The Closer

A Mediation Newsletter March 2011

Decorum in Mediation
by James Rainwater

Imagine going to the doctor for a follow-up examination and additional tests. You are probably somewhat apprehensive and quite concerned about the outcome of your visit. You wonder about this one event's impact on your life and your future. Now, imagine you are a client in mediation.

Most of us have become desensitized to some degree regarding the severity of legal conflict and confrontation. We tend to forget that most non-attorneys do not fare well in an environment of strife and opposition. Your client is likely to be on edge and perhaps overly defensive and sensitive to comments of any kind.

The mediation conference should be held to a professional standard. I know some endorse the idea of casualness. Yet, how would you prefer to be treated? Clients are keenly aware of the mood, conduct, and demeanor of the attorneys and mediator, and the mediation conference can seem like an eternity to them.

Trying to be light-hearted and sociable may backfire. Some levity may be appropriate, but it is a fine line of distinction between jovial conversation and misinterpreted disrespect. Parties need reassurance that their matter is being taken seriously, and that reassurance is perceived both verbally and non-verbally.

Go back to that doctor's office. How comfortable and confident would you be hearing three doctors in Hawaii shirts telling jokes. To our mediation parties, the process can be enormously serious business with life-changing repercussions. We need to bear that in mind. It may not be the U.S. Supreme Court, but to the parties, it may seem like it.

Rainwater Law