According to the employee, he’d been ready and able to go back to work for the past 6 months. What’s more, the medical division had officially cleared him to go back to work 6 months ago. Despite periodic phone calls to his manager and to the medical division, the employee wasn’t told by management that […]
“Trust the process,” said the mediator. He was leading a divorcing couple through a discussion of the items in their budgets. The husband was saying that he didn’t care what his wife’s cable bill would be – he said it had no impact on the alimony he would pay. The mediator said, “Ok, but just […]
Yishai Boyarin and Christopher Gioia wrote this post. The skills and underlying premises of transformative mediation are often contemplated in the context of mediation. But is there a place for using the skills of a transformative mediator as an advocate in a contentious litigation? Here is the story of Chris G., a recent Hofstra graduate […]
I was looking forward to participating in this mediation. I was curious to see this process that seems so outdated and so much less meaningful than it could be. I feared that everything I’ve heard from litigation-mediators about how they view things would manifest itself in a tedious, frustrating process. The last time I had […]
- Owen could have the chance to thoroughly express his perspective, including his descriptions of how Frank, New Company, and Adam have done wrong. Ideally he could express these things in a way that makes it clear to him that everyone on our side has heard, understood and taken seriously his perspective. In general, it works best if he’s not challenged as he speaks, and if the only questions asked are for the purpose of clarifying what he means, so as to let him know that he’s not being doubted but that we are genuinely trying to understand him. If he insists on having his lawyer(s) speak for him, that’s not ideal, but we should act consistently with our desire to thoroughly understand him and them. The benefits of Owen and/or his lawyers having this opportunity include:
- relieving Owen of some of his need to “teach us a lesson”, “show us that he means business” or “be taken seriously". Let’s let him teach us; let’s be impressed by how much he means business; and let’s take him seriously.
- giving us insight into what’s motivating him. This insight can help us
- think of responses that might help him see his way to accepting more of our terms
- give us information that will be helpful if the fight continues
- Frank, Adam, and others of us who have direct knowledge of the facts could clear up Owen’s misconceptions (after Owen has had the chance to be fully understood).
- Things that he’s just plain factually wrong about can be disputed.
- Areas where he’s making false assumptions can be corrected.
- Questions he has about facts we know can be answered.
- And points that he’s making that are true and that seem important to him can be acknowledged.
- We can ask Owen questions that we want answers to:
- What were the income and sales numbers that weren’t disclosed to both Frank and Adam that we believe should have affected their commissions and ownership?
- How does he justify withholding that information if he continues to do so?
- What’ are his real practical concerns:
- Is he hoping to derail Frank’s work with New Company?
- Is he afraid he’ll lose all of his customers?
- Is there a way we can reassure him that it’s not as bad as he thinks? Or do we need him to understand that he’s screwed no matter what? Or is there some hybrid version we can help him come to grips with?
- Just as Owen should have a chance to be thoroughly understood, so should we. It will be helpful for Owen to know just how certain we are that no trade secrets have been stolen, that no other violation of his rights has occurred, that he’s legally obligated to pay significant amounts to Frank and Adam and that he’s obligated to pay everyone’s attorney fees (assuming we continue to feel clear about all of these issues). It will also be helpful for him to know just how motivated and capable of continuing to fight we are. It will also be helpful for him to know any ways in which we are willing to work with him on a settlement and/or help minimize the damage that’s been done to his business. And it’s important for us to get anything off our chest that might be clouding our judgment on how we proceed.
- The lawyers should have a chance to discuss and debate the legal merits of the claims and counterclaims. If there are legal angles that Owen's side has thought of that we haven’t considered, we should hear those. If Owen’s lawyers misunderstand the weakness of his claims and the strength of our counterclaims, they should have the chance to be brought up to speed by our lawyers. To the extent there are areas of uncertainty, Owen and we should have the chance to evaluate that, based on what we hear from the lawyers whose job it would be to continue the fight.
written by Janet Mueller My social media feed was filled with clever posts yesterday (May 4th, 2015.) The Stars Wars geeks in my life are many and so were the “may the fourth be with you” memes. But every time I saw “May 4th” a very different image came to my mind. In 1970, four […]
“Hey Danny, Amy and I are having a fight, can you mediate for us?”, said my old friend. “Sure, if you both want me to,” I said without hesitation. I’d known Charlie since 7th grade (only people I’ve known that long get to call me Danny), and I’d gotten to know Amy over the last […]
“This mediation probably won’t go anywhere – the parties are too far apart. And, by the way, I’m pretty sure my client won’t want to be in the same room with the other party.” “Ok, got it. And of course, we only need to continue the mediation for as long as you feel like it’s […]
Why hasn’t transformative mediation swept the world of litigated disputes with represented parties? A new video reveals that there’s no good reason. While the transformative approach has succeeded in the US Postal Service workplace mediation program, and while some community mediation centers and family mediators have embraced it, the realm of civil litigation continues to […]
Defendant’s Lawyer: “We’ll reluctantly offer you $5,000. We’re doing that simply to avoid the costs of ongoing litigation. We don’t believe your case has merit.” Plaintiff’s Lawyer: “We believe our case does have merit, and we believe a jury might award us in excess of $1 million – but because our client would like to […]