THE FUNNY THING ABOUT MEDIATION: A RATIONALE FOR THE USE OF HUMOR IN

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THE FUNNY THING ABOUT MEDIATION: A RATIONALE FOR THE USE OF HUMOR IN MEDIATION Whitney Meers * I. I NTRODUCTION 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.

1 In understanding that humor has nu- merous benefits, the question then follows: why are so many mediators reluctant to use this valuable tool to their advantage? Some mediators think that mediation has no place for humor, 2 but others, including some mediation clients, are inclined to disa- gree. 3 Kevin W.

Cruthirds wrote the only law review article to date * Senior Notes Editor, Cardozo Journal of Conflict Resolution , 2008-2009. B.A., Anthropol- ogy and Journalism, University of South Florida, 2005, cum laude . J.D.

Candidate, Benjamin N. Cardozo School of Law, Yeshiva University, 2009. For the past three years, Whitney has written for and performed in Cardozo 9s musical sketch show, Law Revue , which she co-directed her 3L year.

Whitney regularly performs sketch, improv and standup comedy at venues throughout New York City. She thanks the ... more. less.

editorial staff at CJCR, and Professor Lela Love for her gui- dance. Whitney currently works at the entertainment law firm Beigelman, Feiner & Feldman, P.C. You may reach her at wmeers@gmail.com. 1 See Dave Keppos & Carrie Fox, Humor Session: Better Mediation Through Irreverence: Humor in Practice , 1, 2, available at http://www.csus.edu/ccp/collaborative/humor_in_practice. pdf (last visited Oct. 26, 2007). The authors note: Humor: [r]elieves tension; [s]peaks truth to power; [e]xcludes and denigrates, or con- versely; [b]onds; [p]rovides perspective; [a]llows us to flirt with fear, anger, or other afflictive emotions; [c]aptures paradox; [t]urns status relationships upside down; [s]ubverts the dominant paradigm; [c]an signal willingness to engage in a playful manner; and [a]llows multiple levels of meaning. In addition, laugher provides spe- cific psychological benefits. Getting groups to take a deep breath is very difficult, and often just plain odd. . . . But getting a group to laugh works just as well. Id . at 2 (internal bullet points omitted). 2 See Charles Q. Choi, Study 9s Punch Line: Humor at the Office is Serious Business (Jan. 11, 2008), http://www.livescience.com/strangenews/071107-office-laughs.html. 3 See John Lande & Rachel Wohl , Listening to Experienced Users: Improving Quality and Use of Commercial Mediation , 13 D ISP . R ESOL . M AG . 18, 20 (2007) ( cFocus group participants said a mediator needs skills to establish trust and rapport, including enthusiasm, respectful and active listening, empathy, emotional detachment, sincerity, candor, sensitivity to confidentiality concerns, integrity, impartiality, fairness, humor and the ability to ask difficult questions sensi- 657 658 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 that specifically addresses humor in relation to mediation. 4 Law- yer-mediator Robert Burns noted that cthe best mediators I 9ve seen are the ones who really like people and want to resolve peo- ple 9s disputes 4and they have a sense of humor. d 5 Some mediators depend on their use of humor in order to further the goals set forth by their profession. 6 When used at appropriate times, humor may be an important element in a successful mediation. 7 This Note will show that, because of the lack of scholarly re- search addressing the use of humor in mediation, 8 general percep- tions about the legal profession, 9 and current perceptions about the use of humor in mediation, 10 some mediators shy away from using humor in their practice because they do not fully understand when to use it and how to embrace it. While there are significant risks to consider when assessing whether humor is appropriate for a partic- ular mediation, this Note seeks to identify some of the benefits of tively. d); see also Leonard A. Riskin, Decisionmaking in Mediation: The Old New Grid and the New New Grid System , 79 N OTRE D AME L. R EV . 1, 29 (2003) (suggesting that potential media- tion clients learn whether or not a particular mediator has a sense of humor, among other characteristics). 4 Kevin W. Cruthirds, The Impact of Humor on Mediation , 61 D ISP . R ESOL . J. 33 (2006). 5 Charles F. Thensted, Roundtable Discussion: Mediation , 48 LA. B.J. 202, 206 (2000). 6 See Susan M. Hammer, A Tribute to Sid Lezak , 66 O R . S T . B. B ULL . 39, 41 (2006). Lezak, a man known as a pioneer of dispute resolution programs in Oregon, is best known as the long- est-serving Attorney General of all time. In this tribute, Hammer notes that Lezak, who advo- cated mediation at a time when it was not widely accepted, was remembered for his meditative skills which tied his sense of humor to his clove of people d and chis gentle persuasive powers. d Id . 7 For an example of humor as an important element of a successful mediation, see Max Douglas Brown, Rush Hospital 9s Medical Malpractice Mediation Program: An ADR Success Story , 86 I LL . B. J. 432, 435 (1998). This article presents an overview of a mediation program introduced at Rush Hospital to mediate medical malpractice disputes, allowing a 60 390 minute opening presentation where plaintiffs could tell their side of the case. This aspect of the program encouraged participants to reinforce the tone of the process, which included a tone of humor and optimism. Also, program facilitators would emphasize the role of the mediator, who could es- tablish trust with clients by using, among other tactics, humor. 8 See Cruthirds, supra note 4, at 34: Eileen Carroll and Karl Mackie later came up with some similar desirable qualities [in mediators], like credibility, humility, diplomacy, intellectual rigor, integrity, pa- tience, persistence and energy. . . . [L]ittle has been added to the list of a mediator 9s important 8professional equipment. 9 However, there is a tool available to mediators that may facilitate their work: humor. (internal citations omitted). See generally Jeff Kichaven & Deborah Rothman, Commentary, Make it Funny: It 9s a Risk, but Humor Can Ease ADR Tension , 21 A LTERNATIVES TO THE H IGH C OST OF L ITIG . 49 (2003); R OD A. M ARTIN , T HE P SYCHOLOGY OF H UMOR : A N I NTEGRATIVE A PPROACH 366 367 (Elsevier, 2007); John W. Cooley, Joke Structure: A Source of Creative Techniques for Use in Mediation , 33 U.S.F. L. R EV . 85 (1998). 9 Part VI of this paper, infra , discusses humor 9s role in the legal profession. 10 Part IV of this paper, infra , discusses the risks of using humor in mediation. 2009] THE FUNNY THING ABOUT MEDIATION 659 using humor in practice. It offers a rationale for the use of humor in mediation, showing that, as long as mediators retain common sense when assessing whether humor will be beneficial in the medi- ation session, they will find that, in certain situations, the combined benefits may significantly outweigh the potential risks. Further, this Note is an attempt to dissuade some fears about using humor in mediation by presenting some examples of the successful use of humor in mediation. As the role of mediation continues to expand in the legal pro- fession, so too will the need to find creative solutions to the issues that mediators encounter. Addressing the use of humor in media- tion should persuade mediators to incorporate humor into their mediation practice. Mediators should experiment with the use of humor, a tactic which has proven effective in many other disciplines. II. P ERCEPTIONS A BOUT H UMOR IN M EDIATION Humor is not widely recognized as a useful tactic in media- tion. 11 Although not extensively written about, the use of humor in mediation is not a novel topic. Most legal research articles ad- dressing humor in mediation do so only in passing, for instance, by suggesting that a mediator use coccasional humor, d 12 or noting that humor is a building block for positive rapport. 