Law Tips NEW: Mediation Under Fire—Things Advocates Say

One mediator says to the other: “This is going nowhere; we are not going to waste your time.” What kind of an atmosphere does this set for a successful mediation?

In leading the “Mediating Under Fire” segment of our CME for Civil Mediators program, Michael Bishop, Cohen Garelick & Glazier, Indianapolis, explores the most important goals for civil mediators. He outlines these goals as nonjudgmental conduct, maintaining dignity in the mediation, respecting the parties and attorneys, imposing personal professional values, honoring the uniqueness of parties and insuring voluntary agreements and participation. Michael points out also the importance of paying particular attention to the ethical duties of the mediator and “best practice” applications.

During his 30+ years in the field, in addition to the outstanding experiences Michael has had, he has encountered his share of unproductive commentary within the mediation process. He occasionally shares “Things Advocates Say In Mediation” with the intention of raising awareness of their negative impact. Have you dealt with, or perhaps caught yourself considering, one of these comments:

  1. “I’m not going to bid against myself.”
  2. “They have to get serious.”
  3. “This is just a waste of our time.”
  4. “They’re not being realistic.”
  5. “They are not negotiating in good faith.”
  6. “We’re only here because the judge said we have to be.”
  7. “We’re not getting anywhere.”
  8. “This is not about money; it’s about the principle.”
  9. “My client wants to send a message.”
  10. “That’s it, we’re leaving.”
  11. “My client just wants what’s rightfully hers [or his].”
  12. “That’s the most we’re going to pay.”
  13. “We have full authority to settle for what this case is really worth.”
  14. “We don’t think he [or she] [opposing counsel] has any control of his [or her] client.”
  15. “I understand what you’re saying, but I’m going to have trouble selling it to my client.”
  16. “We’re on different planets.”
  17. “The insurance company [or my client] is kicking and screaming, but they will offer $———–[fill in the blank].
  18. “We have to speed this up, my claims representative [or corporate officer] has a 2:00 o’clock flight.” [fill in any time after noon].”
  19. “It’s probably counterproductive to rehash our disagreements on the merits, but [insert full frontal attack on opposing counsel.].”
  20. “OK, we’ll do it, but only if you pay the mediator’s fee.”
  21. “If they want a confidentiality agreement, they’re going to have to pay for it.”
  22. “Let’s just cut to the chase, quit playing games and make our best offer.”
  23. “This is my final offer [or demand].”
  24. “We are confident that the judge will grant [deny] summary judgment in this case.”
  25. “You never know what a jury [or judge] will do.”

These statements make one think about how important it is in our everyday life, in addition to within the legal mediation process, to pause and consider the possible reactions to the specific words we choose to utter. Can you remember encountering similar mediation situations?  What were the results?

Thanks again to Michael Bishop for participating in Law Tips. His expert training session on CME for Civil Mediators is available as an OnlineOn Demand Seminar, Click Here. 

You may also be interested in the Advanced Civil Mediation Roundtable, which is part of ICLEF’s Masters Series Summer ConferenceTM, in French Lick, Indiana, July 25-27. To learn more about all there is to see and do at this year’s Masters Series Summer ConferenceTM, Click Here.


About our Law Tips faculty member:
Michael Bishop is a partner in the Indianapolis law firm of Cohen, Garelick & Glazier.  He concentrates his practice in the areas of probate and trust litigation, civil litigation, mediation and arbitration, and adoption law.  In 2008 he was selected as a Member of the American Arbitration Association National Roster of Neutrals, one of only 40 serving in Indiana. Mr. Bishop is the author of “Civil Mediation”, Indiana Alternative Dispute Resolution Practice Guide, a member of  the faculty of the Indiana Trial Advocacy College and is the Primary Trainer for Advanced Training for Civil Trial Mediators in Indiana.  He has served on the Board of Directors of the Indiana Continuing Legal Education Forum and for numerous years as the chair of ICLEF’s CME for Civil Mediators program.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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