God Is My Copilot!
Remember that old WWII cinematic appeal to patriotism? Made a lot of us—at least those of us old enough to have been around—run out and buy a War Bond. I never expected the theme to reappear in the context of a mediation—but, then, lots of things happen at mediations we don’t expect.
An Untypical Mediation
After well over three hundred mediations, it becomes difficult for me, as it is for other mediators, to recall with any detail a particular mediation.
Why Should I Care?
The question is purely rhetorical. The speaker does not expect nor want a response — and it represents the bane of some mediations. Almost always spoken by the claimant, it can frustrate his/her counsel, the opposing party and the mediator.
It’s Not Funny, McGee!
Okay, we mediators are not comedians, and we don’t claim to be. But a joke is a joke, folks, and, if it gets a laugh, funny things can happen on the way to the forum.
Creativity v Defensiveness
All of us pride ourselves in being creative, whether artistically or professionally. To be defensive, on the other hand, implies weakness or, if you will, a lack of aggressiveness.
Have you ever nodded, dozed—slept?—through a mediation? Bet at times you felt like it. Most of the mediations I have conducted have some unique and interesting quality to them. They are my inspirations for many of these little dissertations, other than this one of course.
To paraphrase an old radio program: Who knows what lurks in the minds or faces or voices of men or women? Only the Shadow knows . . . and he ain’t here!
Bye Bye, Win-Win
I previously played the iconoclast by suggesting that the “win/win” concept is falling on deaf ears. I have, however, now conceded that I nonetheless will continue to expound the win/win philosophy with hope that disputants will buy into it.
Home Sweet Home
Home Sweet Home, huh? Well, maybe not always. Especially not, when the homeowners association is looking over your shoulder. And they often will, since you agreed to live in a heavily regulated community subject to all its requirements that you were, or should have been, put on notice of when you bought your home. And, when you are alleged not to have complied with those restrictions and covenants, the Florida Legislature has assured a means either for you to seek redress of an association’s abuse or an efficient and cost effective means for the association to seek redress for your violation, such as it may be.
The Credibility Game
What do you think he wants," she asks me.
"I don’t know—at least not yet," I reply. "You’ll have to read the ‘tea leaves.’ More often," I explain, "it is not the amount of money he demands but, rather, the way he demands it, the words he asks me to accompany the demand."
"Well, I know him," she says, "and I think he’s way out of the ballpark."
"Perhaps, but he says the same about your offer. It’s called ‘negotiating.’"
There Are Lies And There Are Lies
Do mediators tell lies? Of course not. Do mediators always tell the truth? Of course. Do mediators always TELL? Don't bet on it. Do the parties' legal advocates never tell lies and always tell the truth? Weell. At least one leading mediator and trainer offered this advice to some neophyte mediators: "Don't believe anything a lawyer will tell you during a mediation!"
From Ed Ahrens
While my mediation work is exclusively in Florida, the insight I gain from the broader, national views through the Mediate.com Newsletter has been invaluable to me.
Get To The Bottom Line!
In the course of a negotiation, when one side or the other says to the mediator, usually with a calculated measure of scorn: "Tell him to get to the bottom line!" it is not necessarily time for the mediator or the other party to rejoice.
Kiss, Bow or Shake Hands
The title of this little piece is not original. It is taken from the title of a book authored by Terri Morrison who offers a study of the differing cultures of sixty countries. "Kiss, bow or shake hands." Makes a difference whether you're in France, Japan or the good ole USA!
It's The Principle, Damn It!
"I don't care about the money. It's the principle of the thing!" Phew! Have we heard this before? Sure we have, from claimants, adjusters and attorneys. Do they really mean it? Maybe, but I'm guessing not often.
Check That Impulse! Be A Dispassionate Mediator
Mediators can and should empathize, but they must remain dispassionate and check the emotional, albeit natural, impulse. Confession is good for the soul, they say, so here goes mine. . .