13 There are few ar- ticles directly addressing the use of humor in mediation or other 11 See Cruthirds, supra note 4, at 39 ( cHumor is not a widely recognized element of mediation. d). 12 Bruce Leonard Beal, Online Mediation: Has Its Time Come? , 15 O HIO S T . J. ON D ISP . R ESOL . 735, 737 (2000) (suggesting the use of occasional humor during videoconferencing in online mediation); see also Michael Geigerman, 20 8Hits 9: Reminders of What Mediators Need to Do , 18 A LTERNATIVES TO THE H IGH C OST OF L ITIG . 187 (2000) (listing ca sense of humor d as one of the twenty things a mediator needs to have). It should be noted, however, that in discuss- ing the need to have a sense of humor in mediation, the writer is not specifically advocating the use of humor in mediation. 13 Andrea M. Braeutigram, What I Hear You Writing Is . . . Issues in ADR: Building Trust and Rapport in the Text-Based Environment , 38 U. T OL . L. R EV . 101, 104 (2006) ( c[T]he ability to convey and perceive friendliness, attentiveness, humor, emotion, and understanding is instru- mental in developing rapport in mediation, as conveyed by our verbal and non-verbal behav- iors. d); see also Andrew Leaser, Note, See Spot Mediate: Utilizing the Emotional and Psychological Benefits of Dog Therapy in Victim-Offender Mediation , 20 O HIO S T . J. ON D ISP . R ESOL . 943 (2005) (suggesting in passing that mediators often use humor). 660 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 forms of alternative dispute resolution, 14 and most of those articles have been published within the last five years. 15 Today, though using humor in mediation may seem non-tradi- tional, it is important to note the breadth of its potential benefits. The information that is available concerning the use of humor in mediation implies that humor can actually be a valuable asset. 16 Mediators must therefore learn from what many other disciplines already realize: they should not fear humor. The advantages of using humor in mediation may prove signif- icant, and this emerging field deserves much more thorough con- sideration by the legal community. For example, mediators can effectively use humor to help build and maintain relationships with clients, lawyers and others they encounter in practice. 17 Some mediators strongly advocate the use of humor in mediation ses- sions. 18 Some writers have gone as far as analogizing standup com- edy to mediation. 19 Mediator John Cooley has specifically written about how mediators can use joke structure to achieve creative results in me- diation. 20 The premise is simple: (1) conflict or incongruity of some type precedes all creative results; and (2) conflict (or incongruity) resolution is the process that produces creative results. 21 The ratio- nale is also simple: mediators who embrace joke-telling strategies 14 See Cruthirds, supra note 4; see also John Horn, Keith Maurer & Philip Ytterberg, Na- tional Arbitration Forum Blog: News Events and Perspectives About Alternative Dispute Reso- lution, Humor Disarms Tense Arbitration Proceedings (Aug. 27, 2007), http://arbitration- forum.blogspot.com/2007/08/humor-disarms-tense-arbitration.html ( cAngelo sprinkled his dry humor and sarcasm throughout the proceedings which, according to the city 9s labor lawyer, Timothy G. Yeung, 8makes a very tense situation a little more comfortable. 9 Another attorney stated that 8humor is a superb tool anytime for an arbitrator in a tense environment. 9 d). 15 See Cooley, supra note 8. However, Cooley 9s article does not specifically address the ben- efits of using humor in mediation and instead focuses on the structure of a joke and how media- tion can be guided by a similar structure. 16 Cruthirds , supra note 4. 17 See Keppos & Fox , supra note 1. 18 Ed Brodow, Ed 9s Articles: Mediation Is No Laughing Matter . . . Or Is It? (2007), http:// www.brodow.com/Articles/HumorInNegotiations.html ( cFirst, when you inject a little humor it can really lighten things up. Second, humor makes it easier to be tough without offending any- body. And third, humor helps when you don 9t want to answer a question. d). For a discussion of lawyers who think humor is never appropriate for mediation, see Kichaven & Rothman, supra note 8. 19 See Jeffrey Krivis, Standing up For Mediation: A Veteran Neutral Trains in Comedy and 8Settles 9 For Getting Laughs , 20 A LTERNATIVES TO H IGH C OST L ITIG . 93, 94 (2002); see generally Lawrence E. Mintz, Standup Comedy as Social and Cultural Mediation , 37 A M . Q. 71 (1985). 20 See Cooley, supra note 8. 21 Id . at 85. 2009] THE FUNNY THING ABOUT MEDIATION 661 can use this knowledge to become more effective mediators. 22 However, Cooley 9s article does little to explain how humor can be incorporated into mediation sessions, and focuses instead on the parallel structure between jokes and mediation sessions. 23 Humor, at its best, is a form of persuasion. 24 A joke makes a person laugh because it convinces that person that something is funny. 25 Similarly, mediation also seeks to persuade audiences, usually by enticing parties to accept differing points of view. 26 Mediators use persuasion to help resolve parties 9 tensions and to convince them to reach agreements about their conflicting points of view. 27 This directly parallels the role of humor in mediation. Once mediators begin to understand this, they can begin to use humor to their advantage in practice. The use of humor in media- tion is a topic that clearly deserves more in-depth analysis. III. B ENEFITS OF H UMOR IN O THER D ISCIPLINES Humor is a useful tool in various disciplines. 28 Anthropologist Mahadev Apte researched more than 200 countries, religions, eth- nic groups, nationalities and tribes around the world and found that humor is universal. 29 This finding emphasizes the breadth of the role of humor around the world. However, in a survey of more than 100 mediation schools 9 websites, only two showed that they 22 Id . 23 Id . at 87. Cooley goes on to state: It is this second craft 4creating or designing jokes 4that mediators and mediation advocates need to study and master. It is there 4in the design and structure of jokes 4that many creative techniques reside, and it is there that the ways to produce creative results can be carefully analyzed and studied. Id . 24 Steven Lubet & Thomas Hankinson , In Facetiis Verititas: How Improvisational Comedy Can Help Trial Lawyers Get Some Chops , 7 T EX . R EV . E NT . & S PORTS L. 1, 2 (2006). 25 Id . 26 See generally Robert Gatter, Unnecessary Adversaries At The End Of Life: Mediating End-Of-Life Treatment Disputes To Prevent Erosion Of Physician-Patient Relationships , 79 B.U. L. R EV . 1091, 1111 (1999). 27 See Debra A. Gilin & Paul W. Paese, Graduate Student Paper, Mediation as Persuasion: Central Route Attribution Change as a Conflict Resolution Technique , IACM 15th Annual Con- ference, available at SSRN: http://ssrn.com/abstract=304971 (last visited Nov. 9, 2007) (showing how effortful consideration of attribution-focused intervention can suspend or reverse conflict escalation). 28 See generally Humor , The Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/h/ humor.htm (last visited Oct. 26, 2007). 29 See Cruthirds, supra note 4, at 37. 662 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 had humor training as part of their curriculum. 30 This absence of humor training, tied with the lack of legal research on this topic, demonstrates that the potential of this mediation tool has not yet been fully realized. There are numerous benefits to using humor in everyday life. 31 Humor is shown to be effective in reducing pain and stress, im- proving the cardiovascular system, lowering blood pressure and promoting a person 9s sense of well-being. 32 Negotiators use humor in practice. 33 Some of the concerns with using humor in negotiations also apply to using it in media- tions. 