Commanding Respect in Mediations - ABA YLD 101 Practice Series

 

By M. Elizabeth Wade

As a mediator, I always have two goals when entering the room: to maximize the likelihood of a fair settlement and to ensure a day where my reputation will be enhanced. If I succeed with those two goals, I do command respect. I often see women attorneys who are in need of some guidance. Usually, they seem to know there is a problem with not being adequately respected either by the opposing attorney or their own client, but they just do not know exactly from where the problem stems or how to rectify it.

Anyone who has ever participated in any role in a mediation should know how important adequate preparation is to reaching a settlement. For neutral facilitator mediations (the type approved in North Carolina), the mediator must be a competent neutral facilitator; the attorneys should know the relevant law and the facts of the case; and the clients should be briefed on the realistic possible outcomes of going to court and the likelihoods of those outcomes. However, women mediators and women attorneys participating in mediations full of "suits" often have to jump through additional hoops in order to maximize the chance of a fair settlement and to build their reputation. Jumping through those hoops requires insight into the problem and a set of skills to address it.

The professionally acceptable behavioral boundaries are much narrower with women than with men. Often if a woman tries to keep the peace with an aggressive person, she is seen as weak, while a man would be seen as even-tempered. In the same situation, if the woman steps up to defend herself, there are a number of junior high insults about her emotions or hormones that might be said (or unsaid), while a man in the same situation would probably be viewed as putting the jerk in his place. This is not to say that a man cannot be judged as over- or under-reacting, but merely that he has a wider range of socially acceptable behaviors that would not be given a second thought.

This perceived difference in behavior is present in a wide range of professional and social circumstances, including mediators and attorneys. This difference in judgments looks at everything from what is said, to how it is said, to when it is said. "When you speak with authority, you project an image of believability, conviction, and integrity. . . . People will give you their confidence and respect when you come across as someone who is credible and in control."; 1 However, since the expected behavior during a mediation depends largely upon the person's role, we will examine how women can command respect as mediators separately from as attorneys.

  1. Women Mediators
    The difference in how women's and men's actions are judged often makes a female mediator's job more difficult, as she portrays a neutral, calm demeanor while maintaining control of the mediation. For example, I recently had a case involving an attorney I had never worked with before. He apparently routinely practiced law in the yelling-and-threatening-to-get-what-he-wanted way. At one point, he left me what is by far the nastiest message I have ever received, referring to me as a "would-be mediator," stating I was doing this just for my "little $100," and implying I used some sort of unethical means to be appointed to his case (when in fact I had been party selected). He also sent a letter to the court with a tamer version of the same (which I heard got a few laughs around the courthouse).

    I was very upset with all this, and my first instinct was to call him back and point out all the ways in which he was wrong - either mistaken or lying. My second thought was to crawl under a rock and hide by trying to remove myself from the case. However, I thought back to my two priorities: maximizing the likelihood of settlement and enhancing my reputation. Giving in to my first instinct could be seen by many not involved with the situation as a female over-reacting or taking things "too personally," calling him definitely would have achieved neither of my goals, and probably would have hurt both. Avoiding the issue would have had the same consequence as well.

    When I spoke to him next, he started down the same path, but I very slowly, repeatedly, and in an even tone stated, "I'm sorry you feel that way. However, on this particular matter, I'm between a rock and a hard place because..." By the end of that conversation, to my great surprise, he apologized for his previous message and comments. The mediation we ultimately held did not result in a settlement. However, it did last a couple hours, not 15 minutes as he had previously promised, and I did do everything in my power to create an environment to give it a chance. Additionally, the other attorney and several people at the courthouse now think much more highly of me for how I handled the situation. Therefore, simply by being acutely aware of the tendency of many to judge women as over- or under-reacting to situations, I was able to evaluate my reactions, then formulate and carry out a plan that lead to my accomplishing both my goals, even in this difficult and uncomfortable situation.


  2. Women Attorneys in Mediation
    The role of an attorney during a mediation is obviously different from that of the mediator. Although that is the case, I have witnessed a recurring problem with women attorneys during mediation that center around the same underlying problem - the common view of women as easily over- or under-reacting.

    The main problem I see is when a dominant-type attorney tries to railroad an attorney that is less so. Usually this occurs between a more experienced male attorney and a younger female attorney. One mediation comes to mind where an older male attorney was doing an excellent job of pointing out all the possible problems with the young female attorney's case. It did not take very long before her confidence started to falter, and she began asking me how strong I thought her case was (which mediators in North Carolina are not allowed to answer). If I had been a mediator that either was not aware of this particular pattern or a mediator who did not care if a settlement was fair, I might have been able to really lean on her and all but force her to accept any token amount. Although I could never advise someone not to make or accept an offer, I was able to help her take a step back and rediscover her opinions on the strengths and weaknesses of her case.

    My advice for women attorneys who feel like they might find themselves in this situation would be to plan for the worst case scenario prior to the mediation. Envision yourself negotiating with the most uncomfortable person you can imagine and then practice responding quickly to all the worst things he could say, both substantive and personal. Be very mindful of neither letting everything go un-rebutted nor getting defensive about every comment. Find a happy medium that fits your sense of what is appropriate. Find ways to keep yourself calm and to redirect the conversation where needed.

    My experience is that if I really know what to say, then once I am in the difficult situation, if I focus mainly on my speed and tone, then everything will come out beautifully. Do not be discouraged if the other attorney does not seem impressed with your skills. Often times, people get frustrated after they have tried and failed to push another's buttons. Feel confident in the fact that you acted maturely, that your client and the mediator will be impressed with how you handled yourself, and that you did behave in a manner to best promote reaching a fair settlement. Once you have done that, you have also succeeded in commanding respect from the opposing attorney. You might not see it, but the mediator often does.

1Shields, Linda. The Voice that Means Business: How to Speak with Authority, Confidence, and Credibility Anytime, Anywhere. Raleigh, Liberty Publishing Group (2002).

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About the Author

Ms. Wade has a mediation practice through her business, Carolina Dispute Resolution. She has been mediating cases since 2001 and mediates various types of disputes all across North Carolina. She currently serves as President for the North Carolina chapter of the Association for Conflict Resolution (ACR-NC) and is a member of the ABA Dispute Resolution Section and the Dispute Resolution Committee of the Young Lawyer's Division. Ms. Wade also serves as a Magistrate Judge in Durham, North Carolina.

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