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Emotion in Mediation

By Christina L. Scott, J.D.

Many years ago in an advance mediation training class, I remember my instructor saying, “in order for good sound decisions to be made, we need both Emotion and Logic.” After hearing this, I started to pay attention to my own decision-making process and that of others. I soon realized that there is some truth to this statement. What I also learned is that too much of either in mediation can hinder progress and lead parties straight to impasse.

Our logic, or sound reasoning, comes from our conscious mind. Our emotions are caused by our thoughts. They are reactions to perceived and/or imagined stimuli based on our personal experiences. Our emotions at times can outweigh our logic. In the mediation context this might look like: posturing, puffery, threats, profanity, exaggeration, tears, fears, grandiosity, anger, and other things.

The question is how do we stay balanced in mediation and avoid the pitfalls of impasse due to too much emotion? Here are 3 tips that can help.

Listen, not react

High emotions do not have to lead to impasse if we learn to hear the information “inside the emotion.” During mediation, listen with an open mind and be slow to judgement. Do not begin shaking your head in opposition to the first few words being conveyed by the other party. Instead, listen carefully to what opposing counsel and the mediator have to say. Also, listen more than you speak and understand that you and your client are not the only ones who need to be heard.

Minimize posturing

There is a time and place for posturing and it’s usually not at mediation. Posturing and puffery are often used in mediation to impress clients and to make them feel more confident. The downside is that too much of it will veer the client in the wrong direction and ultimately waste time. Instead of fostering a mindset of negotiation, the posturing can cause the client to become too focused on their chances at trial. If this happens, the mediator will have to spend precious mediation time, bringing them back to the table. Keep in mind that mediation is an opportunity to settle the case, not litigate the case.

Never make it personal

There is a fine line between zealous advocacy and becoming too personally involved in your client’s case. Good attorneys know the difference and proceed accordingly. When counsel gets amped up to “extreme advocacy,” they become blinded by their own emotions and lose focus. This is never helpful for the client and often leads to impasse. Remember that you represent your client, you are not the client. Refrain also from personal attacks of the other party. Threats, bullying and other intimidation mechanisms never lead to a good place. Never give in to an old tactic designed to throw you off your game. Keep your cool and stay focused on your end goals.

As a mediator I am usually aware of the issues that impede the mediation process. I try to take the initiative and head off problems at the start. I have learned however, that it is the good faith of counsel that serves as the foundation for productive negotiations which can lead to resolution when all parties cooperate and do their part.

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