34 By analogy, mediators can look to the successes of using humor in negotiation. One study shows that business and psychol- ogy students who were exposed to a funny video before a negotia- tion session more easily came to resolutions during the sessions than did students who were not exposed to such humorous con- tent. 35 Some of the principles that govern negotiation are also ap- plicable in mediation contexts, 36 thereby demonstrating that the principles and conclusions of the study can also be applied by anal- ogy to mediation. Research also indicates that humor helps to establish trust re- lationships. 37 Because it is necessary for mediators to establish trusting relationships with clients, 38 it is evident that one could use humor strategies to his advantage in mediation. 30 Id . at 39. Presumably, Cruthirds conducted the survey himself for his personal research. 31 Charlie Rickman and Linda J. Waybright, Humor 4It Works!!!, Extension Service, W. V A . U. (2006), available at http://www.wvu.edu/~exten/infores/pubs/fypubs/WL_224_HumorIt_ Works.pdf. 32 Id . 33 For a brief discussion of some of the pros and cons to using humor in negotiations, see John Livengood, Addressing Bias and Conflict in Dispute Resolution Settings , 62 D ISP . R ESOL . J. 53, 54 355 (2007). 34 Id . at 55 (noting that both mediation and negotiation do not involve a third-party decision maker and instead aim for the parties themselves to reach a mutual agreement). 35 Clark Freshman, Adele Hayes & Greg Feldman, The Lawyer-Negotiator as Mood Scien- tist: What We Know and Don 9t Know About How Mood Relates to Successful Negotiation , 1 J. D ISP . R ESOL . 1, 11 (2002). 36 See Lawrence H. Fleischman, A Client 9s Guide to Mediation , 44 A RIZ . A TT 9 Y 30, 30 (2007) (stating the general proposition that mediation is essentially a form of negotiation). 37 See Braeutigram, supra note 13. 38 Michal Alberstein, Forms of Mediation and Law: Cultures of Dispute Resolution , 22 O HIO S T . J. ON D ISP . R ESOL . 321, 340 (2007). 2009] THE FUNNY THING ABOUT MEDIATION 663 IV. R ISKS OF U SING H UMOR IN M EDIATION Some mediators reject the idea that humor should ever be used in mediation. 39 There are numerous reasons as to why this might be. Humor always runs a risk of rejection. 40 The use of hu- mor in mediation is risky and can backfire. 41 For instance, if a me- diator selects an inappropriate ctarget d 42 for her joke, another person might find that joke offensive. 43 Telling a successful joke is an art, and it can be a stressful task to stand in front of an audience 39 See Kichaven & Rothman, supra note 8, at 49. The authors note that: Peter F. Laird of Los Angeles 9 Edelstein, Laird & Sobel, who represented radio fun- nyman Rick Dees in Fisher v. Dees , 794 F.2d 432 (9th Cir. 1986), recalls that cof all the legal proceedings in which I have been involved, mediation is the one where I can honestly say I have never seen anything funny happen. Settlements leave both sides unhappy and mediation brings pressure on people to compromise. It doesn 9t lend itself to humor. d Trial lawyer Lawrence P. Grassini of Woodland Hills, Calif. 9s Gras- sini & Wrinkle, who represented the interests of puppeteer Paul Winchell and his friends Jerry Mahoney and Knucklehead Smith in April Enterprises, Inc. v. KTTV , 147 Cal. App. 3d 805 (1983), cautions that cIn some kinds of cases, such as wrongful death matters, any attempt at humor might detract from the seriousness of the situa- tion and would just be inappropriate. d Id . For a comment about using humor from a judge 9s perspective, see Hon. Daniel E. Wathen, When The Court Speaks: Effective Communication as a Part Of Judging, 57 M E . L. R EV . 449, 451 (2005): [T]hroughout my school career I ctalked d a lot in plays, public speaking, debate, and, eventually, moot court and writing for the Maine Law Review. As a trial lawyer, my favorite tasks, in descending order, were final arguments, cross-examining witnesses, and, when I had the time, writing briefs. I enjoyed thinking on my feet, speaking on the spur of the moment, and trying to move the fact finder with both logic and emo- tion. Thus, I was somewhat chagrined to discover that, as a justice of the Superior Court at the tender age of thirty-seven, my principal function was to listen attentively and impassively. The trial judge interacts infrequently, never with emotion, and rarely with humor. Why? Humor and emotion from the bench just do not work. It is difficult for impartiality to survive an emotional outburst or an attempt at being funny, particularly at the expense of someone else in the courtroom. 40 See Steven M. Sultanoff, Using Humor in the Counseling Relationship , originally published in Laugh it Up, Pub. Of the American Association for Therapeutic Humor, 1 (1992), available at http://www.humormatters.com/articles/therapy1.htm ( cU SING HUMOR IN ANY SITUATION IN- VOLVES THE RISK OF THE HUMOROUS INDIVIDUAL BEING REJECTED . d). Even professional come- dians have experiences where their attempts at humor are rejected by audiences. This is called cbombing d and it happens to almost every comedian at some point during his or her career. See Louis C.K. as told to Danny Freeman, What It Feels Like . . . to Bomb Onstage , E SQUIRE (July 16, 2007), http://www.esquire.com/dont-miss/wifl/louisck0807. 41 Kichaven & Rothman, supra note 8, at 49. 42 Humor targets are discussed in more detail in part VII, infra . 43 For a thorough discussion of people 9s reactions to humor that they find offensive, see generally Steven Hartwell, Humor, Anger, Rules, and Rituals , 13 C LINICAL L. R EV . 327 (2006). 664 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 and say something humorous. 44 Further, mediations usually start with a plenary session, during which lawyers and clients make their points and vent their feelings. 45 This venting tends to exacerbate tension and even sometimes lead to hostility, 46 which may make mediators hesitant to use humor. When people find something humorous, it is because they have perceived a breach of a norm or a value, and their reaction is that they find it funny. 47 Steven Hartwell describes this as a con- flict between thinking and feeling, or the difference between the way something cis d and the way it cought d to be. 48 This might be better thought of as a tension between rationality and absurdity. When people laugh together, they are collectively demonstrating shared values. 49 These values are varied, but sometimes they in- clude targets that are non-threatening, such as objects or prod- ucts. 50 One author categorizes race, gender and religion as topics that a person usually must obtain some sort of unspoken permis- 44 For an anecdote about a mediator 9s reflections on his first time doing standup comedy, see Krivis, supra note 19. 45 See Kirchaven & Rothman, supra note 8, at 66. In discussing plenary sessions, the author, quotes Gary Stabile, who represented the interests of political cartoonist Paul Conrad in Yorty v. Chandler , 13 Cal. App. 3d 467 (1970), who says: That 9s when people have their game faces on . . . . Lawyers are making points to their own clients as well as to the other side and the mediator. It 9s the time to show how strong your case is and how tough you are. When clients speak, it 9s often in the nature of venting. It serves a good purpose, and lets clients get stuff off their chests. But that venting tends to exacerbate tension and even hostility. Once all that venting is done, a little humor in an uncontrived way can go a good distance toward dissipat- ing that negative energy. Id . 46 Id . 47 See Hartwell, supra note 43. 48 Id . Both humor and anger consist of a momentary separation between thinking and feel- ing. There is an instant when people are pulled between two contending mental forces: their thinking system reports that 8everything is rationally normal, 9 while their feeling side reports the situation is 8not feeling normal. 9 Worded differently, they experience a sudden tension between is (thinking) and ought (feeling). 