If Anyone Needs a Mediator, It’s These People.

Two sides sit across a table.  They are faced with a major problem.  Both are adamant that their position is the strongest.  They’ve bickered and argued for months, creating a stalemate that has caused considerable damage to their business, their reputations, their relationships, as well as their future ability to work together.

Sound familiar?  Sure.  It probably sounds just like many of the cases with which you deal.  If this were a business dispute, someone would probably suggest mediation.  Having a neutral go-between could ease the tensions and sort out the issues, identifying some common ground on which to build.

But it isn’t.

Who needs a mediator more than anyone else in our country right now?  The boobs Solons running our government. Partisanship on both sides of the political aisle has caused a stalemate in the debate over health insurance reform.  It’s a particularly sad day when the putative leader of the Free World utters the phrase, “”I don’t know that those gaps can be bridged.”

Unfortunately, as Sen. Bayh recently pointed out, the deal makers, the moderates, the pragmatic members of our government have abdicated any role to the demagogues on the fringes.It doesn’t matter what side you support.  Both sides need to move from their entrenched positions and discuss real options, not just talking points prepared by pointy headed people in Ivory Towers or tucked inside the Beltway.  Having a mediator involved would be very useful.

Please forgive my foray into politics but the analogy seemed quite obvious to me.

Why mediation works.

I came across this interesting quote the other day:

We are generally the better persuaded by the reasons we discover ourselves than by those given to us by others.
- Blaise Pascal

I think this effectively illustrates why mediation works. As I discussed before,

[Mediation] provides the litigants their last and best opportunity to take control of the outcome of their dispute. ADR professionals will tell you that it provides litigants with a sense of autonomy, empowerment, or control; that mediation is all about self-determination. The parties agree to a solution because they become involved in the process.

An effective mediator, even an evaluative mediator, is one who can help the parties assess the perceived strengths and weaknesses of their positions, examine their needs and interests, and discuss settlement options by asking the right questions.   When parties are asked their opinions, when they are asked to present options, when they are forced to confront issues head on and look objectively at potential outcomes, when an agreement is reached, they come to believe that they reached the solution themselves.

What brought you here . . . and will there be a blog for you to read anymore?

Every now and again, Popehat (one of my favorite blogs) examines the “Road to Popehat“, that is, the search queries that bring random guests to their blog.  Of course, I have far fewer readers than the Ken, Patrick and Ezra, but I thought I’d do the same thing.

It’s an odd assortment of phrases that you might expect would bring one to a (quasi) mediation themed blog:  my name, “arbitration”, “mediation”, “what does a mediator do”, “ridiculous lawsuits” (even though others have that well covered).  Some are odd, but related to some key words in stories on which I commented, like “tricked out Mustang GT,” or “cheetah chasing gazelle“.

But one recent query really jumped out:

“how to screw spouse in mediation”

Of course, I had to run the search myself to see what would bring such a despicable person to my blog, because I am 100% certain I have never written an article about how to “screw” anybody.  Turns out that Google search picked out keywords from my recent re-post  “How to Screw Up A Mediation.“  Phew.

One thing I did notice, though is that my most recent search queries are long on queries regarding my more humorous posts and short on anything substantive. I need to do some serious thinking about whether a) I need to spend some time ruminating and writing about mediation again or b) scrap the whole blog, as I have seen absolutely no real benefit to my practice, which was the real purpose of the blog (well, secondary to my own narcissism).  I should be focusing on more face-to-face marketing efforts.  I think “Web 2.0″ (especially twitter – which is a real time bandit) rarely bears fruit.

I’m leaning toward scrapping the blog and leaving it to the professionals like Diane, Vickie, Geoff, Nancy, etc.

We’ll see.

What, exactly, is a Kumbaya Singing Mediator?

Seriously?  I recently found myself telling someone that “I’m not a mediator that wants everyone to sing ‘Kumbaya’”.  Having never actually sung “Kumbaya,” I realized that I am not sure I know exactly what that means.  I simply picked up on the term from an article that Geoff cited.   I actually had to Google it.

And I learned that Kumbaya is apparently one of the most annoying and repetitive songs since “Row Row Row Your Boat”, so  I can see why you don’t want to be known as a Kumbaya Singing Mediator.  On the other hand, the annoying repetitive nature of the song might be effective at putting your parties in a suggestible trance-like state.

Mediation Naysayers Abound Despite Popularity

The Des Moines Register recently reported that “Iowans, like many Americans, have turned increasingly in the last decade to out-of-court solutions such as arbitration and mediation to resolve civil disputes with less cost and hassle.”

I guess I should be praising the people of Iowa for embracing ADR and mediation as a means to unclog their dockets and negotiate mediated solutions that satisfy their needs and interests, but a few naysayers still want to talk about the so-called negative aspects of ADR.  One expert cites ADR as the reason for the “vanishing trial”, which means fewer precedents to answer legal questions and fewer chances for young lawyers to hone trial skills.”

