By Joy A. Bartmon
Published December 2017
I have always been fascinated by the range of personalities I find in practicing law. Especially now that I have become a Certified Family Mediator. My practice as a family lawyer was already chock full of personality characters. Becoming a mediator has convinced me that a personality being “good” or “difficult” is a matter of my perspective and my creativity. Much of the course of the mediation depends on whether I choose to see some traits as negative, or all traits as resources.
For example, in a litigated family law case, I dread the opposing counsel (or their client) who strives to be intimidating, nitpicks the details, wants to control everything and is demanding to the point of being rude. They enjoy being or seeming angry. As the mediator I can use this type of personality and turn it into a positive. This person is likely to be goal-oriented, organized, and ambitious. Their affinity to nitpick can expose the hidden problems that impede progress. Their obnoxiousness can be a reminder to the opposition that settlement is a far better option than a trial. This kind of person can use their need for control to set a clear agenda and keep the discussion on point. I will encourage them to use their strong personality to keep the mediation moving forward with solutions to each issue. I will find something during the mediation to characterize as an achievement made by this person, and with praise for that achievement get them to buy into reaching the next positive outcome. By equating settlement on a point, however small, with winning, this personality type can be convinced to be the driving force toward finding solutions.
It can be equally difficult, perhaps more so, to mediate with counsel or their client who is evasive and non-committal. These individuals are insecure, overly cautious and indecisive. Making a decision feels like work and they do not want to work for a settlement. They like other people to have to work hard for them. I try to determine if the indecision is the result of insufficient preparation or information. If so, can it be corrected during the mediation? Can a phone call be made that will get the information needed? Or is the indecision a personality trait? If so, can I get them to express what they are worrying about? Sometimes they can reason out the pros and cons with the encouragement and empowerment that I am listening to them and understanding their concerns. I hammer away at the reasons why settlement is the best alternative. If settlement worries them, I tell them trial will be worse. I get them to see how much work has already gone into the case and how much more work a trial will be for them. I convince them that they are making the other side work hard for a settlement. I encourage them by showing respect and voicing praise for their input. If I help them to see that it feels better to make a decision over which they have some control, then I encourage them to decide rather than let someone else decide for them.
In some ways, the worst personality at a mediation is the happy-go-lucky, charming extrovert. As a mediator, this personality type is a pleasure to be in a room with, but you find that nothing is getting done. This person loves telling stories and making people laugh. With this person it is useful to have an agenda and continually get them back to the agenda. Of course, you must acknowledge their joke or story because they will be offended if you do not. They will interpret a too serious demeanor as a rejection of who they are. So, I accept them and give them the attention they want. I redirect their conversation to the issues by asking questions. I really listen to the answers. I laugh at the funny parts. But, then I rephrase their answers in a more neutral tone. I keep making the point that reaching a settlement is a cause for celebration and that they will be very happy when it is done.
The more I think of all the personality types a mediator meets, the more I am convinced that each one can be used, molded, directed, or perhaps exploited, to achieve a positive outcome. You can let yourself believe traits are only bad. Or you can respect the person, believe there are pros along with the cons, and figure out a way to use those traits for a successful mediation.