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Mediation Tip: Always Avoid Your Opposition During Formal Mediation

December 29, 2014

“Loose lips sink ships!”, a popular World War II anti-espionage slogan, generally emphasized the concept that seemingly innocent talk in the work-place became valuable to the enemy because small individual comments when pieced together often revealed much more dangerous strategic information than believed possible by any one speaker.

This sage warning against loose conversation also applies to all participants in any formal mediation process.

One of the common mistakes mediating counsel make during formal mediation is to try to “speed up the process” by interacting and/or talking, directly, with opposing counsel or even the opposing party.

Do yourself, and your client, a real favor:  Don’t!  There is nothing good that can come from such interaction and much resolution progress that can be forever lost.

An opposing participant’s attempted contact can be innocent.  But, more often it is intentional, its purposes are well planned, and your opposition’s purposes are certainly never in your best interest.  Simply stated, your opposition is seeking information your mediator has chosen, thus far, NOT to reveal.

So, even if truly innocently approached by your opponent, please don’t participate in any informal interaction with your opponent during formal mediation.  (Or, at least not until asked to do so by your mediator for a specific, planned purpose of the mediator.)

Think about it: If you really were/are so capable of clear, direct and inoffensive communication and skilled, but guarded, negotiation with your opposition, why then is your formal mediation even necessary?  Why haven’t you simply  resolved your dispute, before formal mediation, by a personal or telephone conference with your opposition?

Answer:  Because most litigators are not skilled in negotiation.  Their skills, honed for convincing an open-minded judge or a truly neutral jury of some singular one-sided advocacy, are of little value when their mediation audience is neither open-minded nor neutral.

And, litigators are trained to talk, not to listen.  (When was the last seminar you attended on “trial listening”?)  See, “Negotiation Tip:  Learn to Become an Active Listener“, April 13, 2011.

However, mediators are trained (and learn from experience) to listen!  By listening they learn just what each individual opponent is really seeking, and thus, what joint plan will best seek a mutual resolution

And, after listening, experienced mediators seek to place all of the parties in their best respective “apparent” positions to seek common ground for resolution; simply stated, to carefully and cautiously capitalize upon conditions, real or “created”, for each mediation participant to be most effective in finding a common resolution for all of the participants.

To do this, it is often necessary for a mediator to literally “create a façade” to work within. Every negotiation is unique and directly dependent upon not only the actual participants to the negotiation, but to the perception of who those participants are (or may be).  See, “Negotiation Tip:  The Importance of the Drama”. October 24, 2013

Further, to maximize or even totally create that negotiation facade takes time and uniquely the inside information that ONLY the mediator possesses.

Good mediators then spend hours carefully selecting and tactically choosing each party’s best position to be presented in its most beneficial manner. The mediator’s distinct advantage over either individual side is knowing the strengths and weaknesses and the negotiating personalities of both sides having the opportunity to repeatedly observe both side.

And, mediators maintain a consistent plan toward resolution, despite the common “insistence” of biased parties for other “plans” whose tactics would almost foreseeably wreck the progress crafted to that point.  See, “A Key Mediator Duty: Maximize the Effectiveness of Negotiation”, November 25, 2011.

Individuals do not have a master plan for all; only for their individual goals.  Accordingly, the more advocates talk directly to their opposition, even meaning well, the more of their true position (not their Mediator’s version) they always give away.  And the more damage they do to their mediator’s efforts.

For one common example, simply “mentioning” some present unilateral position on anything (rarely your real position) can destroy hours of groundwork laid by your mediator on that same position previously created specifically (and perhaps artificially) to find a mutually agreeable end for all!

Your mediator’s role as a go-between is not simply to “parrot” information as given, but rather to filter and  re-structure all communications in their best light in order to protect the parties from themselves!

And there is a good reason that most mediators use the private caucus (some exclusively) so as to shield the negotiation and the negotiating participants from their opponents eyes and their ears.  And, sometimes from their voices.  See, “Mediation Tip: A Radical Idea?  Consider Waiving Your Opening Statement.”  September 30, 2011.

Like the director of a movie, or a good film editor, your mediator is charged with taking the best positions and efforts of each individual opponent and ending with a result pleasing to all.  And, it is not easy.

As in Goldilocks, too much of anything or too little can be fatal to negotiation.  And, also like a movie, even with “just the right” anything, timing can also be everything.

Accordingly, as much as you may believe you “can speed things up” at mediation by direct communications with your opposition, unless it is the suggestion of your mediator, I strongly advise you do not agree to any opposition’s request to “talk directly “.

Or, if you (or your client) really believe you must, at the very least, never, never confer directly to your opponent without your mediator being present.  It is imperative your mediator knows what is actually said at all times.  And, by whom.

In seconds of personal communications in the middle of the “battle”, your direct communications will likely wreck hours of effort by your mediator.  At least do them the courtesy of observing the damage you do to allow them a chance to remedy it later!

Thus, my simple annual mediation advice-gift to you for the holidays:  For greater success in mediation, always (politely) avoid all interactions with your opposition during formal mediation.  Should your formal mediation fail, you (and your client) will have an abundance of time to try your own efforts to “speed up”  resolution.

Happy Holidays and Happy New Year!

Dan, from Orlando, Florida, and New York, New York, (and Altea, Spain!)


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