Anger and Violence
the mediator in separate session, or does the
client need to be heard by the other side? Be
sensitive to this need, and work with the
mediator on the approach.
The decision of whether parties should
be in the same room for introductions, for
a discussion about the process or for any
substantive sharing of perspectives truly
depends on the type of case. Business,
employment, personal injury or divorce
mediations will each be handled differently.
It also depends on whether there is any
chance of an ongoing relationship, in a family, business or professional community, and
whether any form of personal healing is necessary or desirable.
The joint session decision further
depends on the state of mind of all those
involved, which is often based in part on
how far into the litigation process the parties
are, and how tense relations have been
It has often been said that “the greatest
source of anger is unmet expectations.”
Individuals and even corporations who go to
mediation for the first time often think they
will appear, make their demand, and the
other side will either pay it, or not.
But mediation is not a “take it or leave
it,” one-step process. It is a give-and-take
exploration of positions and interests, and it
often requires hard work to get to a resolution that each side can live with. It’s not
“win–lose,” like a trial. It’s typically not
“win–win,” where everyone leaves happy.
Nor, hopefully, is it “lose–lose,” where
everyone leaves unhappy. Rather, mediation is a process designed for the “can live
with–can live with” resolution. It is not a
race to be won. Mediation is a process of
peace, and lawyers and mediators need to
be sure to prepare their clients for this realistic outcome.
Unrealistic expectations can be created
by clinging too long to extremely artificially
high or low demands and offers. We all
know that it is hard to un-ring that bell.
At one mediation earlier this year, plaintiff’s counsel stayed in the million-dollar
Mediation often requires hard work to get to a resolution that each side can live with. It is not a race to be won.
range all day. At the end of a long day, the
defendant’s offer stopped at $100,000, and
plaintiff’s counsel advised his client to take
it. “But I have a million-dollar case!” she
exclaimed, and became extremely angry not
only with the defendant but also with her
own lawyer and the entire process. Her
lawyer had not adequately prepared her for
the negotiation process.
Be Respectful with Pro Se
If there is an unrepresented party (“pro se”),
what can the opposing lawyer do? Be professional, but exercise caution and restraint.
Hold back on taking as strong of an adver-sarial stance as you might with an opposing
counsel. Try not to inflame raw emotion.
As human beings, when we are attacked,
our adrenaline kicks in and we respond
defensively with a “fight or flight” reaction.
A pro se litigant, especially one who has been
ordered by the court to attend a settlement
conference, is likely to feel overwhelmed and
backed into a corner in the presence of pow-
erful counsel representing the defendant.