Screwed at Mediation…or Not!


Screwed…or Not!

I know that many lawyers prepare their clients for mediation by telling them that a good outcome will be one that leaves everyone feeling screwed, in an even-handed sort of way.

I think that there is a better way to help define a successful mediation; We will do the best we can under the circumstances, the circumstances being the facts, the law and available resources. Resources include the time, money and the emotional energy a person is willing to expend to gain any particular result.

This simple formulation acknowledges the importance of how people feel about the controversy – angry, sad, disappointed… and provides a useful context in which they can make sense of how they feel about the outcome.



quote-first-you-win-the-argument-then-you-win-the-vote-margaret-thatcher-93-90-20In this recent political season, it was a binary world with only 2 outcomes – winning or losing. You didn’t find First you win the argument, then you win the vote on a bumper sticker.

Likewise, many people lack a personal philosophy that is grounded in negotiation and compromise – in Getting to Yes. They see every conflict as a zero-sum game. Too many clients are angry and cynical with unrealistic expectations of their lawyer and the legal system. They are ready to blame others for their own unfortunate circumstances. A sense of accomplishment can be elusive for a lawyer.

But there is a bright side to all of this gloom. Trials, which allow only win-lose outcomes, are slowly being supplanted by structured negotiations with judicial oversight. Lawyers seem to me to be getting better at negotiating. Negotiating a deal that ends a challenging and expensive controversy can provide a level of satisfaction and accomplishment that far exceeds winning the jury or judge lottery.

Fierce litigators, long at the top of the lawyer food chain (and grist for bad lawyer jokes), are slowly being replaced by successful negotiators who can craft outcomes grounded in reality. I for one, am optimistic that in time, things will get better.




For those of us employed in the law business, knowing how to argue is an essential skill that is often in short supply. That fact can make a lawyer’s life miserable, both in practicing without adequate skills or dealing with someone else lacking those skills.  “How to argue is something people are taught. You learn it by watching other people, at the breakfast table, or in school, or on TV, or, lately, online. It’s something you can get better at, with practice, or worse at, by imitating people who do it badly.  More formal debate [for instance, presenting reasoned argument to a judge or jury] follows established rules and standards of evidence.” “Debating, like voting, is a way for people to disagree without hitting one another or going to war; it’s the key to every institution that makes civic life possible, from courts to legislatures. Without debate there can be no self-government.” (Lepore, The State of Debate 2016)

On September 26, the first Presidential debate of this election will take place. It won’t be a debate in the sense that the delegates to the Constitutional Convention debated the terms of our Constitution in 1787 or that Lincoln debated Douglas in 1858. It won’t much resemble the Kennedy-Nixon debate that took place 56 years ago. It will follow a format that defies meaningful discourse; questions posed by Lester Holt, despite his best efforts, will reveal little information that can serve as the basis for thoughtfully choosing one candidate’s policies and leadership skills over the other. The debates are, as Walter Cronkite said, “…part of the unconscionable fraud that our political campaigns have become” and they should be a source of deep concern for voters who support our form of government.

Understanding What Anger Represents in Resolving Conflict

I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” — Abraham Maslow, The Psychology of Science (1966)

imagesLFWAVU05We are frequently angry without an understanding of what anger represents. I think that having a practical understanding of the role anger plays in conflict is critical. In our culture, which is awash in conflict, we all too often have only “fighting” in our toolbox and, as a result, we treat every conflict as a “war.” Someone once defined anger as the emotion we feel when we do not get what we want. However, emotions do not resolve conflict and do not get us what we want– reason, rational self-interest and the willingness to communicate honestly do. So being angry only tells us how we feel about our present circumstances. Unless anger is understood as the signal to start the process of figuring out what it is we are not getting, it serves no productive purpose.

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This entry was posted in CONFLICT RESOLUTION, mediation, MEDIATION MATTERS, NEGOTIATION and tagged active listening, alternatives to litigation, bargaining strategies, conflict resolution, conflict resolution training, creative solutions in mediation, empathy, negotiation on October 2, 2014.



shutterstock_70288444-300x300The mediator who succumbs to the temptation or accepts the  to tell the parties what he or she thinks is a good, likely or reasonable outcome takes on a distinct role – that of Aristotle’s orator. This mediator abandons the notion that there are any systems to guide the parties and, perhaps more importantly, assumes that the parties “are persons who cannot take in at a glance a complicated argument, or follow a long chain of reasoning.” The mediator who makes predictions or suggests outcomes then has to set about figuring out how to persuade the parties that he or she is right.

