Conflict Resolution

Advanced Problem-Solving Strategies

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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 […]

Last week Kofi Annan, as prestigious and qualified a mediator as one could ask for, resigned his assignment to try to broker a peace agreement in Syria. Annan cited the Syrian government’s intransigence, and the rebels’ desire to achieve their ends by force of arms. In addition, he mentioned that “finger-pointing and name-calling in the Security Council” was making it impossible for him to do his job. Annan was quoted as saying that “without serious, purposeful and united international pressure, including from the powers of the region, it is impossible for me, or anyone, to compel the Syrian government in the first place, and also the opposition, to take the steps necessary to begin a political process.” Mediators generally hate […]

Those who take mediation seriously want to encourage parties to participate in good faith, and to prepare properly for mediation sessions, so that the process can achieve maximum benefit. We have to recognize, however, that there can be a tension between the desire to make sure that the parties don’t waste each others’–and the mediator’s–time, and the need for confidentiality, safety and flexibility in making mediation work. In other words, how do you promote the most effective use of mediation without slipping into exactly the kind of rules and sanctions-based world that mediation was designed to escape? Don’t ask the courts to resolve this dilemma, because they don’t see it. Courts are entirely comfortable operating in the world of rules […]

In the budget negotiations going on in Congress, once again we see the president assuming the role of mediator. Republican leaders in particular, while remaining adamant that they will not compromise on their position of keeping tax increases off the table, have lately almost been begging for the president’s intervention to break the impasse. The Republican leaders sound to me like some of the lawyers I sometimes see representing an intransigent side in settlement negotiations. They know they have to make a deal, but they or their clients have boxed themselves into an untenable position. They need the mediator to “force” them to make a deal. Today President Obama gave a statement to the press seeming to ride to the […]

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 outline various approaches to conducting mediations, because I try to start off being open-minded about what will work. We usually use a combination of all these styles, depending on the needs of the case and the preferences of the parties. But I am going to list them in order of my preference, from my least to most favorite: 1. Mini-Trial […]