Creating New Mediated Options/Martin Rosenfeld, JD

It is rare that there will be only one option for a resolution of a dispute. The goal therefore is to find the option that both parties will embrace. The authors of “Getting to Yes” refer to this as “options for mutual gain”. An example of this would be the resolution to the Cuban missile crisis of 1962. The US found the presence of Russian missiles on Cuban territory to be an aggressive and illegal act. However, the Russians needed a face-saving device before it would agree to dismantle the weapons. The US suggested that it would dismantle its (obsolete) missiles on Turkish territory as a quid quo pro. In this manner, the Russians could explain to their citizens that they received the “prize” they wanted, and could therefore justify its decision to backtrack on the Cuban missiles.

Creating options:

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Interests V. Positions/Martin Rosenfeld,JD

Bruce Patton is a co-author of “Getting to Yes: Negotiating Agreements Without Giving In”. Mr. Patton describes the typical negotiation as follows: strong demand, counter-claim, and concession. The agreement involves, often enough, splitting the difference. If there is no agreement, there is an impasse. The alternative is the model we know as Win-Win. The model instead provides the following:

-A problem-solving atmosphere where options are brainstormed;

-No demands or threats; and

-A mutual exploration of interests of all. This includes needs, hopes, and concerns.

Which model sounds better to you?

POSITIONS V. INTERESTS/Martin Rosenfeld

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The Impasse/Martin Rosenfeld, JD

What can a mediator do when the parties seem to have reached an impasse in their discussions? Some options may include the following:

*Remind the parties, if they have children, how a non-agreement may place a disproportionate burden on their children. Parties may be happy to attempt to pulverize each other, but how many parents want to see their children harmed?

*Have the parties consider how the alternative to an agreement (i.e. litigation) will likely be exponentially more costly, both in dollars and psychic pain, than any mediated agreement they may be able to reach. For example, the average mediation is well less than the cost of the average litigated matter.

*Suggest that if they cannot fully mediate their dispute, they agree to that which is doable and then take the unresolved matters to arbitration.

*Give the process a break and let the parties re-convene at a time they feel ready for another “rodeo”.

*If necessary, ask the parties if they will allow you as mediator to move out of your neutral stance and offer your opinion as to how they can resolve their differences.

*Remind them that nothing will be more satisfying to them, in the long run, than to know they worked with civility and sensitivity, to come to an agreement that they can both be proud to “own”.

*Ask the parties, what they would like to do if no resolution is found. “Mediate don’t litigate” is more than a convenient saying. Mediated agreements really make sense and is worth the effort that may be required. Mediation may not always work but it has a proven track record of success. Keep this in the forefront of all post-impasse discussions.

Silence as a Strategy/Martin Rosenfeld, JD

Phyllis Polack, a prolific writer on mediation, recently penned “Silence is Golden” at https://www.mediate.com/articles/pollack-silence-golden.cfm. The gist of this piece is that effective mediation requires the gift of listening. However, at times, a mediator may choose to resort to the use of silence. Pausing in silence, can be a powerful tool. As an example, think of the words of FDR that “the only thing we have to fear [PAUSE} is fear itself.” Why is silence so important? At times, it may be needed to allow the parties to digest what has already been said. In addition, saying nothing can make the parties unnerved. They may well choose to fill the void with important thoughts or opinions. This could well be what is needed to break an impasse that has occurred. Or it may simply indicate that the other party has been heard. It was Will Rogers, the humorist, who said: “Never miss a good chance to shut up”. In a mediation, it is not always what you say. It can also be what you do not say and when you choose not to say it. Mediate don’t litigate.

Difficult Mediation Cases/Martin Rosenfeld, JD

Can mediation work between a wife and husband in a divorce action, where communication is poor between them? The simple answer is “yes”. The more complex answer is “What alternative is there?”

A trained mediator can get a couple with poor communication skills to mediate successfully by creating a safe and nurturing “space” for the mediation. The fact that mediation is faster and less costly than litigation adds a motivation for the couple to bridge the communication gulf that separates them. This is especially true where areas of commoon interest such as “co-parenting” are discussed.

The skilled mediator can elicit discussion by questions that zero in on the needs of the two parties. Few people will pass up the opportunity to discuss the nature and extent of their needs. In addition, mediation will help the couple develop better communication skills with which to face future disputes. This is a more useful skill than learning how to get into a litigation mode every time a new challenge is presented.

Nobody getting divorced wants to get into future wrangling once an agreement is reached. However, studies show how mediated agreements often result in full, future compliance. This is not true for agreements reached the the adversarial model of litigation. Studies consistently show that compliance with mediated agreements is close to 90%. The rate of compliance with agreements effected by the adversarial approach is a good deal lower. (As an example, a Colorado study showed that parental disputes that had been resolved by litigation were 50% more likely to be re-litigated than agreements reached by mediation.)

Should a couple with communication difficulties mediate or choose to litigate? If having lower cost, less trauma and quicker results is important, mediation makes sense. Litigation does not.

