{3 minutes to read} Wow, Daylight Savings Time. At last. Was there ever a time we needed some extra light more than now? Even though changing the clock doesn’t really give us more daylight, we all feel better when it’s still light out at 7 pm. Or later. Shedding light on things is generally seen as something good. It implies opening up and understanding. It’s also one of the great aspects of mediation. It’s why mediation works.
{3 minutes to read} Among the many crises created by the pandemic are shuttered, or barely functioning, courts. The backlogs are growing. And growing. Juries aren’t being picked. Trials aren’t being held. How do cases get resolved? How will the courts function again?
Some courts have begun doing online conferencing. However, as everyone has noticed, we seem to live in a Zoom world these days and Zoom mediations are taking off. These virtual meetings have emerged as a way to unclog court backlogs and bring new benefits to litigants. They even offer some advantages and may reflect one way our post-pandemic world will look.
{3 minutes to read} There are 24,601 reasons why divorce mediation is preferable to divorce litigation. One of them, however, is that when a couple engages in mediation, they can create the details of their post-divorce life by figuring out together what works. In mediation, they can talk directly to one another about important matters, something divorcing couples often find very difficult to do outside of that setting. Over time, such conversations not only allow the couple to work out the details of the divorce — and creating a new life is no small matter — but help them create a foundation for future conversations. And when a couple has children, the odds are likely they will need to talk to each other for years to come.
{3 minutes to read} In my last blog, I made the connection between theater and mediation, noting that good theater often addresses the types of conflicts that could be resolved in mediation. A play about mediation might be a real bore, because it’s after the fact. Protagonists have already done whatever created the dispute. Creating conflict makes for good theater. However, resolving conflict can also be engaging.
{4 minutes to read} Most people know the basic plot behind West Side Story, which in turn was based on the Shakespeare play Romeo and Juliet. The Jets and the Sharks are teenage gangs at each other’s throats. The Jets are white, mainly the sons of Polish or Italian immigrants, while the Sharks are recently arrived, resented immigrants from Puerto Rico. Both gangs are young, hormone-driven, and infected by the stereotypes of time immemorial. They don’t realize they’re fighting the same battle for respect and dignity. Throughout, there is coded language used to inflame, and inevitable miscommunication because they’re unable to see their common interests until it’s too late — like what happens in many conflicts.
{4:30 minutes to read} A friend recently told me about a situation involving her neighbor at the condo development where she lives. She and the neighbor were never close friends, but they were friendly toward each other, saying hello and chatting when they would see one another.
About a year ago, however, things began to change. The flowers my friend had planted in her front yard for several years were now not to her neighbor’s liking. And the awning that provided shade on the rear of my friend’s unit, which faces west and can get hot in the summer, was suddenly a violation of the condo rules. The awning had been up for about seven years.
{4:06 minutes to read} My last blog addressed caucusing basics. I thought it might be interesting to expand the topic a bit to include some variations. As I previously wrote, non-divorce mediations are largely conducted through caucusing, with the mediator speaking to each side separately for much of the mediation. Divorce mediations typically are not conducted in this manner. But these are generalities; there is no one-size-fits-all.
Sometimes it can be useful to send the attorneys on a walk without the intrusion of the mediator or the parties. Counsel may have a prior relationship that enables them to talk outside the hearing of their clients, in a way that permits cutting through some of the formalities or concerns they would have if clients were present. I have successfully used this approach even when the lawyers did not previously know each other but developed a rapport during the course of the mediation.
{3:36 minutes to read} Caucusing – speaking to parties separately outside the presence of each other – is a standard part of most mediations. It is essential in just about every commercial, employment, or personal injury matter. Parties often feel free to say things to the mediator that they do not want to say to the other side. And the mediator can say things to parties and their attorneys that could not be said in a joint session. It also allows the mediator to develop a strategy to help bring the parties positions closer together.
Whatever a party says in the caucus is confidential, unless they agree it can be disclosed. In multi-party matters, this can become a bit complicated but the basic rule is the same.
{Time to read: 3 1/2 minutes} During every mediation I try to establish a personal relationship with the parties and the attorneys. No, we don’t go out for drinks together. But I want to know more about the people other than the dispute that brought them before me. Often I ask simple questions. These may differ depending on the nature of the case. All mediations – employment, divorce, commercial, personal injury – provide opportunities for talking about more than just what’s in a complaint:
Resistance to mediation comes in many forms. There can be resistance to the entire process.
From attorneys:
Until relatively recently, many attorneys would not have participated in mediations in a meaningful way. They thought it would lead to a competitive disadvantage by forcing them to put their cards on the table prematurely. Sometimes lawyers have seen mediation as interfering with their income: the more a case goes on, the more I make.