Ten Major Mediating Mistakes and How to Avoid Them

AuthorVictoria Pynchon/Joe Kraynak (With)
ProfessionMediator, author, speaker, negotiation trainer, consultant, and attorney with 25 years of experience in commercial litigation practice/Professional writer who has contributed to numerous For Dummies books
Pages311-316
Chapter 19
Ten Major Mediating Mistakes
and How to Avoid Them
In This Chapter
Remaining calm, nonjudgmental, and positive
Respecting the parties and focusing on justice issues
Maintaining confidentiality
I
n the heat of battle, keeping your cool and doing everything right is
often very challenging. You’re going to make mistakes — everyone does.
Hopefully, however, you can learn from other people’s mistakes instead of
repeating them. That’s what this chapter is all about. Here I point out ten of
the worst mistakes you can possibly make as a mediator so that you’re less
likely to step on these mines yourself.
Arguing and Judging
The worst trap any mediator can fall into is making a judgment about the
truth or falsity of either party’s recitation of the facts or about the bona fides
of either party’s legal position. This is particularly true of litigated disputes.
Arguing with an attorney is like raising your voice to communicate with
someone who’s deaf. No matter how hard you try, you’re never on the same
channel, particularly because the attorney always knows far more about the
facts and laws of his own case than you do.
Rather than drawing judgments or arguing, be curious about how the par-
ties are going to prove their facts to a judge or jury or how they expect their
negotiating partner to adopt their version of the facts or share their opinions.
The parties are often more able than you are to identify the holes in their
own narratives and the weaknesses of their own opinions or positions. After
they do so, you can brainstorm ways to communicate something the parties
don’t want to hear in a way they can understand it.

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