{3 minutes to read} In my last blog, I made the connection between theater and mediation, noting that good theater often addresses the types of conflicts that could be resolved in mediation. A play about mediation might be a real bore, because it’s after the fact. Protagonists have already done whatever created the dispute. Creating conflict makes for good theater. However, resolving conflict can also be engaging.
{4 minutes to read} Most people know the basic plot behind West Side Story, which in turn was based on the Shakespeare play Romeo and Juliet. The Jets and the Sharks are teenage gangs at each other’s throats. The Jets are white, mainly the sons of Polish or Italian immigrants, while the Sharks are recently arrived, resented immigrants from Puerto Rico. Both gangs are young, hormone-driven, and infected by the stereotypes of time immemorial. They don’t realize they’re fighting the same battle for respect and dignity. Throughout, there is coded language used to inflame, and inevitable miscommunication because they’re unable to see their common interests until it’s too late — like what happens in many conflicts.
{3 minutes to read} On March 10, 1876, Alexander Graham Bell, inventor of the telephone, made the world’s first phone call to his assistant, Thomas Watson. He did not say, “Please check the attachment in the email I just sent you, forward it to Mr. Smith in London, and we’ll all talk via Skype at 2 pm ET. Also, check out the photos of my granddaughter that I texted you. Isn’t she a cutie?”
I used to think that in-person mediation always worked best because having everyone in the same place (not necessarily the same room) at the same time forced people to address the dispute in a focused manner. People were present. They had set aside the day, or at least several hours, for one thing only, and they were face to face with the mediator and at times the other side. It meant everyone got down to business. The mediation itself forced people to grapple with issues in a way they probably would not have if their lawyers were just on their own, figuring out ways to “screw the other side” at a hefty hourly rate.
{3 minutes to read} Personal injury cases come in all stripes, though common to many of them is that the plaintiff(s) and defendant(s) don’t know each other. But what about when they do? Leaving aside medical care provided in emergency rooms, patients typically know their doctors before an event that leads to claims of medical malpractice. Patients/plaintiffs often felt they were – quite literally – in good hands before the procedure.
Some of you may recall or know of a line made popular from the 1970 novel Love Story which goes, “Love means never having to say you’re sorry.” Popular doesn’t always mean dumb, but in this case the two were synonymous.
{3 minutes to read} Two enormous “game changer” mediation moments came back-to-back recently. Let’s start first with the local news. On May 14th, New York State’s Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks announced a systemwide initiative in which parties in civil cases will be referred to mediation as the first step in the litigation process.
This is a very big deal. While it won’t happen overnight, this will eventually establish New York as the nation’s leader in making mediation an essential component of dispute resolution in the courts. Hundreds of thousands of cases that previously would have cost gobs of money and taken years to resolve — with limited input from the actual parties — will now go to mediation and get resolved with direct input and participation from the parties, with far less financial and emotional cost.
{4 minutes to read} I have written and spoken in the past about automatic court-annexed mediation programs, but maybe you haven’t heard me discuss it or read about it before. So just in case:
Certain courts force parties to go to mediation before they can continue litigating their cases through the “normal” court process. But parties shouldn’t be forced to mediate, should they? Isn’t that a decision the parties should both agree on? Isn’t a basic, guiding principle of mediation self-determination, including the decision whether or not to mediate?
{4 minutes to read} What’s the role of anger in addressing conflict resolution? I was recently at a training for new mediators and coached a group of attorneys working through a role play. These trainings are always interesting in terms of watching others learning a new skill, as a refresher of basics, and getting some new ideas. At one of these trainings about a year ago, a law student trainee came up with a great line, one I have since used on at least one occasion. The comment, made to the two opposing parties in the role play, was, “You guys think you’re miles apart. But you’re not; you’re a football field apart.”
{3 minutes to read} My last blog addressed using a contract provision requiring notice, discovery, and mediation as a way to quickly resolve disputes that can arise in almost any business arrangement. In this blog, I will address the use of mediation as a guiding principle when dealing with change orders in construction projects.
{3 minutes to read} Alan Gettner and I recently published an article in the Fall 2018 issue of New York Dispute Resolution Lawyer that described a simple method of using a mediation clause in a contract to avoid costly litigation. The gist of it is a relatively short “notice and disclosure” provision in the contract that requires parties to:
{3 minutes to read} So how long does a personal injury mediation take? You will probably find this surprising, but it depends.
Personal injury cases come in many, many different sizes. There are fender benders with bruises, class actions, medical malpractice cases (many different sizes there, too), “minor” injuries, major ones, in-between ones. And of course there are damages, which often determine the length of litigation and of a mediation.