About a year ago, I was requested to mediate a case that was on appeal. The parties were a real estate agent (“agent”) and the real estate company (“company”) for whom the agent worked. The company had made cash advances to the agent for which the agent had signed promissory notes. When the agent terminated her employment with the company, she still owed the money.
 

      Pursuant to the terms of the agreement, the company sent the claim for collection. When that proved unsuccessful, the company filed a petition for binding arbitration.
 

      During the arbitration proceedings, the agent contended, among other things, by way of a counter-claim that she had been denied one or more commissions lawfully due to her, had been sexually harassed and that during the collection process, the company had violated federal law by reporting to the credit agencies that the debt was valid rather than disputed.
     

        The arbitrator found for the company in all respects. The company then had the petition confirmed by the trial court. The amount of the award against the agent was approximately $80,000.
 

      The agent filed for an appeal from the judgment confirming the arbitration award against her.
     

       At this point, the parties agreed to mediate the matter, and the appellate court sent the matter to me for mediation.
 

      The mediation date was set; the parties submitted their briefs which I reviewed. I also spoke with counsel to learn more about the matter.
     

       On the morning of the mediation, (approximately two hours prior to its start), I received an e-mail from the office of the attorney for the agent; the agent could not make it as she was sick. she had been to a doctor and was under doctor’s “orders” not to do anything stressful for a week or more.
     

      Needless to say, subsequent attempts to reschedule this mediation were futile. Reading between the lines, I gathered that the agent did not really want to attend the mediation and confront the issues. Evidently (and as I was told) she had done this with other hearings in this matter; she was  stalling and delaying to avoid “dealing” with things.
 

      So. . .the appeal proceeded along. I recently received a copy of the unpublished appellate decision. The agent lost. The appellate court confirmed the arbitration award, finding no error.
     

      To stay the enforcement of this judgment in California, the agent had to post a bond of one-and- a half times the judgment or, approximately $120,000.
 

      As a result of the appellate decision, the agent now faces an adverse judgment of approximately $80,000 plus approximately $12,000 in accrued post-judgment interest (at 10% per year) plus the costs of the appeal and the attorneys’ fees of not only her own attorney but those of the company’s as well since it was the prevailing party. And to collect (once the matter is remitted to the trial court), the company simply has to file a motion in the trial court to be paid from the appeal bond.
 

      Why do I entitle this blog “Settlement Is Always Better?” Because, if the agent had been willing to attend mediation and confront the issues, in all likelihood, the company would have been flexible in the amount it would have accepted in settlement and in the payment terms. It probably would have agreed to accept less than the approximately $80,000 due and to allow the agent to pay it over a period of time. In short, the agent could have resolved this matter for a lot less money, in a lot less time and with a lot less anxiety, heartache and angst. (She, also would not have an adverse judgment appearing on her credit report).
 

      While we all have demons that we do not like to face and at times, avoid facing, in the long run, it is better and often cheaper to face them sooner rather than later. It is usually less costly and more satisfying to participate in the resolution of our own disputes rather than to avoid and delay, thereby allowing strangers (here, an appellate court) to make the decision for us.
     

       . . . Just something to think about.  

From the Blog of Phyllis G. Pollack.

The internet always astounds me for the richness and diversity of the resources it makes available to anyone with the time and the curiosity to discover them.

Consider my latest web find: Social Innovation Conversations. Its motto proclaims its mission: “reinventing the world together one conversation at a time”.

Described as “an open and collaborative online platform for cross-sector and multidisciplinary learning for social change”, Social Innovation Conversations was launched to achieve an ambitious and inspiring goal:

From the pandemic of AIDS, to challenges posed by climate change, to substance abuse and global poverty, our world is faced with increasingly complex and pressing social and environmental challenges. While knowledge, tools, and technologies to develop innovative solutions exist, channels are still needed to reach the people who could use and apply them to social problems.

Social Innovation Conversations’ mission is to expand the reach of important and valuable knowledge to people who otherwise wouldn’t have access to it by recording and sharing the spoken words of thought leaders in all sectors and disciplines and offering listeners a multi-stakeholder perspective on the world grand challenges and social issues.

