Can Mediation Be Your Day Job?

Chapter 1 published with permission of Jossey-Bass

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����������� I
have always been a dreamer.

����������� One
of my boyhood dreams was that I could one day support myself and my family with
a job that could help people and that might stimulate me every day.

����������� Some
dreams come true.

For over 20
years I have gotten up in the morning unable to wait to get to the office.
Every aspect of my work is consistent with my core life values and the
strengths of my personality. The work is intellectually challenging requiring
conceptual and strategic thinking.� I
help people—and what I do makes a difference– to the people that I touch
–and to many that I will never see.

����������� I
am a professional mediator–and hope to continue working at my craft until
either conflict becomes obsolete or I can function no longer. This bullish view
seems to be shared by others who have already chosen to build careers as
mediators. You can visit any conference of mediators, mediation website, or
local mediation firm or group and you will be impressed by the mediators as people
and by their positive outlook toward themselves as professionals and their
lives outside of the office.� The spring
in the step of mediators is in contrast to the burn-out and stress lawyers have
with the legal system (and often with their adversarial colleagues), the
frustration mental health professionals feel toward the intrusive stranglehold
of managed care, the depression of teachers�
in the public school system, and the unhappiness and lack of control
that pervades so many in corporate life.

����������� One
of the joys of my own professional life as a trainer of other mediators is to
witness the infusion of optimism and energy in graduates of mediation training
courses. Instead of being asked to sell products that do not work or could
actually be harmful, training graduates are thrilled at the prospect of
delivering peace and conflict resolution to their future customers. They reach
back to their basic values and motivations and realize that they can spend
their days actually helping people and doing good for society. They can
increase control over their work day and feel hopeful about making their mark
in a growing profession still with plenty of room for innovation and new
players.

�

THE CHALLENGES OF A CAREER IN MEDIATION

����������� There
certainly are challenges to becoming a mediator.� At nearly the same warp speed that �born again mediators� embrace
the peacemaking profession, many abandon it and return to dreary day jobs that
pay the bills. Since mediation is not yet a known or accepted way of handling
conflict, teaching the public about collaborative problem solving is much like
teaching people to eat soup with a spoon. It makes sense, but seems strange at
first. Many beginning mediators get frustrated at the time, expense, and hard
work that it takes to make a living in a new profession.

This frustration
translates to many mediators jumping in to�then crawling out of–the
profession. It is remarkable to see the number of new faces at the Southern
California Mediation Association�s Annual Conference each November. This influx
of fresh blood is heartening. But where did all the familiar faces go?

The world�s
largest stand- alone mediator organization, Association for Conflict Resolution
(ACR)] reflects this issue by printing two contrasting perspectives on the
cover of its Winter/Spring 2000 Newsletter (actually, it was the newsletter of
Society of Professionals in Dispute Resolution, SPIDR, one of the former
organizations merged into ACR)..� The
first article was written by me and entitled, �Peacemaking Can Be Your Day
Job.� The other article, by respected mediator David Plimpton of South
Portland, Maine, was �Ethical Duties of Mediation Trainers in the Promotion of
Training Programs.� David argued that after luring training participants into
expensive programs by feeding on the glow of a lucrative future as a
professional mediator, the reality is that after the training (perhaps many
trainings) there are few jobs and realistic practice building opportunities.
Mediators are dressed up with no where to go. Supporting his concern, David
quoted noted mediation authority Kathy Birt�s 1994 article, �Is It Ethical to
Offer Graduate Degrees in Mediation When There Are So Few Jobs in Dispute
Resolution�

�Although
overall interest in the ADR field is growing exponentially, actual jobs in the
field are few. At the same time, the number of people requesting and receiving
training in ADR is increasing each year�Some believe the field is becoming
glutted and question whether the profession ought to encourage the continued
training of yet more mediators���
Plimpton notes that the situation hadn�t changed since Birt�s article
was published.

����������� M.
Scott Peck begins his transformational book, The Road Less Traveled, with the words, �Life is difficult.� The
journey to a day job in mediation is no exception. It took me from 1979 when I
started practicing mediation until 1986 before the income from my mediation
work exceeded my expenses on an annual basis. During those seven years, I
invested major capital and time (lost opportunity costs). Fifteen years later,
in 1994 (the same year as Kathy Birt�s article) I was still investing over
$15,000 in out-of-pocket costs and over 1000 hours (25 work weeks) per year to
build my mediation practice.

