Blog Archives - Page 7 of 8

Caucusing Part 1

{3:36 minutes to read} Caucusing – speaking to parties separately outside the presence of each other – is a standard part of most mediations. It is essential in just about every commercial, employment, or personal injury matter. Parties often feel free to say things to the mediator that they do not want to say to the other side. And the mediator can say things to parties and their attorneys that could not be said in a joint session. It also allows the mediator to develop a strategy to help bring the parties positions closer together.

Whatever a party says in the caucus is confidential, unless they agree it can be disclosed. In multi-party matters, this can become a bit complicated but the basic rule is the same.

Mediation Timing Part 2 – Commercial, Corporate, Employment

{4:00 minutes to read} In my last blog about timing and mediation, I suggested that in divorce matters, there is a sweet spot of around 90-100 minutes for any single session. You can read that blog here: Part 1. This framework is largely irrelevant to other types of cases, such as:

Commercial;
Corporate;
Employment;
Personal injury.

In non-divorce matters, the parties and especially the attorneys expect to spend a significant amount of time during any one mediation session. There is more shuttle diplomacy, especially early on.

Mediation Timing Part 1 – Divorce Mediation

{3:30 minutes to read} What’s the right amount of time for a mediation? As Goldilocks might put it:

What’s too much
What’s too little
What’s just right?

As in many such matters, it depends. Some parties fade quickly, others are happy to go on for hours and hours, days and days. What works differs from case to case.

Overcoming Resistance Part 2

{Time to read: 3 1/2 minutes} During every mediation I try to establish a personal relationship with the parties and the attorneys. No, we don’t go out for drinks together. But I want to know more about the people other than the dispute that brought them before me. Often I ask simple questions. These may differ depending on the nature of the case. All mediations – employment, divorce, commercial, personal injury – provide opportunities for talking about more than just what’s in a complaint:

Overcoming Resistance

Resistance to mediation comes in many forms. There can be resistance to the entire process.

From attorneys:

Until relatively recently, many attorneys would not have participated in mediations in a meaningful way. They thought it would lead to a competitive disadvantage by forcing them to put their cards on the table prematurely. Sometimes lawyers have seen mediation as interfering with their income: the more a case goes on, the more I make.

Should Mediation Be Mandatory? – Part 2

In my last blog I asked the question, “Is Mandatory Mediation an Oxymoron?” From the responses I received, it seems clear it is not.

There are all sorts of reasons to require mediation, the most important being that experience shows it works. Once parties are in the room they typically participate in good faith, whether they showed up through mutual agreement or external requirement. And the statistics show little difference in success rates between compulsory and voluntary programs.

Mediators are usually paid by the parties in mandatory programs. While that might seem to present problems, once again, experience shows it does not. Parties share the cost and that cost is typically far, far less than the cost of litigation. Often pro bono or reduced fee counsel can be found for cases where a party has limited resources.

Should Mediation Be Mandatory?

Jurisdictions throughout the country are increasingly establishing mandatory mediation programs. At first glance, “mandatory mediation” would seem to be an oxymoron to the mediation community where “self-determination” is a fundamental tenet of theory and practice, trumpeted for years as one of mediation’s highest goals.

Is forcing people into mediation contrary to a fundamental underpinning of the field and therefore doomed to failure? If it is, why are more and more jurisdictions adopting mandatory mediation programs? And, most importantly, does mandating mediation work?

Anger as a Pathway to Resolution in Commercial Cases

In my last blog I introduced the subject of anger at a mediation. Many people tend to associate anger and mediation with snarling divorcing couples, arguing over who is right and who is wrong.

While this certainly happens, anger can be just as profound in commercial cases where parties may feel equally wronged by each other. At a minimum, one side does. This can present the mediator with a quandary:

Anger as a Pathway to Resolution, Part I

There are very few emotions as destructive as anger. Shootings, murders, rapes, spouse and child abuse, intra-family squabbles (big and small), road rage, divorce, gang violence, are all fueled in part by anger. Anger is usually an aspect of any litigation, although even mediators must acknowledge that litigation as a dispute resolution mechanism is light years ahead of violence.

Anger and violence go back a long way. Whether we take the Bible as historical truth or a fundamental mythos of our collective Western unconscious, the first act of violence is primeval: it occurs between the very first human offspring. Most of us think we know the story, but just in case, the entire events are described in only seven short verses, as follows (Genesis, 4:3-9):

Is Divorce Mediation Always Successful?

It is fairly well accepted that divorce mediation is a far better way to handle the details of unwinding a marriage than litigation. If there are any assets and any kids, the parties typically know the details of both, and with proper guidance are capable of figuring out how best to proceed so that the kids and assets are dealt with fairly and everyone can move on to leading happy and productive lives.

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