Value of small talk in Mediation

 “She Negotiator”, Victoria Pynchon blogged this week about women and small talk.  Essentially, she reminded me that women are sometimes superior at making idle conversation (the social grace in us!) and yet in professional settings have often tried to mask or hide this innate ability, for fear of appearing shallow.

Here is a cute little reminder from none other than Larry David that small talk can be the key to forming the cornerstones of trust, rapport and cooperation at the beginning, middle and end of a negotiation.  It is an art best practiced at dinner parties and while waiting at elevators, but is an art worth developing.  Invariably, if you work at it, you can find some common experience or interest with most everyone you meet.  A genuine curiosity about their interests will also serve you well.  After all, mediation is designed to be a way to open up communication between two sides of a dispute who have shut down.  Small steps towards creating a lifeline between the two will invariably break down the barriers built up to shield them from the discomfort of the dispute. 

What efforts do you make to engage your opposing counsel or mediator in “small talk” in order to create rapport and get beyond polarity?

The Benefit of Small Talk and Joint Sessions

What benefits can litigants draw from these research findings?  The same benefits most successful negotiators already derive from small talk -- breaking impasse and closing the deal. 

In the not so distant past when I was primarily mediating pro bono cases for the Superior court, I always commenced my mediations in joint caucus.  I did not ask for those polarizing speeches about the merits of each side's case however.  What I asked both the parties and the lawyers to do was very simple.

"Introduce yourself," I said, "as if you were at a cocktail party.  Say something interesting about yourself, something pleasing or, at least, something superficially revealing, such as your job, a recent vacation you've taken, and the like."  

Expect the Unexpected  

In one small commercial dispute early in my pro bono career, that initial "party chatter" resolved the case in short order.  The Plaintiff businessman was the first to introduce himself as an importer of household goods from Yugoslavia.  After five or six other parties had gone through their introductions, it came time for defense counsel to say a few words.  He opened his arms and broke into a grin as he began to speak to Plaintiff in Plaintiff's native language. 

Plaintiff's counsel looked justifiably alarmed -- after all -- his client was speaking to opposing counsel outside of his "hearing."  As he moved to intervene, however, I tilted my head a bit and mouthed "I think it's a good thing."  We both relaxed, leaned back in our chairs and watched the two carry on an animated and increasingly friendly conversation.  We were done and the parties were unusually happy with their settlement a brief twenty minutes later. 

I've seen small talk settle cases of much greater magnitude and after long, difficult negotiating sessions, particularly when the principals meet alone, often for the first time.  In one particularly contentious trademark action, I refused to let the parties leave before the two businessmen sat in a room together in the absence of counsel ormediator in a final attempt to work things out.    

They emerged fifteen minutes later, not only laughing, but puffed up with pride that they'd so quickly done that which their attorneys had been unable to do -- settle a case that didn't make any sense to try.  When I asked the parties what they'd said to each other, they replied, "baseball, basketball, football.  Then we settled." 

The Perils of Shuttle-Negotiation

Here, then, is the weakness of shuttle negotiation.  The parties' attention is fixated on money.  A fixation that neuroscientists tell us makes us ungenerous and anti-social -- the worst possible context for a successful settlement.

The next time you're facing a difficult negotiation or mediation, remember the salutary effect of small talk in helping yourself and your opponent focus on the commercial and human situation that has brought you to the table so that you can more easily resolve the business and the people problem at the heart of the litigation.