Tag: Communication

“I Feel Like You’re Not Hearing Me”

{4 minutes to read} My guess is that many mediators occasionally hear this in one form or another. Why is that? Is it because the mediator isn’t carefully listening? Do the parties and/or attorneys not fully understand the process and therefore have unmet expectations from the mediator? Some combination of the two? Or something else altogether?

In my experience, a party or attorney stating such a concern is usually expressing frustration that the mediation isn’t heading in the direction they want. If it were, the other side certainly would have given in by now, and the case would be over.

The success of any mediation hinges on trust—trust in the process and, most critically, trust in the mediator’s impartiality and attentiveness. However, when a party or their attorney believes the mediator is not truly hearing their concerns, significant difficulties can arise, threatening the integrity and effectiveness of the entire process.

What should the mediator do? And what should a party or an attorney do? There can be a delicate dance of sorts that goes on in any mediation. People don’t want to antagonize the mediator, whom they want to push for a favorable result. But they also want to know their position is being presented with full force. If a party feels their voice is being ignored or diminished, they may withdraw from active participation, become defensive, or even escalate their emotional responses. A once constructive atmosphere can devolve into adversarial tension. This not only delays progress but also undermines the mediator’s efforts to guide the discussion toward resolution.

And what about the mediator? In the abstract at least, they are supposed to be above it all, not invested in an outcome, nor wanting to be manipulated by the litigants or their counsel. Do mediators flinch when a party accuses them of not listening or failing to convincingly put forth their position to the other side? Or giving too much credibility to the other side’s positions? Sometimes, people blame the messenger and want to know you’re on their side. Whatever the bubble over the mediator’s head says (These people are just jerks…. I already told them twice….), the mediator needs to put ego aside and address the accusation.

There can be many facts and positions to keep straight during any mediation. Positions can change. New facts can emerge. Sometimes facts can even change upon further exploration. The beliefs of a participant, even if considered off base, need to be understood and responded to in a way that makes it clear the mediator has heard them. They reflect some aspect of the process. Here is where some basic reframing may be helpful. “So in other words, what you are saying is….” One doesn’t know what the response to this will be, but it may confirm a party’s position or it may force some modification of it. And of course, the mediator may have indeed missed or misunderstood something.

Regardless of the cause, it is crucial to set aside personal feelings and discuss the issues of the perceived slight. That will help restore faith in the mediator and in the process. Only then can the mediation proceed toward a successful resolution.

Gary Shaffer
Shaffer Mediation
Gary@ShafferMediation.com

Part 160 – New York Presumptive Mediation

{3 minutes to read} I have previously written about how the COVID-19 pandemic significantly changed the landscape for court-referred mediations in New York State. While there was some support for the courts sending cases to mediation, it was sporadic. Some judges who saw the value of mediation would suggest that parties try mediation. Occasionally, a judge would even order parties to mediation. But that was rare.

In May 2018, I and others put together a full-day CLE program about the underutilization of mediation in New York State. The program bore fruit in June 2019 when Janet DiFiore, the State’s Chief Judge, and Lawrence Marks, the State’s Chief Administrative Judge — who was a panel member at the program — issued a press release stating they intended New York to become a “presumptive mediation” state, meaning, as the name indicates, almost all civil cases would at some point be referred to mediation.

Sunset in Albufera of Valencia, Valencia, Spain.

Darkness and Mediation

{3 minutes to read} Someone once asked me what the key was to resolving a case in mediation. My answer was simple: “It starts getting dark out.” Funny perhaps, but truth is implicit in all humor. One of those truths is that almost all people participating in a mediation want it to succeed. Including those who say on the first phone call, “You know, there’s no way this case can settle.”

A related metaphor to the above is that mediation usually sheds light on things, though it doesn’t happen all at once. Facts emerge, positions get revealed, as do the reasons for those positions, and positions morph over time. Settlements are reached for all sorts of reasons, not the least of which is that everyone just wants to get it over with. Sometimes that happens in a day, several days, weeks, or even months. The desire to get a conflict over with and move on can often be quite a beneficial stimulus to resolving a case. And “when it gets dark out,” people say all sorts of things they couldn’t or wouldn’t have said at the start.

Who Needs to be There: Personal Injury

{4 minutes to read} As my last blog took all the mystery out of the still almost-new AI phenomenon, we now return to the issue of who needs to be present at a mediation. I have previously addressed this issue regarding construction and divorce cases. The obvious answer to the question of who needs to be present at a mediation would be the parties however, that is not always the case. This is particularly true in personal injury matters where sometimes neither the plaintiff nor the defendant is present.

