Seven Dirty Words at Mediation

Tue, Feb 6th, 2024 | by Miles Mediation and Arbitration | Article | Social Share

By Michael J. Eshman

Words matter. Different words have different connotations – even different synonyms can change the connotation or impact of what is being said, though the words may have the same dictionary definition. The words we choose can, and do, have a powerful impact on our own decision-making and the decision-making of others. With that in mind, below I highlight my list of “Seven Dirty Words at Mediation,” and why I believe that we should carefully consider whether and when to use these words.

The Seven Dirty Words

“Compromise,” “fair,” “reasonable,” “always,” “never,” “quit,” and “impasse” are my “Seven Dirty Words at Mediation.” No, they are not the seven dirty words — they are not comedian George Carlin’s famous “Seven Words You Can Never Say on Television,” and you will not be censured for using them.

By “dirty at mediation,” I mean that they are problematic to the process of mediation for one reason or another, and we should all rethink how we use them — and whether we should use them. As both a trial attorney and mediator in a variety of state law and federal tort cases, mostly catastrophic injury and wrongful death cases, I have certainly used these words at mediation in the past and may use them in the future. Still, I suggest that even the most innocuous of these words can be more harmful than helpful towards the end goal of mediation – resolution of a dispute voluntarily agreed upon by the parties to the dispute.

Both lawyers and mediators should be aware of the potential negative impact of these seven words:

• “Compromise.” At first blush, “compromise” may seem misplaced on this list. Some see “compromise” as the purpose or goal of mediation – and either hate or love mediations as a result. As a mediator, I used to ask the parties to promise me patience, perseverance, and “compromise,” – the dirty word. I no longer ask parties to “compromise.” That’s a terrible thing to ask anyone. No one wants to “compromise” their position, especially on a deeply held belief. Instead, we should focus on how the mediation process empowers the parties to exercise control over the outcome of their dispute. You can only truly exercise this control with good information and by being patient and willing to consider the perspective of the other side – even if you choose to reject it. Parties do not come into any negotiation with the desire to “compromise” their position, but they do come in with the hope that they can make the best decision possible to control their own risks.
• “Fair” and “reasonable.” “Fair” and “reasonable” are what most of us say that we want the other side to be during mediation. Of course, the measure of these dirty words is in the eye of the beholder, and opposing sides rarely, if ever, agree as to what is “fair” and “reasonable.” The participants to a mediation should certainly be respectful of each other, the mediator, and the process, but we should expect that each side will act in their own self-interests. The goal should not be to get the other side to make a decision that you consider to be “fair” and “reasonable,” or you will likely leave the process frustrated and disgusted by how un-“fair” and un-“reasonable” the other side is. Rather, the expectation should be that parties will act in their own self-interests, and the goal is to find where the interests of the parties overlap. Until we find where these interests overlap, the goal should be to explore why the interests do not overlap – do we have different information, or do we simply view the same information differently?
• “Always” and “never.” “Always” and “never” are almost “always” and “never” true. While we can all feel confident in a certain outcome at times, people with real experience and scars will hedge. Lawyers are particularly skilled at this, because no person alive can tell you what six or twelve strangers in a jury box will “always” or “never” do. As a mediator, I see “always” and “never” most often in the context of the negotiation – e.g., “my client will ‘never’ pay or accept $x.” The statement may be true, but this statement has limited, if any, value to the negotiation. If you train your counterpart’s attention on what you will “never” do, you are focusing his or her attention on the wrong thing. Focus your counterpart’s attention on your goal – not some point short of your goal.
• “Quit” and “impasse.” “Quit” and “impasse” are arguably the dirtiest of these dirty words at mediation. Rather than “quit” or “impasse,” if a mediation does not end in an agreement to settle a case, a mediator should help the parties explore whether there are specific tasks that need to be accomplished to continue the negotiation and set a timetable for the completion of these tasks and the continuation of the negotiation. Even if there is no specific task list, a mediator can help by following up routinely to see if there are any new developments and opportunities to explore resolution by agreement. There is always an opportunity for the parties to control their risks and to reach a voluntary agreement to settle their dispute unless and until the parties choose to allow the dispute to be resolved by others. A mediator’s role is to make sure that the parties continuously explore and keep open minds to all potential opportunities to control the outcome of their dispute. If the mediator and parties show this persistence to exercising control over the outcome of the case and still do not reach a resolution by agreement, then the process of mediation is a success even if it does not result in a settlement.

There are doubtless many other words that could be added to this list or times when some words on this list may be appropriate. These are simply my “Seven Dirty Words at Mediation” that I will endeavor to use less frequently – or at least to be very mindful of how and when I use these words, if ever.

**Originally published in the Daily Report and reprinted with permission.

About Michel Eshman

Michael Eshman is a Spanish-speaking attorney with over a decade of experience litigating personal injury, civil rights, insurance coverage, real property, and business disputes in state and federal court. He has successfully litigated cases involving multiple parties, insurance coverage issues, jurisdictional issues, conflicts of law issues, and more.