Are you interacting with a puppy, an ostrich, a bear, a turtle, or a fish?
As a seasoned litigator, small-claims arbitrator and mediator, I have noticed that most participants to a dispute fall into several distinct categories. Handling a negotiation is best done after being able to observe the participants and learning more about their individual tendencies. As such, an introductory conversation is an absolute must. At the same time, one needs to identify their own biases/prejudices so as to avoid misconstruing behavior or missing clues as to how a participant may act or react.
When acting as an arbitrator, I have trained myself to stop reading nuances into a situation that is not presented by the parties. When performing my duties as a litigator, I am programmed to utilize ‘character’ behavior to my client’s advantage. However, when mediating, I find that it is extremely helpful to understand the personalities of the participants and how they may react to each other. I try my best to get the participants to look at situations from a ‘new’ perspective that doesn’t necessarily comport with their usual behavior or way of doing things. By taking them out of their individual ‘comfort zones’, I am hoping for a change in the behavior that created the dispute and the resulting impasse.
As a ‘short-hand’ (which in and of itself is based upon ‘first impression’ biases) ¹, I tend to place the participants’ actions into several distinct categories that I equate with animals to simplify what approach I may need to take. As a litigator, I am trained to seek and exploit the behavioral tendencies and as such, the focus expressed herein will be on the mediator’s role as it pertains to the traits displayed. (I set forth the following list as representative examples created as a short-hand for me.)
The Ostrich: Puts one’s head in the sand ignoring the importance of matters believing that passage of time will force a resolution. Runs after issues in quick and short spurts. May, or may not, want to be present. When dealing with the “ostrich” personalities the goal is to express the importance of active participation and adhering to tasks that may lead to a possible resolution. It may behoove the mediator to periodically remind the parties of the assigned tasks.
The Puppy: Naïve. Willing to please at his own expense. Happy chasing his tail even if no gains are made by doing so. He makes a lot of noise, just so he can believe he is being heard. Tends to be young and still clouded by strong emotions. When dealing with the “puppy” personalities the goal is to encourage the party to express his own ideas, that would need to be put forth in a constructive and organized manner.
The Fish: Cold to the situation. Like the “puppy”, willing to follow other's ideas and/or actions without much thought. Tends to have a “short” memory. He doesn’t want to be “caught” by his actions and can be hard to pin down when a resolution may be close at hand. When dealing with the “fish” personalities, it might be best to express ideas “on paper” so as to have a constant “visual” available for review.
The Bear: Big presence. Growls and grunts. He can be aggressive. Fears no one and believes nothing will cause harm to him. Tends to be “short-sighted”. Very defensive about the children and their perceived needs. When dealing with the “bear” personalities, the mediator should try to balance the situation by making sure the other participant is being heard, without diminishing any of the “bear’s” perceived issues.
The Turtle: Like the ostrich that can hide its head as a means of avoidance, he has a hard protective shell as a “defensive” mechanism. Takes slow and cautious actions (sometimes positive, sometimes negative). Quietly observes. When dealing with the “turtle” personalities, the mediator needs to be in the position to stop the party from temporarily withdrawing from active participation. This can best be done by assigning tasks and short-term goals along the way.
The Bee: Loves to hear his own voice. Drones on and on about the same things; usually revisiting topics previously discussed. He wants to be productive but doesn’t yet realize he cannot do it alone. When dealing with “bee” personalities, it might be best to have “shared” tasks assigned to the parties, so as to distract from past actions and to create a common focal-point in the future.
The Squirrel: Hordes all of the paperwork and slowly doles out information when requested. Has a tendency to either try to control the dialogue and/or tends to bring up pertinent facts after the issue has been discussed ad nauseam. When dealing with “squirrel” personalities, it might be easier for the mediator to accept all the paperwork in “bulk”, so as to “disarm” the possibility of gamesmanship.
The Goat: Devours all suggestions (even the bad ones). Wants to “be on top”. Willing to butt heads, just for the pleasure of it. Resistant to seeing anyone else’s perspective or needs. When dealing with “goat” personalities, the method of using assigned tasks may not work as well and the mediator may need to assist along the way so as to keep a short leash on the movement and direction of the mediation.
The Giraffe: Willing to stick his neck out to discuss fresh or new topics. Looks for sympathy, and expects to get a response in return. Ready to run when confronted with situations that make him feel uncomfortable. When dealing with “giraffe” personalities, the goal is to slow down ones approach and be ready to make the participant comfortable with the topics being discussed. To avoid the need to sympathize, the discussion should focus on the future and not the perceived vulnerabilities caused by the parties’ past behavior.
The Rhino: Very short-sighted. Blind to, or unwilling, to see the situations surrounding him. He doesn’t see himself as vulnerable but is susceptible to being taken advantage of if no guidance is given. When dealing with “rhino” personalities, it behooves the mediator (if authorized to practice law) to educate the parties on the state of the laws and what is expected of the parties. All mediators should repeatedly encourage the parties to seek independent legal advice to protect their own interests.
The toughest mediations tend to arise when both participants fit into the same category.
As a mediator, I am there to assist the parties in reaching conclusions on their own; which hopefully results in the parties designing a mutual resolution that fits within the parameters of the law. With gentle “guidance” and a knowing look, I can be the wise “owl” my clients expect me to be.
If you or your clients are in need of a “mediator” or believe that you need to hire independent counsel, to protect your interests in New York or New Jersey, feel free to contact Glenn P. Milgraum, Esq. by calling 973-812-8660 or by email at: Disputelaw@aol.com. You should also feel free to link on LinkedIn to review any upcoming posts or visit my website at: https://glennmilgraum.com/mediation.
¹ Emphasis is placed on the fact that this method is being used as a short-hand utilized by the author to track an individual’s behavioral characteristics and is not based upon any scientific study or analysis.
* Nothing herein should be construed as legal advice. You should always consult and/or retain a lawyer regarding any legal matter.