Introduction

In this episode of the JAMS podcast, internationally renowned mediators Giuseppe De Palo and Tim Hardy explore how a mediator’s style, cultural awareness and strategic timing can meaningfully influence the course and outcome of a mediation. Drawing on extensive experience resolving complex disputes around the world, they discuss why choosing the right approach – and adapting it throughout the day – is often critical to success. 

The neutrals explain that mediation style is shaped by personality, culture and professional background, but must also be aligned with the expectations and norms of the parties in the room. They share real‑world examples showing how certain approaches can shut down negotiations and damage credibility. Throughout the conversation, they examine:

• The impact of misaligned mediation styles, including how cultural differences can cause parties to disengage
• Where parties confuse a “strong mediator” with the “right mediator,” and why gentle persuasion can be more effective across many jurisdictions
• The strategic pivot at impasse, when mediators often shift into a more directive mode because parties are finally receptive to new ideas

This episode provides practical insights for mediators and counsel working in cross‑border disputes, emphasizing the importance of adapting to social norms and different communication styles.

Transcript

Moderator (00:00:00): Welcome to this podcast from JAMS. In this episode, we explore how mediation style, shaped by a mediator's choices, cultural background and personality can influence both process and outcome. Joining us are two globally experienced JAMS neutrals Giuseppe De Palo, an international mediator and leader in cross-border dispute resolution with experience across nearly 70 countries and 90 nationalities, and Tim Hardy, a former City of London solicitor, who led the litigation department at a top 10 global law firm for more than 20 years before coming to JAMS.

Hey, so gentlemen, let me just start with this question for you. Giuseppe, how much does this choice of style actually affect the outcome of the mediation in your opinion?

Giuseppe De Palo (00:01:00): Thank you, Andrew. This is such a key question, and it can be tremendously impactful. There are two things to keep in mind, at least two from my point of view. One is, what is your own style? The one you are bringing to the table? That one is related to your nature, to your culture, to your attitude, right? But also, what is the style of the people that are at the table with you?

Moderator (00:01:24): What's the cost of picking the wrong mediation style?

Giuseppe De Palo (00:01:29): Oh, just shutting the negotiation down right away. I had this colleague; we were co-mediating. It was a North American colleague and being a former judge, he felt he had the aura and the cred to be saying to this Japanese executive that his case would not hold water before an American jury. He felt, “I can say this.” And the person started to nod as if he was saying a “yes.” And my colleague thought, “we made impact.” And then 10 minutes after we were told the mediation was over. You cannot really attack frontally somebody and discredit their reputation in front of a group. So, it could be a mistake you cannot recover from.

Moderator (00:02:15): And Tim, sometimes there's a confusion between a strong mediator and the right mediator, and some people sometimes conflate the two. How did they do that? Why do you think they confuse those two?

Tim Hardy (00:02:28): I think that people who are inexperienced in mediation don't recognize the value of the gentle persuasion. If they are used to an aggressive form of dispute resolution, then they probably look to their mediator to do the same. Picking up with Giuseppe’s example, that type of approach that he was referring to is a strong mediation intervention which will upset a lot of people in different parts of the world. In some parts of the world, that's what they're looking for. That's what they want and that's great but try that in a different jurisdiction. It will not work.

Moderator (00:03:18): When does the merits pressure actually speed up settlement?

Giuseppe De Palo (00:03:24): It may depend on the case. Sometimes a lawyer will be fully aware that their case is weak, right? And even wants the mediator support to communicate to their client whether it's more difficult for them to say, “look, we better settle here.” And if it comes from a third-party neutral, as opposed to your own lawyer, you feel like it's true. The lawyer says, “I'm here to defend you but, hey, look at this guy, he is experienced, the mediator.” It may be at the very beginning, or it might come – in my experience more often – towards the end. You can do a great job approximating positions and sometimes, not surprisingly, the distance between the highest and the lowest number is so small that you really see that there is ego at stake. It makes no sense to fight over $200,000 when you're talking about a hundred million as a starting point. So, at that time, it's where you can drop the hammer and try to be a little more explicit about who would suffer the most by the non-agreement.