Teachers and students of negotiation will want to tune in to a recent podcast: “Myths and Truths About Negotiation“, a lecture by Margaret Neale, Professor at Stanford Graduate School of Business. The five negotiation myths that are in for busting are:

1. Making the first offer is risky
2. Perceptions about dividing the pie
3. Honesty is the best policy
4. Emotions at the negotiation table are your enemy
5. I had no choice so I said yes

There is other knowledge worth exploring at Social Innovation Conversations — as you will discover for yourself.

From Mediation Channel

Take a look at this summary of the article When Winning Is Everything by Deepak Malhotra, Gillian Ku, and J. Keith Murnighan, now available online here as well as in the May '08 Harvard Business Review.

Malhotra and colleagues suggest that an adrenaline-fueled emotional state [which they] call  competitive arousal, often leads to bad decisions.

Negotiating litigators may want to note that all of the conditions giving rise to "competitive arousal" are the day-to-day conditions in which litigation is conducted, i.e., intense rivalry, especially in the form of one-on-one competitions; time pressure . . . ; and being in the spotlight—that is, working in the presence of an audience.

Sound familiar?  Take a look at the consequences and the potential solutions below. 

Individually, these factors can seriously impair managerial decision making; together, their consequences can be dire, as evidenced by many high-profile business disasters. It's not possible to avoid destructive competitions and bidding wars completely.

But managers can help prevent competitive arousal by anticipating potentially harmful competitive dynamics and then restructuring the deal-making process. They can also stop irrational competitive behavior from escalating by addressing the causes of competitive arousal.

When rivalry is intense, for instance, managers can

• limit the roles of those who feel it most
• reduce time pressure by extending or eliminating arbitrary deadlines
• deflect the spotlight by spreading the responsibility for critical competitive decisions among team members.

Decision makers will be most successful when they focus on winning contests in which they have a real advantage—and take a step back from those in which winning exacts too high a cost.

From Settle It Now Negotiation Blog

In a kiss and tell article in the latest issue of The Mediator Magazine all is revealed about UK mediators' charge out rates in The Price is Wrong

From the blog mediator blah...blah...

Want to make some changes in your life? Is there something you want to quit doing? Or start doing? If yes, then please read one of the articles I have written with Jeffrey Schwartz to which I have linked and from which I have taken excerpts below.

I was pleased to see an article in Sunday's New York Times in which was a discussion about self-directed neuroplasticity (changing your brain on purpose). The article's author Janet Rae-Dupree did not use the phrase "self-directed neuroplasticity but nevertheless described it.

HABITS are a funny thing. We reach for them mindlessly, setting our brains on auto-pilot and relaxing into the unconscious comfort of familiar routine. “Not choice, but habit rules the unreflecting herd,” William Wordsworth said in the 19th century. In the ever-changing 21st century, even the word “habit” carries a negative connotation.

So it seems antithetical to talk about habits in the same context as creativity and innovation. But brain researchers have discovered that when we consciously develop new habits, we create parallel synaptic paths, and even entirely new brain cells, that can jump our trains of thought onto new, innovative tracks.

Rather than dismissing ourselves as unchangeable creatures of habit, we can instead direct our own change by consciously developing new habits. In fact, the more new things we try — the more we step outside our comfort zone — the more inherently creative we become, both in the workplace and in our personal lives.

Click to read the rest of "Can You Become a Creature of New Habits?"

Here are more tips on changing your brain from two of our articles.

From "Brain Management . . . Law Firm Leadership on the Neuro Frontier" (Of Counsel):

Let’s say that you have decided to listen more to your prospective clients, clients, partners, associates, or staff. Perhaps you have heard, as a result of some business development or management or mentoring training program, all about the benefits of being a good listener. But as you begin a conversation, you feel the need to talk, even pontificate.

Now, you confront the moment of choice. That moment of choice holds the gold in self-directed neuroplasticity, in controlling the rewiring of your brain. You can choose to talk. If you are accustomed to being more of a talker than a listener, your brain will call to you to follow the old neuron connections, the old and well-worn synapses. These old synapses are habitual and the most comfortable for you. The old paths fit like a pair of used, comfortable slippers or jeans. They are seductive and part of the familiar you.

Or you can choose to listen. If you experience the powerful urge to open your mouth and talk, you are going to need to begin to develop some new brain grooves, some new synapses. Not as easy as going with the old ruts and grooves, but it is doable and the good news is that it gets easier and easier. Each time you choose to listen instead of talk, you will be developing and strengthening new neuron connections, new listening synapses.

