The Alligator in the Room: Avoid “Fights and Flights” During Mediation

By Joan Champagne, White and Champagne

Recently, I had the pleasure of attending another excellent IndyBar CLE program on mediation, which I was able to attend for free as an Alternative Dispute Resolution (ADR) Plus CLE Section member. The topic was “The Alligator in the Room,” presented by Holly Wanzer of Wanzer Edwards PC (you can view the entire program online at indybar.org/ondemandcle). The “alligator” is our reptilian brain, which is triggered when we are under stress, causing an emotional, rather than a logical, response. The reptilian brain operates in survival mode (“fight or flight”), and this can tank a mediation if anyone in the room (the parties, attorneys OR the mediator) is affected. After the CLE, I thought of some ways that we, as mediators, can establish a framework for both the parties and their counsel, to avoid the “fight or flight” and resolve their disputes at mediation.

The mediation confirmation letter is the first opportunity to set the stage. An attorney preparing for mediation may be so overwhelmed that one is not submitted. You might suggest that a simple email or even a phone call will suffice for a mediation statement, which benefits both the mediator and counsel. Another idea is to state your approach for attendance by non-parties (in family law cases, relatives or significant others) in order to avoid any mediation day “fights.” For instance, require the parties to agree ahead of time to any non-parties being present or the non-party will not be allowed to attend. Finally, it is not uncommon for mediators to be told on the date of mediation that either a party or an attorney (or both) has to leave the mediation early. One way to curb this potential “flight” is by requiring that you be informed in advance of the mediation date as to any time constraints, and that mediation may need to be rescheduled if a constraint does not allow sufficient time for the mediation to proceed. Busy attorneys may gloss over the letter, so it is a good idea to state your protocols at the beginning of the letter, preferably in bold.

Other ways to avoid the “fight or flight” mode:

• Acknowledge the “alligator” in the room, and redirect unproductive conduct byfocusing on moving forward (positive outcomes)

• Offer snacks/lunch, and beverages (non-alcoholic)

• And when all else fails, suggest a walk or some other way to “step back” and decompress.

For the record, I hope that Holly presents her “alligator” CLE again next year (truly a great presentation), and many thanks to her for inspiring this post!

Did you miss it? You can view this program online at any time at indybar.org/ondemandcle.•

This post was originally published on the Alternative Dispute Resolution Section blog page. See more from the section at indybar.org/adr.