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Tag: Divorce Mediation Process

Darkness and Mediation

{3 minutes to read}  Someone once asked me what the key was to resolving a case in mediation. My answer was simple: “It starts getting dark out.” Funny perhaps, but truth is implicit in all humor. One of those truths is that almost all people participating in a mediation want it to succeed. Including those who say on the first phone call, “You know, there’s no way this case can settle.” 

A related metaphor to the above is that mediation usually sheds light on things, though it doesn’t happen all at once. Facts emerge, positions get revealed, as do the reasons for those positions, and positions morph over time. Settlements are reached for all sorts of reasons, not the least of which is that everyone just wants to get it over with. Sometimes that happens in a day, several days, weeks, or even months. The desire to get a conflict over with and move on can often be quite a beneficial stimulus to resolving a case. And “when it gets dark out,” people say all sorts of things they couldn’t or wouldn’t have said at the start.

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Who Needs to be There: Personal Injury

{4 minutes to read} As my last blog took all the mystery out of the still almost-new AI phenomenon, we now return to the issue of who needs to be present at a mediation. I have previously addressed this issue regarding construction and divorce cases. The obvious answer to the question of who needs to be present at a mediation would be the parties however, that is not always the case. This is particularly true in personal injury matters where sometimes neither the plaintiff nor the defendant is present.

Since motor vehicle accidents are the most typical personal injury cases, I’ll use those as the basic example. Defendants in personal injury cases are often represented by counsel hired by insurance companies. That attorney is always present, and now that so many mediations are done via Zoom, an insurance adjuster may also attend. The defendant driver? More often than not, he or she is not present, especially if that driver was already deposed. The Plaintiff’s attorney is at the mediation, and certainly the injured plaintiff, right? Maybe. But maybe not. 

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AI and Mediation

{7 minutes to read}  I’ve been writing recently about exactly who needs to/should be present at a mediation. I’ll get back to that, but what about Artificial Intelligence — AI — the hot topic du jour? What role, if any, does AI have in the field of mediation? Some of you may recall that an AI therapist was created some years ago and at least one study showed it could be quite effective in addressing many issues people generally would discuss with your basic homo-sapien therapist. Scientific American recently provided an update on all this. To some extent, any means of generating self-reflection can be useful in helping people unwind personal problems.

Artificial Intelligence. Cyborg. Concept — Photo

So, how about an AI mediator? One can imagine inputting information into a program and having the program generate possible outcomes that might help resolve a dispute. For divorce mediations, Family Law Software (created by the same fellow who created what became Tax Cut), generates financial “solutions” for divorces once data is entered about income, expenses, taxes, children, etc. Change any of the information relating to those items, and voila, the program spits out new results. This in turn can be helpful in discussing different scenarios as to who will pay whom for what and for how long. The program cannot address the angry spouse who believes any result will be unfair for various reasons, all of which may be understandable. So far at least, that still requires the subtle touch of a human mediator.

AI probably will not, any time soon, be able to handle the nuanced conversations that often take place when opposing parties are together, or during a caucus where the mediator can explore delicate matters that may require some private discussion. The back and forth conversation itself is often what generates movement and ideas, and allows emotions to be expressed and used constructively. That said, one would have lost lots of money over the past 50 years betting against the development of new hardware and software that changed our lives in ways never contemplated at the time. Since March of 2020, the vast majority of mediations are done on Zoom and initially people wondered if online mediations would be less effective because people would not be physically together. However, that turned out not to be the case.

A recent piece I read about AI and mediation said that one positive aspect of AI is that it is less likely to make decisions based on subjective factors because they are not influenced by emotions or personal biases. However, resolving a dispute can often hinge precisely on people being able to express their “subjective” emotions about a factual dispute or even on relevant legal issues.

So what can AI do? I asked ChatGPT how it could assist in a mediation, and it spit out the following in about 10 seconds. It’s basically a guideline of how to approach a mediation. However, the references to ChatGPT are meaningless without any “how-to” examples. Indeed, if you artfully replaced the word “ChatGPT” with the word “Mediator” you would have a good example of how mediation works.

