In 2013 I published my first book on mediation advocacy and listed a selection of words and phrases that mediation advocates use all the time at mediations and which always have a negative effect.
When they are used the other side just groans. Mediators experience the onset of déjà vu. Energy leaves the room. Cliches stifle new thought and become barriers to real communication. So why use them?
Two experienced mediators, after reading my book, devised the game of Lingo Bingo. When they read the position papers and hear the opening statements from advocates at mediation they cross them off the list.
I share some of them with you now so that you know to avoid them.
- “Your case is misconceived.”
- “That is just nonsense.”
- “You have got the law wrong. It’s just plain wrong, I’m sorry.”
- “On your own case you will lose.”
- “It’s monstrous to suggest that…”
- “We consider that we have a very strong defence to the claim and in any event the damages that are sought are inexplicable in view of…”
- “We are supremely confident of our case.”
- “We have come here to give you an opportunity to explain your case to us which we have to say we do not understand. “
- “Unless you can persuade us otherwise we see no reason to depart from our position. We are here to settle but not at any price if we cannot achieve settlement then be in no doubt that we will pursue the case vigorously to trial.”
- ” We have come here to try and settle but any settlement must reflect the underlying litigation realities of this matter and the parties’ relative strengths and weaknesses.”
- “We come to mediation with an open mind, but see no reason to depart from our figure of £X…”
Points 1 to 5 are unnecessarily aggressive. They are not creating an atmosphere conducive to peace making. Points 6-8 send out the wrong message, i.e. that the speaker/writer is doing everyone a favour by being there. Doing business is not on their agenda. Points 9-11 are just lame and no one ever takes them seriously.
In my posts on preparing position papers and opening statements I stress the importance of knowing
- What your message is.
- Who you are aiming it at.
- How you think it will be received. Remember it’s not the words that you use it’s the words that they hear.