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Mediation Inc: Creative Solutions for Disputes --
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Jerry Weiss

                                                                 Spring/Summer 2017

You might think that Isaac Newton didn’t know much about conflict resolution or mediation.  Perhaps so but his Third Law can be applied to matters beyond physical force.  It’s also a good fit for mediation.    Simply stated, that law says that for every action there’s an equal and opposite reaction.
 People frequently come into mediation thinking in the binary terms of win and lose, right and wrong.  This blunt perspective lends itself to a mediation/negotiation approach of force and might, something I am critical of.  The result is advocates often telling the mediator things like, “Go tell them we are right...or…they are wrong”.  Or….”Tell them how weak their case is" …or …"how they are going to lose a motion"….or..."a trier will never relate to or side with them”.  If a mediator follows such commands in rote fashion she is likely to get pushback - a Newtonian opposite reaction - of equal force.  Yet the binary "force and might school" is the one many advocates attend and therefore they come into the negotiation unprepared to think about reactions and to have a rounder, fuller, less aggressive and more productive dialogue.
One of the biggest mistakes a neutral can make…and there are plenty of them…is to carry this kind of forceful message without adequately contemplating the kind of force and reaction that it may generate and its negative effect on the dialogue and resolution.
There are refined and tested methods with which to evaluate, opine and address risk other than the aggressive approaches outlined above and which reflect best mediation practices.  So the next time you ask me to "carry that water”, don’t be surprised if I try to slow things down, challenge force and might by asking how you think the other side might respond and suggest something more drinkable and productive for the resolution process.

                          Thank you.


See past letters from Jerry Weiss for interesting information about:

Binary Justice                                                         February 2016
The Keys to the Car                                                March 2015
Oh By the Way                                                       September 2014
Justice or "Just Us"                                                  July 2014
Peace Circles and the Joint Session                            July 2013
Alice Weiss and Julius Caesar                                    September 2011
Coffee's for Closers                                                 October 2010
Mediation and Blue Monkeys                                      April 2010
Giving Shelter                                                         February 2009
Respect                                                                August 2008
Fear, Anger and Risk in Mediation                               November 2007
A Renewed Sense of Enthusiasm                                May 2007
Misconceptions and Unrealistic Expectations                November 2004
Commitment to the Process                                      July 2003
The Importance of Confidentiality                              July 2001