����������� I
am not alone.� Ask any mediator
who has a successful career.� You will
learn that every one of them has made huge investments of time and money to
follow their dreams.� Nina Meirding,
President of the Academy of Family Mediators, emptied out her teacher�s
retirement account to launch her mediation practice in the mid-80�s. Jim
Melamed, co- founder of the world�s largest mediation site,www.mediate.com, gave up a beautiful office in a
modern office building in Eugene, Oregon, moved into his
home office and has spent countless days at exhibitor tables in order to build
his peacemaking business.

Perhaps the most
poignant story is that of Tom Altobelli of Sydney, Australia. After
establishing a successful law practice but feeling unfulfilled, Tom completed a
masters degree in conflict resolution at night and on weekends. He attended
every mediation conference, volunteered in community programs, coached for free
in mediation training programs, and wrote articles for anyone who would publish
them. His mediation practice still hadn�t taken off. Tom felt he needed more
training to go to the next level. So with his wife and toddler son, Tom left
his practice for 6 months and took courses in Los Angeles with me, in Boulder,
Colorado at Collaborative Decisions and Resources (CDR), at the Harvard Program
on Negotiation in Boston, and at other programs in the US, London, and Hong
Kong. Today, Tom practices mediation half time, teaches mediation the other
half, and is one of the most satisfied people you will ever meet.

����������� I
am not suggesting that you must copy Tom Altobelli in order to make mediation
your day job. It may not be necessary for you to give up 6 months income and
another $50,000 in out of pocket expenses as Tom did. But if
you want to enter this profession, and it is a distinct profession from your
current day job, it will require major investment and time commitment. And, as with everything in life,
there are no guarantees.� �����������

����������� Despite
the lack of guarantees, from everything I can see the future of mediation looks
so bright that I would lay a large wager on a successful career in mediation.
In truth, I have! By investing in my training institute and national network of
mediation centers, I have bet large amounts of capital, taken out major loans
(secured by my house), and devoted countless hours based on my assessment that
society will need more and more trained mediators.

�

THE RESEARCH YOU CAN DO

����������� In
deciding whether to start your journey toward a mediation career, it�s a good
idea to do your own field research into the vibrancy of the field and its
potential to support future mediators. Don�t rely on any one source. Talk to
individuals in the following segments of our population, compile your own data,
and make your own decision.

People Who Have Gone Through Litigation

����������� Find
people who have been through the court system.�
Ask them:

�
– if they were pleased with the result.

�� if they were satisfied
with the process.

�� if they found that the
money they spent was worth it.

�– did they consider mediation as an alternative while
litigating?� Why or why not?

�

Litigation Attorneys

����������� If
you do not personally know any litigators, ask some friends or call a few
lawyers listed in the yellow pages. Ask them:

– If their
clients are satisfied with the results, process, and costs of litigation.

����������� �� If
they , as litigation professionals, are satisfied with the predictability of
outcome, speed of result, and the quality of the finished product?

����������� �� If
they are satisfied with their financial return on the litigation services they
offer? As a sub question, ask them if they get paid fully at their agreed
prices for the work they do, even when the results are favorable.

����������� What
does the conflict and stress of�
litigation do to them? – What are their perceptions of, and experiences
with, mediation?

�

Judges and Court Staff

����������� Take
a field trip down to your local courthouse and see if you can chat a bit with
some of the sitting judges, court clerks, and bailiffs.� Ask them:

�– If the citizens who use these taxpayer-supported institutions
seem satisfied with the results and how they are treated by court personnel and
their lawyers.

�� How they believe
litigation serves the values, goals, and needs of the court itself.

– What are their perceptions of, and
experiences with, mediation?

�

Corporations and Small Businesses

����������� Make
an appointment with an executive or high level manager of a large size
corporation and another with at least one small business owner.� Ask them:

– If they are satisfied with the
litigation process as a way of recovering losses due to conflict and disputes?

�– To try to quantify the financial internal and public relations
costs to their companies in dealing with conflict and diverting positive and
valuable business resources to dwell on past conflicts for months or years in
litigation.

– What are their perceptions of, and
experiences with, mediation?

