Anger as a Pathway to Resolution in Commercial Cases
In my last blog I introduced the subject of anger at a mediation. Many people tend to associate anger and mediation with snarling divorcing couples, arguing over who is right and who is wrong.
While this certainly happens, anger can be just as profound in commercial cases where parties may feel equally wronged by each other. At a minimum, one side does. This can present the mediator with a quandary:
– – Allowing parties to express their unadulterated rage can doom a mediation before it begins, or it can harden positions.
– – Not allowing expressions of anger can also doom a mediation.
Not allowing any expressions of anger is essentially not an option. That be would be so stifling as to be counterproductive. So how does one approach it?
In commercial matters, where parties are almost always represented by counsel, some pre-planning can be helpful. The initial conference call, which may concern mostly scheduling and, if relevant, discovery, is a good place to find out something about the relationship between the parties.
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How long have they done business together?
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What, if anything, have they already done to try to work things out?
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Can they stand to be in the same room together?
Pre-planning will also reveal how the attorneys get along. Attorneys can often be a useful buffer to prevent an angry client from going overboard. Or they can help air a party’s emotions in a manner that doesn’t alienate the other side, but also makes the client feel that their positions and feelings have been properly expressed – both to the mediator and to the opposing party. That in itself can diffuse some tension and even create some understanding.
Of course during a caucus the client has free reign to curse out the other side to their heart’s content. This can serve a useful purpose. Here the mediator can listen and even commiserate (the party won’t know you’ll also be commiserating with the other side).
Business people can be very practical. Even when they feel they’ve been screwed, they often reach a point where the cost benefit analysis, especially after hours of mediating when they have invested time and money into the process, results in movement. A mediator properly managing a party’s anger can create mental room for that cost benefit analysis.
It’s important to let people vent. While it can be hard to gauge the “appropriateness” of peoples’ anger, that’s often something the mediator need not determine. Whether seen as appropriate or not, the anger itself is typically real and something the mediator must allow to emerge without destroying the process.
When have you had to deal with anger during a mediation? Were you – or someone else – able to use it to some advantage?
Gary Shaffer
347.314.2163
