The Closer

A Mediation Newsletter October 2013

"Don't Tell Me What to Do"
by James Rainwater

As a mediator, one of the most frustrating moments during mediation is seeing the look of anguish and anger on the face of a party. Human nature tells us that, in general, a person does not enjoy being told what to do. After all, we are individuals with our own unique systems of thought and analysis. Though represented by counsel, most parties desire a strong voice in the settlement process.

As a mediating attorney, there is a difficult line to walk, between total control of the client and a complete laissez-faire approach that gives the client unlimited input. While we do not want the conference to become bogged down in unnecessary or irrelevant discussion, we also do not want to see clients become too timid to offer practical solutions.

From my experience, an agitated party is not likely to ultimately agree to a proposed settlement. It is true that a resolution can be crafted without the whole-hearted agreement of a party. Yet, such an arrangement risks inherent failure, either at the conference's conclusion or during the actual implementation of the settlement agreement. Client input equates to a stake in the outcome and the likelihood of a sound agreement.

My advice is to treat clients as one would treat a respected elder or a revered aunt or uncle. We should take care of them but not at the expense of stifling their opinions. Certainly, sophistication can vary widely from one client to the next. However, there is a difference between deferential treatment and patronizing arm-twisting; and most clients can sense one from the other.

"Don't tell me what to do" is an expression that we do not want to encounter, be it uttered loudly, given as a hostile look, or presented by aggravated body language. Once a party has taken that position, it is very challenging to regain the previous momentum of the conference. Getting parties to say 'yes' involves the technique of inclusion, rather than instruction. Most of us prefer options over ultimatums.

Rainwater Law