Tim Hardy (00:04:28): It's a bit like cooking a roast chicken. If you take it out too early, it won't be ready and it'll be a very unpleasant meal. You have to leave it in long enough until both parties are cooked. Then you can get a deal. I had a situation quite recently, shortly after Christmas. It was a standard type of commercial dispute and two senior executives from either side came along and they both said to me quite early on, “I really want to speak to my opposite number.” I said, “yeah, that's great. I'm really up for that.” As the day went on, that pressure became a bit more like, “Tim, it's now time.” I said to them both separately, “Not yet. Not yet.” And the reason I said “not yet” is because from my confidential conversations, I knew where they were and I knew they were too far apart, but late in the day, a couple of hours after we were supposed to have finished, they were still there and they're still going at it. And I said to them both separately, “right now is the time for you guys to have a conversation.” And they said, “oh, at last.” And I said, “okay, fine. Put them together.” And they did the deal and it took them half an hour. But that was fine. They just weren't cooked before.

Moderator (00:05:45): Extending the roast chicken metaphor though, is it true that certain cultures prefer it to be well done? And some like it a little rare?

Giuseppe De Palo (00:05:57): Oh, absolutely. If the mediator coming down with the number seems to be favoring one of the parties, that kind of agreement might be, as Tim mentioned, could be very suited for somebody to say, “okay, that is what we needed to know.” But if the agreement is focusing more, for example, on the future cooperation, it's not, you pay and the case is over, but there is a restructuring of the relationship. That approach can be very negative. So, people will prefer not to be overcooked at all because there's more work to be done later. And this is really a preference over things that are imposed as opposed to things that are deliberated, negotiated. Nobody loses face at the end of the process when there is a situation which is very different from the one at the beginning of it.

Moderator (00:06:51): It's great that mediators seem to be able to switch gears inside a mediation. How important is the timing when deciding when to push versus when to structure?

Tim Hardy (00:07:01): There is often a very clear trigger where you have to start rolling up your sleeves and become more challenging to both parties. That's when they reach an impasse. And in most commercial disputes I mediate, it’s pretty inevitable they're going to get to an impasse. They've come in with a set idea of what they can settle for and that's not achievable. Sometimes they'll even be packing up their bags, and I've come into a room sometimes and found somebody in their coat, bag packed, ready to go, just waiting to say “We're just hanging around…bye, Tim. We've got an impasse so we're over.” And my reaction to that is always, “Great, fantastic. Let's celebrate this moment.” And they go, “what?” And I go, “Yeah. You were never going to settle this without getting to impasse. So, this is that stage in the process and congratulations for reaching it. Now take your coats off, sit down, let's get to work.” Then you really do have to roll up your sleeves. You have to get stuck in at that point, and you have to push the parties much harder than you have before. But the funny thing is, they're more open to it. They're looking for ideas. They want suggestions. They want you to help them. So, I always say to them (and surprise them), “Celebrate an impasse.”

Giuseppe De Palo (00:08:46): I wanted to chime in on this because Tim introduced the very important concept here: when do you switch gears? So, you might see that you need to adopt a very specific approach. Let's say much more forceful, much more (if you use the standard terminology) evaluated in a private session with one party and not with the other. That creates a problem. It does for me, for example, when I reconvene the parties, because at some point I would say, “Now it's time for you to talk to one another. I cannot be here forever. If you want to restructure this agreement, you will be on your own. If you're not able to stand in the same room with the other side, that is not good.” Some parties will say, “Giuseppe, you’re speaking very differently about this.” So, then I have to do some management about my own style and not appear insincere. The idea is that the style is yours, it's situational and driven by the party's expectations and how they really behave – it’s called the 10:00 AM and the 6:00 PM rule: a proposal that would be perfectly acceptable and worthy of celebration at 6:00 PM might be completely ignored at 10:00 AM. There is too much sugar, too much time on your schedule available for anybody to budge.

Moderator (00:10:06): Important to know how much they've slept and how much they've eaten potentially too.

Giuseppe De Palo (00:10:09): As well, yes!

Moderator (00:10:11): You both have a lot of frequent flyer miles. You both cross the Atlantic quite a bit. This is really important because a lot of people listening to this podcast may be thinking about the biggest differences between mediating in Europe versus mediating in the US. Tim, talk to us about some of the expectations around mediation and how they differ between the US and Europe or the UK.