49 Id . at 336 [I]ndividuals whose conventional morality centers around group loyalty . . . find ra- cist and sexist jokes humorous . . . because in laughing they signal that breaching a value that one should not tell racist or sexist jokes is an acceptable breach. That is, in participating in such humor they both recognize that a breach of propriety exists, but signal that the breach is morally acceptable. 50 Id . See also 2 M EL H ELITZER & M ARK S HATZ , C OMEDY W RITING S ECRETS 36 341 (Writer 9s Digest Books) (2005). For examples of humor targeted toward objects, consider the popularity of commercial parodies on the television show Saturday Night Live . 2009] THE FUNNY THING ABOUT MEDIATION 665 sion in order to joke about. 51 A racist, sexist or religious joke that might work for a professional comedian is unlikely to be successful in a mediation session. 52 Some mediators will have reservations about using humor in their practice. In some circumstances, such fears are justified. However, mediators 9 reservations should be limited to assessing whether humor should be used in a particular mediation session, rather than taken as a sweeping assumption that humor must never be used in mediation. This need to examine the potential of using humor to assist in the flow of the mediation should be assessed on a case-by-case basis, especially when one considers the potentially powerful results of using humor in the mediation setting. 53 Humor in a mediation session where emotions are especially tense, such as a wrongful death situation, is discouraged. 54 It might alienate a client, or cause a person to be perceived as not taking the client 9s needs seriously. 55 This can be harmful in establishing a trusting relationship. 56 Other concerns with using humor in media- tion include the fear of offending a client, 57 the perception of non- professionalism with clients, 58 and the fact that the legal profession is considered very serious and traditional, and therefore may seem as though it is not an appropriate setting in which to use humor. However, there are a number of attorneys who have success- fully used humor to advance their careers. Paul Mercurio practiced law for several years before becoming a writer for The Daily Show with Jon Stewart, which landed him an Emmy. 59 Karen Bergreen 51 See Hartwell, supra note 43, at 341. 52 See Cruthirds , supra note 4, at 38. 53 See Josefina J. Rendon, Under the Radar? Prejudice in Mediations and Settlement Negotia- tions , 30 T HURGOOD M ARSHALL L. R EV . 347, 378 ( cAt the risk of being accused of taking the subject of discrimination and injustice too lightly, I would argue that having a sense of humor can often produce powerful results. People who laugh together can work together and respond to each other better. d). 54 Kichaven & Rothman, supra note 8, at 49. 55 See Sultanoff, supra note 40, at 1 Using humor in any situation involves the risk of the humorous individual being re- jected. . . . Humor must be in the client 9s interest and not for the counselor. By using humor the counselor risks alienating the client, being perceived as not taking the client 9s predicaments seriously, being perceived as less competent and therefore less capable of helping, etc. Effective use of humor requires that the counselor assess the client 9s ability to relate to humorous interventions. 56 For a discussion of the racial and ethnic considerations that a mediator must take into account when determining whether to use humor, see Cruthirds, supra note 4. 57 Id; see also Hartwell, supra note 43. 58 See Hartwell, supra note 43, at 334 340. 59 Paul Mecurio, Biography, http://www.paulmecurio.com/bio (last visited Oct. 26, 2007). 666 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 is a Harvard Law School graduate who now has a successful com- edy career. 60 Comedian Demetri Martin dropped out of New York University Law School, where he attended on a full scholarship, in order to pursue his career in comedy. 61 Self-proclaimed cHumor- ist-at-Law d Sean Carter offers Continuing Legal Education courses that incorporate humor. 62 Humor is present in the numerous jokes made at lawyers 9 expense, 63 and some legal professionals occasion- ally participate in legal-oriented amateur stand-up comedy shows. 64 The concerns outlined above are not particular to mediation, but are also risks that people encounter with the everyday use of humor. Yet people continue to use humor, knowing that there are risks involved. Perhaps this is because of the great potential of us- ing humor in everyday situations. Mediators should therefore be less concerned about the risks of using humor and instead, learn to focus their fears in order to help determine when the use of humor is appropriate. One mediator recites an anecdote about a faculty meeting where a participant referred to Unitarians as catheists with kids. d 65 This joke was justified 66 because the participant had experience with Unitarians, and from his point of view, it was not ill-inten- tioned or tasteless. 67 While most people at the meeting laughed at this humorous interjection, one person, who remained silent during the episode, later commented that he found the joke coffensive and unacceptable. d 68 This vocal reaction to the joke affected the mood of the crowd, thereby causing the crowd, which had previ- ously been quite jovial, to dissolve. 69 60 From Courtroom to Comedy Club , 106 H ARV . M AG . 3 (2004), available at http://www. harvardmagazine.com/on-line/010475.html (last visited Oct. 26, 2007). 61 Demetri Martin: Live and in 8 Person , 9 Fresh Air Broadcast Interview (Sept. 24, 2007), available at http://www.npr.org/templates/story/story.php?storyId=14653866. 62 Sean Carter, Personal Website, www.lawpsided.com (last visited Nov. 8, 2007). 63 See generally Lawyer Jokes and Attorney Humor , http://www.ahajokes.com/lawyer_jokes. html (last visited Nov. 8, 2007). 64 See Oregon State Bar, Briefs, LAF-OFF Returns By Popular Demand , available at http:// www.osbar.org/publications/bulletin/07oct/briefs.html (last visited Oct. 26, 2007). 65 See Hartwell, supra note 43, at 334 340. 66 Merriam-Webster defines cjustify d as c(1)(a): to prove or show to be just, right, or reason- able. d Merriam-Webster OnLine, Online Dictionary, available at http://www.m-w.com/diction- ary/justify (last visited Oct. 26, 2007). In comedy, justification means essentially the same thing, but refers to the underlying theme of the comedic sensibility. 67 See Hartwell , supra note 43, at 334 340. 68 Id. 69 Id. 2009] THE FUNNY THING ABOUT MEDIATION 667 This joke led to the perception of an unprofessional de- meanor, but only to the one man who had complained. 70 However, the effects of the joke caused the crowd to disperse. Such a reac- tion could be incredibly problematic in a mediation session, be- cause even if everyone else finds the joke funny, the one offended person can set the tone of the mediation. This humor attempt was a risk, mainly because the joke-teller chose a risky target 4religion. Such targets are more likely than others to backfire, primarily be- cause a person 9s politics and ideologies are not visible just by look- ing at an individual, and therefore it is more difficult to assess their reservations about particular subjects. 71 Targets such as religion, race or gender that play off of stereotypes are considered espe- cially risky targets. 72 Mediators can take much away from the instance described above. From that anecdote, mediators can learn the importance of properly assessing a client or group in deciding whether to use hu- mor. Just as a mediator instinctively would not use humor in an emotionally-charged mediation, he would also refrain in a situation where he was not in tune with the shared values of the group. Mediators may also be afraid to use humor for fear that they might distance themselves from the clients and the objective at hand, thereby costing them their position as a leader within the group. 73 But these fears are subject to criticism based on the fact that humorous people are shown to command more respect through their charismatic demeanor. 