Originally from:

AAA Handbook on Mediation - Third Edition

APPLYING PRINCIPLES OF LEADERSHIP COMMUNICATION TO IMPROVE 
MEDIATION OUTCOMES

Gregory D. Hoffmann

I. Introduction

This article suggests that mediators should develop leadership abilities and an understanding of human behavior in order to work productively with difficult parties. Mediators need to understand why parties and counsel behave as they do in mediated negotiations—why some make ultimatums, others are unwilling to commit, and others are ready to agree to any offer. This article suggests that the Q4 Dimensional Model of Behavior—a graphic tool used in business management that divides human behaviors into four categories—will help mediators understand different behavioral types in order to select appropriate strategies to advance the mediation.

You are the mediator in a complicated mediation with a history of acrimonious litigation involving multiple parties, their counsel, and representatives and counsel for an insurance carrier and a reinsurer. The parties came to the mediation with widely different monetary demands and offers. The joint mediation session began this morning. You completed your presentation of the mediation process, you described your role as mediator, and you informed the parties of the rules of conduct that you would like them to follow. As you turn to ask one of the plaintiffs for its opening statement, plaintiff’s counsel bluntly announces, “I’m not sure why we’re here. I have no intention of settling this case for less than a nominal haircut from our original demand. I can try this case and win it 99 out of 100 times. I really have nothing more to say. That’s my deal, take or leave it.” He sits back in his chair waiting for a reaction. Within seconds, a buzz of whispered conversation generates between defense counsel and their client representatives. Only the lawyer for the reinsurer seems unperturbed and shows no reaction. A couple of defense attorneys start to gather their belongings in preparation of walking out. Suddenly, another defense lawyer admonishes plaintiff’s counsel, indicating that nothing will be resolved until outstanding discovery requests are fulfilled. Finally, another attorney, clearly avoiding the conflict, indicates a strong desire to concede to some of the plaintiff’s demands.