An Entertaining Mediation Primer

Richard H. Ralston has compiled a list of thirty things to say in mediation. It is kind of a list of things not to say, or most accurately, a list of things you will hear yourself say and wish you hadn't.

I have heard all but a few of these. I have not heard Statement #5 "They are not negotiating in good faith." Not saying this about a colleague and knowing it won't be said about you is one of the reasons we practice workers' compensation law in Pennsylvania. Statement #4 "They are not being realistic." is the way we say it, and we mean they are just missing something.

Take note of Statement #12 "That's the most we're going to pay.", Statement #25 "Let's just cut to the chase, quit playing games and make our best offer." and Statement #26 "This is my final offer [or demand]." None of these connote a legitimate settlement number.

When you make these and any of the statements in the top twenty, you have deviated from a reasoned analysis of the issues of the case.

Statement 22, 27, 28, and 29 deal with arguing the case. When the parties in mediation discuss risk it must be with an eye toward seeking agreement on the quantity of risk. Seeking to impose risk on a party is disenfranchising and counterproductive to a negotiated agreement.

The author suggests parties should refer to the comments by number to expedite these detours from productive mediation.