Five Things You Didn't Know about Mediation

Mediators are always learning about what helps – and what doesn't – when it comes to resolving disputes. This is what makes them effective at finding common ground between parties. There is always something new to learn about how people interact, what motivates them, and what will bring them together to agree on a settlement. Following are five points to consider about mediation from members of the JAMS panel.

1. Mediation is an opportunity for your client to tell their side of the story

“Most parties participating in mediation want to tell their story,” says Jeff Grubman, a JAMS mediator, based in Florida. “In many ways, mediation is their day in court.”

2. Some clients want to tell that story without their counsel present

“Most, but certainly not all, clients can satisfy their desire to tell their story by speaking with the mediator in caucus,” says Grubman. “However, some clients, particularly successful business people, want to speak directly with their adversary.”

Grubman notes that these clients might feel more inhibited if attorneys from both sides are present. In that case, often several hours into the mediation, a session with just the parties and the mediator can be very effective, says Grubman.

“I have participated in numerous mediations where cases have settled in the course of a relatively brief meeting with the parties without their counsel present,” he says.

Grubman notes that even attorneys who have instructed their clients not to speak during opening statements will often readily agree to a meeting without counsel present. It is particularly the case when the attorneys trust the mediator.

3. Others prefer less dialogue and rely on the mediator

“You don't have to meet with or confront the opposing party or counsel,” says Bruce A. Friedman, Esq., a mediator with JAMS in Southern California. “Clients can leave the negotiating to the mediator, who can be trusted not to divulge confidential information, such as settlement ranges. Negotiations also do not need to proceed on a distributive bargaining or back-and-forth basis.

4. Mediations can be emotional

Managing emotions is a big component of keeping mediation on track towards a mutually agreeable resolution.

“The better we use our understanding of both our own emotions and those of others, the more successful the mediation will be,” says Judge Jamie Jacobs-May (Ret.), a mediator with JAMS in San Jose. “Good moods enhance collaboration and creativity.  By contrast, the presence of strong negative emotions can interfere with good decision-making.”

Judge Jacobs-May says parties can take steps to keep emotions positive.

“My top tip for eliciting positive emotions is to spend time establishing rapport with your opponent.  Get to know him or her.”

5. Be aware of and avoid emotional triggers

We all know that words can provoke strong emotions, and this is something to keep in mind, especially in stressful situations such as a dispute.

“To prevent the escalation of negative emotions, avoid words and phrases that serve as emotional triggers,” says Judge Jacobs-May.

She advises avoiding words that fall into categories known as “The Big Six,” a concept from Holly Schroth, who teaches negotiation skills at the University of California, Berkeley.

They are:

1. Name-calling (“You are a liar”; “Don't be stupid”)
2. Bossing (“You need to. . .”; “You can't. . .”)
3. Superiority (“This is how we've always done it; “I don't think you understand. . .”)
4. Dismissive (“With all due respect. . .”; “It's simple. . .”)
5. Self-righteousness (“I'm being reasonable”; “I've treated you fairly”)
6. Threats (“I can ruin you. . .”)

There is still much we can learn about the mediation process. Hopefully these five insights provide a start.