Most people know that when you approach mediation, you typically bring a different tone of voice and even a different vocabulary from the rest of litigation. Instead of speaking in adversarial terms with “causes of action” and “affirmative defenses”, even the most hardened of litigators appreciate that the purpose of mediation is largely to state their side’s claims (or story or narrative), listen to the other side’s perspective and then negotiate a sensible deal in light of the risks, expenses and evidence that is known or likely to be produced. When we get to “brainstorming” or that creative idea generating, we can speak in the language of “what if’s” or “option generating”. There, we are not constrained to the legal rights and remedies which limit the court. We can “think outside the box” in order to get to the real interests of the parties, not just the likely outcome at trial. Like learning a foreign language, reading music or “coding” a new computer program, the language of mediation can be an important instrument which, if used effectively, can serve to tame the beastliest of adversaries in a single day. How’s that for a creative idea?
All right, this falls into the category of “who knew?” And it seems the perfect post for a summer Friday. There is a World Rock Paper Scissors Society. Their tagline...
By Tammy LenskiRelated Video 25 Year Megatrends in Governance (20,000 ft view) General trends (next 10 years): “Tectonic shifts in the boundaries of the state” Don Kettl Continued “hollowing out” or “retreat”...
By Kirk EmersonJay Folberg talks about a client-centered approach where the parties (and lawyers) should choose the kind of process and style they want in a mediation.
By Jay Folberg
