Dealing with “Difficult” Parties
Have you ever been in a mediation when one of the parties rushed into the session and started complaining about everything that had gone wrong that day – and then seemed to be carrying that frustration into the mediation session? What about a party that starts out with saying that he really doesn’t believe in mediation or that settlement is possible and, although he is “of course” willing to participate, he really doubts it will be of any use? Perhaps you’ve experienced a situation when one of the parties in a mediation doesn’t seem to speak at all and, even when asked a direct question, remains silent and turns to her attorney to speak on her behalf? Or you’ve experienced a party’s attorney who offends other parties by re-explaining everything anyone says to his client and what his client says to everyone, as if they cannot understand for themselves.
Lisa Savitt and I recently had the pleasure of presenting on the topic of dealing with “difficult” parties like those above at the International Association of Lawyers (UIA) 31st World Forum of Mediation Centres in Frankfurt, Germany. It was a lively discussion among the attendees, with so many willingly offering insights from their own experience. Lisa and I and our co-panelist, Javier Fernández-Samaniego of Madrid, Spain and Miami, Florida, also offered some suggestions about how to approach such situations. We reminded attendees that the key goal must be kept in mind: helping the parties explore all potential solutions to their problem – not to change the way one party or another behaves.
We pointed out that “difficult” behaviors can arise from several sources:
Emotions – Someone is afraid, anxious, frustrated, etc.
Dynamics between Parties – The history between the parties makes it difficult for them to come to the table with an open attitude.
Strategy – A party thinks some disruptive behavior can show strength or shake up a party or situation.
Legal Traditions – Behaviors can be linked to the parties’ roles and behaviors they think are expected of them based on their backgrounds.
Cultural Differences – “Rude”, “difficult”, and “disruptive” behavior in one culture can be seen as relatively normal in another. Maybe the actor is just acting in a way that would be entirely appropriate in another culture.
We also shared some of our tactics for addressing such situations to make sure that unwanted behaviors don’t destroy a mediation:
Prepare ahead of time to anticipate differences in legal traditions and cultural differences. It may mean that pre-mediation sessions will take some extra work to develop a strategy to discuss these differences or perhaps deciding it is appropriate to keep the parties separated rather than having joint sessions.
Listen, listen, listen! Try your best to determine what the source of the behavior really is
It’s not all about you! - Remember that such behaviors may have nothing to do with you.
Remember the importance of self-determination. If this situation really raises concerns for someone, for one reason or another, is it appropriate to continue and/or does something or someone have to change for this to work?
Explore the source of the behavior with the actor.
Consider whether this is your problem – maybe your own background makes you hypersensitive to a behavior that doesn’t bother anyone else.
Consider your own ideas about the source of the behavior and test that out.
Consider ways to address the underlying source (rather than the behavior itself).
Consider ways to ask the actor to modify the behavior – the actor may not be able to change emotions, but can change actions.
Inquire with others about the effect on them, recognizing they may be more or less affected than you are.
Assess the ability to mitigate the impact on others to get the mediation back on track – can it work or does this end the prospects for resolution?
Next time a mediation includes a “difficult” party – we hope that all attendees at the conference and our blog readers feel better prepared to face the challenge and move ahead towards a positive outcome.