Humor in mediation, seriously?

A bunch of dogs playing poker around a table

What do you think?  Can humor help in mediation?  Mediation is serious business. Often the parties are in deep division with each other.  Tension can be very high.  Bringing humor into mediation can be dangerous and it can fan the flames of discontent. However, appropriate humor at the right time, with the right party can help diffuse a situation and help the parties with their conflict.


What is mediation?


Mediation is a process where the parties make decisions, while the mediator asks questions and facilitates the process. Alternative dispute resolution may take several forms such as litigation, arbitration (binding or nonbinding), mediation, or negotiation.

Mediation is confidential with the parties making all of the decisions rather than a third party.

Mediation may be evaluative, facilitative, or transformative.  In evaluative mediation often the mediator is a retired judge or an attorney that states what that person believes is a reasonable legal solution and then leads a discussion.  In facilitative mediation the focus is on a particular issue or issues and the mediator keeps the focus on the issues. In transformative mediation the mediator hopes to transform the relationships between the parties and the actual issues are secondary. Choosing the right mediator with the appropriate skill set is imperative in mediation.




Mediation unlike litigation is confidential. In general litigation is a public record. The parties sign an agreement at the beginning that the mediator cannot be called on later to share what happened in the mediation.

This can be a real advantage to keep the conflict commentary out of the public eye.


Mediation is self determination


I have mediated or facilitated over 2,500 disputes in my career from fortune 100 companies at the board of director level to a volunteer in Housing Court, Conciliation Court, in public housing, neighborhood disputes, between gangs and everywhere in between.  As a former business valuer, business valuation disputes, business to business conflicts, business to government disagreements, and conflicts within businesses are my sweet spots. 

The good news is that I have yet to settle a dispute. Mediators facilitate the process.

The participants settle the dispute.

A skilled mediator asks a lot of questions and helps the parties explore their facts, issues, emotions around the issues, and interests to work towards a solution that both parties can accept to have closure in their dispute. The settlement is up to them.




Mediation is very flexible. After preparing for the mediation with the mediator, the process can shift depending on the parties. The mediation can be face to face or the parties may be in separate rooms whether in person or virtual.

The nature of the issues and concerns can shift during the mediation.

Often with appropriate questioning the problem identified may be a symptom and the underlying root cause or the “600 pound gorilla in the room” so to speak can surface leading to a significant breakthrough between the parties.


Reframing from hostile and antagonistic to neutral


A skilled mediator can help the parties reframe negative and hostile positions to a more neutral and opportunity based perspective. When trust has been lost it cannot be easily obtained, but the parties may be able to see the opportunity to begin again in a new light given the details of a mediated agreement.


Advocacy versus collaboration


The attorney is an advocate for the client.

The mediator is an advocate for the process.

Focusing on the problems and the concerns by listening actively the parties may find a way to work together going forward. The mediator facilitates this process by asking open ended questions and expanding the answers with statements like “tell me more”. Then the mediator paraphrases, summarizes, and empathizes with the parties. The parties begin to look for ways to make the mediation work.


Humor in mediation


As a mediator it is important to make sure there is no misunderstanding related to the parties. Sometimes a personal story by sharing something humorous about yourself, your children, grandchildren, pets, or personal circumstances can help break the ice. The mediator can begin to be seen more as a human and empathetic being,  and someone trying to help the parties with a difficult situation.

Occasionally, the situation can become very tense. Meeting with the parties separately it may be possible for the mediator to build a better repour with each of the parties alone. During such time periods

sometimes addressing the obvious with an opposite twist can help.

For example, on a mediation where one side brought 8 members including 3 teams of two attorneys (two local, two Midwest attorneys, and two attorneys from their NYC headquarters) with two members of senior management and the other side, clearly the side with two members was feeling outgunned.  During the break the one representative with only two members said, “can you believe the size of their team?”.  I offered, “were you expecting more?” 

This unexpected response caused the participant and his attorney to laugh and lighten the mood.

 Later the parties were able to settle their case.


Another example sharing feelings


On a more serious and yet another human note, when one party indicated he was willing to spend $3 million to prove he was right to the IRS, the CPA and attorney representing the client both smiled, and their eyes demonstrated approval. They saw great fees coming their way. The taxpayer was concerned that the IRS did not recognize his accomplishments. However, meeting with the IRS team I asked the IRS team how they saw the taxpayer. They commented that he was innovative, creative, personable, professional, creative, caring, and an exceptional entrepreneur having created an entirely new multibillion market where none existed before. This was related to the taxpayer’s team by the mediator.  The client softened his stance, and the parties were able to work out a settlement on a convent not to compete that the taxpayer and the IRS could live with going forward.

Keeping the parties engaged, realizing that we are all human, addressing commentary that the mediator knows the party will see the humor or the human side can go a long way towards relieving tension.

However, the mediator has to be very careful. Humor should only be used when it is clear it will help. If there is any doubt given the danger of humor causing one side to become angry the mediator needs to have strong emotional, conversational, and listening  intelligence or humor should be avoided. When in doubt do not offer humor.

About the author

Mike Gregory is a professional speaker, an author, and a mediator. You may contact Mike directly at and at (651) 633-5311. Mike has written 12 books (and co-authored two others) including his latest book, The Collaboration Effect: Overcoming Your Conflicts, and The Servant Manager, Business Valuations and the IRS, and Peaceful Resolutions that you may find helpful. [Michael Gregory, ASA, CVA, MBA, Qualified Mediator with the Minnesota Supreme Court]