On a brisk fall day in Zuccotti Park, the one demand was to stop the drumming. That meant trouble among the faithful who had gathered to shake up the established order, create a little chaos and, with a little luck and determination, make a dent in things-as-they-are. Hence, Occupy Wall Street.

The Occupy movement has received plenty of press about its disputes with the cities they have occupied. But what about the disputes that inevitably arise in any community, whether it be a city, a Homeowners’ Association, a non-profit organization, or a revolution?

Coercion, Adversarialism or Consensus?

There are police, of course, but law enforcement on the ground usually involves physical force which too often turns to violence, arrests, and jail time. Witness Occupy Oakland, Berkeley and Los Angeles on the West Coast, and, in mid-November, Occupy Wall Street (OWS) in lower Manhattan. Lawyers have served the OWS protestors in Zuccotti Park, but have done so exclusively in regard to the movement vs. the public. Occupations in other cities sought judicial imprimaturs – as did Occupy Boston. In that case, the Court temporized, ordering mediation.

Lawyers for other Occupy encampments have filed Freedom of Information Act requests to ascertain the federal government’s role in the Occupy crackdown. And they have, of course, represented protestors in response to their apprehension, arrest, and imprisonment.

Before OWS Zuccotti Park was removed by authorities, the local residents who had given the movement its political support was threatening to withdraw it because of the sound of drums. The “governing” body of OWS, called the “General Assembly” had reached some kind of consensus to placate the neighbors, agreeing to time, place and manner restrictions.

The drummers, however, had other ideas.

That’s when the mediators arrived.

Meet Bathabile K. S. Mthombeni, J.D. and Tashy Endres

Bathabile is not simply a young lawyer freshly graduated from Columbia University’s law school. Bathabile is new kind of lawyer. She views the adversarial system as unnecessarily cumbersome, time-consuming, and unacceptably expensive. She carries the stick of the law in her back pocket but does not lead with adversarialism, threats of lawsuits and the like.

Bathabile leads with interest-based negotiation facilitated by a third party neutral, usually called a mediator.

Continue Reading—

by Victoria Pynchon

Victoria Pynchon is an attorney-mediator and arbitrator. She is also a principal in the She Negotiates Consulting and Training firm for which her blog “She Negotiates” is named. In addition to writing for the Forbes.com legal blog “On the Docket,” Pynchon also authored the book “A is for A**hole, the Grownups' ABCs of Conflict Resolution.