Mediators and lawyers have a job to do: make a negotiation successful. An attorney, though trying his or her best to have the client reach his or her goals, may recognize that the biggest obstacle to a fair and reasonable resolution is the client. The attorney may need to pull the client aside and quietly, effectively but softly, criticize the client because of the situation, something the client did or the client’s approach to negotiations.
The knee jerk response to criticism is often to be defensive: “Well, it’s not my fault… I didn’t know… She did it, too… You did something worse!” To try to soften the criticism and make it more palatable, we may sandwich the criticism with praise, but the client may still feel th
e need to argue and justify the bad behavior.
Criticism: No One Likes Giving or Getting It
For the client to respond constructively to your criticism, according to an article in Psychology Today, you need to give it in a way that will lower the client’s defensiveness.
- Take a time out.
As exasperating as your client may be, this is not the sort or discussion that should be held in the presence of others. Physically removing the client away from the other party and creating some time and space for just the two of you would be a good idea.
- Use the right tone.
Use a calm and friendly tone, so your client knows you’re genuinely trying to work things out. A soft criticism doesn’t a guarantee your client will hear you, but it’s a caring way to raise concerns.
- Offer an excuse.
By providing an excuse, the client won’t have to come up with their own. This also shows you understand and empathize with your client and with good intentions (we hope) a mistake was made. You could say, “I know you didn’t mean to…” or “You probably didn’t realize…” or “I understand that you were trying to…” or “I know you’re busy with…”
- Explain the problem.
After you offer the excuse, add a “but” explaining the impact of the client’s action. Stay focused on specifics and how it may affect the client’s ability to reach his or her goals.
- Move forward.
Don’t dwell on the past, talk about what should happen next. You could say, “From now on, could you please…?” Or, you could get the client’s help in figuring out how to solve the problem. “What do you think we can do to make sure this doesn’t happen again?”
The best way to avoid problems during a mediation or negotiation is to get a good feel for your client. Is the client “willing to take this to the Supreme Court”? Is this legal matter seen as a test of wills, a battle of right vs. wrong, a chance for public vindication? Are the client’s expectations unrealistic? If so, unless expectations and goals can be adjusted, negotiations may be a waste of time and money and just further antagonize the parties.