IT’S A BUYER’S MARKET…

It’s a buyer’s market in mediation. There are thousands of mediators and that number is growing rapidly. The screening process available to you to select a mediator is based almost exclusively on personal experience, word of mouth and website information. There is no Angie’s List.

You use mediation as a method to advance the interests of your clients. Your clients, in turn, evaluate you on the quality of your work and the wisdom of your advice. You want your client to think that the time and expense of the mediation were resources well spent, even if the case doesn’t settle, so selecting an effective mediator is important.

You expect the mediator to employ a variety of skills so that the negotiated outcome resolves the dispute and makes sense to your client. So go beyond settled/not settled in your vetting process; here are three characteristics of an effective mediator worth looking for:

Curious – It’s the difference between claiming to have all the answers and having the right questions. Curiosity leads to revealing new paths and overlooked or under-appreciated opportunities.

Patient – It takes time for people to change the way they feel and to reason their way through problems. Forced decisions encourage the use of shortcuts (heuristics) that often lead to bad decisions and impasse.

Mindful of bias – A biased mediator can undermine the entire process. And a mediator unskilled at dealing with the biases of others, either explicit or implicit, is unlikely to be of any real help. Even worse is the mediator who hasn’t invested the time and energy necessary to acknowledge and deal with their own biases.

Don’t hesitate to call me in advance of selecting your mediator. I would be happy to talk to you (and opposing counsel) to discuss your best path forward.

 

 

 

 

 

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We hold these Truths…

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 I will for the purpose of maintaining the causes confided to me such means as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law. Oath of Admission to The Florida Bar  https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/4F51651D215A82C085256ADB005D611F

shutterstock_438082249Imagine what the law business would be like if we woke up on a Monday morning and went to work in a “post-truth” world. The Oxford Dictionaries declared “post-truth” as its 2016 word of the year; a state “in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” Travelling down this Alice-in-Wonderland rabbit hole is Gerard Baker’s recent editorial in the Wall Street Journal, Trump, ‘lies’ and Honest Journalism, in which he cautions “I’d be careful about using the word ‘lie.’ ‘Lie’ implies much more than just saying something that’s false. It implies a deliberate intent to mislead.” http://www.wsj.com/articles/trump-lies-and-honest-journalism-1483557700.

Fair enough. But here are a couple of dictionary definitions of a lie: an intentionally false statement; to make an untrue statement with intent to deceive; to create a false or misleading impression. The critical word here is “intention” which begs the question; Is it possible to “accurately know the values (or lack thereof) involved when a person speaks?” Probably not.

In his famous little book, On Bullshit, http://press.princeton.edu/titles/7929.htm, Harry Frankfurt makes an important distinction between bullshit and lying that I think is particularly pertinent:  Both the liar and the bullshitter try to get away with something. But ‘lying’ is perceived to be a conscious act of deception, whereas ‘bullshitting’ is unconnected to a concern for truth. Frankfurt regards this ‘indifference to how things really are’, as the essence of bullshit. Furthermore, a lie is necessarily false, but bullshit is not – bullshit may happen to be correct or incorrect. The crux of the matter is that bullshitters hide their lack of commitment to truth. Since bullshitters ignore truth instead of acknowledging and subverting it, bullshit is a greater enemy of truth than lies.

There is, however, no real distinction between a lie and bullshit when it comes to the form or meaning of what is actually said. When a person rejects the very idea of being true to facts and turns, instead, to an ideal based on what they assert to be a sincere belief in their own substantial and determinate nature, then, according to Frankfurt, this sincerity is also bullshit. https://philosophynow.org/issues/53/On_Bullshit_by_Harry_Frankfurt

 “Why don’t you believe him? Why isn’t it taken at face value?” Conway said in exasperation. “You can’t give him the benefit of the doubt on this and he’s telling you what was in his heart? You want to go with what’s come out of his mouth rather than what’s in his heart.” https://twitter.com/NewDay/status/818444732934201344

 

 

 

FIRST YOU WIN THE ARGUMENT…

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.

 

IT’S DEBATABLE

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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.