74 If a mediator makes a joke, and that joke is perceived as offensive or does not otherwise elicit a response, the best way to address this is to simply apologize. 75 70 Id. 71 H ELITZER & S HATZ , supra note 50, at 41. 72 Id. 73 See Cruthirds , supra note 4, at 36: [T]here are risks in using any form of aggressive humor in mediation. It can distance participants from the objective at hand, thereby costing the mediator his or her lead- ership position. So even mildly aggressive humor must be used with extreme caution and only by mediators highly skilled in its use. 74 Id . ( cMediators can use humor to increase their status in the eyes of the parties and increase their ability to guide the parties. Research supports this, showing that self-enhancing humor is particularly effective at garnering power from a group. d). 75 Keppos & Fox, supra note 1, at 4. 668 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 V. H UMOR IN O THER D ISCIPLINES THAT I NCORPORATE M EDIATION T ACTICS Humor is perceived as a useful tool in various disciplines. 76 Anthropologists, for example, have used humor to unearth truths about the internal workings of the workplace, and have found that people can use humor to break down barriers within their profes- sion. 77 A recent survey has shown that humor in the workplace has a major impact on ensuring cohesiveness in the work setting, con- trary to previous ideas that humor is inappropriate for work. 78 Humor can be useful in sales contexts. 79 It can help persuade a potential buyer to purchase a product. 80 This even applies when a person might not initially be interested in a product. 81 Using hu- mor can thereby put associates closer to making a sale. 82 In the news media, reporters and anchors must use mediative tactics in order to reach their journalistic goals. 83 Members of the news media must sometimes serve as mediators between parties who have strong opinions on sensitive issues. 84 In this context, the interviewer becomes the mediator. 85 Walter Cronkite often used humor as a tool in order to mediate tensions with the guests he interviewed on his program. 86 Ted Koppel also uses humor when mediating discussions in order to resolve conflicts between parties on-air. 87 The nature of his position requires that he remain sensi- tive to interviewees 9 often emotional opinions. 88 In order to do this, he will sometimes incorporate humor in order to retain con- 76 See generally , Humor, The Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/ h/humor.htm (last visited Oct. 26, 2007). 77 See Janet Holmes & Stephanie Schnurr, Politeness, Humor and Gender in the Workplace: Negotiating Norms and Identifying Contestation , 1 J. OF P OLITENESS R ES . 1 (2005). 78 Choi, supra note 2. 79 Id . 80 Id . 81 Id . 82 See generally T ERRY P AULSON , M AKING H UMOR W ORK : T AKE Y OUR J OB S ERIOUSLY AND Y OURSELF L IGHTLY 47 348, (Crisp Publications 1989) (discussing how humor can be useful in the sales context). 83 See generally Carol Pauli, News Media as Mediators , 13 No. 4 D ISP . R ESOL . M AG . 8 (2007) (discussing journalistic forays into conflict resolution). 84 Id . 85 Id . 86 Id . at 10. 87 Id . Researchers who observed Koppel 9s conversational strategies found that he used hu- mor with opposing parties. 88 Id. 2009] THE FUNNY THING ABOUT MEDIATION 669 trol of the interview and over the interview subject. 89 If speakers such as Cronkite and Koppel can use humor to assist with the me- diative components of their journalism positions, mediators in other settings should also use humor in their fields. Tremendous benefits, including the establishment of a strong, positive rapport, could result merely because the mediator devoted a few minutes to using humor to help create a relationship of trust and respect. 90 Public speakers and other notable personalities are often remembered for their humorous remarks. 91 Politicians are also mediators who can successfully use humor to their advantage. 92 One commentator views a sense of humor as one of the qualities that make many politicians successful mediators as well. 93 Finally, in classrooms, teachers and college professors use hu- mor to effectively reduce stress and create an overall positive envi- ronment. 94 One study showed that fifty-five percent of college sophomores found that professors 9 humor was effective in the classroom. 95 The study also found that humor helped develop a positive rapport between the students and the professor. 96 These examples of the successful use of humor help illustrate that media- 89 Pauli, supra note 83, at 10. 90 See Braeutigram, supra note 13 ( c[T]he ability to convey and perceive friendliness, atten- tiveness, humor, emotion, and understanding is instrumental in developing rapport in mediation . . . . Mediators earn rapport-based trust by facilitating a process that intentionally fosters feel- ings of involvement, positive attitudes, and understanding. d). 91 Carl J. Debevec, Another Funny Thing Happened on the Way to Resolution (Aug. 2004), http://www.mediate.com/articles/debevecC3.cfm. 92 See Tom Melling, Symposium, Dispute Resolution within Legislative Institutions , 46 S TAN . L. R EV . 1677, 1701 (1994). 93 Id . In this article, the author discusses former United States House of Representatives Congressman Wayne Owens, and his ability to mediate through certain political situations. In the article, the author says: There are several good reasons for politicians to remove themselves from the tradi- tional role of an agent and step into the role of mediator. Many of the typical charac- teristics of politicians make them effective mediators. Mediators must have intelligence, stamina, energy, patience, a sense of humor, persuasiveness, credibility, and impartiality. Except perhaps for impartiality, these are valuable skills for anyone who hopes to win a grueling campaign for elected office. Without these skills, Repre- sentative Owens would not have been nearly as successful in bringing the groups together and mediating the dispute. For example, his sense of humor often kept dis- agreements from escalating out of control. Id. 94 See Karen Steele, The Positive and Negative Effects of Humor in the Classroom Setting (May 1998) (unpublished M.A. Thesis, Salem-Teiko University) (http://www.eric.ed.gov/ER- ICDocs/data/ericdocs2sql/content_storage_01/0000019b/80/17/44/2e.pdf). 95 Id. 96 Id. 670 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 tion sessions, although notably different than the workplace, the newsroom, the political arena, and the classroom settings, might also provide an atmosphere in which humor can be applied as a way to connect with others. VI. H UMOR IN THE L EGAL P ROFESSION When ordinary people think about the role of the law in their lives, they seldom think of humor. 97 People rarely find anything funny about their experiences with the law. 98 Perhaps by necessity, lawyers are sometimes perceived as serious, professional, or hu- morless. 99 When ordinary people find humor in the law, they often find it embodied in extreme exaggerations of legal authority, exer- cised devoid of common sense. 100 For example, in one study, a re- searcher interviewed a woman who had found humor in the exaggerated seriousness of a relatively minor welfare violation be- ing treated as a serious crime. 101 97 Patricia Ewick & Susan S. Silbey, No Laughing Matter: Humor and Contradictions in Sto- ries of Law , 50 D E P AUL L. R EV . 559, 565 (2007). 98 Id . The article describes a study that consisted of asking ordinary residents of three coun- ties in New Jersey to reflect on their encounters with the law. The authors go on to note that c[t]his fact is all the more puzzling given the abundance of law jokes that circulate . . . . While people find the law funny, they do not tend to find their own experiences with the law humorous. d 99 See generally Global Crossing Founder Sees No Humor in Cards , I NT 9 L . H ERALD T RIB ., Business Section (July 15, 2003), available at http://www.iht.com/articles/2003/07/15/cards.php. Some lawyers tend to embrace this stereotype, the effect of which can be humorous. For an unintentionally humorous commercial for an attorney asserting his cseriousness, d see the video Serious Lawyer 4San Francisco Bay Area , available at http://www.youtube.com/watch?v=_4VN- 6-rHYA (last visited Oct. 26, 2007). 