By: Richard P. Byrne, Esq.
Mediation is serious business.
But, nonetheless, a process which has room for – and, indeed, a need for – humor at the right moments. Mediation is often the culmination of years of hard-fought and costly litigation where the parties have gone toe-to-toe in various adversarial settings, whether at depositions, court appearances or via the exchange of motion papers and briefs. As a result, counsel and their clients may come to the Mediation tightly-wound and, possibly, with short fuses. An important role for the Mediator, therefore, is to know when to deploy a bit of humor or lightheartedness as a pressure relief valve in order to ensure that the participants do not over-heat in their advocacy or negotiation posture.
This interjection can take various forms and the Mediator needs to be able to “read the room” in order to be most effective. Perhaps a reference to a classic line from a sitcom, a bit of self-deprecation or a brief amusing anecdote may be appropriate. By way of example, this Mediator had a recent experience where the defense team arrived, totaling six in number, to face off across the table against a plaintiff’s attorney and his client. It was evident from the start that the plaintiff’s counsel was perturbed by the defendant’s “show of force” and the message it was perceived to convey. In fact, immediately upon the departure of the defense team to separate quarters following openings, the plaintiff’s attorney expressed his displeasure and agitation, commenting: “I can’t believe the number of people they brought to the Mediation!” The reply this Mediator conveyed – with the hope, although not the certainty, that it would diffuse was matters – was: “Oh, were you hoping that they would bring more?” Fortunately, it hit the right key, received a good laugh from the plaintiff’s counsel and his client and relieved the tension that might have otherwise precluded the Mediation from getting out of the gate. The follow-up comment – on a more serious note – was: “Rather than viewing the number of attendees for the defense as a threat, perhaps look at it as an implied recognition that your client has a significant claim?”
The case settled by day’s end.
A Mediator has to be careful, though, on when and how to dispense levity because it can be misperceived and/or backfire. For example, while a personal anecdote or an entertaining “war story” can allow for a break in the action and permit everyone to take a “breather”, the key is to make the diversion relatable and, even more importantly, brief. For while the parties may politely nod their heads and appear interested, litigants hate when Mediators hijack the process, embark on long-winded stories (making it more about them than the Mediation itself…) and burn valuable time – for which, let us not forget – the parties are paying. Thus, a balance must be struck. Humor is a valuable tool at Mediation but it must be used judiciously and with purpose if it is to be effective and serve the ultimate goal – keeping the parties engaged and achieving a settlement.
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 2019, for the fifth year in a row, he was voted a Top 3 Mediator 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, he was ranked a Top 10 Mediator in New York State by the 2018 New York Law Journal Reader Rankings Survey for the fifth year in a row.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at firstname.lastname@example.org or direct dial telephone at 516-941-3228.
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