Sometimes the informality of a mediation can be counter-productive. Recently, I had one that lasted late into an evening. At a certain point we were reaching an impasse that would have included an agreement to postpone certain discovery. I invited the attorneys to speak about this directly to one another, and instead of making that agreement, in frustration, one of them expressed his anticipation that the partner in charge of the case would respond with an "@*&% YOU". I believed that his comment was meant to be an incentive to keep the negotiation going, but it in fact had the opposite effect. I didn't know it at the time, (and thankfully the case got settled the following day), but that one choice reference to an "expletive" (which really was deleted!) completely undermined the negotiation that had been going on all day up until that moment. The Corporate clients, two very savvy business women (one general counsel of a huge conglomerate) took such offense to this that by the time I returned to the other room, they had packed up and were on their way out the door! Rudeness, crudeness, and crassness has no place in a mediation--even in the most informal moments. Next time you fear the worst language being tossed in for flavor or emphasis, take your mother's words into account and "Watch Your Language"!
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