THE CONFIDENTIAL MEDIATION BRIEF

July 17, 2009 · Filed Under Mediation - General · Comment 

Fine and experienced lawyers come to mediation having submitted an elaborate and highly informative brief to the mediator alone!  What is the rationale for this practice.

I speak here not of those cases in which a litigant deems it necessary to keep his trial strategy close to the vest, or in which it might be deemed unwise to inflame the passions of the opponent by incriminating information that the mediator is wanted to know about.   No, here I speak of the run of the mill controversy in which the parties simply have a different understanding of the facts and/or the law, and where communication between them of their respective thoughts on the matter might well bring them into agreement.

It should always be borne in mind that at the heart of mediation is negotiation, and the soul of negotiation is communication.  If one comes to mediation intending to let the mediator do all the communication with the other side for him, he will not be heard to complain if it is done with less passion, less clarity, less legal authority than a well crafted and supported brief can do it.  See my article on negotiation, under Articles.

The confidential mediation brief is rarely necessary and misses an opportunity to communicate effectively with the opposition.

“Touchy Feely” Mediation Ain’t

December 11, 2008 · Filed Under Mediation - General · 7 Comments 

A number of years ago we often heard mediation described by case hardened negotiators as “touchy feely”.  Over these years a probable majority of those cynics have come around to an appreciation that mediation  need not be anything of the sort, and in fact, as practiced in court connected cases around the country, it nearly never is.  Mediation by trained and experienced litigation resolvers has been widely embraced as second only to direct negotiation in which the disputing sides are willing to communicate in a productive dialogue aimed at finding resolution.  The benefit of mediation is of great value in all situations where the skills of the mediator can help to establish a constructive communication process, and help the parties minimize the effects of those human biases and heuristics that interfere with that process.

Even in community mediation where volunteers work with unrepresented parties to help them understand and find solutions to their conflict, a realistic and businesslike negotiation is generally more effective than merely “making nice”, and court connected mediations are arrayed along a spectral line from friendly to fist in the face toughness, but with the vast majority centered in no nonsense negotiation.

In a well written article published at www.mediation.com titled “Not Even Wrong”, Wayne State ADR teacher and provider, Barry Goldman calls attention to the typical textbook blather about peaceful mediators bringing peace into the room and such nonsense, and suggestions that untrained mediators can be sufficiently effective because there is something about the process, separate from technique or theory, that explains positive results.  His argument is that just because there is value in the process, does not mean that mediators need merely be pure and “at peace”.   He compares we modern mediators with early physicians, some of whom got good results and some not so good,  with hit and miss theories of the science of curing illness.  “All the vast literature on ‘mindfulness’ and ‘presence’ and inner peace, the advice that mediators need to meditate and center themselves before and during their mediations, is deluded in just the way that the physician is deluded who fasts and prays instead of washing his hands.”

Well said, Barry.