“Joint sessions are a waste of time,” said the judge conducting a mediation in which I was representing one of the parties. In that mediation I was asking for a joint session, but the judge still blocked us from doing one because the other side would not agree….
In the second Guardians of the Galaxy movie, there is a character named Mantis who has the power to sense the emotional state of anyone she touches. She can’t read their thoughts, but she can read their feelings.
At the ABA Dispute Resolution Conference, I had a chance to hear a panel of experts from around the world talk about different ways of viewing the mediator’s role in helping achieve a just result for parties using the process.
A new book by Sephen Goldberg, Jeanne Brett, Beatrice Blohorn-Brenneur and Nancy Rogers presents a concise primer on what participants can expect from the mediation process. Being academics, the authors ground their discussion in theory, starting with an explanation of the differences between conflicts and disputes…
The reformers who drafted the Federal Rules of Civil Procedure in the 1930’s thought that if we could only get rid of the complexities of ancient pleading practices, and liberalize discovery, cases could be fairly adjudicated on their merits instead of being won or lost on technicalities.
Secretary of State Tillerson revealed recently that the US has various back channels of communication with North Korea, and that we are pursuing negotiations with that country to resolve the dispute over North Korea’s development of nuclear weapons. At the same time, President Trump is threatening all-out war with North Korea, and publicly announced that Tillerson was wasting his timetalking to representatives of that country. Is this a calculated strategy of sending mixed messages to North Korea, or simply an example of dysfunction in the Trump administration?
The so-called “ten duel commandments” reveal that the whole ritual of dueling actually incorporates a system based on negotiation. In the song that lays out the commandments of dueling, note that they provide at least three opportunities to back away from going through with the contest. At the outset, the person challenged can avoid a duel by apologizing
People have a hard time letting go of their goals, and tend to be critical of any agreement that falls short. It takes sustained effort to get people to accept that something that to them appears much less than ideal is better than the available alternatives.
As an attorney, I don’t get much satisfaction out of subjecting my own clients to a painful experience just to teach them a lesson. Therefore, for the majority of private disputes, I’d prefer to start off with a less destructive process, like negotiation or mediation. And if we have to litigate, I’d prefer to do so in a way that minimizes the pain for my clients and helps more their case toward resolution, rather than in a way that forces them to settle just to avoid experiencing more of the pain the lawsuit is causing them.
Mediators tend to believe practically every conflict can be resolved through negotiation, and that settlement is almost always better than the alternatives of continued conflict or an adversarial form of conflict resolution like trial. Mediators like to quote Abraham Lincoln’s admonition to discourage litigation and persuade neighbors to compromise, because lawyers do the most good as peacemakers.