I often marvel at the difference in outcome in mediations where respect is shown. Settlements are much more common in these circumstances.
On the other hand, I despair at the negotiating styles of those parties or lawyers who show disrespect. Here’s how it happens. The mediation is moving along. Real progress is being made. Then one side says something disrespectful. It’s like tossing a hand grenade. You can actually see the other side stiffen. Then their position hardens. Then you’re back to square one.
I have seen lawyers and parties be sarcastic, demeaning, belittling, disdainful or dismissive in mediation. Why they think that this will help them persuade the other side to close the gap between them to settle the case is beyond me. I’m not talking about all lawyers, nor all parties, nor all the time. But it happens often enough to make me wonder why negotiators would use a strategy which rarely works.
As a matter of human nature, the other side is more likely to be persuaded if they are shown some respect. At your next mediation, decide to be respectful throughout. Notice how the other side reacts to you. I’m guessing you’ll gain the competitive advantage. As the song says, “R-E-S-P-E-C-T. Take care, TCB.”
Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class actions. She has settled and mediated thousands of cases. In addition to civil litigation mediation, she also co-mediates divorces with John Duda, a marriage and family therapist.