The more you choose to listen, the stronger those paths will grow. After a while, listening will feel old slipper comfortable, too. Then, when an interaction occurs, you will have the choice of which brain path to follow depending upon which is appropriate to the situation. In any event, you won’t simply be governed by an old habit.

From "Exercise Mind Hygiene On A Daily Basis" (The Complete Lawyer):

...Golden Moments of Choice are possible because your brain is always changing (that's called neuroplasticity). The changes are either by default as it interacts with

Recently, I excerpted the expressed concerns of in-house counsel about ineffective mediators.   Among the complaints was some mediators' refusal to see or acknowledge the other side's "irrationality" As Where's the Magic from the U.K. online Mediator Magazine noted:

It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and choose to ignore it,' says Frank Aghovia, legal adviser at Exel Plc. He continues, 'It's like saying, "I know he's talking out of his backside, but can you give him what he wants anyway." He concludes that 'steadfast neutrality is irritating and wastes time.'

Reality-Testing

Helping litigants and their attorneys reassess their case is one of the mediator's greatest challenges.  The mediator intervenes only after the parties' dispute has reached stalemate.  Each party to a stalemate has negative attitudes about his adversary that are maintained and prolonged by three psychological mechanisms: selective perception, self-fulfilling prophecy, and autistic hostility.

Selective perception:  people tend to select those perceptions that tend to confirm their existing attitudes, and ignore or discount information that would disconfirm their existing attitudes.

Self-fulfilling prophecies:  people with negative attitudes about their adversary engage in conduct that provokes the adversary's "expected" response, which confirms the party's original expectation, and a vicious cycle ensues.

Autistic hostility:  Parties in litigation have stopped talking with one another about their dispute, communicating only through their attorneys.  The social scientists would say that such people are "stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate."

(for a full discussion of these and other conflict dynamics see CR Info's Book Summary of Social Conflict: Escalation, Stalemate and Settlement by Dean G. Pruitt and Jeffrey Z. Rubin). 

When the parties are in this frame of mind -- particularly after years of highly contentious litigation -- they genuinely believe that the other side is either completely irrational or downright evil.

So how does the mediator reality test in this climate of anger and distrust while continuing to maintain his ability to work effectively with both parties.  

Peter Robinson, co-director of the prestigious Straus Institute of Conflict Resolution in Malibu, California, tackles this problem by way of a hypothetical.  He assumes that one side believes his adversary came here from another planet via UFO.  What should a mediator -- who needs to retain the trust and confidence of both sides -- do?  

Robinson answers his own rhetorical question in this fashion:

When talking to the UFO-guy, I am totally with him.  Listening, asking questions, trying to understand whether his delusion actually has some hidden meaning that might suggest a way to resolve the dispute without asking the other party to "buy in" to the UFO story.

After giving Mr. UFO an opportunity to have his say and to experience -- perhaps for the first time ever -- another human being's willingness to temporarily suspend his disbelief -- I begin to gently "reality test."  To do so, I do not have to doubt Mr. UFO's story.  I can suggest, however, that not everyone is as understanding as I am. 

"Have you told this story to many people?" I might ask.  "And what has their response been?"  Do you have any reason to believe that a judge or jury might be more likely to believe this narrative of events more than, say, your mother, sister, cousin, wife, best friend, etc. were?

Robinson's suggested action between the rock of understanding and the hard place of consensual reality is shrewd and effective.  It neatly avoids the problem recently raised by my friend and colleague Jeff Kichaven who has likened piling rationales atop one another for the purpose of changing another's mind to raising your voice for the purpose of communicating with a deaf man.   

Harvard Business School professors Deepak Malhotra and Max H. Bazerman address the irrationality problem in another fashion in their tremendously useful book Negotiation Genius. 

"Whenever our students or clients tell us about their 'irrational' or 'crazy' counterparts," they write, "we work with them to carefully consider whether the other side is truly irrational.  Almost always, the answer is no."

Malhotra and Bazerman list the mistakes that lead us to call our negotiating partners "nuts," "delusional" or "evil" as follows:

Mistake No. 1:  They are Not Delusional, They are Uninformed. 

