By: Sylvia Mayer, Mayer on Mediation (http://smayerlaw.com/category/mayer-on-mediation)
It’s year-end, so it must be time for a top 10 list, right? I realize it is cliché, but as the minutes tick away on 2014, it is a time to reflect on the past, including the lessons that I’ve learned as a mediator. So here goes — my top 10 list of lessons learned as a mediator:
Beware of Dog: Having mediated several dog cases, I no longer think “nice doggy” when I pass a dog in the neighborhood. Instead, I give all dogs – big or small, leashed or roaming free – a wide berth.
Warm Drinks, Warm Hearts: Literally, warm drinks mean warm hearts. There have been scientific studies done on this. Based on test results, if you ask people about memories of their mother while they are holding a warm drink versus a cold drink, it dramatically changes the results. If holding a warm drink, then the memories are positive and loving, while if holding a cold drink, then the memories are neutral or negative. So make sure you serve coffee or tea at all of your mediations. And family gatherings.
Every Mediation is Unique: No two mediations are alike. Because every mediation is different there is no one size fits all approach. Some mediations can be conducted entirely in joint session. Others are conducted entirely in caucus (separate rooms) with no joint sessions. Some go fast, some go slow. Some are highly emotional, while some are highly confrontational, and others are very mild. It’s like snowflakes. There may be a lot of similarities, but every mediation is unique.
Preparation, Preparation, Preparation: The top tip that I have for attorneys representing clients in mediation is to be prepared. Know the facts. Know the law. Know the strengths of the case. And the weaknesses. Know your client too and their expectations. And prepare your client for mediation.
Overconfidence? That’s May Be a Bad Sign: It’s often a bad sign if, at the beginning of the mediation, one of the parties tells me that they are sure the case will settle that day. Why? Because it means that one or both parties are overconfident about their case or the other side’s willingness to give them what they want. If they were that close to settlement, then they wouldn’t need me. Something has prevented them from settling and that impediment remains.
Power of an Apology: In the right case with the right timing and only if genuine and sincere, an apology can be the linchpin to settlement. But it has to meet those criteria to be effective – circumstances, timing and sincerity.
Sense of Futility? That May Be a Good Sign: I’ve discussed this phenomenon with several mediators and there is a consensus – when the mediator begins to think “this case is not going to settle”, that’s often a good sign. Cases frequently settle shortly thereafter. My personal theory is that the sense of futility is really a bellwether for the peak of party posturing. It marks a critical turning point in the process.
Power of Being Heard: People need to be heard. This is a primal instinct or, in mediator-speak, interest. As a mediator, one of the most important services that I offer is listening. By listening, I do not mean just letting them vent. I mean truly listening and letting them know that they have been heard.
Find the Common Thread: There is always a common thread. Parties in conflict tend to focus on where they differ, but there is always an element of commonality. Focusing on the common thread is often a good way to build towards compromise.
Power of Gratitude: Neuroplasticity is the brain’s amazing ability to change and grow. How we choose to spend our time and energy directly feeds that growth. I see many parties in mediation who have allowed the dispute – or the underlying incident – to negatively overtake their lives. Because of neuroplasticity, you can rewire your brain by focusing on the blessings in your life, rather than the negatives. Understanding this, I made the conscious decision to embrace gratitude and count my blessings daily. Wow! If you haven’t tried this, you should. The power of gratitude can change your brain and your perspective on life.
Wishing everyone a very healthy and happy 2015 and a year full of blessings and gratitude. Happy New Year.