Everyone is familiar with the status-symbol driven mentality—the nice car, the expensive jewelry, and the perfectly pressed suit and designer sunglasses. And, everyone has seen the other end of the spectrum—the homeless man or woman, groveling on the corner with their head down, who won’t even look up when you drop a quarter in his or her cup and wish them luck. These are examples of two very different self-perceptions of status, and a mediation between two such parties would be interesting, to say the least. While this tremendous discrepancy in status is probably not too common, there is arguably a difference in status in every mediation, albeit a smaller gap than the business executive and the homeless man. How does one deal with status in conflict resolution? This article explores that topic.

The discussion of Status is profoundly useful in mediation and negotiation technique and strategy. For example, with certain cantankerous personalities, whatever anyone says will not be right, and they will immediately tell you why you are wrong and he or she is right. One way around such confrontation is simply to ask questions that lead this individual to draw the desired conclusion on their own. This way, he or she will think it is his or her own realization. If the mediator presents the conclusion first it will be “wrong,” but if the mediator merely thinks it, and gets the party to be the first to say it, it is more likely to be adopted by this type of status-driven person.

Not only can the mediator respect the self-perception of high status individuals by allowing them to be the “smartest person in the room,” the neutral can give them status while asking them questions. Doing so is likely to make them even more forthright and open, because they will feel they are being acknowledged and their status is being recognized. They will be able to engage in the mediation instead of trying to prove their status to the mediator. Certain individuals simply need to be the biggest gun in the room, and there are ways to make sure they think they are really in control.

As a concrete example, the neutral can use surnames instead of first names. “Mr. Smith” is certainly a more reverential way of addressing a party than “Hey, John…”. Also, the neutral can ask for their opinion, or ask them for their perspective. By doing so, the mediator is not challenging their claim to status and can focus on guiding them to settlement.

Another useful consideration in status considerations is body language. In a recent mediation between parties without lawyers in a small claims court, the plaintiff was a very small, very withdrawn, Mexican day laborer. She was very shy, and had a hard time even looking at the mediator when talking. She almost never made eye-contact. Her claim was she had slipped and fell in tire cleaner at a store. The store asserted that because the cleaner was all over her shirt when they came to assist her, she took it off the shelf, and spilled it on herself. They did not even believe she fell, but thought she likely made the whole thing up.

In discussing her case with her, the mediator sought to give her more status as an effort to empower her. She repeatedly said she preferred to have the judge decide her case. To convince her that she had the authority and the opportunity in this instant to choose her own fate, the mediator conferred as much status as possible.

To confer status to this woman, the mediator who was dressed in a black suit, white shirt, and tie, began by physically lowering himself to her level. The mediation was conducted near a bench in the hall of the courthouse, and the woman was seated on the bench. Instead of standing over her, the mediator squatted in a somewhat awkward position beside the woman. He tried to get his level physically below the woman’s, so she would look down to talk to him. The mediator also lowered his voice and spoke very gently and with respect. Some of the mediation was done in Spanish, and the mediator used what little broken Spanish he knew to confer status both by using her native language (instead of the interpreter) and by using the most proper, respectful Spanish when addressing her. (There is a formal and informal way of saying “you” in Spanish, so the mediator here chose the more formal (“Usted.”)). Finally, the mediator was very careful to give this woman a great deal of space in the conversation. Any time she began to speak, or even began to gesture that she was about to speak, the mediator immediately stopped talking, and encouraged her to say what was on her mind. “Go on,” he would say, “what is it?”

Despite these efforts, this party never did feel empowered to make her own decision, and instead of negotiating, even a little, she chose to have her case decided by the judge. This raised the suspicion that perhaps the decision maker was not with her—perhaps her husband, father, or some other third party had instructed her what to do (have the judge decide) and she could not, would not, or did not want to go against this third person. This is a separate issue, of having the decision makers present, even when they are not “parties.”

It may also at times be useful to lower a party’s status and to put someone else in charge. In essence, even though it is the party’s process, it is the mediator’s job to regulate that process and control the room to make sure all aspects of the mediation are promoting settlement. Just as there are ways to raise a party’s status, there are ways to challenge and lower a party’s status. Interestingly, this is more dangerous because the mediator will often encounter resistance, at least initially, and must be able to overcome the other person’s resistance.

In one example, a group of stakeholders concerned about an environmental project had gathered in a room to discuss their concerns and the validity of the project. They hired a well-respected mediator to help facilitate this room of more than 50 people. Shortly after the mediator had started by explaining the process, a woman in the front row interjected a question, without raising her hand or waiting to be acknowledged by the mediator. “What about the cost of all this? It is just going to cost way too much, and simply is not worth it … (etc) …” The mediator tried to cut her off by interjecting into the space between sentences, but to no avail. So, the mediator simply starting talking over her. She began talking louder, so the mediator began talking even louder, which led her to raise her voice again, and the mediator to get closer to her, square off his shoulder to her, and same calmly, loudly, and with authority right over her, “I am going to keep talking over you as long as you keep talking, and I can do so all day if you like.” At this point, the woman stopped talking.

“Now, one thing about this process, is you will all have to trust me. You have asked me to be here today, and I am happy to be here, and in order to make things run smoothly, it is important that you allow me to guide the process. After all, that is what you have hired me for, isn’t it?” Of course, no one could contradict this, and from there the facilitated group conversation ran smoothly, because the mediator took charge of the room.

There are of course myriad other techniques for raising or lowering individuals’ status in the room as compared to other parties or even the mediator himself. This consideration can be tremendously useful in moving the parties forward in a mediation, facilitation, or negotiation. The goal is to strike a balance.

by Jasper Ozbirn

Jasper L. Ozbirn received a LL.M. in Dispute Resolution with an Emphasis in Mediation from the Straus Institute, Pepperdine University School of Law in May of 2011. He is presently an associate attorney with Citron & Citron in Santa Monica, California.