Read the Room

thVirtually 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.

About Maria Hanna Joseph

Maria Hanna Joseph is Principal of Joseph Mediation. Her 25 years of experience in employment law, include 16+ of work and mediating for the Massachusetts Commission Against Discrimination which through which she has gained valuable insight into the MCAD, its practices and decision making. This, as well as her experience in plaintiff and defense litigation, with private and public sector clients, international and local business concerns, and in issues from harassment and discrimination, to noncompetition agreements, business operation, transgender workplace matters, retaliation and many others, lend her valuable perspective for understanding and mediating an array of legal and personal issues. In terms of volume, Maria has served more than 2,000 cases. Maria's practice has been honed with study of mediation at Harvard Law School's Program of Instruction for Lawyers, negotiation at Harvard Law School's Program on Negotiation, and in the disciplines of Transformative Mediation and Family/Domestic Mediation, which are significant assets in managing the personal nature of employment disputes, and conflict in general. Attorneys and parties know Maria as candid, pragmatic and persevering in her commitment to help them achieve meaningful settlements while keeping sight of their most important interests. The insight and creativity afforded by her experience and training are realized in the resolutions that manifest. These qualities, along with her demeanor and the trust she engenders, have earned Maria a reputation for being able to manage highly tense and fraught situations and individuals, and settle a wide variety of disputes and tough cases.
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