Ten Major Mediating Mistakes and How to Avoid Them
In the heat of battle, keeping your cool and doing everything right is often very challenging. You’re going to make mistakes — everyone does. Hopefully, however, you can learn from other people’s mistakes instead of repeating them. Here are ten of the worst mistakes you can possibly make as a mediator so that you’re less likely to step on these mines yourself.
Arguing and judging
The worst trap any mediator can fall into is making a judgment about the truth or falsity of either party’s recitation of the facts or about the bona fides of either party’s legal position. This is particularly true of litigated disputes.
Arguing with an attorney is like raising your voice to communicate with someone who’s deaf. No matter how hard you try, you’re never on the same channel, particularly because the attorney always knows far more about the facts and laws of his own case than you do.
Delaying the opening offer
Some mediators spend so much time talking with the parties about their opinions and positions that they don’t leave enough time to start and complete the negotiation “dance.” The purpose of a distributive negotiation — to distribute the deal’s value between the parties — is to help the parties believe that they received the best deal possible.
Wallowing in pessimism
The mediator’s job is to remain hopeful and encouraging throughout the mediation. The parties need you to be a coach and a cheerleader to help them move through the negotiation without giving in to the hopelessness that brought them to your door. You also help them not to demonize their bargaining partner; rarely is one party completely evil and the other completely good.
Sidelining the parties
Mediators who are judges and lawyers aren’t often used to dealing with the emotions raised by people in conflict. The process of litigation and trial is designed to take as much emotion out of the dispute as possible.
The rules of evidence permit a party to exclude information that may cause jury members to become emotionally involved in the matter they’re being asked to decide. The parties in court proceedings don’t talk to each other and often don’t even look at each other. They address the judge or the jury, and their behavior is constrained by rules of the court that keep emotion out of the proceedings.
Ignoring the justice issues
Fifty million years ago, the human species separated from the species that gave rise to both modern-day humans and today’s capuchin monkeys. When Yale scientists created a “monkey economy” to study the way primates think, they found that the capuchin refused to work if it observed a nonworking monkey nearby getting five times the “pay” (in cucumbers and grapes). The monkeys would scream, jump up and down in their cages, throw all their food back at their captors, and go hungry rather than work under such unjust conditions.
Bargaining in the nano- and stratospheres
When the parties make ridiculously high demands or miniscule offers, the conflict between them escalates and creates an even greater degree of bitterness and distrust than already existed. The parties and their attorneys have many reasons for bargaining in the nano- and stratospheres. The case won’t likely settle in either of those ranges, thereby protecting all parties from making a negotiation error.
In other cases, the parties want to express their anger by making offers or demands that they know are insulting.
Cutting the baby in half
I’ve heard more than one party to a dispute say, “Any moron can subtract $X from $Y and divide that number in half. I need a principled reason to settle, not an arbitrary one.” That pretty well sums up the entire reason the parties resist settling their dispute by dividing the delta between them.
This is also why the parties often refuse to make a concession, even when they agree to settle on the suggested number; they’re afraid they’re moving into territory where the mediator will suggest that the parties split the baby.
Telling the parties that their concerns aren’t relevant to the resolution
Nothing a party to a dispute says is irrelevant to its settlement. If a disputant says the moon is made of green cheese, he’s trying to express a feeling or state a fact that stands in the way of his reaching resolution.
When lawyers and judges become mediators, they often tell the parties that their concerns are irrelevant because the law doesn’t consider them pertinent to the legal resolution of a legal claim. But mediation is outside the legal process. You’re involved in a negotiation where the law, while informative, doesn’t restrict the resolution options available to the parties.
Failing to master your own emotional responses to conflict
People don’t want to sit across a conference table from someone they consider their nemesis, because doing so opens them to the possibility of being shamed — the most powerful constellation of emotions known to humankind.
In the midst of all the emotion — anger, fear, shame, and even rage — one person is required to hold the center, maintain a calm demeanor, and help the parties withstand the powerful emotional responses they feel and are subjected to from the other party. That person, of course, is you.
Breaching confidentiality with a wink and a nod
The parties, who don’t care a bit about your obligation to maintain confidentiality, will do everything in their power to wring confidential information out of you. Don’t fall for these traps.
Even if you’re conducting the mediation in separate caucuses, the parties do talk to each other, and if you breach confidentiality, one party may disclose your breach to the other while they’re in court together a few weeks hence. That’s the punishment angle to convince you to maintain confidentiality.
There’s also the ethical angle that every mediator must observe confidentiality or the profession itself will be weakened as being corrupt. You’ve pledged to maintain confidentiality and promised it to the parties to encourage them to be more open about their negotiation strategy than they would otherwise be. If you betray them, you betray yourself and your profession. For everyone’s sake, please don’t do it.