Pre Mediation Summaries
Some mediators encourage parties to a mediation to furnish brief summaries - confidential or not, at the discretion of the party - to the mediator prior to mediation. Neither Florida Rules nor Statutes require it, and, as a consequence, mediators rarely receive summaries, and, when they do, too often they receive it from one side only. And therein, as Willy Shakespeare would say, lies the rub.
Mediation-A Way Of Life
I often hear an attorney's client bemoan the tedious and "senseless" exercise of negotiating the settlement of a claim. I remind him that negotiating is something we do throughout our lives, whether dickering over the price of a car or a new home or resolving a squabble with our spouse or teenager.
Advice On Legal Advice
The thorny issue of 'advice giving' is discussed against the backdrop of Florida's Rules for Certified and Court-Appointed Mediators.
Mediator On A Treadmill
Frequently, I have found myself in the later stage of a protracted mediation proceeding saying: "Well, I just won’t get on the treadmill this evening!" This usually follows the 15th or 16th intercaucus trip, with no end in sight.
The Eyes Have It!
Unless you’ve been a hermit in a cave, out of touch with society all your life, you know that communication consists of more than speech and writing. When communicating parties are present at the same sitting, communication can include a tilt of the head, a furrowed brow, a squint of the eye, the curve of a mouth.
A fun and light hearted look into the world of mediation. Are you one of these?
Under any circumstances and with the best of motives, the proffering of legal advice by the mediator can set the mediator on a course of partiality. Motions to dismiss, summary judgment and directed verdict are the places to resolve legal issues. The mediation proceeding is best suited to resolving factual differences and to addressing the practical considerations of protracted litigation and trials.
The Biased Mediator
Had my first personal experience last week--after over three hundred mediations--at being accused of being biased, a mental aberration mediators avoid like the plague (even ahead of avoiding tired cliches). The perception of bias appeared to be based on my comments regarding problems I saw in the perceiver's case.
Prepare To Mediate
You thought that last mediation stretched out longer than it should have? When the clock slipped past the one and one half hour minimum, you began to suspect the mediator was padding the old pocket book? Well, maybe she was, but I don't think so.
When We Listen, People Talk
Alas, most of us honor the maxim in the breach. We find it difficult to keep our mouths shut and let the disputants do the talking.
We are reminded of the story of the three blind men who were asked to touch an elephant and then describe it. Each man approached the huge animal in a different area, and, as expected, each one described it in a different manner.
Mediation is like an elephant.
Lord, Save Me From That Boring Opening Statement!
"I’ve explained it all to my client. We can dispense with your opening statement and get down to business." Every mediator on occasion has heard this first-shot-out-of-the-cannon remark. Too often forgotten are the clients, who in most cases have no idea what is about to happen.
Keep Those Feet Out Of Concrete
Premature commitment to a demand or a denial, I should not have to tell you, is anathema to constructive settlement negotiations, in or out of mediation. Too often, however, a line is drawn in the sand too early, lacks tactical consideration, and invariably inspires a matching response from the other side. Result? Impasse - and all the litigious consequences that follow.
The Hidden Agenda
In the course of litigation and mediation, an attorney, mediator, adjuster or litigant cannot know what is truly on the mind of a participant in the process. We can guess, and occasionally we’ll be right. More often, we’ll miss the mark, then be surprised by the outcome.
To Sue Or Not To Sue: That Is The Question: Whether ‘Tis Nobler…To Mediate First
With apologies to Willie Shakespeare, what I’m onto here are presuit mediations. We’ll call them, for short, “presuits.” Why do so many litigants await the commencement of litigation and a court order before they go to mediation?
What Does A Mediator Do?
Okay, we know you can't make decisions. We know you can't issue orders. ('I'm not a judge or an arbitrator, blah, blah, blah.') We know you can't take sides, must always remain neutral. And we know you can't give us legal advice. And then you tell us mediation is a consensual process. Bummer. Now the other side can walk at will!
"So, what in the hell DO you do?"