David S. Ross, Esq. | JAMS
Rule number one in any mediation? Don’t tick off the mediator.
First and foremost, effective mediation advocates collaborate with their mediators to prioritize and advance their client’s interests. Mediators help people resolve disputes that they can’t resolve themselves, organizing and managing a negotiation process that usually results in a settlement or deal. When lawyers (or their clients) negotiate in unproductive ways—making it harder than it already is to resolve a thorny dispute—the process becomes less efficient, less productive, less enjoyable and more likely to reach an impasse.
Second, according to social science research, people work better with people they like and trust. Robert Cialdini, an expert on the science of persuasion and influence, writes that we are more likely to be influenced by and comply with people we like. So, when you ask the mediator to help you achieve a certain a goal at the end of a long day, you’ll be better positioned to influence her—and your adversary—if you haven’t breached anyone’s trust or otherwise deeply disrupted the mediation process.
As Perry Rogers, NBA Hall of Famer Shaquille O’Neal’s agent, once said: “My negotiating advice to getting a deal done is to be likeable. Being obnoxious is easy.”
Mediators’ Top Pet Peeves
Mediators are preternaturally patient people who remain calm and focused in complicated, emotionally charged situations. But here’s a little secret—even Master Mediators have pet peeves.
So, what annoys or aggravates mediators the most?
I presented each Master Mediator with my “Top Ten List of Unhelpful Behaviors” that make the mediation process less enjoyable, less efficient and less productive. When parties commit too many of these “process no-no’s”—often because they think a particular behavior provides a negotiating advantage—they risk alienating the mediator and the other side, leading to suboptimal outcomes or, worst-case scenario, an irreversible impasse.
The best mediators remain calm and decisive as they identify and address process roadblocks, such as strong personalities or irrational intransigence. Nonetheless, we all have our triggers.
So, I asked each Master Mediator to rank each unhelpful behavior on a 1-10 scale, from least to most problematic. Below I share the Top Three Unhelpful Behaviors.
| Unhelpful Behaviors | How Annoying? 1 = not at all: 10 = very |
| #1 Important Person With Authority Is “Unreachable” | 8.50 |
| #2 Hyper-Aggressive Advocate | 7.25 |
| #3 Lack of Preparation | 6.83 |
#1 Important Person With Authority Is “Unreachable”
The Master Mediators resoundingly agreed that not having a person with authority at the mediation session, or easily reachable, presents the biggest obstacle to settlement. To cement any negotiated deal, the mediator must secure a yes from the people with the power to authorize a yes. That’s why good mediators always confirm—sometimes twice—that all necessary decision makers, with appropriate levels of authority, will attend the mediation session or, at a minimum, be reachable by phone or email.
Sometimes, a decision-maker suddenly becomes unavailable for legitimate reasons. Many years ago, I mediated a case where the plaintiff had to leave the mediation to take her son to the hospital. Obviously, the defendant understood and agreed to reconvene the next day.
More often, however, one side announces mid-mediation that a key decision-maker “can’t be reached,” making it impossible to close an achievable deal. These frustrating situations usually represent either a failure to anticipate the participant’s unavailability or a purposeful negotiation tactic designed to scuttle or delay settlement in an effort to secure more favorable deal terms at a later date.
As one usually diplomatic Master Mediator bluntly said, “It’s not just annoying. It’s actually super-annoying.” And it’s super-annoying because the person’s unavailability makes settlement that day impossible, creating an unnecessary impasse that can prove hard to overcome once mediation momentumis lost.
#2 Hyper-Aggressive Advocate
The Master Mediators dislike hyper-aggressive negotiating behaviors because they undermine a principled mediation process by making it less collaborative, less efficient and less productive. In fact, one Master Mediator described hyper-aggressive advocacy as “the single most problematic dynamic in any mediation,” especially when it escalates late in the day. Even the outlier who said that she “can usually work [her] way out of this situation” acknowledged that overly aggressive behavior “can, in some situations, present a very serious problem.”
The Master Mediators shared different reasons for their aversion to hyper-aggressive advocates. One said, “Hyper-aggressive belligerence annoys me personally. I rated it high because it usually goes along with trying to prevent me from talking directly to parties.” Another observed that such tactics are particularly problematic because they often signal a lack of genuine interest in settlement. One Master Mediators lamented that managing unproductive negotiating antics requires energy and focus better spent on more productive work, like finding creative solutions that work for all the parties.
To be clear, effective mediation advocates should negotiate assertively to get the best possible deal for their clients. Experienced advocates execute negotiating strategies designed to meet their client’s goals, but they adjust those goals as they learn new information and digest mediator feedback.
The Master Mediators respect strong advocacy but become concerned when negotiation tactics become too aggressive, alienating other mediation participants and unsettling the process. Such tactics include wildly high opening offers (or wildly low counteroffers) coupled with irrational intransigence. Other unhelpful behaviors include hardball tactics such as stonewalling—refusing to make a counteroffer or refusing to share relevant and discoverable information, for example—intentionally mischaracterizing prior conversations and making “exploding offers” that expire after unreasonably short deadlines.
When advocates unrelentingly persist in using these tactics, they alienate the people across the table by sowing dislike and distrust. Mediators work hard to establish trust between the parties. As the saying goes, “Trust is gained in drops but lost in buckets.”
Smart advocates know when to dial back unproductive negotiating behavior so as not to risk cratering the process.
#3 Lack of Preparation
I was surprised how many Master Mediators consider inadequate preparation to be a prevalent problem. As one put it, “Unfortunately, poor preparation is not unusual.” Poor preparation annoys mediators because it slows down the mediation process, makes it more difficult to conduct a principled and merit-based discussion about settlement value and limits opportunities to identify creative solutions. In other words, it undermines the core goals of any mediation.
Fully preparing for mediation is a no-brainer. While advocates cannot control all aspects of the mediation process, lawyers (and their clients) can almost always control how much they prepare.
Of course, it’s worth exploring what constitutes effective preparation. First, take the time to explain to your client, especially first-timers, how the mediation process works, including the role of the mediator. Doing so will reduce the deep anxiety people feel as they try to resolve high-stakes conflicts that involve money, identity and strong emotions.
Second, ensure that you (and your client) identify and acknowledge the weaknesses in your legal position and the risks and costs of not settling. Lawyers should be ready to address legitimate questions presented by opposing counsel or the mediator. To maintain credibility, they should be equally ready to admit weaknesses in their positions. Too many lawyers overestimate their ability to wing it when pressed to justify how they value their case or how they will address clear litigation risks.
Third, talk with your client about prioritizing their goals. People make better choices when they have time for calm reflection and don’t feel pressured to make hard decisions quickly and under pressure. I don’t endorse entering mediation with an immovable bottom line mainly because you’re bound to learn new information or hear new perspectives—from the other side or from the mediator—that will shift your view of settlement value. Having a clear understanding of a realistic settlement range, however, makes good sense.
To ensure a more principled and more productive mediation session, follow the advice given by Scar in his solo song in “The Lion King”: Be Prepared!
In my next post, I will explore several more top mediator concerns, so stay tuned!