�

Public Agencies and Non-Profits

����������� In
completing your field research, go talk to someone who works for a local,
state, or government agency, school system, or branch of government. Also, talk
to someone who devotes his or her career to helping people through a career in
a charity, public interest organization, or other not for profit activity.� Ask them:

�– How their institutions or their beneficiaries (taxpayers,
clients, other agencies) are currently resolving conflicts and disputes—is it
working?

�� How litigation impacts
their basic mission and limited budgetary resources?

– What are their perceptions of, and
experiences with, mediation?

�

����������� In
compiling your findings and conclusions from your own field research, compare
and contrast them with the results of the Comprehensive Legal Needs Survey
completed by the American Bar Association in 1994 and the Report of Self Represented
Litigants published by the American Bar Association in 1993:

��������
Over two thirds of identified legal needs do not get handled by
lawyers do to the perceived high costs;

��������
When people use lawyers prior to litigation, satisfaction is very
high. When the matter enters the litigation process, satisfaction levels with
both the court system and lawyers drop dramatically�regardless of the results

��������
In Arizona, over 62% of divorce litigants have no lawyers at
all�88% of the cases only have one lawyer

Of those people who choose to
self-represent without lawyers, over 50% could afford some legal help�but chose
not to pay for it because many see lawyers as deal breakers and conflict
escalators.

��������
Also consider the following selected findings reported by a 1998 Report to the Massachusetts
legislatures demonstrating the high satisfaction, quality results, and cost
effectiveness of mediation. You can read a summary of the research at www.to-agree.com/advres.htm or
the full report at www.virginia.law.com/matreas/adrcomm.htm.

�

Parties find it easier to express
themselves in mediation

��������
Parties appreciate increased privacy

��������
Attorneys bill significantly fewer hours when a case is in
mediation

��������
Attorneys as well as parties express a high level of satisfaction.

��������
72% of attorneys report that mediation is less costly for their
clients

��������
The range of solutions is far wider in mediation

��������
Over 90% of cases referred to mediation result in written
agreements

��������
Over 80% of the disputants are satisfied with the terms of the
mediated agreement

��������
Court cost savings of using mediation is over 50%

��������
90% of mediation participants felt that the mediation process was
clear, the mediator had good ideas, and that they had been listened to

��������
Parties are more likely to abide by the terms of a mediation
agreement

��������
Mediating cases ends disputes faster

��������
Parties save significant attorney fees, expert witness fees, and
other costs

��������
Overall costs of mediated agreements are 40% less than matters
resolved through litigation

��������
Plaintiffs are more likely to receive part of the claim in
mediated cases than in non-mediated cases

��������
Over 50% participants felt they changed the way they handled
conflicts from their mediation experience and 70% of family members reported
less arguing and fighting for months following the mediation

��������
Nearly 60% of participants report that they better understood the
other person�s point of view following the mediation

��������
90% of participants felt the mediation process was good. Quicker
settlements increase satisfaction levels for both clients and attorneys.

��������
77% of participants expressed extreme satisfaction with the
mediation process. A substantial portion of those who failed to reach an
agreement in mediation believed mediation was useful and would recommend it to
others.

�

��������������� Your own field study,
bolstered by the research findings above, should lead you to the conclusion
that the current product for resolving disputes (litigation) is not working and
produces low satisfaction by both its users and providers.� The public and professionals have a need and
demand for a better product.� This is
the key to any new market change: people do not like what they�re being
offered�and want something different � and better.�

�����������

�

THE FUTURE OF MEDIATION

����������� If mediation has proven demand
and is increasingly available, what does the future look like?

����������� The
internationally acclaimed think tank The Rand Institute published a 1997 report
finding that only 7% of civil cases were then using private mediation.� Few would doubt that the use of mediation is
constantly on the rise.� What would
happen if 20% of civil cases used private mediation? Using 1997 as a baseline,
if only 1of every 5 court filings used private mediation, society would need
three times the number of mediators to handle this increase. This 300% increase
in consumer demand actually seems low�but let�s live with it for
now–especially if you factor in the increased need for mediators for problems
and claims that never hit the court system. For example, many use mediation to
resolve work place, family, and consumer problems long before litigation is
ever contemplated, let alone used. Also, mediation is on the rise in the
forming of family and business relationships—premarital financial and blended
family mediation and construction industry preventive mediation are just two
growing examples. If the trend continues, the 300% use increase of mediation
might seem distortively low.