Tim Hardy (00:10:37): I think the biggest difference is that American parties don't like to have the same style of joint plenary session that we typically have in mediations in the UK and in Europe. It used to be, pretty much every mediation you'd start with a plenary session. That's changed. And I do think it's a practice which has changed because what the parties are looking to the mediator for has changed. If you are expecting the mediator to express a view as to what the likely outcome is going to be, or maybe to make a suggestion for how it should settle. You do not want to have shared with them any weakness whatsoever, and you don't want to have exposed yourself to any form of difficult argument that might happen in a joint plenary session, and so therefore you back away from that. Because the American lawyers are more used to asking the mediator to contribute in that way, then similarly, they're more guarded about their cases. So, it's a different mindset and you have to be aware of that. Now, it isn't always the case, so it's important to speak to the parties before the mediation and particularly speak to the lawyers and find out what their expectations are. If you get the style wrong, the prospects of actually doing your job properly have been seriously damaged.

Giuseppe De Palo (00:12:42): If I may say something along these lines. One of the things I've had the opportunity to do is called “remediating.” That’s not fixing somebody else's problem – doing mediation twice, right? Some people said, “Oh, we failed this. We want to now do this again.” And these were, not by chance, intercultural, even transatlantic cases. So, what I have found in these cases more than once is that the American team and the mediator would come in, for example, with a fully equipped, fully staffed team with full authority and, especially in the Southern Mediterranean or even Southern Europe, not realize the importance of form and style and the ethics in a sense.

Whoever is coming all the way from the US, he or she might have full power of attorney and share it, but he or she might not have the proper status for the senior leader of the family business there. So, I've seen mediators struggling to establish the credibility of the process. So, do not undervalue the importance of social norms. Sometimes it doesn't take that much to really pay tribute to those. It's not a cultural culture shock, anecdotal phenomenon. It has a name. It's called power distance. In certain cultures, people not only accept, but as Tim mentioned, expect that hierarchy and roles and formalism and titles play a role. I've seen people being disappointed by a respectful table, so to speak, “why would you do that?” And of course they would not say that, right? Nobody would say, “Hey, why are you only senior vice president? I'm CEO.” Deep inside that would play a role and maybe toward 6:00 or 7:00 PM you hear that. It counts. This is just an example. I wanted to mention the social norms. And the other thing I would say that applies both to Southern Europe and Northern Europe. These two cultures have a higher degree of, anthropologists call it, “uncertainty avoidance” right?

In order for people to feel safe, to feel relaxed, to feel ready to make commitments, they need to have reassurances. And these come from protocols documents, formats and informed and standard operating procedures. And mediation is the opposite of that, it’s very fluid, very informal. So, sometimes a way to get the European party for the American party who's less intimidated by what is unstructured might be to create some structure even when there is no need of structure. Present the schedule of who is going to go first, who is going to go for 30 minutes. But why do you need 30 minutes? Because people want to know, “Okay, I have 30 minutes, right? I can do everything and after 30 minutes I have a right to withdraw.” So, sometimes if you inject that predictability it will help some cultures feel more comfortable.

Moderator (00:16:04): Both of you have mentioned different forms of mediation. Tim can you expand on that and get a little more practical for some of the lawyers listening? If they are to show up in a mediation, what are some of the questions they need to be asking themselves to prepare for that particular cultural situation?

Tim Hardy (00:16:25): If it's an international dispute and the mediation is taking place in the jurisdiction of the counterparty, then the visitor to the jurisdiction mediation really must do some background research to understand what the norm is in terms of expectations at that mediation and in that jurisdiction. It will be different and you'll be so much better prepared if you've talked about it and worked it out. I've seen that go wrong where a Middle Eastern party has negotiated with a European party. And the European party didn't appreciate that the senior executive from the Middle Eastern party who was there wanted to have the floor for at least half an hour at the very start of the process and wasn't talking about the dispute at all but was talking about the relationship and talking about the future and the opportunities. And the European party was just deeply frustrated by this, which was understandable because of their background, but they ought to have done their research and they could have avoided what proved to be a very rocky start to the process.

Moderator (00:18:00): Giuseppe, preparing your client, obviously very important. I'm sure you've seen that go right and seen it go wrong.

Giuseppe De Palo (00:18:05): Oh yes. Tim's example is perfect in terms of one reflection I had the other day with a colleague how much time in international mediation we spend before the actual meeting because you really have to choreograph the situation as much as possible to avoid what Tim was mentioning. Even if the mediation continues, it really sets a negative tone. So, I go to the point of rehearsing this, especially when parties decide to follow my advice and have an initial joint session, which scares a lot of people in the United States. It is actually uncommon at all in commercial mediation. But to me, it has the value of catharsis, letting things go, especially when there is an ongoing relationship at issue.

