All mediators have wrestled with the subcommunications of a nonpresent party, even lawyer. At times, it can pose serious problems. Even when the mediator is given the opportunity, as was afforded me recently, to speak with a decision maker on the phone, it is impossible to gauge the candor and true personality of the party at the other end of the phone. The opportunity for brusque, overbearing or aggressive behavior is so much more available when that party does not have to face the person speaking to him.
In a piece I did in ‘98, “The Eyes Have It,” I touched on the same subject and referred to attorneys or parties participating by conference call and the communicative signals lost in the process.
In my more recent experience, the dispute arose over the lease and purchase of some very expensive equipment. On this occasion, in caucus, I was asked to speak with the decision maker, to explain the status of negotiations, and to offer my opinion of how I viewed the dispute in terms of its settleability. I was sandbagged! This man, a medical professional, not only was abrupt with me, insulting of the other side, but also reversed the last settlement proposal by his own company rep and counsel, demanding a greater amount. Even the last proposal to defendant, I knew, was not going to be acceptable, so it may not have made a difference had he been present. But I have to believe that much of the personality conflict he had with the defendant would have been mollified had he been able to look at the defendant — not to mention the mediator and all the attorneys, including his own — in person.
The impression our conversation left me with was of a man who was capable of losing his cool in a trial, a factor that could have a significant bearing on the judge’s decision. This was to be a bench trial.
It’s worth repeating. A significant feature of mediation is the opportunity afforded the parties and their counsel to meet and get to know each other. Occasionally, they see each other for the first time.
And remember the body language:
- Hand wringing: Thinking over an idea
- Rubbing the nose: Rejection, disagreement
- Patting the hair: Approval
- Steepling of fingers: Feeling of superiority
- Rubbing the eyes: An inner desire not to see something
- Fingers interlocked, elbows on table: Inward struggle to keep silent
- Tugging at shirt or blouse cuff: Self-satisfaction
- Legs crossed, one foot swinging: Desire to walk away
- Arms crossed over chest: Reluctance to change one’s mind
How will the plaintiff or defendant appear as a witness? The behavior of your own client in a “confrontational” setting can help you assess your chances in court. Some attorneys take the second chair in order to watch their clients’ reactions to what the mediator and the other side are saying. What are the professional and oratorical skills of counsel? What are the emotional or stress levels displayed by parties or their counsel? All factors in a party’s assessment of the risks of a trial.
We will always have circumstances where someone, for reasons beyond their control, cannot be present. We can live with that, but the mediator would always prefer to see a live human being, not the Shadow.