����������� �Mediation�s growth in Australia is a positive
indicator of� what will (hopefully!)
happen within the next few years elsewhere in the world.� For example, Australia has made significant
changes in the language for mediation.�
In the United States, ADR stands for Alternative Dispute Resolution, including
mediation.� In Australia, however,
litigation and arbitration are the second-line options while PDR,
Primary Dispute Resolution, endorses mediation, conciliation, and negotiation
as the first option in its system.� This
change, promulgated by the Australian Family Court, has produced a cultural
shift in the use and growth of mediation in that jurisdiction.

����������� Another
Australian institutional change has produced a rapid increase of demand. In the
Australian state of Victoria, all civil cases in the court system must be
referred out for private mediation. The litigants select their own mediator
from the private sector at market prices at their own cost.� Special provisions are made for those
litigants who do not have the financial means to pay.

����������� This
change alone has so taxed the supply of qualified mediators in the private
sector that there is a societal SOS to train more mediators. This SOS has
produced a deluge of interest in mediation training programs to the breaking
point. In Melbourne, people who want mediation training often have to pay for a
seat in the training room just for the opportunity to observe other future
mediators being trained!

����������� If
similar court initiatives occur in this and other countries, the price of
training will go up to meet demand as will the need and price of mediation
services in the marketplace. If I were starting my mediation career now, I
would feel confident embarking in a field with this type of promise.

�

����������������������� �����������

STEPS TO MAKING MEDIATION YOUR DAY
JOB

����������� What
can you do to increase your own chances of career success? There is no recipe.
However, beyond dumb luck and being at the right place at the right time (which
you may be given the above discussion), I have found that many successful
mediators in the field today have the following:

  • Commitment to Peacemaking

  • Commitment to the Skills and Craft of
    Mediation�

  • Commitment to Making Your Living through
    Mediation Work

  • Strategic Planning and Implementation of
    Your Mediation Career

  • Reflection and Continual Re-Evaluation

  • Successful Models and Mentors

Let�s look at each of these elements
more closely.

�

Commitment to Peacemaking

Several years
ago, a friend came to me and said he was thinking of shutting down his law
practice and buying a tree trimming business. He was excited about the bargain
price he could negotiate, the high profile customer list, the profit margin on
the books, and the willingness of the current owner, who was retiring, to
coordinate the transition with the customers, suppliers, and working crews.

I asked my friend one question: �Do you
love tree-trimming?�

My friend stood dead in his tracks and
shot back, �What does that have to do with it?�
It�s a money machine�and certainly better than working the long hours
under fluorescent lights for people who aren�t happy with what I do and don�t
pay their bills.�

He
bought the business�and it cost him his life savings, his credit, his
father-in-law�s retirement, and his marriage. It is impossible to say whether
the same disaster could have been prevented had he loved tree-trimming—but at
least he would have staked his money, time, trust, relationships, and dreams
for a goal in which he believed and enjoyed.

The lesson here
is simple: don�t jump into a growing but still uncertain field
like mediation unless you eat, breathe, and dream about creating peace and
resolving conflict � and are willing to risk everything to make it happen. If you are dissatisfied with your present position or even your
entire career path, it may be easier for you to make a small correction
(another job, slight retraining, or jump to another similarlyestablished field)
rather than leap into mediation. Mediation is a distinct profession requiring
its� own intense training and practice.�

Practice Tips

A career in mediation requires a �can
do� rather than a �can�t do attitude.

Ask yourself the following questions:

How important are peace and resolving
conflict in your present life?

When you hear about labor strife or
warfare, do you muse about ways of making the situation better?

When there is friction in the office or
at home, do you proactively try to intervene to reduce the tension?

Do any of your heroes have peacemaking
qualities? END PRACTICE TIP

If you would
like to further your awareness and commitment as a peacemaker, the place to
start is The Third Side:� Why We Fight and How We Can Stop by
William Ury (Viking, 2000). This brilliant, readable book by a master mediator
is a primer in establishing a commitment to peace in your own life and for
others.� Ury, who is the co-author of
the negotiation classic, Getting to Yes,
uses numerous examples of creating a culture of peace as modeled by him,
President Jimmy Carter, and other leaders in the field.