Moderator (00:18:59): If a lawyer has never briefed a mediator before, what kind of advice would you give that lawyer if they are mediating in a country they've never mediated before? What kind of questions should they ask?

Giuseppe De Palo (00:19:17): It's very important to tell the lawyer, this is something I learned many years ago from a very senior mediator: tell a story, do not advocate. And the third law of physics, I believe, is if you apply force, you receive force back just the same. Human relationships are not like that. It's called escalation. If you punch me once, I punch you twice. So, the idea is to be able to convey the force of your legal arguments by virtue of your ability and your willingness to engage in a discussion. I think George Bernard Shaw said that the biggest mistake about communication in assuming that communication has already taken place. When a lawyer starts advocating right at the bat, when people have full energy, full sugar in their blood, in their veins, that's the worst thing that can happen. If you're able to apply that restraint and say, “This is what happened from how we saw it. These were the consequences and that's why we're here.” That's the most effective thing that a lawyer can do as opposed to trying to impress his or her own client or imagining that the other side will be scared. That will depend also on how public face is important, how communication in different cultures can be direct or indirect, we call it high context, where what counts is what is not said as opposed to low context where the words are key. That would be Switzerland, Scandinavia and Anglo-Saxon countries. In Asia, it is just the opposite. So, if you think, as Tim said at the very beginning, that force is the volume and the amount of words of legal concept in international context, that can be the biggest mistake one can make.

Tim Hardy (00:21:10): Look, I completely agree about telling a story, but this is where true art of advocacy comes in, in my view. You tell a story which demonstrates why your client is in the right and why the correct outcome is the one that your client is looking for as the advocate. That’s the most useful to me as the mediator because it will demonstrate the motivations which are underlying the legal arguments and the morals of the situation, who's right and who's wrong? Not in the context of law but how many times have we seen a judge who's got a very difficult legal case in front of him jump over tall buildings and stop locomotives in order to get the right outcome. So, the advocate in mediation will demonstrate what the right outcome is by reference to their story, and then it's a good starting point and it helps the mediator as well.

Moderator (00:22:20): Listen, gentlemen, I know this conversation could go on for quite a while and I would enjoy hearing, but let's end on one final question. Again, let's try to be as practical as we can for the listeners, some lawyers who are listening. And let's put our cards on the table. You both are mediators at JAMS. That's what you do for a living, but if you were to give lawyers a simple framework for choosing the right mediator, what would it be? Tim, I'll go with you first.

Tim Hardy (00:22:51): I always wanted to choose a mediator that I knew or that somebody close to me knew and recommended when I was a practicing litigator. I have to say, I think that is probably where I get most of my appointments from, from people who know me already or who've got a personal recommendation. It's a very important decision and, just picking somebody off a list, that's quite difficult. You want to have confidence, they're going to listen to you and do what you expect them to do and not show you up. I think personal recommendations are pretty up there.

Giuseppe De Palo (00:23:39): To me, and I admit having done this since 1995, I know a lot of people, so this might sound self-serving, but I would say to a lawyer, whom do you think the other side is more willing to listen to? Somebody completely new or somebody that they've worked with before. And this also has fundamental cultural underpinnings, right? When people believe in authority and seniority, they pay respect to that. They will be more inclined to accept, for example, that the neutral has been working with both as opposed to the ideal person as somebody who's completely neutral.

So, this is also something very impacted by that. But I think the fundamental question as a lawyer is that if I believe in the process, it's not just a fishing expedition or trying to buy time, I might dislike my own mediator, including the fact that he or she gives me advice about whom should I pick. But boy, if that mediator has some sort of connection or history with the other side, that's my person to go to because I know that just like it will be hard for me as a lawyer to convince my client that the mediator is right without showing that I don't believe in his or her case, the same is going to be true on the other side. So, that's kind of a different approach that you have to have. The better the connection with the other side, paradoxically, the better for me and my client.

Moderator (00:25:07): Giuseppe De Palo. Tim Hardy. Thank you for joining us again. What a wonderful conversation.

Giuseppe De Palo (00:25:13): Thank you.

Tim Hardy (00:25:15): Thank you.

Moderator (00:25:18): You've been listening to a podcast from JAMS, the premier provider of alternative dispute resolution. Our guests have been Giuseppe De Palo and Tim Hardy of JAMS. For more information about JAMS, please visit www.JAMSadr.com. Thank you for listening to this podcast from JAMS.