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Can a Mediator Really Like Everyone?

Grimacing mime with hands akimbo and mask on head

It’s not uncommon that parties to a mediation don’t like each other, though you can never predict beforehand.  I find that opposing counsel are typically at least cordial to each other and sometimes downright friendly.  Divorcing couples sometimes get along just fine during a mediation.  And I’ve been in situations where the clients, watching their attorneys bicker back and forth, take matters into their own hands and work out a deal between themselves.

Part of the mediator’s job is to be friends with everyone.  If you want to successfully push and cajole, it’s best that people think you’re their friend.  Usually, this isn’t too hard. 

Parties don’t often see the mediator as the bad guy, though if the mediation isn’t going the way they’d like, parties may cast blame on the mediator.  In that regard, the mediator has to not just be everyone’s friend but also be willing to be their punching bag when necessary.

However, what happens when the mediator really doesn’t like someone at the mediation. It might be one of the attorneys or one of the parties.  The reason doesn’t particularly matter.  Your assessment of that person as a major a…… might be 100% correct, and the bubble over your head might be telling that person exactly what you think.

I observed a mediation training recently where the trainee-mediator was really getting frustrated at a party for not giving information the mediator asked for.  The mediator was not wrong in trying to get the information.  It would have been useful to have in the hypothetical role play.  But the mediator’s reaction to not getting the info was telling.  They got testy and a bit angry at the party, who remained adamant about not sharing the information the mediator wanted.  The mediator then went into what I would call “deposition mode” asking a series of slightly condescending questions as to why the information was needed and how the party wasn’t being helpful.

Let’s assume the mediator’s emotional reaction was 100% correct, that the party was being unduly obstinate in not revealing some important information that might be useful, and that the anger, annoyance, and feelings of condescension were perfectly understandable.  What’s a mediator to do?  What’s the alternative to expressing anger, annoyance, and condescension? 

Answer: Not showing it. 

A mediator has to have a certain level of acting skills.  This can include a good poker face when this jerk you’re trying to help at the mediation is acting like…. well, a jerk.  However, there’s another interesting aspect to a mediator withholding his or her internal contempt and dislike.  It forces one to move on.  This is actually easier in a mediation than in what’s often referred to as “real life.”  The mediator doesn’t have a prior relationship with the person playing the jerk role. 

Now, moving on has added benefits.  It keeps the mediation rolling.  The mediator must pretend when necessary that he’s still a good friend of the party he or she doesn’t care for.  We often may feel we can honestly tell a friend what we think about something, even if it isn’t what the friend wants to hear.  The friend may receive our comments in the proper spirit knowing that what we say is intended to help, not to harm.  Same for the mediator.  Holding back may leave room for a dialogue that would otherwise get closed off if the mediator’s dislike were to be evident.

This can be true in those “real life” situations too.  Sometimes things not said are the real pearls of wisdom.

Gary Shaffer Gary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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