Dispute resolution and mediation work best when the parties come into the process with the shared objective of working toward a mutually acceptable agreement. I’m often asked what mediators do when one party has the objective of getting everything they want at the expense of the other party.

As David Ross, a JAMS mediator and arbitrator, wrote on a recent JAMS “ADR Insights,” that mediators are “preternaturally patient people who remain calm and focused” when dealing with “strong personalities or irrational intransigence.” Nonetheless it is just the hyper-aggressive negotiator who can undermine the process by making it less productive and certainly less collaborative. The hyper-aggressive negotiator may withhold information or distort information, refuse to make any concessions, make demands for irrelevant issues that are later offered as concessions in exchange for concessions on relevant issues, engage in personal attacks, attempt to use deadlines and threats to gain concessions, and any number of strategies in an attempt to obtain power and acceptance of the outcome they desire.

I have often worked with individuals who make unreasonably high initial demands (or unreasonably low initial offers) and then refusing to negotiate. Some of these individuals attempt to delay and delay until the other party weakens and makes concessions. Hyper-aggressive negotiating behaviors are simply contrary to efforts to work together to find creative solutions that work for all parties because they destroy any trust between the parties to work cooperatively.

So, how do dispute resolution specialists deal with hyper-aggressive negotiators? Mediators attempt to explain the benefits of cooperative problem solving. Mediators can also raise questions as to what the outcomes might be if the parties don’t settle, as typically, the outcomes of not settling can be costly to all involved. Mediators also have ethical responsibilities to insure that the negotiation process is fair and that the parties are under no undue pressure to accept an outcome out of fear of reprisals. Any mediator has the right to withdraw from any mediation when in doubt of the fairness of the process.

Basically, when forced to deal with an uncooperative negotiator, the question to be considered is why should we negotiate at this time, with these parties, under these circumstances. Don’t be forced to settle now when circumstances and people may change. Time pressures may work on an uncooperative negotiator and encourage a change in behavior.

This week I started a new mediation class. I first explained how COVID-19 has changed the way its practiced: Courts and mediation centers are doing less face-to-face sessions and more by telephone or Zoom. The class itself was virtual with the possibility, if conditions permitted, of additional face-to-face role plays and observations.

Given such changes I was curious as to why these people were willing to devote a minimum of eight evenings to the classroom portion of the training. There is a fee for the class, but the fee is returned if the person completes a set number of volunteer hours. Admittedly, this is only a sample of one class in Southern California.

The entire class was women. Over some 20 years of conducting mediation training classes there have always been more women than men participants. I notice the same in LinkedIn descriptions. There are many more women than men who identify an interest in mediation.

The goals people in this class identified were:

-        Practicing attorneys and legal assistants who did not have the opportunity to study mediation in the classes and wanted to add that skill set.

-        People who worked in governmental and community settings who saw mediation as needed in interactions with the public.

-        People from a variety of backgrounds who expressed a motivation to use mediation in community settings for public benefit.

-        People in business and real estate settings who believed mediation could help them deal with business disputes.

The goals of this class echo the legislative purpose of the California Dispute Resolution Programs Act of 1986. “Increased use of … alternatives to the formal judicial system… offer less threatening and more flexible forums for persons of all ethnic, racial, and socioeconomic backgrounds” and “provide a valuable prevention and early intervention problem-solving resource to the community” particularly in “disputes in which the parties have continuing relationships.”

When I explain the overwhelming majority of mediators are unpaid volunteers I use the comparison to CPR and heart doctors. I’m really glad there are many people are trained to use CPR  but just as glad their service in the community in no way lessens the importance of specialized heart doctors. Volunteer mediators are the CPR providers to the community. The more people learn mediation skills, the better our communities will be for it.