The Federal Mediation and Conciliation Service (FMCS) is the nation’s largest independent public agency for alternative dispute resolution (ADR) and conflict management, providing mediation and conflict resolution services in the private, public, and federal sectors.
One of the things I enjoy most about my job as a mediator is the flexibility inherent in the mediation process I utilize. Typically, I’m assuming, you see mediation as a process where you can confidently come together with other parties involved in litigation, call a timeout, and determine if the parties can reach an agreement to resolve the case. This is how I’m asked to lead mediations about 95% of the time. However, there are other circumstances in which I’ve been hired as a mediator, some of which may surprise you.
I love the ABA Section of Dispute Resolution annual conferences. They always put on a wide array of wonderful sessions and it’s a great time to connect with friends, old and new. As in the past, I am listing some sessions that particularly intrigue me.
I would say all of those cases were ripe for mediation at the time I was asked to mediate them. How can that be? Simple. In each case, the attorneys/parties had the right information, and a strong enough desire to settle, in order to make good decisions. Could those cases, which were further into the judicial process, have been resolved sooner? Possibly. But in retrospect, I don’t think they were ready until we mediated them.
Regardless of the hat I’m wearing at the time — mediator, litigator, friend, brother, husband, father, and now grandfather — I struggle with the desire to be right. Always right. I recently read a post on the Mediate.com blog by Loraine Segal entitled The Seductiveness of Being Right. St. Augustine, a pillar of the early church, regularly prayed “Oh Lord, deliver me from the lust of always vindicating myself.” Can you identify with this? The desire to be right truly is seductive, and it’s not helpful.
Confidential settlements have stirred controversy when they have been used to hide serious public health and safety violations, though people generally think that confidential settlements are appropriate. Indeed, people often tout confidentiality as one of the benefits of ADR.
Since the recent publications about Harvey Weinstein’s alleged serial sexual misconduct, there has been a wave of stories about others who have allegedly committed sexual misconduct. The comedian Louis C.K. is one of the men who has been accused. He publicly acknowledged that the accusations were true and apologized.
In most legal disputes, there is considerable uncertainty. Lawyers and parties discount their assessments of possible outcomes to reflect the risks, so MLATNAs therefore are always inferior to the BATNAs.
There has been a lot of attention to – and criticism of – willingness of people in colleges and universities to suppress speech. Some of this criticism is particularly directed at liberals. However, these problems are widespread through our society.
Some of the misconceptions may have resulted from the fact that we produced a lot of material over the summer, when people were busy with their work and/or vacations, and they may not have absorbed everything we put out.