The Closer

A Mediation Newsletter October 2014

Posture, Puffery, and Pragmatism
by James Rainwater

Mediation is premised largely upon the concept of narration - describing the Who, the What, the Where, etc., of the matter. How each side's story is presented can have huge import on the conference. The attorneys, parties, and mediator need to be cognizant of how their speech will be received. The late American novelist Kurt Vonnegut wrote in Mother Night: "We are what we pretend to be, so we must be careful about what we pretend to be."

For better or worse, in stressful situations, people tend to take the words of others at face value. Especially for clients, an emotionless comment or statement from an attorney will be taken to heart and interpreted as the definitive word on the subject. This declaration can have long-lasting repercussions on the viability of the mediation itself. If a party believes a boastful or damning statement, that party may very well shut down and consider the matter to be impossible to settle.

As legal practitioners, we are accustomed to hearing bouts of braggadocio and self-importance from opposing colleagues. And we tend to build up a good resistance and immunity to it. Clients generally do not have the luxury of such knowledge. To them, words have major significance and meaning. A literal comprehension is often the only perception the parties will form regarding the conference's dialogue.

Counsel should consider moderating rhetoric away from the more combative stance found at trials and hearings. Mediation has no judge or jury to persuade via great oration and summary. The settlement conference is less about winning arguments and more about candor and sincerity. To truly seek a resolution, attendees should be as honest with themselves as with the other side.

While professionally it may appear advantageous to proffer a strong, overwhelming position for the client, this posture may be perceived as intransigence by the opposing party. Mediation seeks to create open flows of communication, not walls of contention. If we pretend to be defiant and uncooperative, we will likely become defiant and uncooperative. To properly mediate a matter in good faith, all involved must be as open and as facilitative as possible.

Rainwater Law