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The Gentle Art of Dispute Resolution – Mediation Lessons from a Jiu Jitsu Practitioner

Brazilian Jiu Jitsu, which I have practiced for more than a decade, has taught me invaluable life lessons on and off the mats.  After a recent training session, I began to realize that many of the lessons of jiu jitsu apply to a different part of my life: mediation.

Paradoxically known as the “gentle art,” Brazilian jiu jitsu is a form of martial arts focused on grappling, ground fighting and submission holds, with a self-defense component, which emphasizes taking any fight to the ground and seeking a dominant position before seeking a submission via joint locks or chokeholds.  Originally brought to prominence by the Gracie family and the UFC, it is now a popular sport for hobbyists, including celebrities like Mark Zuckerberg, Tom Hardy and Demi Lovato.  At most gyms, you will find plenty of middle-aged professional workers seeking to blow off steam, sharing the mats with 20 year old competitors with an eye to a career in the sport.

Here are 5 key jiu jitsu axioms lessons that mediators can apply. 

  • Don’t Forget Your “B” Game

After practicing jiu jitsu for a few years, practitioners develop their “A” game, i.e., their favorite moves and positions.  Because your “A” game doesn’t always work against every opponent, it is important to develop a “B” game, using other moves or positions as a backup.

Similarly, after years of practice, mediators will develop their own style.  For example, some mediators prefer to be evaluative – assessing each party’s case and giving their opinion on the strengths or weaknesses of the case.  In contrast, some mediators prefer to act solely in an intermediary manner, not really giving their opinion on the merits of the case, but only attempting to move the parties towards settlement. 

When a mediator’s style is not working and the mediation is grinding to a halt, the mediator should consider bringing out their “B” game.  For example, if one party is not moving off their evaluation of the case and negotiations are stagnating, the mediator should consider providing their own evaluation of the case, in an attempt to move negotiations forward.

If a mediation is going nowhere fast, mediators should consider switching it up and shifting to a different approach. 

  • A Black Belt is Just a White Belt Who Never Quit

Getting a black belt in jiu jitsu is hard – it generally takes 10-15 years of consistent practice.  Estimates vary, but only about 5%-10% of people who try jiu jitsu wind up achieving a black belt.  If you ask black belts how they got there, a common answer is persistence and a refusal to quit.

Most mediators will acknowledge the importance of persistence in their work.  A mediation can be unproductive for any number of reasons: obstinate counsel or parties, inability to agree on facts or valuation, or a lack of preparedness by the parties.  At that point, the mediator has to make a judgment call, is it worth persisting with the mediation, or is it time to call an end, with no resolution on the horizon 

There is no right answer, and sometimes there really is no possibility of a resolution for a myriad of reasons.  However, a mediator who is able and willing to keep the parties talking is more likely to achieve a breakthrough, than a mediator who calls an end to the negotiation at the first sign of resistance. 

  • Tap Early and Tap Often

When caught in a submission in jiu jitsu, participants can verbally submit, or “tap out” in order to get their opponent to release their hold without being injured.  One of the first lessons in jiu jitsu to avoid injury is “tap early and tap often,” meaning when you are caught in a bad position that you cannot escape, tap out and move on.

Similarly, if a mediator’s interactions with a party are going poorly, or becoming antagonistic, the mediator should consider “tapping out” and pull out of the breakout room, to allow the party time to consult with their attorney and calm down.  Mediation can be an emotional process for parties.  If the mediator’s line of inquiry with the party is in affect making matters worse, pull back, reset and try again. 

  • Check Your Ego at the Door

In jiu jitsu, participants are told to “check your ego at the door,” meaning, whatever your personal and professional background, everyone on the mats is equal and the outside world does not matter.

Mediations generally consist of accomplished professionals representing the parties.  During some mediations, the mediator will be subject to a performance by an attorney in front of their client, where the mediator is lectured about the facts and righteousness of their client’s case.  This is often for show, but can nonetheless be uncomfortable for the mediator to sit through.  It can be difficult for the mediator to bite their lip, but it is important for the mediator to remember their sole purpose – to help the parties reach a resolution.  The mediator must remember to check their ego at the door and remember the mediation is not all about him or her, even if the mediator thinks one of the parties is blatantly in the wrong, the importance of neutrality must stay at the front of the mediator’s mind throughout the process. 

  • Work With Your Partners

When practicing, jiu jitsu training partners often train in a cooperative manner, working in a way that lets both partners try new moves and improve their game, rather than trying to “win” every round.

Similarly, mediation does not have to be a zero-sum game.  While attorneys should strive to maximize their side’s position, there is nothing inherently wrong with the parties cooperating during the mediation.  Mediators should be prepared to remind the parties during the course of the mediation as needed, in order to reach a successful resolution.

author

Darren Rumack

Darren Rumack is a partner at the Klein Law Group P.C., which represents employees and employers in all areas of employment discrimination, wage and hour law, and workers’ compensation. Darren is also an active employment law mediator in both the SDNY and EDNY, and is currently a Brazilian jiu jitsu… MORE

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