  1. Introduction: Start by introducing the concept of ChatGPT to the participants. Explain that it is an AI-powered tool designed to assist with communication and brainstorming.
  2. Establish ground rules: Set clear guidelines for the participants to ensure respectful and constructive engagement. Emphasize that ChatGPT is a tool to support the mediation process and that the participants themselves will make the ultimate decisions and agreements.
  3. Define the issue: Clearly define the main issue or conflict that needs to be resolved. Provide an opportunity for each party to express their perspective and concerns.
  4. Individual input: Allow each party to privately engage with ChatGPT separately. They can provide a summary of their viewpoint, goals, and potential solutions. ChatGPT can offer suggestions, ask clarifying questions, or encourage the parties to think more deeply about their positions.
  5. Joint session: Bring the participants together to share the summaries generated by ChatGPT. Encourage open discussion and active listening. ChatGPT can be used to facilitate the conversation by summarizing key points, suggesting alternative perspectives, or posing additional questions.
  6. Brainstorming and exploration: Use ChatGPT as a collaborative tool to generate new ideas and explore potential solutions. Participants can input their proposals, and ChatGPT can help analyze and evaluate them based on the input received.
  7. Reality testing: Ask ChatGPT to simulate potential outcomes or consequences of different proposals. This can help the participants assess the feasibility and desirability of various options.
  8. Reframe and re-evaluate: Encourage the parties to reframe the issue and revisit their initial positions. ChatGPT can provide alternative perspectives, challenge assumptions, or propose creative solutions that may not have been initially considered.
  9. Facilitator guidance: As the mediator, it’s important to guide the process, ensuring that the participants stay focused and respectful. You can also provide additional context, ask probing questions, or suggest specific areas of exploration for ChatGPT.
  10. Final agreement: Once the participants have explored various options and engaged in meaningful dialogue, guide them toward reaching a final agreement. Emphasize that the decision-making process is ultimately theirs, and ChatGPT only serves as a tool to support their communication and problem-solving efforts.

SO: Here’s my question to you: HAVE YOU FOUND A WAY FOR AI TO BE USEFUL IN A MEDIATION? If you tried, what worked and what didn’t? Did it save time, present useful ideas, suggest alternatives, prepare a draft of an agreement, and create grounds for constructive dialogue? Something else? Do tell, please.

Gary Shaffer Gary Shaffer
Shaffer Mediation

Can Mediation Turn Back the Clock?

Reverse clock with wooden frame isolated on white background

I’ve written before about what success means in mediation. Often it means a complete resolution of a dispute and the parties can go on their way, having saved lots of time, aggravation, and a bundle in litigation expenses. Even when there is not a complete resolution, mediation often resolves at least part of a dispute or helps the parties significantly lessen the amount of discovery needed as the case moves forward. However, can mediation undo what’s been done? Can it restore the parties to some kind of pre-dispute state of harmony?

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Seeing the Light

Open road on abstract screen against door opening revealing light

{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.

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To the Zoomiverse and Beyond

William Shakespeare in period clothing sitting in school desk with laptop computer.

{4 minutes to read} I’ve written before about the Zoomiverse and mediation. So far, so good. No one has yet said: Boy, I can’t wait until we can all travel to and from a mediation and maybe have a client, or clients, fly-in only to find out that someone couldn’t make it at the last minute. Apparently, no one is overwhelmed by the benefit of sitting down at the table together, shaking hands, and exchanging angry glances with someone only a few feet away.

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Hanging Up the Cleats

stock-photo of hanging football boots with cleats isolated

{4 minutes to read}  So when is it time to hang up the cleats? Some pitchers or quarterbacks hit the wall at 30, others, far fewer, at 40. If you’re a gymnast (not that they wear cleats), forget it. Lasting past 25 can be a miracle. And when should a President hang it up? 

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Practice Makes Perfect

Stock Photo Practice Makes Perfect - Image of man practicing saxophone holding music up with his foot.

{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.

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Moving from Factual Exploration to Resolution

Fun Fact Trivia - Zebras are actually black with white stripes not white with black stripes

{4 minutes to read}  My last blog addressed the relationship between “fake news” and mediation. I posited that resolving a dispute through mediation typically does not result from the parties agreeing on the “truth” or the facts underlying the dispute. Assuming that’s the case, what are the implications?

Here’s one: In general, I find that divorce mediations take longer than most other kinds of mediations. That’s not because divorcing couples take longer to agree on or figure out the relevant facts than, say, commercial litigants. More often than not, divorcing couples can eventually agree on their financial circumstances.

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Two Game Changers in Mediation

{3 minutes to read} Two enormous “game changer” mediation moments came back-to-back recently. Let’s start first with the local news. On May 14th, New York State’s Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks announced a systemwide initiative in which parties in civil cases will be referred to mediation as the first step in the litigation process.

This is a very big deal. While it won’t happen overnight, this will eventually establish New York as the nation’s leader in making mediation an essential component of dispute resolution in the courts. Hundreds of thousands of cases that previously would have cost gobs of money and taken years to resolve — with limited input from the actual parties — will now go to mediation and get resolved with direct input and participation from the parties, with far less financial and emotional cost.

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About Us

An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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