�

Commitment to the Skills and Craft of Mediation

����������� Quality
pays off in every product and service..�
It is no less true in the field of mediation�perhaps even more so.

����������� One
of the reasons that so many rush into the mediation field and then exit just as
quickly is that there is currently no regulation or licensing monitoring
minimal competency for entry into the field. While there are certification
programs that reward competency, unlike law, mental health, or housing
contracting, mediators do not now need a license to practice. This can lead to
consumer abuse that hurts the entire field. Opponents of regulation point to
the lack of traditional regulation and the freedom of the marketplace as being
responsible for mediation�s growth, variety of models, and high satisfaction
rate. Yet even critics of regulation concede that the future of the profession
and its ability to escape regulation requires that we keep our own house in
order through self-regulated standards that include a high bar of mediation
competency.

����������� Consumers
of mediation services are smart and discerning. At our centers where mediation
participants select their mediator from competing profiles on the web, they are
articulate about their respect for mediators with extensive training and
experience. Clients have an instinctual sense of calibrating a mediator�s fee
with competence: charlatans are not suffered gladly.

����������� Regardless
of the future of regulation and licensing, your key to success
is a commitment to constantly improving your own quality through training,
consultation, and supervision. Take a look at the mediation
standards of professional organizations set out in the appendix. These
voluntary and aspirational standards set out training and quality expectations
that should be your minimum goals.

����������� The
best mediators I know are continually in training. When they attend
conferences, they are front and center in the presentations and workshops put
on by their peers. They are current in mediation literature and can discuss new
theories and techniques on a high level. They are knowledgeable on pending
legislation and model rules and write articles, practice materials, and other
contributions to the field. They consult with colleagues in difficult cases and
seek out new approaches in situations that the less motivated would consider �routine.�� They are learners both inside and outside
the mediation room.

����������� If
you are considering a career in this profession, you should emulate the
learning approaches and actions of successful practitioners. With the
understanding that your mediation training is never over, you should be
continually seeking out new courses, books, and opportunities to improve your
competence. The Japanese call this approach Kaisen–that is, an approach of
ongoing improvement. Try to incorporate Kaisen in every aspect of your evolving
competence. Kaisen is not only continually stimulating but it will never let
you settle for the known and familiar. Ultimately, regardless of your marketing
or your practice management, your success in the field will be how effective
you are at mediating.

�

Commitment to Making Your Living through Mediation Work

����������� When
I first entered the field in the late 1970�s, many mediators and critics of
mediation alike were in agreement on one point: unlike other professionals who
charged fees, there was something unseemly about mediators charging for a
living.� Critics saw mediators who
charged fees as being opportunistic and just a bit fraudulent to the
public.� Their Reasoning?� If the service is so useful, it should be
given freely and for free. Many mediators shared this view—but for very
different reasons: since mediation is so important for the participants and
rewarding for the provider, charging a living wage might deprive some from this
important transformative experience and might deprive the mediator from fully
practicing their mission in life.

����������� This
approach lives on today. Many judges and legislators eschew programs that will
pay mediators.� Their view?� There is an ample supply of volunteers–and
after all mediation is God�s work. Mediators, particularly those born again
after inspirational trainings or transformational experiences around the
mediation table, often buy into this attitude.

����������� No
wonder there are so many mediators who are talented and committed peacemakers
but leave the field due to hunger. Mediators who will think nothing of giving
away their services would never expect the same of dentists or ice cream
storeowners. By not insisting that mediators be paid for their efforts and
contributions, many mediators contribute to the large number of peacemakers
leaving the field—depriving the public of their conflict resolution services.

����������� The
first step in making your mediation work to provide you a living is your affirmative
decision to do so. Many mediators truly enjoy their peacemaking work as an
avocation. They enjoy attending trainings and conferences to improve their
skills and then enjoy providing services on a volunteer or part-time basis.
They work in community mediation centers, for non-profit groups, or fill in
as-needed for professional mediation groups. These mediators make an invaluable
contribution to the resolution of conflict in their communities�and many might
lose their peacemaking zest if they did it full time, day in and day out—and
depended on those skills either to attract clients or keep a job.

