|By Sean E. JudgePeople can be “difficult” in mediation for a whole host of reasons, and “difficulty” can manifest itself in different ways. We can all try to speculate about the reasons (a fairly unproductive exercise), but these reasons may include one or more of the following:1. Wanting to impress a client by appearing “tough”
2. Trying to intimidate an opponent (or the mediator!)
3. Purely strategic reasons of “not budging” and making an opponent come to their range of settlement
4. Style and reputation
6. Psychological or personality issues/family or personal difficulties
7. Using mediation as a pseudo-discovery session
8. A prelude to an unexpressed, “here’s what is really bothering me about this case”
and many more.
“Difficulty” can be manifested in many ways whether by bluster, stoicism, or even politeness.
So what to do if your opponent is “difficult?”
First – Prepare. Know your case backwards and forwards. Have your facts, the law, and the reasons for your evaluation brief sent to the mediator with as much as possible exchanged in advance with opposing counsel. When it is available, recent verdicts and settlements in similar cases in the same or similar jurisdictions provide strong evidence that your evaluated range is appropriate.
Second – Stay focused. I have found that bluster (either by the client, the lawyer, or both) is often the easiest emotion to deal with, since it takes so much energy to remain upset or furious, and frankly, most people just get tired. But for a mediator, it’s important to look beyond the style and try and get to the substance of what is being communicated. For one dealing with a difficult opponent, it’s a good strategy to stay focused while in caucus, and to maintain focus and equanimity if and when a joint session becomes necessary.
Whatever the reasons, there are always impediments to resolution. It is incumbent upon the mediator to identify them, and for counsel and their client to address the specific impediments in detail when they arise. With difficult people, they are often more beholden to their position than those who are parties to an “easier” negotiation, so it often takes considerable time get to meaningful negotiations to settle the case.
Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. To schedule a mediation with Sean E. Judge, contact a case manager at (877) 258-8637 or via email: Mediation@CEDRS.com.