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by Joe Markowitz
July 2013

Mediation's Place by Joe Markowitz

Joe Markowitz

I remember reading a piece by a newspaper columnist who described the process by which someone in that field can finally claim to have mastered the trade. The aspiring newspaper columnist starts with a head full of ideas. He might even have rough drafts or outlines for many weeks’ worth of columns in a bottom desk drawer. But after about a year of doing the column, all of those ideas are going to be exhausted, and the columnist will have nothing left in the storehouse to draw from. Around that time, the columnist is going to be facing a looming deadline with no idea what to say. And that is when any newspaper columnist worth his salt begins to prove that he knows what he is doing. The columnist still has to file the column no matter what.

I can relate to this analogy because I have been publishing this blog for about four years now, which I try to update weekly. I live in fear that I will run out of new ideas.

More to the point, however, the position of the writer on deadline with no idea what to put on paper might also resemble the position of a mediator in the midst of a broken down negotiation who has run out of suggestions. Getting beyond impasse is a popular subject for mediation training, and most mediators have listened to lots of talks filled with tips and tricks for keeping the mediation going when the parties have just about given up and are heading for the door. Lots of these techniques can be effective. Every mediation trainer will tell you that it’s good to have as many tools in your toolbox as you can because you never know for sure what might be effective. And they are right. But what happens when the mediator has run through the grab bag of tricks, or when all the participants can smell another trick coming a mile away?

At that point, the mediator who is not willing to give up, is left only with whatever remains of the initial will to persevere and hope for success. You just have to keep going, no matter what.

I recently participated in a seminar with Ken Cloke, one of Southern California’s great thinkers and writers on the subject of conflict resolution. Ken didn’t teach this group of mediators very many new techniques for breaking impasse. He just got us comfortable with the idea of impasse as a natural state, with exploring the sources of conflict rather than simply trying to squelch it, with getting beneath the surface concerns of parties to reveal deeper truths. And he reminded us that the most important tool a mediator can bring to the mediation is your authentic self. Remain present and remain interested. Because the parties eventually run out of patience with games. Whereas if you have demonstrated that you have listened to and understand the parties’ concerns, and that you still care, they will eventually trust you to take them beyond impasse to resolution.

Or as George Burns put it, “Sincerity is everything. Once you can fake that, you’ve got it made.” But seriously, faking it is dangerous. Parties tend to figure out if you are faking it. A genuine desire to continue working the problem, even after everyone--including the mediator--has run out of suggestions, may be the only tool in the mediator’s toolbox that counts in the end.

(A version of this post originally appeared in the spring 2013 issue of ADR Times Perspectives.)


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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