If you can educate or inform your bargaining partner, say Malhotra and Bazerman

about their true interests, the consequences of their actions, the strength of your BATNA, and so on - there is a strong likelihood they will make better decisions . . . [I]f someone says "no" to an offer that you know is in her best interest, do not assume she is irrational.  Instead, work to ensure that she understands why the offer is in her best interest.  She may simply have misunderstood or ignored a crucial piece of information.

Mistake No. 2:  They are Not Irrational; They Have Hidden Constraints

In negotiation, a wide variety of possible constraints exist.  The other side may be constrained by advice from her lawyers, by the fear of setting a dangerous precedent, by promises she has made to other parties [this is a particularly common constraint in IP infringement actions] by time pressure and so on.  [D]iscover these constraints . . . and . . help other parties overcome them . . . rather than dismissing others as irrational.

Mistake No. 3:  They are Not Irrational; They Have Hidden Interests

[P]eople will sometimes reject your offer because they think it is unfair, because they don't like you [or are tired of feeling as if you don't like them] or for other reasons that have nothing to do with the obvious merits of your proposal.  These people are not irrational; they are simply fulfilling needs and interests that you may not fully appreciate.  .  .  [I]nvestigate:  "What might be motivating her to act this way?  What are all of her interests?"

But What if They Really Are Irrational

If your counterpart truly is irrational -- in other words, he is determined to work against what is in his best interest -- then your options will be fewer.  You can try to push through an agreement despite his irrationality, you can try to "go around him" by negotiating with someone else with authority who seems more willing to listen to reasons . . . or you may decide to pursue your BATNA because his irrationality has eliminated all hope of creating value.

I have a friend who is, literally,  a rocket scientist.  He says that there are no problems which cannot be solved -- only problems that we don't yet understand.  This is as true in negotiation as it is in rocket science.  In both cases, the wisest course is to assume you know nothing and begin asking the type of questions that would help learn something.

From Settle It Now Negotiation Blog

Most Mediators are taught to ensure fairness in process above all. After many years, and hundreds or thousands of negotiations, it can sometimes feel tedious and unnecessary to do so. However, at this past weekend's Employment Mediation Conference sponsored by the Southern California Mediation Association, some of the attorneys expressed shockingly disappointing results where the mediator failed to take the time to explain the process and ensure it's fairness. The outcome of the negotiation, it appears, is not determinative of the parties' ultimate satisfaction.

This morning, our local newspaper, the Los Angeles Times, included an article in the "Health" section, which explains that brain science backs up this effect. It's a good reminder for all of us: and those of you who are tempted to skip that process, in service of making the deal! I've copied the article here, but basically, it concludes that the brain actually responds differently when the studies made a "fair deal" v. merely "a deal" that ends the negotiation. I thought it interesting and informative and have copied it in it's entirety for you below.

Fairness is emotionally rewarding, a study finds
A fair deal activates parts of the brain also stimulated by earning money, looking at attractive faces or eating chocolate, UCLA researchers find.
By Elena Conis, Special to The Times
May 12, 2008
What's new: The sinking feeling that creeps in after you've paid too much for a house, car or new pair of shoes may actually be a hard-wired, neurological response to being treated unfairly.

On the flip side, getting a fair deal on that same car or pair of shoes stimulates parts of the brain associated with reward and happiness.

The finding: Researchers at UCLA's Semel Institute for Neuroscience and Human Behavior recently reported in the journal Psychological Science that getting a fair deal activated the same parts of the brain -- the ventral striatum, the amygdala and the ventromedial prefrontal cortex, together known as the reward circuit -- that are stimulated by earning money, looking at attractive faces or eating chocolate (in those who like the stuff).

Lead study author Golnaz Tabibnia, a postdoctoral researcher in the department of psychiatry and biobehavioral sciences, said the findings suggest people care about fairness itself not just because unfairness is unpleasant, but because fairness generates positive emotions. Fairness, in and of itself, she said, is emotionally rewarding -- regardless of how much money may come (or go) in the deal.

How the study was done: The researchers conducted two separate experiments. In both, the study subjects, all UCLA students, played a so-called ultimatum game in which a person called a "proposer" offered to split with them a certain amount of money, say $10. Sometimes the proposer would offer to split the money in half (a fair deal), at other times he or she would offer less than half. If the student accepted, proposer and student kept the money. If the student rejected the offer, proposer and student walked away with nothing.

