Originally published at irvinschein.com.
Some Thoughts and Observations by a Toronto Mediator
In this post, rather than discussing a recent case, I thought it might be useful to provide observations on an aspect of the mediation process based on my training and recent experience conducting mediations in commercial disputes. In particular, I would like to address the role of lawyers in managing their clients' expressions of anger or high emotion.
Anger is almost an inevitable part of conflict. A party believing his position to be right will likely believe the other side to be wrong and unreasonable in refusing to meet his demands. As a result, parties in a mediation often blame each other and the resulting anger is one of the most commonly experienced emotions during a conflict.
One of the challenges for a mediator is to recognize the emotional states of the parties to the dispute, assess them in the context of the dispute and make an appropriate decision as to the circumstances under which each party is to be encouraged to express his or her emotions. At the very least, that analysis is critical to the decision as to whether to permit each party to vent or otherwise express emotion in the presence of the opposing party or merely in caucus.
One of the critical elements in the process has to do with the mediator's own emotional self-awareness or emotional intelligence. Self-awareness will alert a mediator to feelings that might otherwise threaten his or her impartiality. Emotional self-regulation prevents these feelings from being expressed and acted upon in a manner that undermines the mediation.
A point that appears to receive little attention in the literature has to do with the importance of emotional intelligence of self-awareness among lawyers.
In a sense, the task of mastering one's emotions is even more difficult for the lawyers than it is for mediators. Unlike the third party neutral mediator, each lawyer has been immersed in his client's case, likely from the outset. The lawyer has been exposed primarily to his own client's side the of the story, subject only to whatever documentary and oral discovery may have taken place by the time of the mediation. While any lawyer will recognize the importance of providing advice that is as objective as possible, the fact remains that many lawyers will, either deliberately or subconsciously, adopt their client's cause as their own. As a result, it may be more likely for the negotiations at mediation to give rise to emotional upset for the lawyer than for the mediator. This is particularly true if the lawyer for the opposing side is able to press the right triggers, for example by challenging the lawyer's integrity, pride, ego, or skill level. In that event, the need for lawyers to regulate their own emotions becomes even more important, but more difficult, than for the mediator.
Furthermore, unlike the mediator, a lawyer acting on behalf of an angry client in an emotionally charged dispute may find himself in a different predicament. Angry clients have a rather disturbing tendency to turn their anger upon their own lawyers, sometimes at the drop of a hat. Whether that is a function of the often irrational behavior that characterizes angry outbursts and attitudes filled with blame and resentment is beyond the scope of this post. However, most lawyers will have gone through this experience and may well have to confront it once again at or after mediation. This will particularly be so if the mediation does not go well for the client, either because of hostility created by the opponent's expressions of anger or for any other reason.
A lawyer confronted by his own angry client with attacks on his own integrity and threats to his own ego will have to manage his own emotions in order to respond appropriately and constructively. This reality will represent a very real challenge. A lawyer will approach the negotiation, presumably, with a view to obtaining the best result reasonably available to his client given the strengths and weaknesses of his case, the likely outcome and costs of trial, and the other usual considerations. It may well be that this objective would be best served by permitting his client to express anger and high emotion, although presumably under controlled circumstances. On the other hand, permitting a client free rein with his emotions may result in a backlash against the party's own lawyer if the desired result is not achieved. Furthermore, there are clients who seem to feel that their lawyer ought to share their anger, particularly if it is based in righteous indignation. Lawyers who join in with their clients in expressing those sorts of sentiments may ingratiate themselves with their clients but, by doing so, will rarely contribute to the objective of settlement.
There is an additional reason why the need for lawyers to help regulate their clients' conduct is even more significant than that of the mediator. The mediator's involvement in the matter will conclude at the end of the mediation whether the case has settled or not. If the case has not settled, the action will proceed, the lawyer will continue to be involved, and the lawyer will next face the task of assisting the client to regulate his emotions when the matter reaches the courtroom. In the courtroom, of course, the consequences of failure are far greater than they are at mediation, the atmosphere is likely to be even more emotionally charged, the need to regulate emotion is even higher, and the difficulty of doing so is even greater.
These observations are not just directed to lawyers. A party involved in a mediation with a genuine interest in settlement will have to be able to "read" not only the opposing side but also his own lawyer, to be satisfied that the advice and guidance being provided is truly objective and dispassionate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.