Mediation Etiquette/Martin Rosenfeld, JD

A post appeared on mediate.com in August 2018 on sample Mediation Ground Rules. It was written by James Melamed, and it contained 12 rules to ensure an orderly and successful mediation process. I will “cherry pick” 4 of the Melamed “rules” and add a fifth of my own. These rules are basic, civil, and quite necessary to ensure confidence in the mediation process. They are primarily geared to divorce mediation but apply, in large part, to all mediations.
1. Parties should wait to talk until the other party concludes her/his remarks.
2. The parties should use each other’s name and not “He” or “She”.
3. Listen respectfully to what the other party is saying.
4. Agree that no further adversarial proceedings take place while the mediation is continuing. If this rule cannot be kept (e.g. the Court is demanding that the parties appear on a matter), proper notice must be given to the adversarial party.
5. Finally, I add this: All discussions involving the children must be aimed at achieving the “best interests” of the children.

Basic rule: You may have adversarial interests to another party, but civility is always required. Mediate don’t litigate.

Arbitrate, Mediate or Litigate?/Martin Rosenfeld, JD

An article outlining the differences between mediation, arbitration, and litigation was prepared by the staff of the Program on Negotiation (PON) at Harvard Law School. The article can be found at: http://www.pon.harvard.edu/daily/dispute-resolution/what-are-the-three-basic-types-of-dispute-resolution-what-to-know-about-mediation-arbitration-and-litigation. The article describes mediation as a process that engages the parties. The main figure in arbitration becomes the factfinder or judge. The actors in litigation are the attorneys. One can make the decision that is best for their circumstance. Would you like to be the central player as the parties are in mediations? Do you prefer the easier track of having a third party decide the matter for you. Or would you prefer to let the “warring” attorneys try to jawbone until an agreement or a decision is finally reached? There might be reasons to prefer the latter two options. However, if you desire Win-Win, and an easier and less costly solution, you will be well advised to avoid litigation. Mediate don’t litigate.

The Art of Listening/Martin Rosenfeld, JD

Studs Terkel was an author, actor, and media presence for decades. In his memoir “Touch and Go” he explains the art of gaining people’s trust in the following way: “The person recognizes that you respect them, because you’re listening. Because you’re listening, they feel good about talking to you.” How does the process of mediation work? For that matter, how does the process of talk therapy work? It is all about respect, and it is all about listening. Mediators have known this for decades. But the human condition works along the same pattern. Listening engenders respect. People like to know they are being heard. Once that element of respect has been formed, further talking becomes inevitable. Talk long enough and you will get to Win-Win. But it all begins, says Mr. Terkel, with respect. Mediate don’t litigate. Litigation leads neither to added respect nor to added purposeful conversation. It will never be an adjunct to mediation.

Legacy/Martin Rosenfeld, JD

When historians rate our presidents, they focus on achievements. A likely question is this: How should this person be remembered? What will history think of them? The concept of legacy has surprising nexus to dealing with stressful disputes and negotiations. How it might work will be illustrated by reference to the work of David Brooks of the NY Times.

In 2015, Mr. Brooks wrote a book called “The Moral Bucket List”. In this work, Mr. Brooks divides virtues into two categories. There are resume virtues and moral virtues. Although we spend more time in life trying to develop our resume virtues, we tend to believe that eulogy virtues are more important. How do we wish to be remembered after our life has ended? Hopefully, our eulogy will have less time spent on the jobs we had, with more emphasis on the type of life we led.

If you are involved in e.g. a divorce battle, it is highly likely that having an expert litigator will get you a better financial deal. You will possibly pay less for child support, or for alimony, or a more favorable property split, etc. But at what price will this agreement come about? What will your friends think of you in the future, if you have engaged in contentious battle? What will you children think of you in the future. What, indeed, will you think of yourself in the future? Money is not everything. Moral virtues may very well be so. Want to run up a bucket list of virtues? Seek peace and not necessarily the bigger war-chest. Mediate don’t litigate.

Mediation and Faith/Martin Rosenfeld, JD

I first took a course in mediation in 1995, in Chicago, IL. One of the volunteer trainers who assisted in this course, called me a number of months later. He told me about a very interesting mediation course that had a very reasonable program fee. I asked why this course was so modestly priced. I was informed that the program was under the auspices of the Mennonite group that is centered in Lombard, IL. This group, I learned, has a religious reason for trying to advance information about mediation.

The Lombard Mennonite Peace Center (LMPC) has as its religious mission the desire to encourage “nonviolent transformation” of conflict in homes, workplaces, and houses of worship. Recently I browsed the internet to learn more about the LMPC. I discovered an article that appeared in the Toledo Blade entitled “Mending Fences”. (May 28, 2016). The author, TK Barger, described a lengthy program that the LMPC offered to Midwestern faith leaders. One of the participants, Rev. Deborah Rose, summed up what she gained from the program by saying that she did not attend the program to learn how to be a mediator. This was not the purpose of the program. Rather, she wished to learn new skills that could assist her in her congregational life. Sometimes, it is good to learn a new skill, such as mediation just so one can make proper referrals to professions when such mediation is appropriate.

The purpose of this blog is not to train mediators. There are professional classes for this purpose. I wish to give the religious population a better idea of what mediation entails and relate some of its important principles. It is my hope that the information found here will assist those whose life of faith leads them to the conclusion that litigation is not the solution to all forms of conflict. There is a choice. Mediate don’t litigate.