This type of ridiculous argument unfortunately only reinforces the animosity and distrust between ADR and the law that Diane Levin recently discussed.  Really? Does the court need another “who ran the red light?” soft tissue injury case to establish “precedent”?  Does this attorney really think that a party with a unique set of facts and an issue of first impression is not going to pursue the matter to its fullest?  And maybe things are different in Iowa, but here in Georgia, very few young lawyers without an ADA in front of their name try cases anyway.

I join Diane’s call to the legal community.  Mediation is not your enemy.  Mediation is not going to cause a dearth of legal precedent and the end of the adversarial system. Mediation is a way to flex your problem solving muscle, impress your clients, and simply get things done.

Let’s move past this pettiness and find the common ground.

Is it really “clear”?

The anonymous “NJmediator” writes today,

“Clearly, as a mediator, I cannot believe that legal confrontation will lead to the best outcome, for either party.”

Is it really that clear?  Does being a mediator permanently and mutually exclude you from believing that sometimes, a “legal confrontation” is both necessary and essential to reaching the “best outcome”?

As a mediator, I believe that many (and possibly, the vast majority of) cases could be better resolved by communication, cooperation, and compromise. But I also understand the need for the adversarial legal system. Sometimes a party must fight to protect their legal rights. Sometimes compromise does not satisfy a party’s needs.

I understand njmediator’s sentiment, and it would appear from perusing the site that this opinion stems from njmediator’s family law focus; but I am not certain that I can make that jump that all litigation is bad and all mediation is good.

Are You Superstitious?

If so, today might not be a good day for you. I hold no beliefs in the supernatural or superstition, so Friday the 13th, or the number 13 are in no way daunting or ominous to me.

But it did make me think about luck.   Not “bad” luck, but “good” luck. I find myself wishing people “good luck” quite often. At the start of a cycling race. Before a job interview or sales meeting. On the way back to courtroom after a (rare) unsuccessful mediation in Small Claims court. A cycling race is determined by the skill and conditioning of the athletes. A person lands a sale or a job because of their ability (or sometimes because of who they know). And court cases are (hopefully) decided by the law (or sometimes equity). The judge doesn’t roll dice and decide the case based on whether he makes his point.

I guess it is just a social convention.

I’m not sure where I’m going with this. It just struck me as odd.

I missed Lincoln’s Birthday yesterday.

But I love this quote, so I’ll post it today:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, “Notes for a Law Lecture” (July 1, 1850?), p. 81.

It is interesting to see a glimpse into the legal mindset of 150 years ago. Apparently, lawyers in Lincoln’s time were just as fond of taking every matter to court, and there were voices in the wilderness crying “Settle it…….settle it……”

As a litigator, I recognize that sometimes parties must fight for their rights. Sometimes litigation is the last best option. But there are also times when communication, cooperation, and compromise are best employed to resolve a dispute, and the parties need an experienced mediator who understands litigation, can analyze the risks, can help break communication barriers, and can recommend creative solutions.

Thanksgiving Week Thoughts

Another year is rapidly coming to a close. While we’ve seen “Change” (whether we can believe in it or not) and global financial unrest, there are still plenty of things for which to be thankful.  The nightly news seemingly wants you to focus only on the negatives, but during this time of year it is best to look upon the positives. They are there, you just need to know where to look:

• Dell Computer’s revenues are up, as is it’s stock price (and this is only one example of a business doing well).
• Money Magazine believes that recovery is 6-9 months away.  It will be slow, but we will crawl out of this.
• Consumer confidence ratings are up in November.
• Gas prices have returned to a “normal” range of $1.75 to $2.00 per gallon.
• Homes sales saw their biggest gain since 2003.
• Causalities in the Iraq conflict have been decreasing over the past few months.

If you can’t find positive national or local news stories, then look closer to home – your family, your health, your job.  I’m sure you could find something of which to be proud and for which to be thankful.

I’m no Pollyanna.  In fact, I’m a cynical bastard.  I know it is tough out there.  But Thanksgiving allows us to stop, take a breath, and try to focus on the good in our lives.

Have a great Thanksgiving everyone.

President-Elect Barack Obama

An historic event occurred tonight. While I try to remain politically neutral on this blog (and have taken others to task for straying too far into partisan politics), I feel it would be wrong not to acknowledge it.

Congratulations to President-Elect Barack Obama.

President-Elect Obama ran a near-perfect campaign for 18 months. He stayed true to a message to which the American electorate responded in droves. While I am not an Obama supporter on ideological grounds, I hope that President-Elect Obama will honor his campaign promises of change, fiscal responsibility and discipline, and tax breaks for the true “middle class,” and that he will work with all Americans – left, right and that muddled center to which most of us belong – to forge a better future.

He would do well to heed to words of two of his predecessors – Thomas Jefferson:

I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.

and John Fitzgerald Kennedy:

Let us not seek the Republican answer or the Democratic answer but the right answer.

E Pluribus Unum