Virtually every mediation I conduct begins with a need to adjust my expectations. The reality in the room is simply impossible to predict. I bring attention to this because it is often pivotal in the process of mediating and its results.
Among other things, adjusting mindsets can help people strike an appropriate tone. And the tone parties take in mediation, particularly at the start, can impact outcomes. For instance, people tend to expect coming together to be confrontational, but they forget that mediation typically moderates tensions. To avoid further polarizing participants, it’s worthwhile to take a moment and read the room before delving into prepared remarks based on preconceived notions.
I recently mediated a case in which the defendant’s attorney opened with an unusually high degree of aggression which seemed disproportionate in context, not to mention poignantly undetectable in her clients.
The plaintiff was an unrepresented young woman who alleged she’d lost her job because of a gender bias that skewed the defendants’ assessment of her complaint of harassment. She came across as even-tempered, like defendants.
After the joint caucus, defendants expressed interest in a less severe option among their choices. It seemed, however, their attorney didn’t register this or its implications. Her aggression escalated in response to tension-lowering notions.
Although the case settled, the defendants’ interest in ameliorating hard feelings was left unmet. I believe that loss was unnecessary in striking the bargain and that that is important.
Had the attorney read the room and recalibrated her pre-session impressions accordingly – even as late as the last exchange – the terms reached could have been the same or very similar, but the outcome’s lasting note for each of those individuals could have been quelling rather than acrimonious.