100 Ewick & Sibley, supra note 97. 101 Id . The article discusses an incident where a former welfare mother recounts an experi- ence she had in court involving a disputed welfare benefit. When asked if she could tell us more about this experience, she replied, 8[i]t was funny. 9 When probed as to what was funny about the story, the interviewee went on to explain, 8[t]here were people up there that owed them like twenty-five, thirty thousand dol- lars (as opposed to her debt of $3,200). And it was a really funny day. I mean, they fingerprinted us (here she laughs). Took our picture. But they told me all I had to do was go up there and get it expunged, or something. I said the heck with that. What do I want to do that for, I 9m no big time criminal (laughs). I was just trying to survive and take care of my kids . . . . It was hilarious. 9 In this story, the down to earth, common sense logic of the respondent who is just trying to survive is contrasted with the extreme (and thus comical) measures taken by the court system that processes her as if she were ca big time criminal. d Id . The fact that the charges were subse- quently dropped serves as the punch line to the developing joke about the excessive allocation of official resources and attention. Id. 2009] THE FUNNY THING ABOUT MEDIATION 671 Some areas of the legal profession, however, have used humor successfully. As a form of persuasion, humor can be incredibly suc- cessful in the legal realm. 102 There are a number of lawyer-comedi- ans. 103 John Cooley, noted above, believes joke structure 104 can be effectively incorporated into mediation 105 because he believes that lawyers and comedians both follow a certain internal logic in order to make sense of things. 106 He claims that this structure is compa- rable to that of telling jokes, mainly that there is a setup, a delivery and a punch line. 107 With so many jokes about lawyers 9 personality traits, 108 it seems that lawyers should use legal humor to their advantage. There are many jokes about lawyers, 109 and some of them reflect stereotypes about ambulance-chasing, money-hungry attorneys. 110 But in practice, lawyers who are so inclined can also fight fire with fire, successfully fending off these stereotypes by using their own humorous sensibilities. 111 102 Yxta Maya Murray, Tragicomedy, 48 H OW . L.J. 309, 330 (2004) ( cWhen comedy is used in the legal realm, it may serve as an equally potent tool for persuasion. d). 103 See the discussion of lawyer-comedians in part IV, supra . 104 Joke structure is discussed in part VII, infra . 105 See Cooley, supra note 8, at 87. 106 See John Cooley, The Joke Model of Creative Thinking , M EDIATE . COM (July 2004), http:// www.mediate.com/articles/cooley3.cfm. He says: In each process there is a fact statement stage and a resolution stage. The primary difference between the two processes is that in the joke process, a stimulus in the form of new information 4the punchline 4is intentionally and suddenly injected into the process which causes or allows the initial information to be perceived interpreted in a very different way, thus yielding an unexpected, satisfactory resolution or inter- pretation. It is the quality and the timing of the punchline that comprise the creative act and speeds the joke to a satisfying resolution. It is this same kind of punchline 4 specially selected new information 4that must be injected into the mediation process at the appropriate time in order to yield highly satisfactory, optimal, or even super- optimal, solutions. A point deserving special emphasis, which may indeed serve as the punchline of this article, is as follows: It is the mental process which occurs in joke processing in a microsecond 4at the time of and just before surprise 4that must be replicated in the mediation setting in order to achieve super-optimum solutions; it is as if that mental process of reframing be viewed under a microscope and in slow- motion to be effectively discerned and applied. 107 Id. Other writers have described a slightly modified version of joke structure or humor structure. See William O. Beeman, Brown University Department of Anthropology, Humor: Linguistic Lexicon for the Millennium , 9 J. OF L INGUISTIC A NTHROPOLOGY (2000), available at http://www.brown.edu/Departments/Anthropology/publications/Humor.htm. 108 Ewick & Sibley , supra note 97, at 565. 109 Id . 110 See generally , William P. Skladony, Essay, I 9m Proud to be a Lawyer Because Dick the Butcher Wants Me Dead , 23 O HIO N.U. L. R EV . 363 (1996) (discussing the numerous lawyer- bashing jokes). 111 Id. 672 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 One can look to previous successful applications of humor in the legal profession to determine that such applications might be useful in other legal contexts. For example, in discussing law firm employee assessment programs, one author emphasizes that with- out humor, such programs are ineffective. 112 This is in stark con- trast to the dry, dull campaigns that most people tend to implement in these employee assessment situations. 113 The use of humor leads to enthusiasm and motivation for such programs, and allows them to achieve a higher level of success. 114 As another indicator of the potential of humor in law, one can note the popularity of humor-related Continuing Legal Education programs. 115 Some of these programs even involve the use of im- provisational techniques in negotiation. 116 While improvisation in mediation does not automatically suggest comedic improvisation, improvisational comedy is, essentially, improvisational role-play- ing. Improvisational comedy is a great tool for those who must learn to think quickly on their feet. 117 Some legal professionals en- courage attorneys to learn the basic skills of comedic improvisation in order to incorporate them into their practice. 118 VII. H UMOR T ACTICS FOR M EDIATION Humor operates through incongruity and irony. 119 It causes negative emotions such as anger and hostility to be redirected, re- sulting in lighthearted disengagement. 120 All jokes are grounded in realism, 121 and the target is the most important part of the joke. 122 Popular targets include self, sex, celebrity, places, products and 112 Keeping Current , O7-1 Partner 9s Report 9, Institute of Management and Administration, Inc. (2007). 113 Id. 114 Id. 115 See Carter, supra note 62. 116 Mediation with Jeffrey Krivis , F IRST M EDIATION ., available at http://www.firstmediation. com/main.htm (last visited Nov. 10, 2007). 117 See generally M ARK B ERGEN , M OLLY C OX & J IM D ETMAR , I MPROVISE T HIS ! H OW TO T HINK ON Y OUR F EET SO Y OU D ON 9 T F ALL ON Y OUR F ACE (Hyperion 2002). 118 For an overview of how improvisational comedy can be beneficial for attorneys, see Joey Novick, Improv for Lawyers: Why Improvisation for Lawyers? What Will Lawyers Learn from Improv?, available at http://www.improvforlawyers.com/id15.html (last visited Feb. 22, 2008). 119 Ellen Yamshon & Daniel Yamshon, Comics Media in Conflict Resolution Programs: Are They Effective in Promoting and Sustaining Peace? , 11 H ARV . N EGOT . L. R EV . 421, 425 (2006). 120 Id. 121 H ELITZER & S HATZ , s upra note 50, at 38. 122 Id . at 37. 2009] THE FUNNY THING ABOUT MEDIATION 673 ideas, such as those about politics and religion. 123 There are bene- fits and consequences to using each of these types of targets. In many contexts, one 9s self can often be a strong target. New stand-up comedians are often encouraged to use self-deprecating humor, because such humor is considered the least offensive and the most effective. 