Malone & Nelson
Dealing with the Mediation Jerk
Fortunately, our honorable and esteemed profession does not contain arrogant, loud-mouthed, condescending, bullying, ill-tempered, or otherwise disagreeable persons, not here in Alabama anyway. Wait, what? You’ve encountered someone like that in, what we refer to as, “civil” litigation? Well, I’m sure it’s an anomaly. But perhaps it is worth spending a few minutes discussing how best to deal with a jerk at mediation.
First, let’s appreciate that the frustratingly obtuse malcontent might not be a lawyer, but a party or the representative of a party, and in fact could be your client.Again, though I’m sure it is quite rare, the techniques for dealing with such successful negotiation obfuscations are pretty much the same.
Hopefully, you did your homework before the negotiation session and determined that person’s propensities for pyrotechnics, so that you could be prepared for them. Preparation for a mediation involves more than knowing your case. You must learn as much as you can about the personalities, styles, motivations, and goals of everyone else involved. Knowing that someone has in the past acted like the southside of a northbound mule will better equip you to handle them.
One of the most important things to remember when dealing with a “mediation jerk” is to keep your cool. Don’t let their outbursts, personal attacks, or ill-temper cloud your vision or otherwise affect you. Even if they do, you must maintain at least the appearance of being cool. That alone will buy you some peace. Though it could simply be their personality, their bad attitude could also be a style that has worked for them. They may have traded the art of negotiation for the rare reward of intimidation. Don’t let them intimidate you. Stick to your plan and continue to execute it strategically.
You don’t have to be a doormat. There is some conduct that simply must not be tolerated. But whatever happens, don’t fight fire with fire. That rarely ends well. You have the power to discontinue the negotiations. Use it judiciously. Don’t make idle threats. Don’t threaten to halt them until you have tried everything else. One step short of terminating the negotiations is to caucus – to end the confrontation. Or, if that doesn’t work, take a break. Take a few minutes to walk around and get some fresh air. Allow everyone to do the same. And maybe grab a snack. Low blood sugar can bring out the worst in people.
Another technique, especially if you are prepared, is to manage the emotional outburst head-on. Again, this doesn’t mean ratcheting up the emotions to match the one acting out. It’s actually the opposite. If you speak in a normal or even a more hushed tone with the one yelling and screaming, they are more inclined to tone it down. Telling them to tone it down rarely works and might actually make things worse. Showing them how the conversation should be conducted is more likely to bear calm fruit. After all, consciously or subconsciously, the person exhibiting the high emotions is simply trying to get noticed, get your attention, or emphasize a point. Once all of that is acknowledged, the need for the outburst is satisfied. This can be aided by calling out the emotion, by saying something like, “You sound angry” or “You sound frustrated.” Once they acknowledge the emotion, you can ask why they feel that way. Remember, you learn more by listening than talking. Getting them talking about how or why they feel a certain way might give you some insight into their motivations or goals, and thus opportunities for settlement.
A skilled mediator should be the one dealing with a “mediation jerk,” if he is aware of it. But, if you are prepared to do so, all the better.