About the Author
provides Mediation and Arbitration
Arizona from his
base in Prescott,
Arizona. He is a
to ACR publications
and lectures and
provides training on
behalf of numerous
Jonathan D. Conant
Daunting perhaps, but I was confident I could do
it. After all, I had been trained in law as well as
mediation, and worked with people from differing
backgrounds my whole life. I could surely talk to
anyone. But one day the inevitable happened and
reminded me of the importance of speaking plainly.
I was mediating an injury case with a plaintiff who
was a slight, older woman from an island nation in
the Caribbean. She was well dressed and spoke “the
King’s English,” as we used to say, and I seemed to
get along well enough with her. As was my habit I
met with her and her attorney in private to discuss
the basics of mediation. I launched into my speech
about mediation and the role of the mediator as
I had been taught and everything seemed to be
That is, until I explained that being a mediator, I
would often present the position of the other side
as the “Devil’s Advocate.” Whoops!
This sweet woman paled noticeably. Had I not
known better I would have sworn that she broke out
into a cold sweat. I asked if she was feeling OK, and
she asked to speak with her attorney in private –
immediately. I obliged and stepped out of the room.
When her attorney stepped out he had a grin on his
face and told me that we were done.
When I asked what had happened, he told me
that his client was a very religious woman of a faith
that I had no experience with and little knowledge
of. What I had regarded as a commonly used and
well-understood phrase, she understood as my
profession of allegiance with the devil.
I asked the attorney if I could speak again with
his client and he obliged, not wanting to waste the
day and hopeful that I would be able to clean up
the mess that I admittedly created. I apologized
profusely to her, explaining that I meant
no insult by my statement. I explained
that I was “God-fearing,” and had used
an expression that meant I would be presenting an adverse position (the “other
side”) without necessarily subscribing to
it. I told her that I was certainly not aligned
with Satan and admitted that my use of
the expression was ignorant and careless.
She started to relax a bit, and I asked her
to explain for me what her particular religious belief
system was about.
As I invited her to “teach” me. I asked more questions, being careful not to phrase my questions in an
interrogating or derogatory manner. Basically, I used
my skill and training in the use of questioning to
enable and empower her. She reacted to it favorably,
thanked me for spending the time to explain myself
to her, and we were able to proceed and ultimately
settle the case.
The lesson was simple enough but not without
cost. It took a good half hour to overcome the issue
that I created, which I assured both counsel would go
un-billed. It distressed me that I had made this error,
perhaps even more than my remark distressed the
client. As a mediator I was not supposed to create
conflict, I was supposed to help parties resolve it.
The lesson in all of this is not complicated to figure
out, and I already knew it: Don’t presume that a person will interpret what you are saying exactly as you
intended. Even in situations where you have more in
common than I did with this woman, don’t take that
liberty unless invited and even then, do so carefully.
You can’t speak plainly enough.
What we mean to say, or even what we actually say, is often different
from what we are heard as saying. I learned long ago that to garner the
trust of those with whom I was mediating I had to be able to communicate
with them and enable them to communicate with me as well, in spite of
differences of race, creed, culture, sex and sexual orientation, religion and
The lesson in all of this is not complicated
to figure out, and I already knew it: Don’t
presume that a person will interpret what
you are saying exactly as you intended.