It is somewhat amazing to me how many different ways there are to approach mediation, both from the standpoint of the mediator and the standpoint of the attorneys and participants. Some methods are very successful and some are just downright awful.
One thing I’ve seen consistently is that the most essential part of successful mediation is that it should be voluntary. I have been lucky to have mostly willing participants. As a mediator, I only failed to settle one mediation and, as an advocate, one more, which we later won in court. Both times the involved parties did not want to mediate. They were present only because it was required of them.
I am sure that the voluntariness of the parties to the mediation is central to the reasons my mediations have gone well. Any mediation that is forced is rarely the best avenue for settling a dispute. A faked “good faith effort” drags everything on, wasting everyone’s time and money. Judges order mediation with the best of intentions, but some cases (hopefully rare ones) need to be settled by a jury or a judge. Sometimes, people just need their day in court. We must always preserve the rights of the parties to avail themselves of our justice system.
People attending my speeches and trainings repeatedly ask me to continue helping folks make mediation outcomes better. So, I am introducing a new email where people can subscribe to receive my tips for attorneys and their clients who mediate. You can subscribe right on the Home Page of this website.
The email’s title, The Taming of the Feud, is a nod to the voluntary principle in successful mediation. Katherine, the protagonist in Shakespeare’s play, The Taming of the Shrew, was unwilling to participate in Petruchio’s marriage plan. This caused their ultimate contest of wills and earned her the characterization of a shrew – a shrieking, cantankerous, little mammal. (Had she been a willing participant instead, their problems likely would have been sorted shortly, the play would have an entirely different plot (and possibly title), and most of us might not even know what a shrew is!)
… but I digress. For the sake of mediation best practices, I encourage everyone to take the newsletter and also to seek the voluntary, open-minded approach to mediation. With willing participants, I am convinced that a true good faith effort in mediation can settle all disputes.
In addition to sharing my experienced-based, actionable tips, my plan for the email is to feature interviews with mediators, judges, and advocates, sharing the knowledge and insights acquired. I hope to distribute the widest array of helpful understanding and best practices that I can gather.
As we get things going, please email me to let me know if you want to be interviewed by me for a future Taming of the Feud Tip.