C. Be Positive

One of the secrets to successful mediation is to remain positive, even in the darkest moments. From the opening statement to ultimate resolution, the mediator should constantly affirm that settlement is not only feasible, but will happen. At no time should the mediator show discouragement or indicate there is doubt as to the outcome. Negative words or signals are contagious and will make settlement that much more difficult.

Most mediations run through a cycle. At the opening session, everyone is fresh and hopes are high that the case will resolve—on their terms. As the mediator works through the first caucus on each side and initial demands and offers are made, discouragement often sets in. Many times the lawyer or client will remark that the last offer or demand was an insult and not worthy of a response. The mediator, however, should point out that any movement is a positive sign, and as long as the parties keep moving, settlement will be realized. The mediator should keep identifying positive signals.

One of the most effective ways to stifle negativism is to keep pointing out that the mediation is following the pattern of most mediations and that nothing unusual or out of the ordinary is happening. If the parties think their mediation is different from most, they will become concerned and even give up. They must be made to understand that what is occurring always occurs in successful mediations.[91]

Being positive is conveyed not only by what is said, but also by the mediator’s appearance and expressions. If a mediator walks into a caucus room frowning for any reason, the parties will interpret this as a bad sign. When there is any progress, the mediator’s upbeat expression and demeanor should reflect this fact, however slight it may be.

Date: 2015-01-02; view: 759