If you have ever mediated a case with me (and most of you have not), you know that I crack jokes, especially in the opening joint session. There is a method to my madness; to take the tension out of the situation and try to put the parties at ease. I also let myself get sidetracked and tell a story for the same reason.

I sometimes wonder whether cracking jokes and telling irrelevant stories is wise. Well, it seems that it is. I stumbled upon an article about a study funded by Monash University law faculty, RMIT University and the Australian Institute of Judicial Administration Tribunal (VCAT) on the use of humor during mediation sessions. Three researchers spoke to 16 out of 60 mediators on the VCAT panel and found that those mediators who do use humor found that it “… helped “lighten up” disputes, release stress and alleviate “charged situations.” ” (Lawyers Weekly, “Humor a Serious Matter in Mediation”, February 15, 2012.). Some of these mediators did point out that they were cognizant of potential cultural issues when attempting humor so were careful not to offend a participant.

This article got me thinking, and so I decided to look for scholarly works. There are few of them. An early one was written by Kevin W. Cruthirds, entitled “The Impact of Humor on Mediation“, 61 Disp. Resol. J 33 (August-October 2006.) (hereinafter “Cruthirds”). ( THE IMPACT OF HUMOR ON MEDIATION) Initially, he notes that humor “…has been credited as relieving stress, tension and anxiety and enhancing communication…” (Id. at 34). However, he also notes, that used inappropriately, humor can be dangerous as “it can lead to feeling of alienation and anger.” (Id.)

The first question he asks is what is humor? He defines it as “…a form of communication and it is intended to elicit laughter.” (Id. at 34.)

Mr. Cathirds notes that there are actually four styles of humor:

“Self-Enhancing Humor: This style of humor is usually used as a coping mechanism to deal with life’s stress and misfortunes. People who use self-enhancing humor tend to be easy-going (“a nice guy” or “gal”). They are not necessarily extroverted but maintain a humorous and positive out-look on life where they tend to “roll with the punches”.”

“Affiliative Humor: This is humor that is non-hostile, sometimes self-deprecating and always life affirming. Researchers have found that affiliative humor can reduce tension and facilitate relationships. Affiliative humor is associated with self-assured social extroverts who are “the life of the party.” These people can beguile others with jokes and amusing stories. People who use affiliative humor are perceived as likeable and non-threatening and, as a result, they attract people to them, thereby bringing people together.”

“Aggressive Humor: Aggressive humor can be negative or positive. For example, it can be negatively used to manipulate or ridicule others. Those who use aggressive humor for negative purposes can be understood in terms of superiority theory. The premise is that people laugh when they feel superior to others. A bully often uses aggressive humor for this purpose. The more negative the aggressive humor, the greater the bully’s glee.”

“Positive aggressive humor includes satire and teasing. While the message may be reprimanding, the communication contains constructive criticism delivered in a humorous way.”

“Self-Defeating Humor: This is humor at one’s own expense, i.e., self-deprecation. People who use self-defeating humor usually are trying to raise their status by endearing themselves to others. They tend to be emotionally needy and suffer from low self-esteem.”

(Id. at 35.)

I also found a second article, written by Whitney Meers, and appearing in the Cardoza Journal of Conflict Resolution. It is entitled “The Funny Thing About Mediation: A Rationale For The Use of Humor in Mediation.” (Vol 10: 657, 2009) (hereinafter “Meers”.).(Funny Thing ) Initially, Ms. Meers echoes Mr. Carthirds;

“Humor is a tool used effectively in many contexts. When used properly, it can help relieve tension, provide perspective, allow people to flirt with fear, anger or other afflictive emotions, capture paradox, subvert the dominant paradigm, and signal willingness to engage in a playful manner. ….” (Id. at 657.)

Ms. Meers then asks: why are so many mediators afraid to use humor? The short answer, she says, is because many mediators “…do not fully understand when to use it and how to embrace it.” (Id. at 658.) Given the general view of humor both in the legal profession and in mediation (i.e., it is inappropriate!), many mediators shy away from using humor.

In the context of mediation, humor helps build and maintain relationships with the participants. (Id. at 660.) It also acts as a form of persuasion, as in a lighthearted way, it is used to suggest to participants that they accept a viewpoint different from theirs. (Id) In short, mediators use humor to convince a party to agree to something that initially she opposed. When used effectively, it can help build a strong, positive rapport in which the party trusts the mediator. (Id. at 669.) And, as any mediator will point out, trusting the mediator is key to a successful mediation.

Mr. Carthirds points out that humor enhances group cohesiveness in that is makes the parties feel more comfortable with each other. “Shared laughter…generates a bonding process in which people feel closer together.” (Cathirds, supra, at 36.). It is a “”social lubricant” that facilitates relationships and reduces tension among members.” (Id.). As a result of this bonding, parties will trust each other. (Id.) It facilitates communication;

“..open

[ing] up the atmosphere to creativity. It sparks interest in talking and generates positive emotions. People who share humor are more apt to listen, which can lead to understanding and acceptance of the message…[It is] attention-getting….” (Id. at 37.)

Why do some mediators oppose using humor? Because of the risk of rejection; using humor can be risky and backfire. Ask any standup comic; at some point in her life, she has “bombed”. What one person finds humorous, another may find offensive. If the mediator begins a mediation by offending a party, it is going to be a VERY LONG and DIFFICULT mediation. (Meers, supra, at 663). Thus, many mediators will refrain from using humor in an emotionally charged matter such as a wrongful death case, or contentious family law matter. In such situations, a misplaced bit of humor can “alienate a client, or cause a person to be perceived as not taking the client’s needs seriously.” (Id. at 665.) It can also undermine the building of trust between the mediator and the party to the point that the party believes that the mediator is neither professional nor taking her matter seriously. (Id.)

Consequently, “timing” is everything.” (Id.). A good joke at a bad time becomes a bad joke. But, a good joke at the moment of impasse or when matters are at a standstill may do wonders to lighten the mood, and get the parties talking and brainstorming again. (Id. at 676).

So, while many mediators feel uncomfortable using humor, what they fail to realize is that humor is universal. In a research study involving over 200 countries, religions, ethnic groups, nationalities and tribes throughout the world, respondents noted humor to be important. (Cruthirds, supra, at 37.)

I guess the moral of this is that when all else fails, try humor… it may just work.

…. Just something to think about!

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