Since motor vehicle accidents are the most typical personal injury cases, I’ll use those as the basic example. Defendants in personal injury cases are often represented by counsel hired by insurance companies. That attorney is always present, and now that so many mediations are done via Zoom, an insurance adjuster may also attend. The defendant driver? More often than not, he or she is not present, especially if that driver was already deposed. The Plaintiff’s attorney is at the mediation, and certainly the injured plaintiff, right? Maybe. But maybe not.

Who Needs to be Present at a Construction Mediation?

{6 minutes to read} This is the first of several blog posts on who needs to be present at a mediation for it to proceed smoothly. A resolution may not be reached even with all the proper players present. But without them, there is no chance. This blog will address construction cases.

Construction cases come in all sizes. They can arise from putting in a new bathroom to constructing a hundred-story skyscraper. And everything in between. Even small jobs may involve an architect, a GC, and a sub or two. For example, that new bathroom may require electrical work that is done by an electrician who is not an employee of the GC. If there is an electrical issue post-construction, does the electrician need to be present at the mediation? Probably, but has the electrician been sued? Of course, a mediation can be held without starting a lawsuit, which can be extremely useful assuming everyone agrees to participate. Maybe the homeowner and GC can work something out between themselves. In a small job, that’s often possible.

Can Mediation Turn Back the Clock? – Construction

In my last blog, I addressed mediation turning the clock back and focused on divorce matters. What about other types of disputes?

Reverse clock with wooden frame isolated on white background

Several months ago, I mediated a case involving an upscale medical practice in a very upscale Manhattan coop building. Like most medical offices in such buildings, it was on the ground floor and had suffered from some flooding that the practice believed was the fault of some actions taken by the coop. The case was actually on appeal before the 2d Circuit so one side had already prevailed at the District Court. However, the mediation brought the two sides together for discussions that never would have happened had the parties simply moved ahead with the appeal. It turned out that both sides really wanted to figure out a way to live together since, in fact, they were going to regardless of who prevailed on appeal. Neither the building nor the medical office was going anywhere soon.

Can Mediation Turn Back the Clock?

I’ve written before about what success means in mediation. Often it means a complete resolution of a dispute and the parties can go on their way, having saved lots of time, aggravation, and a bundle in litigation expenses. Even when there is not a complete resolution, mediation often resolves at least part of a dispute or helps the parties significantly lessen the amount of discovery needed as the case moves forward. However, can mediation undo what’s been done? Can it restore the parties to some kind of pre-dispute state of harmony?

Discovery

{4 minutes to read} I have written before about when is the best time to mediate. No, you don’t have to go back and re-read that blog because the answer is simple: Now. Now is the best time to mediate.

Does that mean, now, now, or now with some lag time? Ok, now with a little lag time. A party can’t mediate by itself, so there are by necessity some preliminaries, like getting the other side(s) to participate in the mediation. However, that is becoming easier as more courts increasingly direct the parties to mediation without waiting for an agreement. If you want to see a good example, look at the ADR rules for the Federal District Court for the Western District of New York or the rules for North Carolina State Courts and federal courts: Eastern District of NC, Western District of NC, and Middle District of NC.

Can a Mediator Really Like Everyone?

Grimacing mime with hands akimbo and mask on head

It’s not uncommon that parties to a mediation don’t like each other, though you can never predict beforehand. I find that opposing counsel are typically at least cordial to each other and sometimes downright friendly. Divorcing couples sometimes get along just fine during a mediation. And I’ve been in situations where the clients, watching their attorneys bicker back and forth, take matters into their own hands and work out a deal between themselves.

Part of the mediator’s job is to be friends with everyone. If you want to successfully push and cajole, it’s best that people think you’re their friend. Usually, this isn’t too hard.

Does Familiarity Breed Contempt?

Image of Last Will and Testament ready to sign

{3 minutes to read} Estate battles generally lend themselves to great TV. No, what I really meant to say was that estate battles generally lend themselves to mediation. They take some unpacking since the issues that give rise to them are often years in the making. Maybe decades. There can be distrust, hurt feelings, greed, anger. There are in-laws whose membership in the family may be recent or of long duration. The parties often don’t want to be in the same room with each other, something that mediation – but not the courtroom – can accommodate.

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