Conflict Resolution

Advanced Problem-Solving Strategies

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Is it possible for a mediator to show too much empathy? At a program SCMA put on last night which included a mock employment mediation, reaction in the room was divided in response to the demonstrator’s expressions of understanding of the employee’s grievances. Although a few in the audience felt that the mediator could have gone even further in commiserating with the employee’s feelings that the employer had not adequately accommodated her need for religious observances in the workplace, a fair number of others thought it was wrong for the mediator to display any sort of solidarity with the employee’s complaints. Those who objected to the mediator’s expressions of empathy thought this approach could threaten the mediator’s neutrality. They also […]

In Los Angeles County, where the court is no longer assigning mediators, attorneys who used to rely on the ADR panels might be feeling a bit at sea. One reason is that many attorneys appreciated the court’s service in saving them the bother of having to choose a mediator. That way attorneys didn’t have to admit to their adversaries that they might be interested in settlement. They didn’t even have to try to reach agreement with opposing counsel on how and where to conduct mediation. They didn’t have to admit to their clients that they might actually want to let go of their dog of a case. If they wanted to, they could blame the court for forcing this procedure […]

At a mediation I handled recently, I walked into the conference room as one party’s lawyer was explaining to her client the differences between “facilitative” and “evaluative” mediators. “I’m a facilitative mediator,” I proudly told the lawyer and client. I said that because that is how I prefer to think of my own style, and because that is a style that at least to me seems more consistent with the ideals of mediation. Evaluative mediators act more like judges, even though their opinions are not binding on the parties. Evaluative mediators can be quite effective, if that is what the parties are looking for. Most of the time, however, I feel that a third opinion of the merits of a […]

Oftentimes, all we need to do to resolve a dispute is arrive at an agreed-upon value for the subject of the dispute–whether that is a lawsuit, or a company, or a piece of property. It therefore behooves the parties to come to mediation armed with as much objective information as they can get that would support the value they are seeking. In the case of property, that might be an appraisal. In the case of a lawsuit, that might be legal authority or jury verdict information. I mediated a case recently where the parties were on the verge of signing a deal, based on a shared understanding of an item’s potential value. In reviewing their file before making this commitment, […]

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 […]