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Overcoming Resistance Part 2

Gary Shaffer,, discusses ways to overcome resistance or objections in mediation Part 2{Time to read: 3 1/2 minutes}  During every mediation I try to establish a personal relationship with the parties and the attorneys. No, we don’t go out for drinks together. But I want to know more about the people other than the dispute that brought them before me. Often I ask simple questions. These may differ depending on the nature of the case. All mediations – employment, divorce, commercial, personal injury – provide opportunities for talking about more than just what’s in a complaint:

  • How long have you known each other?
  • How did you meet?
  • What does your child like to do?
  • Where did you grow up?
  • Tell me about your company.
  • When did you first start doing business together?
  • When did you start working for the company?
  • Tell me about the product.
  • What have you done to try to resolve things?

How and when do you address yourself to the attorney as compared to the client? Divorce mediations typically take place without attorneys in the room. That’s rarely the case in commercial, employment, or personal injury cases.

Money is an issue in almost all mediations, but there are an infinite number of areas to explore before talking money. Exploring them can be essential in establishing a rapport and getting people to trust you as the mediator. It also provides insights that can be essential in moving a mediation forward. Talking money too soon can put everyone’s guard up. Showing you’re interested in the parties as people – and if you’re not, you shouldn’t be there – often creates a critical comfort level and sense of trust.

I recently had a case where the emotional block to settling a case came not from the client but from the attorney:

The client had given the attorney leeway to make a final decision, and he was concerned that even if the proposed resolution was one his client could live with, it could have ramifications down the road since the client was a public entity. He was clearly looking out for his client’s best interests and hesitant to accept the offer and hesitant to reject it. The resolution was achieved by my suggesting that he and opposing counsel talk directly in my presence without clients in the room.  We then talked for 45 minutes – mainly about broad public policy issues. The discussion was not only quite interesting, but it gave the attorney who was tentative about the settlement the comfort level he needed to resolve the matter.

If you’re a mediator, where have you met resistance and how have you broken through it? If you’ve been a party to a mediation, was there resistance that was broken through? Or not?


Gary ShafferGary Shaffer

Shaffer Mediation


{This is considered Attorney Advertising by some Bar Associations. Prior results do not imply future similar results. Communication does not imply Attorney-Client relationship.}

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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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