctively gracious, receptive and kind to the man while he was present.  The family expressed to me their sincere gratitude for this attorney’s showing of kindness and humanity to the plaintiff. Thereafter something changed in their demeanor. The case successfully reached settlement. I believe that this attorney’s simple showing of courtesy and civility played a significant contributing role in this settlement.

While most attorneys and other professionals who participate in mediations display similar traits of civility and courtesy during the mediation process, too often, perhaps in the pursuit of zealous advocacy for the client or their case, an attorney, representative or party, usually in the initial opening joint session, makes comments that cross a line and offend, demean or alienate their opponent.  One should consider that these initial comments at the joint session often set a tone for the hours that follow.  Such offending comments become counterproductive to the process and the mediator’s work.  Because of these comments, excessive and valuable time becomes required thereafter for the mediator to stabilize the person(s) offended by these comments, often in private caucuses, and make them receptive to compromise and the willingness to show the flexibility needed for a successful outcome.  My experience is that less Rambo and more Dale Carnegie, will significantly improve your odds for a successful mediated resolution.

Don’t confuse civility with weakness.  Attorneys, representatives and parties must be able to clearly state their positions as to all relevant issues that arise during a mediation.  How and when they do so at a mediation however is the issue. I see more and more that experienced trial attorneys, with track records of a success as zealous client advocates at trial, are choosing to leave their hatchets at home and making ever briefer and less contentious opening comments at the initial joint mediation session, knowing that the mediation process differs greatly from trial.

Most mediators recognize that for many parties a mediation can be viewed as their “day in court” and they may be used to, or expect, that their counsel in opening comments will zealously attempt to vanquish their opponent.  However, experienced counsel will advise their clients of what mediation is and isn’t and that their opening comments may not be what the client would hear at a trial.  Many comments or arguments that could offend the opponent if made at the outset in the open joint session can be shared with the mediator later in private caucuses.  Often a mediator may have a better sense of how and when such arguments could then be made most effectively and productively to the opponent.

Hopefully this mediator’s perspective can assist you in reaching more favorable results at your next mediation.

“Civility costs nothing and buys everything”    Mary Wortley Montagu

“The greater the man, the greater courtesy”   Ralph Waldo Emerson