ADR Spotlight: "Are you kidding me!?" - bringing humor to the mediation process

Mediation is a serious process where serious conflicts are seriously addressed by serious people. Whether the process results in resolution or continued litigation, the consequences are serious, too. Generally, the more consequential the dispute, the more serious the participants. The more serious the participants, the less likely they are to find anything funny. Hence, bringing humor to the mediation table can be dangerous.  Should someone take offence or conclude their matter is not being treated with the respect and dignity it deserves their trust will be lost.

The use of humor in mediation: Humor can be a powerful tool when used in the right circumstance in the right way with the right participants.

Mediators are problem solvers. Mediation is a problem-solving process. Nothing prevents parties from finding a resolution and a little humor at the same time. 

I use humor in mediation with care and respect. I do not inject humor automatically.    Humor is not for everyone. Mediators should be comfortable with humor before
attempting to be funny, then use it sparingly. 

Humor can be disarming. Humor can reduce tension. Humor can gain the trust of participants. Humor can increase confidence in the mediator by neutralizing suspicion and skepticism in an engaging way. 

I will share some moments of mediator humor, how a light touch can help, and how it can be used to promote participant education, understanding and insight. 

Self-determination: Party self-determination is a hallmark of the mediation process.  Many participants arrive at the mediation table anxious and guarded, concerned the mediator is going to impose an undesirable solution on them. I address that anxiety by sharing a strategy used by California mediator Lee Jay Bermanz, who tells parties he has good news and bad news. “The good news is that I’ve mediated more than 5000 disputes. The bad news is I haven’t settled one yet!” After a moment of silence as the words sink in, Berman adds, “I don’t settle cases. YOU do!”

Confidentiality: When explaining the importance of confidentiality, I point out confidentiality promotes and protects candor and honesty. Trust is often missing when parties are in conflict. Lack of trust causes participants to shut down. Parties who are shut down are reluctant to share anything that might be used against them later.  Frequently, they are unwilling to disclose concerns and impediments to resolution. Hidden agendas, unspoken anxieties, undisclosed expectations can’t be addressed and resolved if we don’t know about them.

To bring the point home and encourage candor, I sometimes say, “I am well trained in mediation. I attend lots of advanced mediator trainings. Every time I sign up for the mind reading course, however, it gets canceled! They can’t find anyone to teach it. So, I need your help and your willingness to share what’s on your mind, what your concerns are.  Will you feel comfortable doing that knowing that the process is confidential?”  Laughingly, sometimes reluctantly, most people assent.

Flexibility: Throughout the mediation process, parties and counsel may be asked to make a move by reducing their demand or increasing their offer. If the parties are stuck, escalated or stubbornly dogmatic, I may ask them to consider being more flexible. A sure-fire way to encourage flexibility is to remind participants of an old maxim: “Blessed are the flexible for they shall never be bent out of shape!” While the maxim verges on blasphemous, it is likely to draw at least a smile – and movement. When a party condemns even a constructive move from the other side, it sometimes helps to quote Churchill’s famous line, “the best settlements are those from which both parties walk away equally unhappy.” 

Reframing: Word choices can have a powerful impact on negotiations. Some words are too incendiary and require reframing. “Liar” might be reframed as “less than candid;” “stupid” into “unthought out” or “unreflective;” “weakness” into “risk.”

Escalated parties may complain when their words are neutralized. “No, I meant liar!” Mediation is a communication process. They want their messages heard and understood by the other side. They may forget word choices can make a difference as to whether someone will listen and consider a point or reject it reflexively. When competitive advocates in high conflict disputes fail to grasp the importance of language I quote Mark Twain who famously said, “the difference between the right word and the wrong word is the difference between lightning and lightning bug.”

Memory: When parties remember the same event or conversation in completely different ways – or not at all – the other side often perceives an intention to deceive.  Perhaps. That said, memory plays tricks. We see things through our eyes; we hear things through our ears.  Anais Nin said, “We see things not as they are; but as we are.”  Mark Twain taught us that sometimes the things we remember best never actually happened at all. Again, the message is more palatable when coupled with a smile.  Even though each person’s “truth” does not match, it does not mean that someone is wrong.

