JAMS ADR Insights
Annoy the Mediator at Your Own Risk: Negotiation Tactics and Missteps to Avoid, Part 2
Published March 10, 2021
In my last post, I explored the top three behaviors that annoy the mediator: (1) being unable to reach a decision-maker, (2) hyper-aggressive advocacy and (3) lack of preparation. In this post, I explore more aggravating, and avoidable, behaviors that may upset or undermine the mediator and the mediation process.
Continuing the countdown of my “Top Ten List of Unhelpful Behaviors” that make the mediation process less enjoyable, less efficient and less productive, this post examines the behaviors ranked 4, 5 and 6.
#4: Viewing the Mediator as a Carrier Pigeon
Perhaps predictably, the Master Mediators don’t enjoy being treated solely as carrier pigeons. When lawyers insist the mediator simply bring offers from room to room, announcing them like an emcee at a boxing match, mediators often feel as if their most powerful skills to facilitate resolution have been holstered.
One Master Mediator said, “I hate it, but it’s not necessarily problematic.”
Nonetheless, this negotiating behavior can become problematic when used with extreme persistence. Lawyers (or their clients) who muzzle mediators—directing them simply to deliver their demands and parrot their legal arguments—often overestimate their own negotiating skills and always underutilize the mediator’s skills.
Mediators settle cases more efficiently and effectively when they are given the freedom and flexibility to share their candid assessments of the strengths and weaknesses of each side’s legal position. Like a soccer coach who inhibits her players from playing with joy and creativity by constantly screaming directions from the sideline, mediation advocates should avoid micromanaging their mediator. Choose the right neutral and then trust her to run a good process.
And all mediation participants benefit when the mediator can explain the rationale of a negotiating move, particularly when that move disappoints or angers the recipient, which happens a lot. Academic studies show that negotiators appreciate when an offer is explained and justified, leading to more productive responses. Trust in the mediator’s communication skills often helps prevent emotional and retaliatory responses that risk derailing progress.
Negotiation can be an emotional process punctuated by strong feelings. As I tell my Columbia Law School students, “People negotiate with people.” The value of a mediator extends well beyond his or her ability to relay offers and counteroffers, and includes providing context, explaining an adversary’s full perspective, offering creative solutions and objectively assessing the risks and opportunities of litigation.
Since virtual mediations deny mediators the opportunity to use interstitial hallway and water cooler moments for candid conversations, mediation advocates should be more aware than ever of limiting their freedom in other ways.
#5: Taking an Unwarranted Length of Time to Make a Counteroffer
The Master Mediators agreed that advocates who purposely and persistently delay making counteroffers annoy them by making mediations less efficient and, sometimes, less productive. One colleague disagreed, saying, “[T]his happens a lot and doesn’t really bother me.”
Of course, effective mediation advocates can and should time their offers and counteroffers strategically, managing the expectations of the people across the table. Legitimately concerned that too quick a counteroffer may signal a weak negotiating position or an over-eagerness to settle, advocates may choose intentionally to delay providing a counter until well after they know what it will be.
Sometimes, however, advocates go too far and “weaponize time” by waiting hours before making a counteroffer. Asserting that “we need more time to talk” or “we’re still trying to contact a decision-maker” (see annoyance #1), these advocates try to signal that the other side’s offer was ill-considered and unreasonable—even if it’s neither—and that their counter is well-considered and hard-fought.
The issue here is one of degree, and effective advocates calibrate the appropriate amount of time to wait before making their counter. Advocates should consider that in virtual mediations, when we usually sit alone in front of our computer, time seems to move in slow motion; one minute can seem like one hour! Taking cues from the mediator, who is shuttling between breakout rooms and gauging the emotional temperatures of each participant, can help.
Waiting too long—and there is no science, just good judgement—can lead to a “vicious retaliatory cycle” by prompting adversaries to respond with the same extreme delay tactics, or other aggressive negotiation tactics. This negative dynamic can quickly spiral, threatening to derail the mediation by inexorably slowing down the process, undermining trust between the parties and triggering strong emotions and allegations of bad faith.
That’s exactly why the delay tactic annoys good mediators! Master Mediators encourage an efficient, collaborative and productive dynamic grounded in trust and reciprocity. A persistent use of delayed offers and counteroffers runs directly counter to that goal.
#6: Lawyers Who Prevent Clients From Meaningful Participation
Some lawyers believe that they can negotiate a better deal by sharply limiting their client’s participation and “running the show” themselves. These lawyers engage in heavy pre-mediation coaching, advising clients to speak carefully and infrequently, and actively shielding them throughout the mediation.
Of course, skilled mediators can navigate around roadblocks placed between them and principals. As one Master Mediator put it, “If I sense this dynamic developing, I direct questions and comments directly to the client, usually explaining . . . that I'd like to hear directly from the client.” She continued, “I can’t recall a lawyer ever telling his or her client not to respond to my direct questions.”
But the problem becomes more difficult when lawyers demand to meet with the mediator only. If that approach impedes the settlement process, mediators may need to become more assertive. As one Master Mediator said, “I will usually insist on speaking directly with the client, explaining to the lawyer the importance of gaining the client’s trust.” To be clear, context matters. Some legal disputes can easily be resolved by working primarily, or even exclusively, with the lawyers. Most mediations, however, benefit from some level of client participation. As one Master Mediator put it, “The dispute belongs to the principals, and they should be able to say whatever they want pretty much whenever they want.”
Rounding out the list are the following unhelpful behaviors: (7) refusing to acknowledge any weaknesses in legal claims or defenses, (8) springing unhelpful surprises at the mediation, (9) making disparaging comments about parties in another room and (10) threatening to end a Zoom session.
For anyone who wants to delve deeper and learn more about mediation strategies and techniques or the fast-changing world of virtual ADR, I regularly provide customized online training sessions and CLE workshops for law firm practice groups and corporate legal departments. Find out more here.
David S. Ross, Esq., has been a mediator with JAMS for nearly 30 years. He specializes in complex employment and commercial disputes and has resolved thousands of two-party and multi-party cases, including many class actions. Mr. Ross regularly handles high-profile cases involving celebrities, politicians and CEOs of global corporations
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