Conflict Resolution

Advanced Problem-Solving Strategies

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In talking recently with a friend and fellow attorney about the kinds of mediators most lawyers and litigants are looking for, I realized that most of what passes for mediation these days is not mediation as I would define it, at all. First there is arbitration-style mediation.  You go to a retired judge or similar knowledgeable authority figure. One side presents their case to the mediator.  Then the other side presents their case.  Then the mediator tells you what he thinks the case is worth. The only difference between that style of mediation and arbitration is that the parties are free to take the mediator’s opinion or leave it. But they have never really communicated with each other, and they […]

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 […]

The practice of going to mediation to resolve a litigated dispute has become routine.  Mediation is now viewed as a planned-for stage in the proceedings where the case is likely to get resolved.  The parties file their pleadings, attend a scheduling conference with the judge, perhaps engage in some motion practice, perhaps exchange some written discovery, but often postpone at least some depositions, expecting to settle the case at a scheduled session with a mediator.  This practice seems all well and good–good for the parties, good for mediators.  But maybe it’s too much and not enough at the same time. If all you want to do is settle the case, there are lots of ways to do that without calling […]

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 […]

Furniture has important symbolic as well as utilitarian functions. In a courtroom, for example, the elevated position of the judge, and the adversarial positions of the parties, both facing and subservient to the judge, are perfectly symbolized and reinforced by the arrangement of the furniture. In a conference room, the person who sits at the head of the table sometimes assumes a similar position of authority. Parties attending a mediation usually expect the mediator to sit at the head of the table, and arrange themselves on each side, facing but often not talking to each other, and often directing their attention to the mediator at the head. To shake up these expectations, I sometimes like to sit to one side […]