In one of my very first columns for this blog, I advised my readers that persistence wins in mediation. While I stand by that advice, there is another kind of persistence that absolutely, positively doesn’t win in mediation — the kind referred-to in this post’s title.

Beating a dead horse: What a descriptive phrase, when you think about it. Whether your goal is to discipline, correct or motivate, if a horse is dead you’re wasting your time and effort beating it.

Been there. Done that.

When I used to try cases, trial judges would advise me,“You’ve made your point, move on!” Which, of course, is a judge’s way of saying Don’t beat a dead horse.

Sure I’d made, and repeated, my points enough to irritate judges — and yet, I often felt compelled to make my point, over and over again. I guess, at the risk of brow-beating the jury, I wanted to make sure that I was heard and understood. The problem was, of course, that I was being counterproductive.

I think that I was unintentionally insulting the jury by repeating myself as if they were not smart enough to understand what I said the first few times. A friend of mine has a standard response when his wife does the same thing to him: “Sweetheart, I already bought that car and drove it home. Please stop trying to sell it to me.”

To be honest, I’ve been guilty of doing the same thing myself at home. Sometimes my wife or children will say “Here comes another sermon from Dad.” What they really mean is that they’ve heard me driving-home my point so many times, it’s no longer helpful. At that point, you’ve made you’re point, and then — by aggravating your audience — you’ve probably unmade it.

I’ve even done it as a mediator.

I recently conducted a mediation for which the lawyer had her client participate by telephone. The way it worked out, I was never allowed to speak with the client. I felt compelled to make my points over and over again to the lawyer, in hopes that she would then communicate it to her client. After I made the same point three times, she rebuked me saying “Enough is enough! My client isn’t here. I heard you the first time.” Her message was clear: “Stop beating that dead horse.”

How about you?

In whatever we do, we all want to be effective communicators. We want to make sure that our message is heard and understood. As you consider this issue, ask yourself “Do I tend to become a dead horse beater?” If the answer is yes, you may need to rethink how you can most effectively communicate your position without repeating yourself over and over again. I know I’ve had to rethink some of my own inclinations.

At age 62, it’s about time that I begin to get this right.

Enjoy the journey!

If you’re an Alabama football fan (or, for that matter, a Bama hater), there’s a good chance you’ve heard Nick Saban talk about “the process” — the term he uses in describing his approach to building championship-caliber football players and teams. Despite recent evidence to the contrary 🙁, that process has served his program very well.

As an Adjunct Professor of Mediation at the University, I teach my students that mediation is a process. It has several distinct stages. Each stage is important to producing a successful outcome — and to my way of thinking, there really are no shortcuts.

In my experience, a successful mediation process includes the following stages:
  1. Pre-Mediation — which may be conducted by telephone, in person, or through Position Statements.
  2. Opening Session — which may be a full-blown session, an abbreviated one, or just a Meet and Greet.
  3. Private Caucusing — during which, demands and offers are exchanged, brainstorming may occur, positions are tested, and each side’s strengths & weaknesses are discussed.
  4. Narrowing the gap — During this stage, there’s a continued exchange of information and demands or offers.
  5. Breaking of impasse — (If you haven’t already read it, you might be interested in my 3-part post “Overcoming Impasse In Mediations”)
  6. Conclusion — during which, written agreements are prepared, or further discussion is initiated to determine what comes next next.
  7. Follow-up — which is typically necessary only when the parties haven’t reached an agreement.
Example one: Short-circuiting the process. And the client’s best interests.

I recently led a mediation that had reached the private caucusing stage, and I was serving as Devil’s Advocate by conducting a little reality testing. One of the lawyers cut me off, saying, “We aren’t going there.” Out of respect for him (and since the mediation is ultimately “his process”), I backed off.

A number of my longtime clients and colleagues would contend that I should have ignored the rebuff. The lawyer and I discussed it later — and while I understand why he did what he did, I disagree with his reasoning.

In cutting me off, he hurt the process. Granted, we were able to settle the case, but I think his client would have benefited from the discussion I was planning to lead.

Example two: The process works

In another case, I felt strongly that the process — and the parties — would benefit by dedicating our opening session to a discussion of the case’s legal and factual issues. The lawyers disagreed with me, but nevertheless followed my suggestion. Later, they both told me that the opening session had been critical to getting the case settled.

Trust the process. And your mediator.

I’m assuming every mediation you handle involves a mediator chosen because of someone’s confidence in his or her skills, so let your mediator to do their job — and let the process work for you. That said, I’m not suggesting that you relinquish input in structuring the process. What I am suggesting is that you trust your mediator to do what they think will give the case the highest likelihood of settling.

In the end, isn’t that what we’re all after?