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Mediate.com

Attitude

by Joe Markowitz
January 2017

Mediation's Place by Joe Markowitz

Joe Markowitz

Parties in conflict may face a choice among various modes of conflict resolution--litigation, arbitration, mediation, or some other formal or informal process. Attorneys are accustomed to presenting their clients with this array of options, and explaining the pros and cons of each. But the choice of process may turn out to be less important in many cases than the choice of approach to resolving the conflict.

Parties choosing litigation, for example, are likely to approach that process with an adversarial mindset, filing every possible motion, and disputing every assertion made by the other side. This is the way many of us--including myself--were trained to litigate. But litigation can also be approached with a more cooperative attitude, and nowadays courts tend to encourage parties to work out disputes over pleadings, discovery and other pre-trial issues in a more collaborative manner. In many cases, parties forego a lot of permitted discovery and motion practice in the hope of resolving the case without incurring unnecessary costs.

Parties entering into mediation may understand that the process is supposed to encourage sharing of information and proposals for constructive solutions. Frequently, however, they arrive at mediation with the same adversarial attitude that we associate with litigation, determined to argue their case vociferously, and give in only grudgingly to their adversary's demands. Sometimes that kind of belligerent attitude can even be effective in achieving a more favorable settlement. And some mediators conduct mediation in a quasi-judicial manner, offering their evaluations of the parties' respective positions on the merits as if they were being presented in court.

I'm not suggesting that a cooperative approach is always better than an adversarial one. Sometimes you have to fight. What I am suggesting is that parties consider their approach to conflict as carefully as they consider the process for resolving their conflict. And most of the time, they will probably find that they can achieve more of their goals when they adopt a more cooperative attitude, whether they find themselves in court or in a more informal setting.

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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