I was recently asked why I enjoy mediating as much as I do. My immediate response was that I love helping people resolve their disputes, and connecting with them in the process. As I was thinking about it a bit more it occurred to me that the foundation for that connection most often occurs when I’m able to help participants get through those difficult times that sometimes happen in mediation when emotions are running high, or when the parties feel like the situation is hopeless. And as I was remembering a few examples of those situations it occurred to me that a common thread was that it was often a bit of humor that helped get the process back on track.
I remembered one mediation in which we had already gone back and forth in a few rounds of demands and offers in separate caucuses, it was late in the afternoon and the ball was now in defendant’s court to respond with an increased offer for me to take back to the other side. However, as sometimes happens, the defendant’s increase was so small that in my judgment it was going to be counterproductive to getting a deal struck. I responded by telling him the following true story about my family:
Many years ago, my Mom and Dad were visiting my wife, our daughter, and me in our home. When it came time for dinner we all decided to order a pizza, and my Mom said that dinner was on her and my Dad. A while later the pizza arrived, along with the bill, and my Dad told me, “Give me a number” (meaning to tell him how much the bill was, and he would pay it). When I told him the number, he looked at me as if he couldn’t believe what he was hearing, and said, half-jokingly, “Give me another number,” which mortified my Mom, who told my Dad to just pay the bill, which of course he did. (It turned out that the price of pizza had gone up a lot since the last time my Dad had ordered one.) After telling the defendant the story, I then turned to him and said, with a smile on my face, “To quote my Dad, ‘Give me another number.'”
Needless to say, that broke the ice – and also the logjam. The defendant did indeed “give me another number,” which soon resulted in a deal. The takeaway from this is that there is something about humor (if used appropriately) that helps to break tension, and to build rapport and trust between people – both of which are essential for conflict resolution.
It turns out that much has already been written about this topic. For example, “The Funny Thing About Mediation: A Rationale for the Use of Humor in Mediation” by Whitney Meers in the Cardozo Journal of Conflict Resolution includes a great review of the literature on the use of humor in mediation, and notes that “Research … indicates that humor helps to establish trust relationships.” (Id. at 662.)
Much has also been written about the physiological effects of humor and laughter. Here’s an example, from “Humor, laughter, learning and health! A brief review” by Brandon M. Savage, et al., in Advances in Physiology Education: “Humor has positive physiological effects, such as decreasing stress hormones like epinephrine and cortisol and increasing the activation of the mesolimbic dopaminergic reward system [citations].” The simple translation of these strange-sounding medical terms is that, not surprisingly, there is a physiological basis for the stress-reducing effects of humor.
It’s no wonder, then, that a well-timed injection of humor, in an appropriate manner, can sometimes be the difference between resolution and impasse in mediation. And that’s especially true if the humor is based on something that the “audience” can relate to, such as a movie that we’ve all seen. My usual go-to is one of my all-time favorite lawyer movies, My Cousin Vinny, starring Joe Pesci as a brand-new New York personal injury lawyer who had to take the bar exam six times before he passed it, has never tried a case in his life, and is faced with having to save his young cousin from a murder charge before a hostile judge in a small town in rural Alabama. Marissa Tomei plays Vinny’s fiance, Lisa (and won an Academy Award for best supporting actress). I’ve found over the years that there are few people (especially lawyers) who don’t know this movie, and there are so many good lines from it that there are very few mediations in which something doesn’t happen that produces what I refer to as a “My Cousin Vinny” moment (where I can refer to something in the movie that relates to something that just happened in the mediation). One of my favorites is the pool hall “negotiation” scene, where Lisa won $200 in a pool bet, but the loser doesn’t pay her. When she and Vinny go to collect, Vinny’s “opening demand” is $200, to which the other guy responds, “How about I just kick your a**?” Vinny responds by correctly observing that that’s what lawyers refer to as a “counter-offer,” and the negotiation begins. A reference to this pool hall negotiation can sometimes help ease the tension when a party in mediation feels like they’ve just received a “How about I just kick your a**” response from the other side. (Of course, there are also the “Did you say utes??” and the “magic grits” scenes from this movie, but we’ll save those for another day.)
One final note on the subject of humor in mediation: Timing and tone are everything. The last thing a mediator wants to do is give the impression that he’s not taking the process (or the participants) seriously, or that he doesn’t acknowledge how serious, and important, the process is for them. With that note of caution, laughter can truly be the best medicine in getting a resolution across the finish line.
As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when the parties are comfortable in doing so. I look forward to working with you again.
Best regards and stay well,
Phil Diamond