Einstein and ADR/Martin Rosenfeld, JD

The successful author, Stephen Covey, wrote a book that illustrates the principle of Win-Win. The title of the work is “The 3rd Alternative: Solving Life’s Most Difficult Problems”. The advice found in that work is simple:
“Win-Win is a belief in the Third Alternative. It’s not your way or my way, it’s a better way.” A certain type of thinking led to an impasse. A “better way” of finding a solution is effected when new and creative thinking is brought to beat. Albert Einstein is believed to have authored the following statement: “The significant problems we face cannot be solved at the same level of thinking we were at when we created them”. Getting to Win-Win involves inter alia creativity, building of trust, and focusing on interests and not positions. The work is not easy but it is essential if we wish to seek a “better way” in conflict resolution.

Fake Weather?/Martin Rosenfeld, JD

By now most everyone knows about Pres. Trump warning that Hurricane Dorian was heading towards Alabama. The only problem was that it wasn’t doing that. The president then produced an altered weather map to prove his “point”. On this miscue, Chris Cillizza of cnn.com posted (September 5, 2019) “Donald Trump’s Alabama Obsession Reveals a Very Deep Flaw”. The flaw dealt with honesty and integrity. “Trump is so obsessed with being right…that he blocks out any and all other responsibilities or duties as President to pursue that goal.” Does that sound like anyone you know. Ever see someone involved in a dispute with an opponent? They can only see truth from their own side. To be successful at that, they often need to block out all other responsible and meaningful scenarios. Truth becomes a victim. Is it not possible that some truth resides with the other party as well? The answer is surely in the affirmative. If you want to try to find out how that may be possible, try to attain Win-Win. Litigation will not get you there. Mediate don’t litigate. For those who pursue truth, this is the only path one can choose, weather map or not.

Constructive Criticism/Martin Rosenfeld, JD

An article appeared on March 22,2019, on the website for the periodical “Fast Company”. It is entitled “Why the ‘Velvet Hammer’ is a Better Way to Give Constructive Criticism”. The gist of the article is that there is indeed a proper way to deliver “bad news” to a party. The following explanation speaks for itself:

“Giving negative feedback is important in many situations. If you delay or don’t approach a sensitive subject, it’s like not telling a friend they have spinach in their teeth.

‘If you have spinach in your teeth, do you want to know or not?’ asks [Joy] Baldridge. ‘It’s still there. When something needs to be said, most people in the organization know it. Everyone, that is, except for the person who needs the feedback. It’s like a someone walking around the office with a ‘kick me’ sign on [their] back.’ “

If in a negotiation you need to strike at a weakness of your counterpart, employ the “velvet hammer”. Make your comments clinical and fact-based. You may not be met with approval, but you have advanced the possibility of having your words heard. Firmness in a position does not have to be mean-spirited or vindictive. Mediation don’t litigate.

Compassionate Mediation/Martin Rosenfeld, JD

As a mediator, I attempt to work with my clients on an affordable fee program for their mediations. (See http://www.NJMediationWorks.com). A potential client once asked me if I would do a mediation with no cost. I responded in the negative. Why is that? Therapists will argue that a client who gets a service without cost does not value that service. That is not the cause of my decision to refrain from doing a no-cost mediation. The parties need to feel that time is of the essence in reaching an agreement. When matters drag too long it becomes increasingly difficult to get to Win-Win.

This notion is similar to the religious belief many have that death and dying is actually a form of blessing bestowed upon mankind. If we did not have numbered days, how likely is it that we would perform the tasks we need to perform? After all, if I live forever, why do something now. I can do it in one thousand years! By paying for mediation, and feeling a sense of exigency, parties are more motivated to look for solutions and try to attain Win-Win.

I was once asked by a Legal Service office if I could allow a mediation to proceed by not charging their client and asking the other party to pay for the entire mediation. I said that this was not fair as mediation needs to be shared by both parties. The Legal Aid office then wrote to the State of NJ to express their displeasure with my decision. The State supported my point of view on this matter. Mediations need to be highly focused, driven by a motivation to seek solutions, and shared by all who will participate. Indeed, compassionate mediation is necessary, but there must be a sense of a shared journey for the parties involved.

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:


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.