Many attempts have been made to link theory to practice, yet mediation, particularly in the context of litigated cases, stubbornly defies scientific evaluation’s; That explains why I expected to dislike Debbie De Girolamo’s treatise, The Fugitive Identity of Mediation: Negotiations, Shift Changes and Allusionary Action.
Mediation is a dynamic process. This can mean stepping back, leaning out, and adopting a process that empowers the parties to set their own agenda and seek outcomes that may greatly vary from the objectives set forth in the briefs by lawyers who are trained as advocates more than problem-solvers.
Yesterday was an interesting day for me. I spent the day in a training for a Personnel Commission for which I have served as a Hearing Officer for over a decade. At its conclusion, a very young female participant in the training took me aside and complemented me for being a “bad ass” woman whom she hoped to emulate in her burgeoning career.
Mediation can be hard. Often, the parties start out a great distance apart, work towards narrowing the gap, but occasionally can’t quite straddle the gulf to come to an agreement in a single day. Last week, I gave my final lesson to my students at Pepperdine on sophisticated steps for breaking an impasse. I told them that it was a matter of both skill and faith.
Both trial and mediation require a little “time traveling”. At trial, the lawyers ask the jury to fix their gaze upon a particular moment when an event occurred that caused their client to be damaged or caused a disruption in business or their lives.
In every conflict, and during every mediation, each disputant has an option of dwelling upon the misery of the past, or focusing upon the good that has come from ending the conflict and looking towards better days ahead. For me, Thanksgiving is a great opportunity to remind ourselves that gratitude is an attitude.
Nelson Mandela equated a great leader with a shepherd: “He stays behind the flock, letting the most nimble go out ahead, whereupon the others follow, not realizing that all along they are being directed from behind.”
Some may have noticed that I have taken a 30 day hiatus from blogging. I did it intentionally, because I needed to tamp down the noise of every day conflict and listen without adding my voice to the chaos. I saw that Maria Shriver took a month off from her regular blog in August, and I thought it was time for me to try my hands at stillness for these past 30 days.
Kenneth Feinberg is a mediator who sleeps well every night after getting countless victims of America’s most notOrious tragedies to “yes.” Feinberg, a lawyer, mediator, and author of the new book, “Who Gets What: Fair Compensation after Tragedy and Financial Upheaval,” concedes that sometimes he wishes he also held degrees in divinity and psychology.
The mediator is already in the other room with your opposing counsel breaking the ice and getting a better understanding of the fine points raised in their brief Your case involves an egregious set of facts arising out of an abrupt termination of a 17-year employee after being diagnosed with a frozen shoulder, which required surgery and possibly a long recovery period.
