Being friendly with your mediator
Being friendly with your mediator
It may work with some mediators, but beating up the messenger is bad news in my books. I don't find it impressive, and usually indicates weakness in a lawyer or client's case. I would recommend that you see the mediator as an ally, a coach to help you move the other party from their current impasse. Of course, getting on side with the mediator doesn't mean you have to be 'mates', and a good mediator will know where to draw the line on getting too close to one party. But it's about having a reasonably frank conversation on what's working for your side or not, and why. If the mediator has good material from you, the mediator can apply that in the next room or in a joint session, in a way that will inevitably further your cause. If you don't have the ammunition but end up getting hostile to the mediator, they will be less inclined to battle for you, though weak mediators may feel they need to lean on the more reasonable party. I am reminded of Hazell Genn's quote from an insurance claims manager - 'If you're weak on the facts, bang away at the law; if you're weak on the law, bang away at the facts; if you're weak on both, bang away at the table [mediator]".
The Obituary Test
At one time in my life I used to train lawyers and business managers in Time Management techniques. One technique I used was to suggest they wrote their own obituary - what would they want people to say about them when they had gone? This is a helpful exercise to get life tasks in perspective and realise the importance of other things than work/money/sex or whatever else you might be currently addicted to. I was reminded of this when a US mediator (memorably eccentric) once said to me - "how do you want the parties to remember you?" Up till then I generally prided myself that my skills as a psychologist and 'quiet leader' meant I could nudge people towards settlement without them even realising the subtle techniques I used to get them there, a bit like the Art of War Chinese general (you know the one...). The obituary test is a reminder that you are to some extent 'performing' as a professional, and should articulate what is happening and what you are trying to achieve, so that parties can get a better sense of you. However that also has to be balanced with some humility - good settlements often come from the parties contributions and capabilities (more on this another time).
Unfortunately the harsh truth mediators may not want to hear is that they are in for the short-term and so don't get much chance to be memorable - lawyers frequently give me feedback on what happened with other mediators they have tried, but nearly always end with ....'but I can't remember the mediator's name - you know, the tall, thin guy...'
Of course repeat business helps, but not so manageable with the original obituary test!
Most negotiators do not have the patience to negotiate well when it comes to the really tough issues. Nor do they take the kind of time necessary to really understand the other party and where they are coming from. And in many difficult negotiations, you also have to learn or persuade your client to see the value of the glass half-full. Finally, working with numbers can be very tough territory for many lawyers, so they slip it back to the accountants or the clients - but it's often in the numbers that one unleashes the real value of deals in commercial negotiations, so they are missing a trick. Working through any of these tough issues feels like a pain at the time but is usually rewarded in the end. And I have to say, this natural tendency to avoid negotiation stamina development, is usually why mediation works - it gives a structure that makes it easier for people to exercise patience while leaving the listening hard work to someone else!