Mediation, Communication and Corrupt Speech

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Cain_Thomas_webThe uses and misuses of language are a fascinating part of mediation. If you like people watching, go to an airport or become a mediator. It is fascinating how people use words to mark territorial boundaries, defend against invasion and go in conquest of new domain (including the other side’s pocketbook).

The primary purpose of mediation is to open the floodgates of communication. Towards this goal, mediation is confidential (Evidence Code Section 1119).  Despite that promise of confidentiality, many attorneys and clients come into mediation prepared only with monologue, which allows only one point of view. Mediators, on the other hand, encourage dialogue, which requires more than one point of view, and allows both sides not only to state their truth, but to listen to the response, and, most importantly, to hear the other side’s truth. Mediators fight against the assumption that there are no common ground or common values.

Corrupt speech is a serious problem that creates barriers to good communication. While there are few “rules” in mediation, the prohibition against interrupting the other side is one of them. Lying is not permitted. Other forms of corrupt speech are name calling, cursing and yelling. Sarcasm is a foul form of speech as it crosses the border into scorn. It says “you don’t deserve to be taken seriously.”

In conflict, sometimes we ignore or mislabel our emotions. Effective communication, however, requires that we correctly identify our emotions and learn to express them in a constructive way. Experienced mediators help disputants properly label their emotions, the most common of which is anger. Anger hides the shy emotions: sorrow, fear, hurt and loneliness. We wrap these tender feelings in anger because we don’t like to admit we are vulnerable. Mediators can help parties not only acknowledge these feelings, but express them in a way that allows the other party to hear them.

By helping parties communicate openly and effectively, mediation offers a clear view of personal values—a subject that is not always relevant in litigation. Some lawyers are shocked, for example, when the other side refers to “truth” or “justice,” as if these could somehow be out of bounds, but for many people, these are the elements that are most important to them. In mediation, we can appeal to honor, doing right, paying your bills, taking care of others and buying your peace. These are our common values.


Tom Cain is Program Director of The Congress of Neutrals, a non-profit corporation, associated with John F. Kennedy College of Law. Our mediators have done more than 5,600 mediations for the Superior Court of Contra Costa County. We have trained and mentored new mediators since 2002. Our next 40-hour mediation training begins February 20. Become a mediator! Visit us at www.congressofneutrals.org or (925) 937-3008.    

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