Publications

While fascinating and rewarding, mediating is not as simple as it might first seem. Every mediation is different. There is an everchanging dynamic of attorney personalities, litigant personalities, legal issues, and medical issues. Mastering Mediation is a tool kit to use for varying situations.

Some of the most contentious legal disputes that confront attorneys center on valuation of property that is the subject of competing claims. Avoiding coming to grips with detailed valuation issues, and the concomitant need for expert testimony, by putting the property up for sale, and letting the market determine the value, is often not possible, or not feasible, or simply undesirable to one or more of the parties.

During my tenure on the trial bench, I always looked for ways to settle cases assigned to me. It seemed the right thing to do. That is, give the parties the opportunity to chart their own course rather than having a stranger, albeit well-meaning, to decide their fate.

There had been several motions to the court related to discovery issues leading up to my assignment. The parties clearly were having difficulty agreeing on anything and were barely civil to one another. They simply could not agree on even basic issues. You could sense the animus – the exchanges between counsel were palpable.

Healthy conflict is a productive exchange of differing ideas, that pushes us to arrive at better solutions. In healthy conflict, our minds remain open with the recognition that none of us have all the answers when questions ultimately arise. We listen to each other, compromise, and craft solutions which, while imperfect, work for all concerned. High conflict is another matter altogether.

Not surprisingly, multi-party cases typically require more time and attention than cases with only two parties, making mediation an even more attractive option.

In most commercial and international arbitrations, arbitrators must be neutral and impartial. In other words, even if the arbitration agreement permits each side to select their arbitrator, those party-appointed arbitrators must still act impartially.

The arbitrator, upon his appointment, should issue a written directive in advance of the initial conference. This should set forth an agenda to be discussed. It should encourage counsel to engage in a collaborative process from the outset for the purpose of streamlining the proceedings.

The core of Chris Voss’ approach to negotiation in his book "Never Split the Difference: Negotiating As If Your Life Depended On It," is the use of what he terms tactical empathy. In brief, tactical empathy is a combination of true active listening, establishing connection, and framing the negotiation. As Voss writes, “Negotiation as you’ll learn it here, is nothing more than communication with results.”

I questioned whether attorneys would want to use this new technology? Admittedly, I considered myself somewhat technologically impaired, but what choice did I have? Surprisingly those early days went smoothly, and for the most part the transition was a smooth one, not only for myself, but for my fellow mediators, as well as the bar.