The Closer

A Mediation Newsletter December 2011

Keeping Your Cool and Cooling Your Client
by James Rainwater

With few exceptions, every mediation has its moments of tension and a potential for outright hostility. Regardless of the subject matter, most parties will tend to have vastly different perceptions of fairness, equity, and justice. While open, blunt discussion can be helpful, we do not want it to escalate into an unmanageable and heated argument. Some heat is good, but there may be a need to cool the level of contention in order to conduct a good faith mediation.

Your client is a good indicator of the level of possible hostility prior to the settlement conference. If your client is an insurance company, you may need to warm up the adjuster by stressing the severity of the plaintiff's mindset and position. If your client is embattled in an ugly divorce, you may need to "pre-cool" this ex-spouse and be prepared to avoid potential triggers that could quickly derail negotiations.

Of course, you know your own strengths and weaknesses, pet peeves, and level of patience. However, do you know those of the opposing counsel? In a close-knit legal community, it is common for opposing counsel in mediation to know each other. Oftentimes, this can lead to an amicable conference. Yet, prior attorney confrontations can place a mediation in an awkward starting position.

While mediation employs the ideas of mutuality, respect, and flexibility, participants occasionally take the conference as an opportunity to be less than cordial and, at times, rude. Though mediation should offer a more relaxed environment than a courtroom, it should not take on the attributes of a squabbling family's argument at the dinner table. The mediator must assure that, if nothing else, the parties conduct themselves in a respectful manner.

The chief focus should always rest on the issues of the case. Being sidetracked by hurtful statements turned inflammatory can occur. Yet, the actual and professional discussion should always remain on the matter itself. We are professionals, and the clients should expect professional behavior. Together, the attorneys and mediator can work effectively to ensure that the settlement conference stays civil and malleable, which can lead to an optimal setting for resolution.

Rainwater Law