In the first experiment, the 29 students who played the game were asked to report how happy or upset they were about each offer. In the second experiment, 12 students played the game while their brain activity was monitored using functional magnetic resonance imaging, or fMRI. The fMRI measures changes in blood flow to different regions of the brain, indicating which parts of the brain are more or less active.

When students were offered $5 out of $10, they'd typically accept the offer -- and their reward circuitry would light up. When offered, say, $2, roughly half the students rejected the money, and their brain region associated with disgust would light up. In the half that accepted the meager offer, their disgust region wasn't activated, but neither was their reward circuitry -- instead, the part of the brain that came into play was the region involved in self-control. "It's the neural pattern of what swallowing your pride looks like," Tabibnia said.

Why it matters: Essentially, the results bolster the maxim that money doesn't buy happiness. No matter how much money people make, or lose, in a deal, what determines how they feel at the end of the day, the study suggests, is how fairly they think they've been treated. "Certainly money is rewarding," Tabibnia said. "But more and more research is suggesting that our social relations with other people can also be rewarding, and can be very strong determinants of our happiness and satisfaction."

What we still don't know: Scientists think -- but aren't sure -- that emotional responses to fair or unfair treatment could differ based on gender, cultural background or socioeconomic status. Being poor, for example, conceivably could build tolerance to unfair treatment -- but the idea is pure conjecture.

From Jan Schau's blog.

If we are fortunate, mentors await us along our path, reaching out a hand to guide us when the road grows rocky or shining a light on the way ahead. Later our lives lead us miles and years from our own beginnings. In keeping our eyes on the path ahead, it’s easy sometimes to forget to look back and remember the ones who steadied our steps.

I received an email this week that reminded me how important it is to stop and look back, to recall our mentors and the difference they made to our work and our lives. The email was from my friend Ericka Gray, who shared with her colleagues reflections and memories on learning of the death of a champion of ADR and justice, whose wisdom and encouragement influenced the direction of Ericka’s own life. I thank Ericka for allowing me to share her message with a wider audience:

Dear friends and colleagues;

I just learned of the recent death of my first mentor in the field of ADR, retired judge Martin L. Haines. I wanted to share my knowledge of him with you.

He taught me to always challenge the status quo when the status quo wasn’t good enough and to always question things that I thought needed questioning. At my interview to become the director of the 4th multi-door courthouse in the US, he asked me what I thought my job might be. I responded, after having listened to his ideas, that it was to challenge the court system to do better and to make people think about things differently. I was hired even though I wasn’t a lawyer, as the job supposedly required. After working for him for several months, I revisited the question of my job and told him I thought that it was my job to cause some sort of trouble at least weekly. He smiled, thought for a moment, and said that he was inclined to agree. His eyes sparkled as he added that he often caused trouble and it seemed that he had the most fun when he was doing so. Since he wrote many controversial decisions and was known to routinely be questioned by those above him, he truly enjoyed what he did! I resigned when he announced his retirement since I couldn’t imagine working there for anyone else.

Judge Haines was an incredible man who had the respect of all, even those who didn’t agree with him. He was truly a gentleman. I will miss him. He has left an indelible mark on my soul and encouraged my passion for pursuing justice in both process and outcome for all. I wish that you all could have known him.

Is there a mentor you’d like to thank? Let them know while there’s still time.

From Mediation Channel

I am honored to present an interview with international mediator Ken Cloke, who has just published his 10th book: Conflict Revolution: Mediating Evil, War, Injustice, and Terrorism (Janis Publications), a book which takes the constructs of mediation and writes them large upon the world. Ken is a founding member and President of Mediators Beyond Borders.

Q: Why do you call this the “riskiest” book you have written?

A: I had to approach this book with genuine humility, yet also with (for me) unbelievable audacity. It was risky trying to write about how mediation might contribute to saving the planet, redesign economics, politics and the state, and tell us how to change the way we change.

Q: OK, you have to expand on that!

A: I started from the premise that every conflict takes place within an environment, a context, culture, and system. This environment or system, whether it is familial, social, economic, cultural, organizational or political, is not conflict-neutral. I realized that chronic conflicts must come from chronic sources within a system, so the question became how to change the system. I identified the “meta-sources” of chronic conflict that can be seen over the course of centuries as social inequality, economic inequity, and political autocracy, each of which is grounded in adversarial power and rights-based processes.

