By: Richard P. Byrne, Esq.
The approach of Mediation is often marked with the advent of emotion for clients, even if they are hard-shelled professionals. The dispute in question may be long-running, contentious, expensive and even personal, and now it is building to a crescendo. Practitioners, in their advocacy mode, may even stoke the clients’ anxiety levels in advance of the Mediation session as preparation is underway. Thus, clients may enter a Mediation tightly wound and with fuses lit.
Here, a Mediator – true to his or her title and role – needs to keep matters in balance and, slowly, as the session proceeds, allow the pressure to be released. Addressing this psychological component of a Mediation is often as critical as the substantive issues and can be accomplished by the employment of two devices.
First, the clients (and, frankly, sometimes their counsel), need the opportunity to vent – to complain about the miserable adversaries on the other side, the havoc which they have wrought in the pursuit of their nonsensical claims/defenses, and the injustice of it all. If that ability to “get things off their chest” is not allowed – or, worse, is blocked by the Mediator – catharsis cannot begin and the Mediator may find him or herself perceived as disinterested or ineffective because “he/she is not listening to me.” If that occurs, the Mediation may begin to head off the track from its inception and not be able to recover. That is not to say, however, that the clients should be permitted to stay upon their soap box indefinitely and hijack the session. Equilibrium needs to be maintained while pressure is relieved so that the parties can get down to business and engage in negotiations driven less by emotion and more by substance.
Second, the concept of control needs to be emphasized to the clients; specifically, that they should be the ultimate decision-makers on the resolution of their dispute, and not leave it to strangers in the form of a judge or jury. Having the clients actively participate in bringing the dispute in for a “controlled landing” via negotiation is as equally important to the catharsis as the opportunity to vent and “be heard.”
As a means to visualizing resolution, this Mediator often suggests that the client project: “What might it be like to wake up tomorrow morning and have this dispute behind you?” A bit of armchair psychology? No doubt. But it begins to bring matters full circle from the start of the Mediation session when the air was initially charged with emotional tension and the prospects of resolution were beyond the horizon. Mediation can thus serve the therapeutic as well as legal needs of the clients. That cathartic factor should be recognized and embraced in order to bring the parties to closure.
Richard P. Byrne, Esq., is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. In 2018, for the fourth year in a row, he was voted one of the Top 3 Mediators in the country by the National Law Journal Reader Rankings Survey and was also voted a Top 3 Mediator by the 2018 Corporate Counsel Best of Survey. Also, in 2018, for the third straight year, he was named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide. Further, for the fourth in a row, he was voted a Top Ten Mediator in New York State by the 2017 New York Law Journal Reader Rankings Survey.
To view Richard Byrne’s resume, click here.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at email@example.com or direct dial telephone at 516-941-3228.