With more and more mediation hearings occurring before the litigation gets fully underway, many disputants and opposing counsel have never met before the mediation hearing. For this reason, I’m finding it increasingly vital that every mediation hearing begins with a quick “meet and greet” between the parties and a genuine handshake. Research backs me up on this. In a studyhandshake conducted at the Harvard Business School, subjects were asked to negotiate a mock purchase and sale of a piece of real estate. The control group was requested to begin with a handshake. The other group were seated across the table from one another and most of them entered into an immediate negotiation without bothering to shake hands beforehand. Surprisingly, the results for the two groups were different. After a handshake, both buyers and sellers tended to be “less misleading” according to the study, and both sides reported arriving at a deal that seemed fair and evenly distributed, in contrast to the other group, who reported that the deal was less fair and imbalanced in many instances.
My father was a successful business man for over 30 years. For him, “his word was his bond” and he would routinely buy merchandise for resale in a face-to-face negotiation which began and ended with a genuine handshake. Last week, I conducted a pre-litigation mediation. The defense counsel had flown in from Northern California and had never met the (very compelling) Plaintiff nor her (very well prepared) Counsel. All interaction up to that point had occurred via email. There were no depositions and no court appearances to rely upon. We began with a sincere meet and greet and it really did set the tone for a successful, deliberate, polite and reasonable negotiation for the balance of the day. (Of course, unlike my father, the ultimate settlement was reduced to a writing signed by all parties at the conclusion).
Even in cases in which the parties or the mediator decides to dispense with an initial joint session, this little gesture of a meet and greet and some human interaction, even touch, may go a long way towards getting even the most contentious matters resolved civilly and efficiently. Do you insist upon an initial handshake amongst disputants and counsel?