The orator (mediator?) must consider how to arouse and use the passions of his audience as well as calculate how far to go in displaying his own emotions. He must consider the moral character of the audience to which he is appealing, and in this connection he must try to exhibit his own character in a favorable light. Finally, he must know the various types and sources of rhetorical argument – not only what sources of rhetorical argument are available for a particular purpose, but also how to employ each argument most persuasively. The Great Ideas, Mortimer J. Adler, MacMillan Publishing Co., New York, 1992, page 742

Those mediators who believe in making predictions or suggesting outcomes delude themselves when they argue that they do not think that their predictions are accurate, their suggestions are not worth acting on or that they do not intend to cause an outcome that they want to see. Otherwise, why would anyone ask them for predictions or suggestions and why would the mediator offer them? Even more pernicious, why would a party continue to use the same mediator again and again?

I think that the appeal of using neutral evaluators and mediators who morph into judges is misguided. For the past several decades, I have begun every mediation by alerting everyone, including lawyers, that at some point they might think that I was arguing with them and if they had that thought, they were probably right. And, no, I am not the devil’s advocate.

I do not think that all arguing is inherently a bad thing. It is bad when you are rude to people, when you talk over them or you select language designed to antagonize or demean them. My purpose for engaging them in conversation, asking questions and perhaps arguing with them is to be provocative – to alert them to my difficulty in making sense out of what they are saying, to flaws in their reasoning and their logic and to gaps in their “proof.” I do not need to be right or make someone else wrong. That is a critical and guiding principle in my understanding of mediation. I see my role a bit like the image in the ad of the elephant sitting on the chest of the character who is suffering from COPD – if my questions are making you uncomfortable or you are having a tough time constructing answers that survive careful, impartial testing – then consider changing your thinking (and get out from under the elephant.) Or not!

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This entry was posted in CONFLICT RESOLUTION, Divorce Mediation, evaluative mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, NEGOTIATION, transformative mediation and tagged active listening, ADR, alternatives to litigation, conflict resolution, conflict resolution training, divorce, mediation, mediator training, IMPARTIAL MEDIATOR, neutrality on January 7, 2015.

Why and What Should We Want to Know About Mediation

I think that the field of mediation lacks a serious commitment to any systematic study and rigorous evaluation of what mediators do when they mediate. There is no data to support an assertion that any particular strategy or behavior engaged in by a mediator has any effect on the behavior of the participants or the outcome of their negotiation. Moreover, I am unaware of any set-pieces, akin to plays on a football field, that mediators use again and again that have been tested to determine if they correlate, much less cause, any particular behavior or outcome.

What there is in abundance is a literature filled with stories told by mediators who claim to have found the truth when what they really want is recognition or to gain a competitive advantage in the marketplace; likewise, with workshops and seminars that infer that something a mediator does (or should do) actually causes people to behave differently while participating in a mediation.

We need not stay stuck in this dark cave. A huge volume of mediations happens everyday. These sessions offer sociologists, psychologists, legal scholars and academics and others a laboratory to observe and study mediators’ actions while they work with real people involved in real conflicts.

Mediation confidentiality serves an important purpose but it need not be an iron current. All that typically emerges from a mediation is a written agreement. Lost is the opportunity to work out the conditions under which a particular strategy might actually work and the inferences that might reasonably be reasonably drawn from that analysis. Also lost is the opportunity to examine the inferences people actually have drawn from it under different conditions, what they thought it implied and what it inspired them to do. This process can reveal intriguing intellectual and practical possibilities that mediators might otherwise overlook. Researchers routinely observe, study and gather intimate information from people while successfully guarding their privacy.

The judicial system has a vested interest in understanding and improving the efficacy of the mediation process, inasmuch as judges compel people to participate and pay for it. I think that a carefully drawn provision carving out an exception to confidentiality that allows for the scientific/academic study of mediation would be a great benefit for both mediators and those who participate in the process.

I, for or one, would like to know if what I do really works or not and why.