Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>You Can Observe a Lot Just By Watching</xTITLE>

You Can Observe a Lot Just By Watching

by Michael P. Carbone
August 2015 Michael P. Carbone

My colleague and mediation trainer par excellence Steve Rosenberg says that you can learn a lot about how to negotiate and mediate by watching movies. Not just any movies of course, but the ones that he has selected for his schtick. If you get the chance, I highly recommend watching Steve's show. It's a great way to hone your skills, either as a mediator or as an advocate.

At the same time, I think that we can all learn a few things from the famous philosopher-humorist Yogi Berra. Here are some of my favorite quotes from Yogi and my own thoughts about how they could help lawyers and clients during a mediation.

"If you don't know where you are going, you'll end up someplace else." How many times have I seen a negotiator try to start with a number that makes it look as if (s)he didn't have a realistic idea about where the case should settle? It's surprising to see how often it happens, even with experienced counsel. When I try to point out the problem, what I usually hear is the well worn comment that "I'm not going to bid against myself." And so the mediation drags on for much longer than is necessary. This leads us to Yogi's next saying.

"It ain't over 'til it's over." Patience is a virtue. Yet some parties seem to think that just about any case can be settled in a few short hours. And if it doesn't work out that way within their set time, they are inclined to walk away. Sorry, but it ain't over 'til the case settles. And if it's taking too long, you shouldn't blame the mediator. Unless however, the mediator fails to pay attention to Yogi's next point.

"When you come to a fork in the road, take it." The trick here is to understand where the fork might lead. Do you go down the road that keeps you talking for a while longer? Or do you go the other way and take the deal on the table? If there is anything that a mediator can do to add value to a negotiation, it's giving some guidance on whether it's time to "take it" or to keep talking.

"I never said most of the things I said." So have the parties been playing games by withholding information? There's not a bigger mistake that they could make. How can they expect the mediator to help them if they aren't being candid with all the participants in the case? And how can they expect to save time?

"You wouldn't have won if we'd beaten you." Are one or more of the parties under the illusion that there's no way that they could lose the case? A good friend of mine, who is an excellent trial lawyer, freely admits that he is capable of losing any case. It's just a fact of life that litigation is unpredictable and that "you can't win 'em all."

Yogi has many other great quotes for us to keep in mind as we go down the roads where life takes us. Good reading and good luck!


MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields.   His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.  

Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases.  In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.  

He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association.  He is also listed on the mediation and discovery facilitation panels of several Superior Courts. 

He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.

Michael is a frequent author and speaker on alternative dispute resolution issues.  He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.

Email Author

Additional articles by Michael P. Carbone