On October 17th, the Mediation Committee of the International Institute for Conflict Resolution & Prevention, also known as CPR, an independent non-profit organization focused on dispute resolution for global businesses and their counsel, held a teleconference on civility in mediation. Like many other mediators, I have noticed increasing incivility in some of my mediations. Perhaps it’s a sign of the times in our polarized society, but it is an unwelcome trend that interferes with reaching amicable agreements. The call focused, first, on defining the problem and, then, on identifying steps that mediators and advocates can take in the face of rude and offensive behavior.
While the Model Rules of Professional Conduct adopted in various forms by all states contain an admonition about over zealous advocacy on behalf of clients the type of conduct at issue transcends advocacy and crosses a boundary into ad hominem, personal attacks having nothing to do with the facts or law. The call participants distinguished among incivility, emotion and the cynical use of the process for an improper purpose.
Emotion is often present in mediations and is not always a bad aspect of the process. So long as the emotional speaker doesn’t become so emotionally flooded that rational thought is affected, emotion may serve a purpose of venting that allows a party to move beyond a stated position. Parties may feel that until they have been “heard” by their counter-party, they won’t be able to begin a constructive negotiation process. A competent mediator and a sophisticated negotiator may recognize this behavior and need and allow a party to express unbridled emotion so that the negotiation can proceed to a productive phase. Genuine emotion expressed without attacking the counter-party is not uncivil.
Regrettably, some parties and their counsel use the mediation process to acquire information or mislead the counter-party. Where parties behave this way, the likelihood of ever reaching a consensual agreement is very low. When it becomes obvious that the underlying purpose of a party is not to negotiate but to get free discovery, then the mediator has an obligation to step in, call out the offending party and either suspend the process until s/he becomes convinced that the mediation can be effective or terminate the mediation. A party that perceives that the other side is not negotiating in good faith should request a break and speak privately with the mediator to express its concerns. While a misuse of the mediation process and deserving of opprobrium, this type of behavior doesn’t fall under the heading of incivility.
Incivility is a pattern of behavior whereby one person attacks, bullies or harasses another person in the mediation. Counsel or parties acting in this manner are often trying to intimidate the other party to gain an advantage. It would not be acceptable behavior in polite company or in a public place, and it is not appropriate or permissible in a mediation. The challenging question is how a mediator or advocate confronted with such behavior should react.
For the mediator, preparation and having a plan may be the best approach. Sophisticated commercial mediators recognize that preparation is the key to successful mediation. The mediation process begins with the organizational call and not just when the parties meet in a joint session. Good mediators meet with parties in advance of the mediation. An uncivil counsel or party is likely to reveal himselfin this initial meeting. The mediator then has an excellent opportunity to coach the party to avoid uncivil conduct that would be self-defeating. Importantly, the mediator can “lay down the law” and review the ground rules that will be observed in a joint session. A counsel or party that hears that ad hominem attacks won’t be tolerated may be less likely to behave badly. Importantly, the mediator will be forewarned that she may have a difficult party with whom extra vigilance will be required.
A second and very significant step will take place at the outset of the joint session. I always remind the parties of the need to be respectful in the course of the mediation. Sometimes, I share a true story of a fistfight that broke out in a mediation early in my career as a way to both break the ice and show how silly that behavior would be. After I state the ground rules, if I’m concerned about civility, I ask whether both sides can accept the ground rules. The act of accepting the ground rules may be a governor on behavior. Once the mediation begins, if a party acts out, I will restate with precision what the individual has said and ask him/her if that’s what they meant to say. The act of hearing the uncivil words repeated verbatim may give the actor pause. But, if all else fails, it’s the role of the mediator to separate the parties, and, if necessary, suspend or cancel the process.