Mediators Say the Darndest Things
By: Jeff Fraser
Mediators are individual professionals who have unique approaches, skills, and methods. However, after participating in hundreds of mediations as a mediator, as a co-mediator, and as an advocate for parties, I suggest the following Jeopardy! “answers” under the category “Things a Mediator Might Say.”
Mediators explain why mediation often leads to a settlement by saying this.
What is: “It is a Mystery.” Mediators tell the parties that there are many theories about why mediation works. It suspends the adversarial fever of negotiation and litigation. It eliminates posturing by posing honest challenges to exaggerated positions. We would also have accepted: “If it didn’t work, we would be out of business.”
Mediators relax the parties by saying this.
What is: “This is voluntary. Nothing can happen here unless you want it to happen” The Mediator names the initial nervousness and tension, which often relaxes the room.
Mediators lower expectations by asking this question.
What is: “What if you could wave a magic wand?” A party often responds with humor, giving a ridiculous best-case scenario. Mediator responds: “Well, that’s not going to happen.” We would also have accepted: “Often, both parties leave equally unhappy.”
Mediators reframe an offer, often using these twin words.
What is: “It’s Win-Win.” The mediator promotes a deal that a party can live with, saying that a resolution can be good even if it does not defeat the other party.
Mediators persuade by quoting Dirty Harry.
What is: “Are you feeling lucky?” Mediators use externals to motivate parties. In a civil case, it is no secret that a jury trial is a huge gamble. Does the party feel comfortable as a gambler? “On your next trip to Stop and Shop, observe the first twelve people that you encounter. Don’t eliminate anyone. That is your jury. Are you feeling more or less confident?” We would also have accepted: “We are so close to a deal. Go ahead. Pull the trigger. Make my day.”
Mediators use this word to name the difficult emotions of the parties.
What is: “Mourning.” Parties are often mourning the loss of an unrealized expectation, like a dollar amount or some other expected outcome that they have longed for. In a civil mediation, they are losing this ideal outcome in just a few hours. In a divorce case, parties lose their idealized outcome over several weeks or months. The loss may represent an unwanted major restructuring of their lives. Sometimes divorcing parties are on some level mourning the end of the relationship itself, or the end of the continuing conflict, which is familiar and preferable to the unknown.
Mediators say this as time is running out to remind parties that they need to compromise more to get a deal.
What is: “Some cases just don’t settle.” This statement, usually followed by a long silence, can change the dynamics in the room. The parties have worked hard and have experienced momentum toward a settlement. They expect the Mediator to use mediation magic to get them the rest of the way. The Mediator shifts the burden of settling to the parties, where it belongs. Parties do not want to be in the category of cases that “just don’t settle.” They have invested time and money on this path, and don’t want to go the hard way of litigation and lawyers’ fees and unpredictability. They realize that they really want to settle and that it will require more compromise. The mediator’s dire prediction and mild disinvestment encourage the parties to finish the tough work of the closing concessions that resolve a case.
Mediators are persistent, not giving up until the other parties do this.
What is: “…put on their coats.” Mediators don’t believe the words “Last Offer,” at least not until it has been tested and repeated. We would also have accepted: “…walk out of the building.”
This piece originally appeared in our Fall 2017 newsletter, issue 40.