124 In fact, some comedians make a living telling self-deprecating jokes. 125 But, there are also risks associated with using self-deprecating humor at a mediation session. 126 People who use humor too early can come cross seeming presumptuous. 127 Some advocates of using humor in mediation claim that self- deprecating humor is the best kind of humor to use. 128 However, these kinds of jokes run the risk of making the mediator look fool- ish, 129 although it is always important to consider that the benefits of successful humor far outweigh the risks associated with using this kind of humor. In applying humor to a situation, mediators have an advantage over others who are usually unfamiliar with much of their audience. In mediation, mediators have the opportu- nity to become familiar with their clients, thereby allowing mediators to offer clients a feeling of social cohesiveness through humor. 130 Joke structure incorporates particular elements that anyone can learn. 131 Jokes are based on a structure that includes the setup, 123 Id . at 37 341. 124 Id . at 38. 125 The Wikipedia entry for cSelf-Deprecation, d notes that: A number of comics, including Chris Rock, Katt Williams, Chris Tucker, Steve Har- vey, Sinbad[ ], Adam Carolla, Jon Stewart, Artie Lange, Rodney Dangerfield, Dave Attell, Larry the Cable Guy, Woody Allen, David Letterman, Sean Rouse, Larry David, Ricky Gervais, Jim Gaffigan, Dave Hughes, Russell Peters, Brian Regan, Jim Norton, and, later in his career, George Burns 4built their acts around their own perceived unattractiveness, weight, age and/or lack of appeal to the opposite sex. W IKIPEDIA . COM , Self-deprecation, http://en.wikipedia.org/wiki/Self-deprecation (last visited Oct. 26, 2007). 126 See Keppos & Fox, supra note 1, at 3. 127 Id. 128 See Kichaven & Rothman, supra note 8. In discussing the use of humor in Alternative Dispute Resolution generally, attorney Pierce O 9Donnell noted that cpeople are more comforta- ble with you if you can make a little fun of yourself. d 129 H ELITZER & S HATZ , s upra note 50 (quoting writer and director Carl Reiner, cInviting people to laugh with you while you are laughing at yourself is a good thing to do. You may be the fool, but you 9re the fool in charge. d). 130 See Cruthirds, supra note 4, at 36 ( cSeveral observational studies have shown that humor is a social 8lubricant 9 that facilitates relationships and reduces tension among team members. It enables them to feel as though they are part of the group. d). 131 H ELITZER & S HATZ , s upra note 50, at 7 ( c[T]he truth is that anyone can learn to write humor. Although some individuals are naturally funnier than others, just as some individuals 674 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 building anticipation, and a punch line. 132 This is often heightened by a ctriples d or cthree-beat d formula, 133 popular in several forms of comedy, including improvisational, sketch and stand-up. 134 Be- cause this is a formula and not something that some people inher- ently have and others are born without, it can be taught to mediators. This is contrary to many people 9s understanding of the way that humor works. Mediator Kevin W. Cruthirds notes that there are four differ- ent styles of humor identified to date. 135 These are: self-enhancing humor, affilitative humor, aggressive humor and self-defeating hu- mor. 136 Self-enhancing humor relates to a person 9s ability to sus- tain a positive outlook on life. 137 Affilitative humor is associated with the type of people who are cthe life of the party, d and refers to their ability to beguile others with their amusing stories and anecdotes. 138 Aggressive humor can be either negative or positive and is based on the theory that people will laugh when they feel superior to others, much like bullies. 139 Finally, self-defeating hu- mor relates to humor at one 9s own expense, generally using one 9s self as the applicable target, and usually applies to people who are emotionally needy and lack self-esteem. 140 He argues that some of are more athletic or more musically gifted, humor writing can be taught and humor-writing skills can be acquired. d). 132 Id. See also Krivis, supra note 19. Krivis says: A joke, like a mediation, has a very specific structure. A joke has a setup, connector, and punch line. A comedian plays many roles, not the least of which is an orches- trator of the room. The comedian creates a target assumption upon which the story is built-that is, the set up. The comic then introduces a connector, a thing that is interpreted at least two ways, and surprises the audience by shattering or reinter- preting that assumption-better known as the punch line-getting the laugh. They then follow with various tag lines in order to get more laughs out of one joke. Watch Leno this week and you 9ll see what I mean. Id . 133 This basic principle refers to a situation where a person tells a joke or writes a joke con- taining three punchy aspects. In comedy, most elements are structured in threes. 134 H ELITZER & S HATZ , s upra note 50, at 7. No one is completely sure why the triples formula works, but it is supposed that the two early components set up the anticipation, and the third beat maximizes its potential. For an overview of the three-beat cHarold d structure in long- form comedic improvisation, see Wikipedia.com, Harold (improvisation), http://en.wikipedia. org/wiki/Harold_(improvisation) (last visited Nov. 8, 2007). 135 See Cruthirds, supra note 4, at 35. 136 Id . 137 Id . 138 Id . 139 Id. 140 Id. 2009] THE FUNNY THING ABOUT MEDIATION 675 these types of humor can be incorporated into mediation in order to impact the success of the mediation. 141 Also, in using humor, timing is essential. According to Psy- chologist Steven M. Sultanoff, Ph.D., 142 The safest (interpersonally) times to use humor are: 1. When another person uses humor with you; 2. When you have a strong relationship with the other person; 3. When the situation is so- cially cappropriate[ d] (Humor at a party and at a funeral may be experienced differently); 4. When you use humor that is aimed at yourself (as opposed to humor aimed at another person); 5. When you use humor to poke fun at a situation but not at an- other person or group of persons. 143 The basic rule of comedy is that timing is everything, and this holds true in the mediation setting as well. 144 Mediations can be combative, and interspersed humorous anecdotes can be just what the parties need in order to lighten the mood. 145 Some mediators find it useful to use humor prior to the mediation session, while in discussions with opposing counsel. 146 Typically, humor should be introduced after parties have had a chance to cvent, d or, in other words, when they are no longer wearing their game faces. 147 VIII. A PPLYING H UMOR TO M EDIATION John Cooley notes that a good mediator must have an appro- priate sense of humor. 148 Much in the way that trial advocacy is an 141 See Cruthirds, supra note 4, at 35 . 142 Past President of the Association for Applied and Therapeutic Humor. 143 Steven M. Sultanoff, Humor Matters: Frequently Asked Questions , http://www.humormat- ters.com/FAQ.htm (last visited Nov. 10, 2007) (internal punctuation omitted). For a discussion of the appropriateness of humor in mediation, see part IV, supra . 144 Kichaven & Rothman, supra note 8, at 49 ( cSo how, then, can we distinguish appropriate from inappropriate attempts at humor? For starters, the basic rule of comedy-timing is every- thing-is no less applicable in this context than in any other. d). 145 Id . 146 Nicole Whyte, Winning Pre-Mediation Strategies , 48 O RANGE C OUNTY L AWYER 24, 26 ( cLight hallway banter among counsel helps to ease the tension between the parties, particularly where counsel are able to make light conversation or find some humor outside of the litigation setting. d). 147 Kichaven & Rothman, supra note 8, at 49. 