Mediating Highly Emotional Cases, 0718 COBJ, Vol. 47, No. 7 Pg. 26

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47 Colo.Law. 26

Mediating Highly Emotional Cases

Vol. 47, No. 7 [Page 26]

The Colorado Lawyer

July, 2018

ALTERNATIVE DISPUTE RESOLUTION

Mediating highly emotional cases presents particular challenges. This article discusses effective strategies for managing those challenges.

Many cases give rise to intense emotions in mediation. With reference to words of wisdom from a wide range of sources, this article addresses strategies that counsel can use to mediate emotionally charged cases.

Emotions at Mediation

There is a sacredness in tears. They are not the mark of weakness, but of power. They speak more eloquently than ten thousand tongues. They are the messengers of overwhelming grief, of deep contrition, and of unspeakable love.

—Washington Irving

Mediation involves many types of cases that can evoke strong emotions. Family law disputes are an obvious example. Catastrophic personal injury cases may include life-altering injuries such as quadriplegia, paraplegia, burns, traumatic brain injuries, and amputations, as well as wrongful death claims. Probate cases may trigger not only grief for the loss of the deceased but also powerful memories of deep family wounds. Professional malpractice cases implicate both harm to the plaintiff and threats to the defendant’s livelihood and competency. Employment cases based on sexual harassment, Americans with Disabilities Act violations, age discrimination, or retaliation may raise strong feelings of anger and disrespect. Commercial disputes involving business dissolutions, breach of long-term relationships, or allegations of fraud can also become highly emotional.

Mediation often takes place years after the events that gave rise to a lawsuit and long after a case was fled. But because parties have the renewed chance to tell their entire story to the mediator, the mediation session often involves unearthing past wrongs and reliving trauma. Negative emotions—whether grief, anger, sadness, betrayal, loss, disillusionment, fear, or insult—can be raw. Yet mediation can also add positive emotions to the equation—relief, a measure of closure, freedom from litigation, even forgiveness and reconciliation.

Grief, anger, and fear are the three emotions most widely and deeply displayed at mediation.1 Grief is almost always involved, whether parties grieve the death of a loved one, the end of an important business relationship, the loss of physical or financial capabilities, or other life disappointment. Anger can erupt from either the underlying wrong or from frustration at the opposition’s perceived inflexibility. Whatever the cause, anger, described by Seneca in the first century as “short madness,” can temporarily blind both clients and attorneys. And fear of change, the future, or even the finality of a settlement can impede resolution. Mediators, advocates, parties, and negotiators must be aware of these emotions and wisely gauge and address their impact before and during mediation.

Select the Right Mediator

Look at situations from all angles, and you will become more open.

—Dalai Lama

Not all mediators are alike. It is important to examine the legal and emotional issues that are part of the case. Determine which mediator has the life experience, mediation experience, and legal experience the case requires. Choose a mediator who will infuse the process with a sense of calm optimism and understand and work the case as hard and skillfully as...

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