Avoidable Communication Blunders in Mediation Advocacy

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Every professional mediator I know has experienced the challenge of difficult communication in mediation. Yet, doesn’t that lie at the heart of what we do? Attorneys come from all walks of life, and communication styles reflect those backgrounds. In an attempt to improve upon communication in mediation, I’ve identified a few problem communicators:

The novice

– These attorneys live and negotiate in a world of clichés. Within minutes of your introduction, you learn that they “don’t intend to bargain against themselves” and that “the other side is not participating in good faith.” Later on, you are privileged to learn about their “bottom line” and “final offer”, or that their position is “nonnegotiable.” As I listen respectfully, I picture in my mind their law school professor teaching a course in basic negotiation: “If you learn nothing else this semester, please memorize these phrases…” Sometimes I wish that, like a soccer referee, I could simply hold up a red card and cry “foul!”

The techies

– These lawyers surround themselves with all of the latest high-tech communication gadgets in an attempt to overcome their communication shortcomings. The ringing of their phones can be counted on to interrupt meetings and draw attention away from the process. During negotiations, they irritatingly avoid eye contact as they type away on their tablets or respond to text messages. The one thing they are clearly communicating is their inability to connect personally with their client, the mediator or anyone else.

The walking metaphor

– These lawyers speak in an endless series of overused metaphors. Favorite topics include war, sports and sex. As they talk about war rooms, taking no prisoners, drawing battle lines, and bombing the opposition back to the Stone Age, their mediations sound more like a Middle East briefing than a discussion of the case. They think nothing of asking whether we are in the courtship phase, doing the mating dance, ready to consummate the relationship, or worse. References to home runs, slam-dunks and goal line stands are thrown around with the ease of a sportscaster on ESPN.

Communicating is an Art

For a professional mediator, communicating with difficult lawyers is elevated to a true art form. Your ability to work with even the most difficult personality type is critical for the success of your client.

In the end, I believe there’s really only one type of communicator who’s absolutely impossible to connect with – the lawyer who says, “I just got this file recently, and I don’t have the authority to settle.”

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

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