Posted by: Jun 02, 2023

What Should You Not Say During Mediation

When you’re involved in a business dispute, you may find yourself in mediation. Despite being collaborative by design, mediation is often stressful, especially if you’re worried about saying the wrong thing. What should you not say during mediation? The short answer is don’t say things that are untrue, insulting, offensive, or uncooperative.

Watching your words can be easier said than done in the heat of conflict. The guidance of a neutral mediator can help keep the discussion focused. Having an experienced business attorney by your side can also help you avoid the things you shouldn’t say during mediation. If you’re in need of legal representation, don’t hesitate to contact The Curley Law Firm today.

The Role of the Mediator

Mediation is a form of alternative dispute resolution designed to bring parties together in a non-adversarial environment before a mediator. Unlike an arbitrator, a mediator does not have the power to decide the dispute’s outcome. A mediator facilitates discussion to help the parties find a mutually satisfactory solution. 

Parties reach an agreement in up to 90% of mediations. When you know what you shouldn’t say during mediation, you can avoid saying things that pull the mediator’s focus away from helping you find solutions. 

What Not to Say During Mediation

Emotions often run high before and during mediation. If the conversation were easy, you wouldn’t need a mediator. The difficulty of having the conversation makes choosing your words that much more important.

What should you not say during mediation?

1. Untrue Things

Never lie at mediation. That may sound like a no-brainer, but when people feel attacked, they can get defensive. A defensive person may unthinkingly deny something they know is true or claim something is true they know is false. If you know you’re inclined to get defensive, be prepared to respond calmly when you’re feeling attacked.

Sometimes you might not recall the details of an event you’re discussing in mediation. If that happens, don’t make something up. Just state honestly that you can’t remember. The mediator and your attorney can help you figure out how to proceed.

2. Rude Things

You might think the other party is being unreasonable. You might even be right, but lashing out at mediation is never a good idea. Calling your former business partner a liar may be cathartic, but it’s never worth it.

Try not to use words that imply the other party is lying, unintelligent, or has questionable motivations. Avoid labeling the other party or their position with words like:

  • Ridiculous,
  • Absurd, or
  • Greedy.

Don’t risk your chance at resolution for the fleeting satisfaction of telling the other party what you really think of them. 

3. Potentially Offensive Things

There’s a large gray area when it comes to the words people find offensive. In your personal life, you may choose to spend time with people who share your sensibilities. In the business world, however, you work with many different types of people. 

Err on the side of caution. Avoid language the other party might consider offensive, including slurs, swear words, and questionable slang terms. Potentially offensive language can distract from the issue and sour the conversation despite your best intentions.

4. Legal Jargon

Mediation isn’t court. There’s no reason to toss around words like “frivolous” or get caught up in the situation’s precise legal ins and outs. You’re there for an informal discussion to search for a mutually agreeable solution. Although the legalities of the case often guide the conversation, the goal is that both parties walk away satisfied.

5. That You’ve Provided Incomplete Information

It’s important to provide the other party with the information they need to negotiate before mediation, including how you want to resolve the dispute. If you say or imply you haven’t provided complete information, you disrupt the trust-building process. Damaging trust that may already be tenuous makes it that much harder to reach a resolution. 

Nevertheless, things may change over time, and you should be up front if you have new information to share. Being able to work through the nuance of a changing situation is one of the benefits of the informal mediation process.

6. That You Don’t Want to Be There

Often, mediation is something both parties mutually decide to do. Other times, however, mediation may be a contractual requirement or a court order. You may think it’s a waste of time, but telling the other party that you’re only attending because you have to is one of the things to never say during mediation.

Come into the process with an open mind. You may be surprised by the common ground you find. If you tell the other party you don’t want to be there, you could miss out on a resolution that’s even better than the one you have in mind.

The Curley Law Firm Can Help

As both an experienced mediator and business attorney, Adam Curley knows what not to say during mediation. Successful mediation can help you avoid the hardships of a trial and mend valuable business relationships. Even if you don’t reach a settlement at mediation, what you say can set the tone for the rest of the litigation. If you’re involved in a business dispute and worried about what to say during mediation, contact us today.