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The Funnel

by Joe Markowitz
November 2010

From Joe Markowitz's Mediation's Place Blog

Joe Markowitz
In a talk I heard yesterday at the Southern California Mediation Association annual conference, Lee Jay Berman used the metaphor of a funnel to describe how how the legal system squeezes the issues involved in conflicts to the shape of a dried-out hamburger patty, so that most of the concerns of the participants in the dispute get left out of the process.  So one could think of the legal system as a kind of meat grinder.  And the mediator has the job of putting some flavor back into the squeezed-out meat, and adding some new ingredients to the mix.  

This concept resonated with me since as a practicing trial attorney I have often found myself listening to clients providing endless streams of information, most of which seems to have no use in a potential or actual lawsuit.  To draft a complaint for a client, I need to hear the client tell me the whole story, which clients often want to do in great detail, but I then need to weed out about 90% of what they are telling me in order to fit what remains into recognized legal pigeonholes.  Then the other side might attack the complaint and succeed in removing or narrowing some of those claims, and the necessities of trial preparation may require the case to be simplified even further.  Lawyers and judges tend to think this is a useful process, because it folds a messy story into a tidy package that can be processed by the legal system.   And when they bring a case to mediation, attorneys may underestimate the work that remains to accomplish a settlement.  They often think that they have the dispute narrowed down so well that all the mediator needs to do is push the parties toward a point that lies somewhere in between the well-defined positions of each side.

Why on earth then, would a mediator want to explode their carefully-prepared packages, or as Lee Jay put it yesterday, to put back in some of the juice and extraneous ingredients that have been removed by the funnel?   One reason is that parties may never find that point of resolution until they have had a chance to express and address the concerns that still matter to them.  The legal system may have deemed those concerns extraneous, but often it is all those things that the clients want to tell their lawyers in their initial meeting that caused the dispute in the first place.  (See my prior post on underlying causes.)  If the parties could have resolved the case without putting all that juice back in, they probably would not need a mediator.   Maybe it's like solving a Rubik's Cube.  Sometimes you need to mess it up badly before you can get it back in order.  Or maybe the mediation process can be analogized to a martial art.  I heard another talk yesterday by mediator Sam Konugres in which he talked about different kinds of concentration required to practice martial arts.  Sometimes you need to focus all your attention on one narrow point.  At other times, you need to be aware of everything that might come at you from any direction. 

So while the frustration of lawyers lies in seeing their careful work blown to bits, the frustration of mediators lies in being expected to remain within the confines of the neat little boxes that litigation creates.  That frustration was reflected in a number of presentations at yesterday's conference, on the theme of the business of mediation, which talked about ways in which the tools of mediation can be put to use in solving much broader societal problems than those involved in the cases that come before the courts.  For example, Laurel Kaufer has put her mediation skills to use developing an inspirational program for reducing conflict in prison, and in bringing together parties affected by Hurricane Katrina.  Ken Cloke seems to think that mediators can save the world, and also that some of the world's most pressing problems cannot be solved without mediation.  It's exciting to think about the potential of this field not only to deal with the problems that work their way through the court system, but a lot of other problems that the court system doesn't have a way of dealing with at all. 

(Clip art licensed from the Clip Art Gallery on DiscoverySchool.com)

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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