tag:blogger.com,1999:blog-18850327.post5489249022981797857..comments2023-08-10T02:27:32.601+12:00Comments on mediator blah...blah...: The legal community has learned to accept low-functioning mediationGeoff Sharphttp://www.blogger.com/profile/09440892864160295577noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-18850327.post-39770482722587296742009-03-18T07:13:00.000+13:002009-03-18T07:13:00.000+13:00Simply a great article and so timely for me. I ju...Simply a great article and so timely for me. I just conducted the most wonderful mediation but I have to attribute its success to the attorneys. Both attorneys were willing to meet with me privately (without their clients present), both attorneys were willing to allow me to meet with their clients privately without the attorneys present and both attorneys were open to multiple joint sessions. It was a refreshing experience and one I hope to duplicate many times over in my mediation career. I owe it all to the open-mindedness of the attorney litigants. Bravo to you!!<BR/><BR/>Sandra Upchurch<BR/>Mediation Counsel<BR/>Upchurch Watson White and MaxSandra Upchurchhttps://www.blogger.com/profile/12777961486854095559noreply@blogger.comtag:blogger.com,1999:blog-18850327.post-46577264572715601132008-07-04T12:17:00.000+12:002008-07-04T12:17:00.000+12:00Err, the best mediator I know, one that I have to ...Err, the best mediator I know, one that I have to spend a good deal of effort to schedule with two months in advance or further, often skips joint sessions, purely because they just slow things down.<BR/><BR/>I consume a lot of mediation services, thousands of dollars worth each month. I don't pay for lazy mediators and I sure as heck wouldn't fight through the scheduling for the guy I'm talking about if I thought what he did was worthless.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-18850327.post-12240083979042520252008-06-27T05:51:00.000+12:002008-06-27T05:51:00.000+12:00Geoff,Excellent thoughts. I love holding joint se...Geoff,<BR/><BR/>Excellent thoughts. I love holding joint sessions in my mediations. I can't ever recall holding a mediation where I didn't start in a joint session. I've had clients who have refused to sit in the room with the other side and I've cajoled them to be in there even for a little bit.<BR/><BR/>IMHO, the biggest problem with only caucusing is that it perpetuates the problems you're mediating. The other side is very frequently demonized (yes, some transformative theory) and rarely humanized. It is far harder to deomonize someone when they are sitting there trying to explain their side in a rational manner (and they all have to listen!). It is no different than how people will say horrible things in an email which they would never say to a person's face. <BR/><BR/>Reserve caucus for the more private things that caucusing is supposed to be for...not shuttle diplomacy.<BR/><BR/>Incidentally, it is the attorneys who are theones who most frequently and quickly want to head into caucus. I think they miss a good opportunity to assess their own clients and how suitable they will be in a deposition or on the witness stand in trial.<BR/><BR/>It's also strange how divorce and elder mediations (which I also do in addition to commercial cases) rarely caucus. Resolution rates on divorces and elder mediations are generally higher than court-annexed commercial cases.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-18850327.post-68446298074785127582008-06-22T22:53:00.000+12:002008-06-22T22:53:00.000+12:00Oh brave man! I also have a couple of posts which ...Oh brave man! I also have a couple of posts which are still in the drafts folder for the same reason: my blog is even less established than yours! My recent articles have addressed the subject with a light touch!<BR/><BR/>I was in a meeting the other day with colleagues and we were talking about "customers wanting opinion/adjudication". I couldn't agree that anyone had made a case for it. The response was 'well it is what the customer wants". My unspoken reply was "which customers are you talking about?"<BR/><BR/>And I think this is the rub: mediators may have forgotten that the real customers are the parties and not the people who 'select' them. I know the market is competitive and mediators want lawyers to select them - of course we do. But I feel we are drifting away from the very principles and values that made us all so passionate about mediation in the first place and which also made it work.<BR/><BR/>And at the risk of instant death: one of those principles is that mediation is about restarting communication so that a deal can be done and if appropriate the relationship restored. How do you do that unless people have a conversation - together?<BR/><BR/>And the other principle which seems all but abandoned is even better expressed by Blaise Pascal (1623-1662) a mathematician and philosopher who said "We are usually convinced more easily by reasons we have found ourselves than by those which have occurred to others."<BR/>Pascal's father was a very well known judge in his time. I am curious if that had any influence on his thoughts about this.Amanda Bucklowhttps://www.blogger.com/profile/16747325055484021814noreply@blogger.comtag:blogger.com,1999:blog-18850327.post-75343447126583366962008-06-21T12:25:00.000+12:002008-06-21T12:25:00.000+12:00Thanks for this honest and thought-provoking post....Thanks for this honest and thought-provoking post. I'll have to sit with it a bit before I respond in a more content-focused way. It may even take me six months!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-18850327.post-10786968053691946922008-06-17T17:42:00.000+12:002008-06-17T17:42:00.000+12:00yes yes yes yes yes - but not a position-based joi...yes yes yes yes yes - but not a position-based joint session. That's where the process failed. Lucky me we can discuss this over dinner tomorrow!!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-18850327.post-51917510044763116882008-06-17T13:43:00.000+12:002008-06-17T13:43:00.000+12:00Gutsy post Geoff - this certainly takes the debate...Gutsy post Geoff - this certainly takes the debate up a click or twoAnonymousnoreply@blogger.com