In mediation, on the other hand, we look at underlying interests to determine how to resolve disputes. My next step was to look at social, economic and political systems to determine what the underlying interests were, how power and rights based solutions were causing chronic conflicts. I then had to figure out what would happen if we used interest-based processes to tackle those conflicts, and apply conflict resolution systems design principles to each one.

Mediation has taught me that every large-scale conflict has a small-scale expression that can be seen in conflicts between two people. Small-scale conflicts start with language. For example, once we begin talking about how “they” are the problem, we distance ourselves from others, create stereotypes, and offer a justification for genocide. The question then becomes: How can we construct language so as to bring people together? Even deeper than language are intentions and attitudes. For example, respect is a very large, important idea that is expressed in the way we treat people who are different from us, or people with whom we disagree.

The same process works in reverse, from small to large-scale conflicts. For example, most people are highly sensitive to criticism. Yet on an organizational as well as a personal level, we know that every criticism simply represents something that is not working for somebody that can make organizations more effective and successful. Listening to criticism is something we can learn to do on a small scale, and if we can do it on a small scale in our interactions with others, why not apply it on a larger scale in organizations and political institutions? This would require us to switch from the language of “they” to a language of “we,” as if other people’s problem were ours.

Q: Are you suggesting a different approach to change?

A: Yes. Every mediation can be seen as a small-scale change process, and as mediators we all take an interest-based approach to conflict resolution. I am suggesting that we also take an interest-based approach to change, not only between two people but in social, economic, and political institutions.

Since this is an election year, let’s look at how we might create an interest-based approach to elections that would allow us to find out more about the candidates and identify solutions that might work. Rather than debates, which are adversarial, negative, defeating and ultimately useless, why not redefine elections and shift the paradigm by encouraging dialogs? What if we had mediators facilitating discussions among the candidates instead of scandal seeking journalists? What if we had mediators facilitate small groups of citizens brainstorming solutions and the audiences included experts in the topic? I came up with a list of 30 ways we could transform the electoral process so as to reduce chronic conflicts. This is just one example of creating change in one type of system. I examine ways to change many different systems in the book.

Q: The subtitle of your book is “How Mediators Can Help Save the Planet.” Can you give us a preview?

A: As mediators, we are also global citizens and have both a responsibility and multiple opportunities to spread our craft by building conflict resolution capability around the planet. The problems we now face, from global warming to species extinction and nuclear proliferation, cannot be solved by one nation, but require collaboration, which entails listening, informal problem solving, collaborative negotiation, and conflict resolution. We can help build a global culture of conflict resolution. This is the mission of Mediators Beyond Borders, which is working person-to-person, from the bottom up, to enhance conflict resolution skills and cultures in the US and around the globe. Every mediator can offer technical assistance to someone somewhere in the world.

At MBB, we are recruiting mediators to volunteer to do assist on many levels, from research, dialogue, and preparation of materials to conducting trainings in conflict resolution. Currently, for instance, we are training child soldiers in conflict resolution skills in Liberia and at the Bududuram refugee camp in Ghana. We are also working in the US in Mississippi and New Orleans and will soon be working with Indigenous Native American youth. Our goal is to create a global culture and political systems that encourage resolution rather than conflict.

From the blog of Nancy Hudgins

Washington DC, May 9th 2008 - Participants at the American Arbitration Association's 2008 Annual Meeting spent two hours focusing on mediator competency certification.

Presentations by Wolf Von Kumberg of Northrop Grumman Corporation, Nancy Lesser of PAX ADR LLC, Christopher Honeyman of Convenor Conflict Management and Michael Leathes of IMI were followed by a discussion.

Then 12 questions, with a selection of multi-choice answers, were posed to the delegates who used individual electronic keypads to register their opinions on the subject in secret ballot format. To view, scroll down this document;

From the blog mediator blah...blah...

Thanks to Geoff Sharp at mediator blah blah for directing us to this great U.K. Mediation resource, The Mediator Magazine which is great to poke around in a little when you're home for mother's day and mom's gone off to bed.  Here, for instance, are some well taken criticisms of mediation practice by in-house counsel from the article Where's the Magic?

Top of the list of issues which invite scorn is perceived weakness on the part of the mediator. Giving palpable nonsense and well documented fact equal air-time in the interests of appearing open-minded has backfired for a number of mediators. 'It can be frustrating where they [the mediator] can see the irrationality of the other party, how their claims and positions are unsubstantiated, and