148 Gabriel P. Soto, Environmental Regulatory Mediation , 8 T EX . T ECH A DMIN . L.J. 253, 256 (2007), note 14, citing John W. Cooley, T HE M EDIATOR 9 S H ANDBOOK : A DVANCED P RACTICE G UIDE FOR C IVIL L ITIGATION 28 (2006): The qualities of a skilled mediator include: 8patience, creativity, flexibility, open- mindedness, good listening and communication skills, appropriate sense of humor, 676 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 art, so is mediation. 149 Humor is a tool that can assist mediators in helping them reach the desired end, which usually culminates in a settlement that the parties can agree upon. 150 Appropriately-timed humor is useful in helping to achieve settlements. 151 It can be use- ful to use humor when settlements reach a standstill. 152 Humor can serve as a distraction from a tense mediation session. 153 In media- tion, it can help overcome an impasse and can also drive a settle- ment. 154 In mediation involving negotiation, mediators can also use humor to successfully counter inappropriate bargaining tactics. 155 For example, when a defendant 9s attorney made an exception- ally low-ball offer of $15,000 at five P.M. near the end of a media- optimism, motivation without coercion, . . . good judgment[,] . . . [being] well organ- ized and punctual and displaying respect for advocates, their clients, and . . . view- points . . . . 9 149 Id . 150 See Stephen B. Goldberg, Neutrals 9 Skill Part II of II, Research Backs Survey Results: Achieving Rapport is the Key to Getting Mediation Parties to Reach a Settlement , 24 A LTERNA- TIVES TO H IGH C OST L ITIG . 99 (2006). 151 Id. 152 Michele Mattsson & Kent B. Scott, Maneuvering Through Mediation: The Tricks, Twists and Turns of Finding Untracked Powder 4Resolution , 18 U TAH B.J. 30 (2005): When a client draws a line in the sand, it either means he or she is frustrated or that negotiations have reached an impasse. Counsel and the mediator need to determine which it is and avoid the latter, if at all possible. Here are some tips. Review the progress that has been made up to that point. Ask to talk to your client alone. Take a lunch break. Go for a walk with your client. Discuss what will happen if the case doesn 9t settle. Indicate how much it will cost to proceed and discuss likely outcomes. Talk about risk. Get creative. Throw out new ideas. Add a new twist to an old idea. Keep your independence. Keep a sense of humor. Tell your client what you think is a cgood deal d and what is not. The client is always the boss, but the attorney is the professional and must remain objective. 153 Dwight Golann, If You 9re Willing to Experiment, 8Principle 9 Cases can be Mediated , 16 A LTERNATIVES TO H IGH C OST L ITIG . 37 (1998) (noting that in order to reduce feelings of pres- sure during mediation, one should cInject humor or tell a story 4Your anecdote need not be relevant to the case; being distracting is often enough, especially if one can make litigants smile for a moment. d); see also Peter Lovenheim, Humor, Trustworthiness, and Even Drama: Assess- ing whether you Have What it Takes to be a Mediator , 20 A LTERNATIVES TO H IGH C OST L ITIG . 169 (2002). 154 Michael Geigerman, 20 cHits: d Reminders of What Mediators Need to Do , 18 A LTERNA- TIVES TO H IGH C OST L ITIG . 187 (2000); see also Steven P. Goldberg, Mediators Reveal Their Essential Techniques for Successful Settlements , 24 A LTERNATIVES TO H IGH C OST L ITIG . 81, 89 (2006) ( cTwo other tactics that were frequently cited as effective ways of moving disputing par- ties toward settlement were using humor to reduce tension and combining patience and tenacity to continue to encourage settlement even after one or both of the parties have become con- vinced that settlement is impossible[.] d). 155 Joan Protess, Improving the Prospect of Settlement in Mediation, 1383 P RACTICING L. I NST . 485 (2003). 2009] THE FUNNY THING ABOUT MEDIATION 677 tion session, the opposing counsel sent his mediator to tell the defense attorney that if he had heard the sum correctly, then he and his client would be on the six P.M. train home, but if he had meant to say $50,000, then the plaintiff 9s attorney would counter with $100,000. 156 Upon hearing this, the defendant 9s counsel im- mediately countered with a reasonable number, and the parties set- tled by seven P.M. 157 This anecdote goes to show that csometimes humor and a little 8Alice in Wonderland 9 reasoning of one 9s own can be a very effective tool for getting the negotiation back on track. d 158 Some instances where humor might be useful as a distraction are when the mediation gets off track or when anxiety is so high that parties cannot continue a rational discussion. 159 A joke or a humorous story might then serve as a tactical distraction for the parties. 160 But some mediators are uncomfortable with their capac- ity to use humor to their advantage in tense mediations. 161 One article, however, notes that among a list of factors, some of the most effective mediation advocates used humor. 162 Mediators must keep a sense of humor because it serves as protection from the mundane and as an important source of energy throughout the mediation session. 163 In mediations that involve high emotions, which are height- ened by the seriousness of the subject matter, humor might be less appropriate. Child custody battles, difficult divorces and anything involving a person 9s death come to mind. In these kinds of cases, the mediator risks alienating his client through his use of humor, and this alienation could be especially harmful to the client 9s inter- ests and perhaps even destroy the parties 9 trust in the mediator. 164 156 Id. 157 Id. 158 Id. 159 Lovenheim, supra note 153, at 171. 160 Id . 161 Goldberg, s upra note 150, at 100 ( cA judicious use of appropriate humor to lessen ten- sions also appears to be useful in achieving settlement, though some mediators are uncomforta- ble with their capacity to successfully utilize humor in a tense situation. d). 162 Howard D. Venzie, Jr., Some Guidelines for Effective Advocacy in Mediation , 13 P RACTIS- ING L. I NSTITUTE 391, New York Practice Skills Course Handbook Series (1998). 163 Geigerman , supra note 154. 164 See Paul F. Divine, Symposium, Mediator Qualifications: Are Ethical Standards Enough to Protect the Client? , 12 S T . L OUIS U. P UB . L. R EV . 187, 199 (1993) ( c[H]umor may destroy the parties 9 trust in an emotionally charged setting, like child custody. Under those circumstances, the observation should be directed toward the ability to detect and reduce tension between the parties. d) (internal citations omitted). 678 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 10:657 Using humor in these kinds of situations might not be appropriate; instead, the mediator 9s energy should instead be focused on the ability to detect and reduce parties 9 tensions. 165 However, mediators might wish to use humor to chelp take the edge off d when parties 9 emotions get in the way of a successful mediation. 166 However, other contexts such as commercial mediation are highly conducive to the application of humor. 167 Mediators in the business setting must have a good sense of humor in order to con- nect with their clients. Of course, in making a choice of whether to use humor in business mediation or not, the mediator should care- fully evaluate the costs and benefits to his client. Even though the benefits of humor may strongly outweigh the negative aspects, one inopportune use of the humor could potentially lead to disastrous consequences. 168 Because humor can backfire or be interpreted as offensive, a sense of appropriateness and timing is necessary. 169 Even if the mediator does not understand the value of using humor, clients do. 170 Although it can sometimes be difficult to see how humor can be used in such situations where tensions are high, sometimes clients are not only interested, but desire its use in their mediation. 171 While humor alone may not suffice to re

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