Lee Jay Berman has a movie actor profile picture and, coming from L.A, no doubt mediates most of Hollywood’s troubles away as well.
He is one of the most active mediators out there and recently founded the American Institute of Mediation.
Take a look at this email from Lee Jay that came across my screen this week as part of a mediators’ list serve discussion on neutrality.
We now have new mediator speak; mutual partiality.
How’s this for dynamic, innovative thinking?
‘When I think of neutral, I think of a car revving as loud as it wants to, but with no ability to move forward.
When I think of impartial, I think of driving the car down the middle of the road and keeping it from going too far to either side.
But how I see my role is what I call Mutually Partial. I see myself as a coach for each participant, helping them get as much of what they came for as I can. I am partial, when caucusing with the plaintiff, in helping them strategize to maximize their take-away, and to make sure they’re getting EVERYTHING they came there to get (non-economic, emotional, closure, big picture of their life, etc.). I am partial when working with plaintiff’s counsel to get what s/he wants (money, reputation, referrals, etc.). I am partial when caucusing with the defendant as I help them to strategize how they play their given hand of cards, evaluate their risks, consider their overall big picture and making sure they have what they need in their file to support the settlement they’re authorizing. I am partial when working with defense counsel to ensure that they strategize and counsel their client well, that they look good, and get a settlement that they can recommend at the end of the day. I help people find their reasons for doing what they need to do to settle. I serve as a negotiation coach more than a message carrier. I lend my expertise and creativity as I offer them options and choices. I clarify for them all what’s going on in their negotiation from my neutral view. Basically, I help everyone come out of it OK. Years ago, the Daily Journal, California’s legal newspaper, wrote a story about me they titled, “Painless Mediation”, and that was really accurate.
So, I am not neutral. I never claim to be. If I were neutral, I could not offer them as much value as I do. I just offer it mutually.
I am very active as a mediator. I am engaged, involved, moving, coaching, suppressing what will hurt the negotiation, emphasizing what will help it, making active choices about who to meet with in what configurations so that I can build a bridge for settlement between the most reasonable people in each room. I select ambassadors from each side to meet – usually counsel, but not always – and I move things forward.
Lately, I feel like most of my mediations are being snatched from the jaws of failure at the last minute. I think that if I wasn’t as active and mutually partial, more of them would not settle. And in the commercial world in which I work, in a highly competitive Los Angeles marketplace, success is defined by helping them get to the finish line.
I know this may sound cold to the purists. But as Ken Cloke would say, I mediate dangerously. I take risks. I also Harness the Power of the Master Mediator and practice Heavy Metal Mediation and believe that Impasse is a Fallacy. In my world, neutrality, in its purest sense, interferes with my effectiveness. Mutual partiality is appreciated by the parties. And to be truthful, they usually need the help!
OK, I’m braced… let me have it!
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