����������� I
fully understand and support this choice of part-time peacemaking. When I was a
boy, my mother spent every evening on the sofa knitting elegant clothing for
all members of our extended family.� Her
knitwear brought ooh�s and aah�s from her friends and people on the street.
Even the professionals at the local knitting store admired her handiwork.� At one point, another customer in the store
asked my mother to knit a dress on commission.�
After accepting the assignment, my mother was in a state of constant
stress and agitation�and she never finished the dress.� Knitting, an act of joy and love when she
was giving away her work to her family, had become a tiresome and stressful
enterprise.

����������� You
can be a peacemaker without making it your day job. It may be the best decision
you make. However, if you want to spend your days mediating, you have to be
prepared to take your skills to the marketplace. This means you must adapt your
peacemaking commitment to job requirements or a practice setting�without
compromising your core values.

If
you opt for a paycheck, either in the public or private sector, you will
immediately be faced with protocols and demands that may differ significantly
from the models that you learn about in books and training courses. For
example, one of the largest employers of mediators in Los Angeles is the
Conciliation Court within the Los Angeles Superior Court�a mediation servicefor
custody and visitation issues.� As a
staff mediator, you would receive top notch advanced training, long term
supervision from senior staff, and a salary plus fringe benefits from Los
Angeles County (they never bounce a pay check!). Perhaps most importantly, you
would have an opportunity to mediate every day with a diverse range of people.
Your skill would rapidly develop as you faced challenges and pressures from the
participants, their lawyers, the court staff, and the demands of the daily
issues.

����������� However,
as a court staff mediator, you may be required to modify your views of
mediation and skills to fit the framework of the job.� The parties seldom voluntarily enter mediation–they are required
to do so by statute and are ordered to participate by the court. So much for
consensual participation. Due to the demand for services, it may take 2-3
months for an appointment that may be limited to two hours, agreement or no
agreement. So much for gearing the process to the participants.� Even if the parenting issues are tied to
concerns about child support, the family home or other financial issues, the
mediator is restricted from addressing any issues other than custody and
visitation.� So much for linking issues
for an overall agreement. In over half the conciliation courts in California,
if the parties do not reach agreement, the mediator will be authorized and
required by court rules to make a recommendation to the judge, utilizing
communications and observations from the mandated mediation session.� So much for confidentiality and privacy.

����������� While
pressures and limitations differ from position to position, every job in
mediation will require compromises. If you work in an ombudsman�s office, you
will be restricted on the issues and parties that you can work on. If you work
for a mediation provider firm, you may be required to sell the mediators on the
firm�s panel when you might know of better mediators elsewhere. Get
ready—every position will have its requirements, and its limitations.

����������� Private
practice is also not free of cross-pressure. You will face people who have done
awful things and who might ask you to be an accomplice in their schemes to
defraud the government or the other party. Parties may be only willing to pay
for an hour of your time when you believe that the matter calls for at least
three hours to do the job competently. A referring lawyer or accountant may
request you to steer the parties back to their offices when you have real
questions about the competence and/or ethics of those professionals. You may
turn away people who could benefit from your services because they can�t pay
your fees�and you have rent to pay.

Keep your seat
belt buckled�get ready for a wild ride!

����������� As
you can see, your commitment to make your living as a mediator may face major
challenges. It happens in every field when reality comes face to face with lofty
ideals and initial expectations. Through it all, unless you stay in the saddle
and either keep your job or stay in practice, you will not have mediation as
your day job—and not just you but your community may be the worse for your
inability or unwillingness to manage these inevitable bumps.

�

Strategic Planning and implementation of Your Mediation Career

����������� In
training and talking with mediators throughout the world, I have been
continually amazed by a disconnect between what mediators do for the parties that
they help around the mediation table and what they do in managing their own
careers. The disconnect is that mediators are skilled strategists in planning
how to resolve the conflict of others but are reluctan

                        author

Forrest (Woody) Mosten

Forrest (Woody) Mosten Forrest (Woody) Mosten has been in private practice as a mediator since 1979 and currently is practicing mediation and collaborative law 100% online serving clients throughout the world. Woody is a founding partner of the Mosten-Guthrie Online Training Academy for Mediators and Collaborative Professionals. He is Adjunct Professor… MORE >

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Barriers to Settlement: Fear of Regrets

As we begin the year, I write my final newsletter on Barriers to Settlement on the fear of regrets. Often times, the parties or their lawyers refuse to accept that...

By Jan Frankel Schau

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