Mediation advocacy vs. traditional zealous advocacy: Entrenched advocates – parties and counsel alike – can get wound up, employ a closing argument style and expound their claims and defenses in powerful arguments delivered with passion and sincerity. Such moments can be helpful to a mediator. Passion is an important characteristic for an advocate. Passion can be persuasive. I like and respect lawyers. I welcome a brief demonstration of how they might argue a matter to the judge or jury.  The conviction and skill of an advocate in one room is useful information to share in the other. That said, mini-closing arguments crank up party emotions, impede flexibility, increase consternation and push parties further apart. 

Anticipating dogmatic and passionate forensics, I ask participants first thing in the morning to replace zealous advocacy with a “joint problem solver mind set.” I tell them: “Mediation is a dispute resolution process. It’s not about who is right and who is wrong, who is telling the truth and who is not. It’s about finding a solution to a problem. If we look at this dispute as a problem all of us have; if we make reasonable concessions, try to see each other’s perspectives, and avoid trying to win every point, we can sometimes make real progress.” Everyone agrees to be joint problem solvers. After everyone takes the pledge, I note that parties will see something different from their lawyers in mediation. “The lawyers haven’t lost faith in your claims or defenses. They are simply serving as joint problem solvers. If the case doesn’t resolve, they can return to being zealous advocates again tomorrow.”

I analogize confidence in their claims and defenses to being in love. “When I was a lawyer representing clients,” I say, “I fell in love with my theories and claims, my arguments and convictions. Now that I’m a mediator, I see I wasn’t alone. Everyone falls in love with their claims and defenses. It’s natural. Lawyers and clients alike. And as the participants prepare for the mediation process, sometimes they fall ever more deeply in love, convinced they are right and the other side wrong. And what happens when we’re in love? We sweep all the warts and weaknesses and risks under the rug and blinded to anything other than the beloved. 

I know I’m hearing a love song when the answer to every risk issue is ‘yes but.’ Part of my job today is to make certain you have examined all those challenges and risks realistically.” Sometimes I add, “We have a saying in Western society: ‘Kill the messenger.’ We don’t kill them anymore, of course, but we still get mad. If you find yourself getting mad because I’m asking tough questions, it’s not because I’m biased or no longer neutral. I do it to ensure that each side is taking a hard look at risk and making adjustments accordingly. I promise if I’m asking tough questions in one room, I’m doing it in the other.”

Stark contrasts: One line of humor highly personal to me is when the stories told by the participants are so different it seems they are litigating two different lawsuits. I like to say there are “stark differences” between them. 

Good judgment: Often, parties resist listening to the story told by the other side. I remind them they are about to make important decisions about whether to settle or not.  To make good decisions requires the exercise of good judgment. That means considering all the information available. Part of the pool of information needing consideration is what opposing parties plan to present in support of their case. As a result, there are benefits to hearing what the other side is saying. “Nobody is asking you to accept their story as the truth or what happened. Information has value. If you don’t settle, this is the story your lawyers will need to refute. The important question is not whether it is true but whether it is plausible? Does it make sense? Is there a risk a jury might “buy” it?” Once all available information is heard and considered, they can then exercise good judgment. To encourage the exercise of good judgment, I invoke Will Rogers who said, “Good judgment comes from experience.  And experience comes from bad judgment.”

Taking the high road: When participants escalate, getting “down and dirty,” using highly contentious or offensive language, I attempt to move them back to the high road quoting one of Lincoln’s favorite remarks: “Never wrestle with a pig. You both get dirty and the pig loves it.” 

Conclusion: There is almost always room for a little humor to reduce tension, lighten the atmosphere, educate participants, and move the process forward. It helps to collect quotes from famous people. Appealing to the authority of Mark Twain, Abe Lincoln or Will Rogers, for example, can prove more effective than any humorous statement I come up with myself. I keep a file of good quotes in my smart phone as a resource for finding an apt, pithy statement to stimulate smiles and recognition.

Yes, humor can be dangerous in mediation. Nonetheless, the power of humor makes the result worth taking the risk. And, the more often employed, the more effective it will be. 
—————
Sheldon J. Stark  is a member of the National Academy of Distinguished Neutrals, a Distinguished Fellow with the International Academy of Mediators and an Employment Law Panelist for the American Arbitration Association. He is also a member of the Professional Resolution Experts of Michigan (PREMi, http://premiadr.com/). He is chair of the council of the Alternative Dispute Resolution Section of the State Bar and former chair of the Skills Action Team.