This article is the third in a series of discussions based upon books written by experts in the field of negotiation tactics and conflict resolution. These works are by authors who bring a unique perspective about the mediation and arbitration process. The essence of each publication and the focus of these writings are my observations about how each author's experiences can enhance and sharpen your own negotiating skills when mediating or arbitrating a case. In this and future writings, I will address how these publications have helped me hone my mediation skills.
The Book: Mastering Mediation: 50 Essential Tools for the Advanced Practitioner. By Lynn Duryee and Matt White (Thomson Reuters/Aspatore, 2012)
If I were teaching a law school course on mediation, Mastering Mediation might be the first book on the reading list. In previous articles, I examined conceptual approaches to mediation and dispute resolution. In contrast, Mastering Mediation is a straightforward, how-to manual for Mediators and practitioners.
The book was written by a California judge, and a private mediator who have handled thousands of mediations. As the authors write, effective mediations are deceptively difficult:
“To the list of seemingly simple but truly difficult endeavors, the successful mediation must be added. ….. On the face of it, the process appears as easy as a color-by-number painting. Listen here, nod there; check for understanding; reflect back and voila – case settled!”
While fascinating and rewarding, mediating is not as simple as it might first seem. Every mediation is different. There is an everchanging dynamic of attorney personalities, litigant personalities, legal issues, and medical issues. Mastering Mediation is a tool kit to use for varying situations.
Effective Mediations
Unlike a Judge presiding over a court settlement conference, a Mediator does not have the authority to coerce parties into settlement. Instead, the authors suggest that the Mediator act as a positive, supportive guide who encourages the parties to avoid line-in-the-sand positions, and work through inevitable impasses.
The book contains 50 short chapters, which provides practical tools and mediation approaches for the neophyte as well as the seasoned Mediator. Each chapter concludes with Practice Tips on how to develop that particular skill.
Below you will find a handful of chapters I've selected to illustrate the helpful nature of this publication. The descriptions below are my takeaways from these chapters.
Chapter 12 – Try Anyway
Never give up trying to settle a case. Frequently, the parties make substantial progress, and end the mediation close to settlement, but cannot close the gap. I always give my personal cell phone number at the end of the mediation and ask the attorneys to call me if there is anything I can do to help and bring the case to a resolution.
In the days after a mediation, a plaintiff may rethink their goals, or an insurance carrier may decide it is better to close the file, rather than continue litigating. Many times, I've sent a text a week after the mediation, asking if I can help. More often than not, I receive a call, with a new settlement position, which breaks the logjam. On personal note: As I write this, I am working to settle a mediation from a month ago, which I now believe will settle.
Chapter 22 – How to Deliver Bad News
At times, parties do not understand the risks of trial, and how they could, in fact, lose. As advocates, attorneys are sometimes reluctant to display reservations about their client's case, for fear of alienating them. This chapter offers specific suggestions for explaining the realities, risks, and costs of litigation.
Chapter 42 – Become a World-Class Listener
As discussed in my prior articles, the indispensable ingredient for conflict resolution is deep, nonjudgmental listening. The most valuable lesson I have learned as a mediator is to talk less and listen more. A mediation is a litigant's day in court, so to speak. They want to be heard, and understood, without the combat of trial.
The Practice Tip at the end of this chapter is invaluable – develop nonjudgmental listening. If you turn on a news station that holds a political perspective opposite your own, do you reflexively dismiss the commentary? As a mediator, try to listen, without judgment, as if you were listening to a litigant, to hear and understand their arguments, even if you disagree. Understanding does not require agreement. As a Mediator, or as an attorney, it is not necessary to agree with an argument, but it is crucial to keep an open mind, and to understand position of both sides.
Chapter 47 – (BOLO) Be On the Lookout
As practitioners, we have all seen some Judges and Mediators who have been in the profession a long time fall into the same traps: complacency, excessive war stories and sports talk, and lack of preparation. The authors remind us to take personal inventory of our strengths and weaknesses, and remember to practice the fundamentals. A Mediator must always keep the ego in check, be eager to learn, and focus on the clients and the case.
Chapter 50 – Learn Something From Every Mediation.
For both the Mediator and counsel, every mediation provides an opportunity to learn something new – honing your skills, and perfecting the art of mediation. As a trial attorney, I admit without hesitation, that I learn new techniques and strategies from other trial attorneys, and later employed them as part of my own. I have also gained additional skills from some excellent Mediators. Learn from your adversaries, as well as other Mediators.
Personal takeaways
The lessons from Mastering Mediation apply to both the Mediator and litigator. Much like trying a case, mediation is a deeply personal effort, with tension, emotion, and conflict. An effective Mediator embraces the challenges and is able to guide conflicting parties to a common ground and ultimately a resolution. Whether you are new to mediation or a season practitioner in the forum, Mastering Mediation; 50 Essential Tools for the Advanced Practitioner offers helpful tips for everyone at every level. Some chapters may seem obvious in nature, but, as a whole, the book provides useful insights that might just help you resolve your next dispute.
In my next article, I will delve into a book examining President Theodore Roosevelt's negotiation prowess. Roosevelt, who is remembered for his muscular “Speak Softly and Carry a Big Stick” diplomacy, was, when necessary, a subtle, effective negotiator, winning the Nobel Peace Prize.
