Conflict Resolution

Advanced Problem-Solving Strategies

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When I meet people attending a mediation for the first time, I’m always interested in finding out what they expect will happen. Often they don’t know much about the process, and sometimes they come in expecting something quite different from what I have in mind. For those people, and even for those who have participated in mediations previously, I sometimes describe various approaches to conducting mediations. I usually have an idea about how I want to proceed, but I try to remain open-minded about what will work. I learned the Pepperdine five stage approach to mediation quite a while back (convening, opening, communicating, negotiating, closing), but that framework doesn’t fully answer some much more basic questions that I think about […]

Whenever an attorney involved in a mediation asks me if their client can be available by telephone, I am usually reluctant to agree.  If the case is important enough to require my personal attention, should it not be important enough to the parties to compel their presence?  After all, it’s their case.  It also seems intuitively obvious–though I’m sure there are studies to back this up–that mediation is more likely to be successful if people take it seriously enough to attend in person, and if they have the opportunity to communicate face-to-face at least with the mediator and preferably with the other side.  Or maybe I just feel that phone mediation, like phone sex, can never be as satisfying as […]

Many people are just not comfortable with face-to-face negotiations.  Even when parties to a mediation are willing to meet for a joint session to discuss the circumstances of the conflict, they generally prefer to break into separate rooms when it comes time to negotiate a settlement.   Sometimes I wonder why people don’t behave in the opposite way.  You might think they would be reluctant to reveal their trial evidence, or talk about personal issues in front of the opposing party and counsel.  Instead they are more likely to wish to get these aspects of the dispute out in the open, while preferring secrecy when they are ready to make a deal.  Perhaps that is because people doubt their skills as […]

The practice of quickly moving to caucus sessions has become so widespread that many parties attending mediation seem to expect to caucus almost immediately.  Parties seem to want to cut to the chase of settlement negotiations quickly, and are concerned about the possible volatility of a joint session.  I had a couple of experiences recently where counsel expressly asked me before the mediation even began to please not even allow the parties into the same room at all, because they viewed it as a waste of time, or worse, to face the other side.  My response was to suggest that we at least stay together for introductions and some initial housekeeping matters, and then continue in joint session only for […]

When acting as a mediator, I try to develop a level of trust and personal connection with the parties who come to me for assistance.  So I might talk about my family, or my hobbies, or my professional background and experience.  Trying to establish a rapport with the parties’ attorneys, I sometimes find myself listening to and telling war stories about experiences with various judges, or certain types of cases.  While sharing those stories can be a useful way of talking about the case at issue, there is a danger in doing too much of that.  The danger is that the parties sometimes get left out of the process.  Parties find themselves mystified by too much shop talk.  They may […]