By Christina L. Scott, J.D.
One thing that we all learned from 2020 is the power of negative words, comments, and phrases. Whether it was from our political, religious, and local leaders or from the mud-slinging advertising and commentary during the 2020 election campaigns, we are all intimately acquainted with the effect that words have on us. Words in mediation is no different. The “words” can make or break a mediation. In order to avoid the “break” in mediation, we must avoid certain Fighting Words, Empty Phrases, and Unnecessary Commentary.
During opening statements, avoid using words like Liar, Fraud, Criminal, Deadbeat, or Fake. Why? These words have the tendency to inflame others and greatly increases the possibility of impasse. Using these words can also add 30 minutes or more to the session. Because of the damage caused by fighting words, a good mediator will usually have to go into caucus with the offended party and clean up the mess that was made! There are ways to present an opening without being purposefully offensive. Certain statements that one might make at trial should not be made during mediation. Remember that mediation is not a fight, but a process. A process by which parties can achieve an amicable result if everyone does their part.
Empty phrases are comments that counsel will instruct the mediator to tell the opposing side, however these comments are often bluffs or exaggerations. For example a statement like, “That’s my final offer, but don’t let them leave…..,” is common. This empty phrase is tricky because it can only be used once. If the statement is made and it’s NOT truly the final offer, (which it usually isn’t) counsel will lose all credibility with the opposing side. Another common empty phrase is, “Tell them to just give us their bottom line.” If the purpose of the statement was to bait the other side into revealing their bottom line and they do nothing, opposing counsel could lose all credibility. The party making the statement has to ultimately decide upfront if they will walk away or if they will pay once the “bottom line” is revealed. The statement could just end up frustrating parties and decrease any chances of settlement. Ultimately, it’s better to say what you mean and mean what you say, otherwise negotiations could be ruined unnecessarily.
Avoid the use of commentary that is not helpful in mediation and especially during the opening statement. For example, avoid saying, “Your offer is ridiculous” or “This case is only worth nuisance value”. Both phrases are typically interpreted as personal attacks and will generally get you nowhere fast. Flattery typically works better than offense and will go a long way toward a great working relationship with opposing counsel. Instead, reframe the phrase and say, “We believe your offer is too high” or “We also believe that we have a strong case with valid defenses.” What a big difference! Reframing these negative phrases will ensure that the mediation is off to a good start and help the mediator move both sides along in a positive manner.