How to irritate your mediator!

February 17, 2021
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Mediators need to be unflappable in the face of the many ups and downs in a negotiation. We determinedly remain impartial and treat all participants even-handedly. But we are human and, whilst we may not show it, we do of course find certain behaviours more irritating than others.

Those representatives and advisers who collaborate with their mediator to create a positive atmosphere for negotiation, and who enable their clients to make the decision which is right for them, tend to secure speedier and arguably better outcomes for their clients than those who opt for disruption.

Ask any group of mediators to name their pet hates, and the following will come up time and time again.

Springing surprises

Examples might be:

  • Different attendees turning up from those notified before the day,
  • New issues being introduced without prior warning
  • A decision maker suddenly not being available. How a mediator’s heart sinks when, despite prior assurances, at 4pm she or he is told the “decision maker” only has limited authority and the true decision maker is in fact on a wood-carving retreat in Borneo

Surprises can destabilise the process and cause the mediation to lose momentum whilst the mediator deals with the fallout.

Lawyers devoting energy to telling the other team that their case is doomed to fail

This never works! But it does entrench positions.

Advisers who don’t give their client time to consider and respond to an offer before jumping in to insist that the other side haven’t really moved (whilst of course their own client is being far too generous).

This behaviour can so easily stifle the client’s creativity and autonomy and undermine their confidence. The mediator will often want to use an unacceptable offer to help people develop their thinking. A domineering adviser can seriously hinder that process.

People who won’t make any form of offer which represents less than total capitulation by the other side, because that would amount to “bidding against themselves”.

Unless parties engage in negotiation, the mediator does not have anything to work with, nor are the parties likely to find out what solutions might be available. Parties who make offers, which are non-binding at this stage, can to some extent define the parameters of the negotiation.

Failing to think ahead

So often in discussions it becomes apparent to the mediator that the team has not worked through any “what if?” or “what else?” scenarios. This sort of lack of preparation can meaner much slower progress and a longer mediation.

There are undoubtedly many other “pet hates”. If you are a mediator, do let us know what yours are. And if you are an adviser, what mediator behaviours get your thumbs down?

Next time: How to make the mediator happy and thereby help your client.

  1. And parties who want the mediator to put across the message that this really is the final offer, cross my heart and hope to die and if it is not accepted, they already have their coats on and are about to leave the building (although it is 1130am)

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