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Mediate.com

The Blame Game

by Joe Markowitz
August 2011

Mediation's Place by Joe Markowitz

Joe Markowitz

A cartoon in the New Yorker a couple of months ago showed a family lost in the jungle. The father, scratching his chin, is saying, "OK, I admit it, we're lost. But the important thing is to remain focused on whose fault it is." I'm thinking of getting a framed copy to hang in my caucus room. Frequently the task in a mediation is to get the parties away from focusing on recriminations and blame for how they got themselves into their situation, and toward focusing on possible solutions to their conflict. It might be helpful for people to look at this picture, which enables us to see how obviously ridiculous it is for a family lost in the jungle to spend their time arguing about who was mainly responsible for getting them there, instead of working together to find a way out.

I love doing mediation because it is designed for the sole purpose of helping people in conflict find a way out. People usually arrive at my office for a mediation because they need a way out, not only of the underlying conflict, but also out of a new legal conflict in which they find themselves embroiled after they went to court to try to resolve their dispute. There they learned that the courts are not designed primarily to help people find a way out. The courts are designed for assigning blame. One reason people are naturally inclined to go to court to resolve a dispute is that they think like the family in the cartoon, that the way to resolve their conflict is to figure out whose fault it is. Now if your object is to punish your adversary, and you believe you need all the trappings of the justice system to establish who is right and who is wrong, or if your adversary gives you no other choice, then court is the place for you. But even if that is your intent, you quickly find out that the cost of that system is rather high, and the results are not always what you were hoping for.

For those seeking a principled resolution of their dispute, mediation can still serve as a useful shortcut, to obtain a better approximation of the results that might be reached in court, at lower cost. I prefer, however, to think of mediation as the anti-court, in part because in mediation it is not always even necessary to assign fault, or accept blame. Mediation works best when it allows the participants to work together to design a solution to their common problem.

 

What prompted this post (which is adapted from something I posted on my political site), was reading some of the reactions people are having to the debt ceiling deal from last week, and also to the stock market crash this week. We seem to be stuck in a continuing, and perhaps deepening, economic quagmire, and we don't seem to know how to get out of it. So we spend our time blaming one another for the mess we are in. In part, politicians may feel compelled to do this for their own survival. But it does seem like a colossal waste of energy, that could be put to better use in designing solutions to our economic and political problems. Maybe we have to engage in finger-pointing, because we just don't know how to get out of the mess we find ourselves in. Even to the extent some of us think we know, we can't agree on solutions. And that leaves us no alternative but to engage in the blame game.

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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Website: www.mediate-la.com/

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