What’s a cat got to do with it?

Do you remember the thought experiment about Schrödinger's cat? You might wonder what Mr. Schrödinger's feline has to do with mediation? I recall listening to eyewitness accounts of a car crash and wondering if the witnesses all saw the same event. In the context of conflict, understanding the client’s point of view (and yours, as well) is critical. It's not a simple or easy thing to do.

Notions like "nature is neither here nor there" and the question "is there a true story, or is our belief in a definite, objective, observer-independent reality an illusion?" are fascinating for physicists. But, again, how do they relate to mediating lawsuits?

For my purposes, I regard the paradoxes of quantum physics as a metaphor for the unknown infinite possibilities that exist in every controversy I mediate.  Science suggests that there is one true story, but that it has many facets, seemingly in contradiction. That is why bringing facts to light is central to understanding (and resolving) controversy.

In any conflict, people want to create an harmonious, attractive picture of their story. While looking through the prismatic lens of emotions, they gather together all of the facts ("facets") they need in order to create the picture they want. Then, using common sense, logic, reason, metaphysics, guile, you name it, they stitch these facts together into a “true” picture of their story. Even though they have all gone through a similar picture making process, the results are so different that they cannot recognize the others’ pictures as true. What they lose sight of is that while there was only one car crash, only one marriage, only one breach of contract, they all observed the event from their own unique perspectives and their pictures of the controversy reflect that fact.

These pictures at a distance create an illusion of a forest. If all you have to talk about in a negotiation is your picture, you may as well take everyone’s pictures of the forest, tape them to the wall and argue over whose picture of the forest is prettiest. Keep in mind, “pretty” does not often find its way into a courtroom. The challenge in mediation is to accept that there are as many pictures as there are stakeholders. The key to success is to move into the pictures in order to understand why the pictures look the way they do and then decide which picture makes the most sense, even if it isn't yours. 

The New York Times, The Reality of Quantum Weirdness www.nytimes.com/2015/02/22/opinion/sunday/the-reality-of-quantum-weirdness.html

"Storyboard" Your Next Negotiation

Let's start with a mathematical truth – if you wiggle the input, it affects the output. If you inject facts into a negotiation without assembling them into a pattern (story), you can create chaos. In negotiations, like mathematics, context is everything. Take this storyline for instance... an American movie actress, whose father is white and whose mother is African-American, meets and then marries a British prince. An implausible fairy tale without context, wall-to-wall tv news with context.

The story in any negotiation is important because it is a critical tool. Every negotiation requires a story in order to make true things broadly comprehensible.  Taking data points and weaving them into an understandable and persuasive narrative is a critical step,  not unlike a director creating a storyboard from the many elements of a screenplay.  The process creates a powerful advantage if the story is coherent, plausible and economical.

The client’s story is the important story. It is different from a lawyer’s interpretation of the client’s story. Lawyers help their clients by suggesting prudent edits to the story that leave intact the heart of their client’s story. If there are scenes from the client’s story that the rules of evidence will exclude or for which there is inadequate proof, it does not mean that they have to end up on the cutting room floor. Instead, the storyboard can be edited so that every element of the story is given its appropriate place in the narrative and the story remains true for the client.

It may seem odd to consider, but even the most tangled, chaotic and seemingly intractable controversies devolve into stories, some complex and some not. When we look back to understand how and why we moved in time from point A to point B, we are searching for stories. Take, for example, the deal struck between the United States, Great Britain, France, China, Russia and Iran (the Joint Comprehensive Plan of Action) over Iran’s nuclear weapons program. When we seek to understand what happened, we will look for the stories. In fact, many of the story lines implicated in the JCPA negotiation show up in ordinary  mediations, with the obvious absence of WMD’s:

• Religion
• Culture
• Language
• Family history
• Long, complicated and often hostile histories between and among the parties
• Imbalance of bargaining power
• Profound lack of trust between and among the parties

These bullet points  represent just some of the threads that may appear in your client’s story. They deserve your attention. Don’t ignore them because they do not fit into a trial brief. They represent the raw material out of which you can help them weave their story so they are ready to negotiate successfully.

What’s An Anchor?

Some people love negotiating and some people hate it. Some people are really good negotiators and some people are not so good. Sharpening your negotiating skills will go a long way in helping you represent your clients. This is especially true in a mediation, where your negotiating skills (or lack thereof) are on full display for your client to see.

In recent decades,  psychologists have learned a lot about negotiations. One of their most important insights was labeled the “anchoring bias” – an initial  offer, no matter how arbitrary, becomes an “anchor” that pulls the negotiation in its direction. As a result, planning your negotiation is critical. Misssteps at the beginning can become an anchor that eventually sinks your negotiation.

This anchoring bias can be used to good effect by expressing offers in a range as opposed to a single figure. In a recent article in Negotiation Daily, Katie Shonk, does an excellent job describing the anchoring bias, using a negotiation to buy a car as an example. www.pon.harvard.edu/daily/negotiation-skills-daily/anchoring-bias-negotiation-get-ahead-range-offer/

The car has a fair market value of $5,000 to $6,000 and the seller opens with an aggressive $7000 first offer to sell. The researchers then described three (3) types of ranges built around the target price:

Bolstering range: A bolstering range includes the single-figure offer at one end and a more ambitious number at the other end $7000 - $7500

Backdown range: A backdown range has the single figure at one end and a less ambitious figure at the other end $6500 - $7000

Bracketing range: A bracketing range spans the single-figure offer, e.g., $6800 - $7200

Note: This is a far cry from the “bracketing” that is often simply an attempt to undo the damage done by making initial proposals that are so unrealistic that they undermine the credibility and trustworthiness of the negotiator.

In research that examined negotiations in which subjects employed one of these strategies, the bolstering range strategy produced some important advantages.

Buyers who received bolstering-range offers made greater concessions and more conciliatory counter-offers than did those who received the other offers. The bolstering range also suggests a degree of flexibility and accommodation, and, when strategically formulated, avoid damage to a party’s reputation that comes from making unrealistic proposals. Research suggests that ranges of 5% to 20% of the base figure appear to work best.

TWO TIPS TO ENHANCE YOUR NEGOTIATING PROWESS:  

1. Involve your client from the beginning in developing a negotiating strategy that is realistic and flexible – as the case goes on, things change +/-. Keep in mind that there is a negotiation that goes on between a lawyer and her client and an anchor can drown that relationship, too.

2. Resist the temptation to put numbers in play prematurely. Wait until you (and your client) understand your case and have a negotiating plan before you introduce money into the conversation.

“…I’ll Just Be a Mediator…”

The Senior Lawyers Division of the American Bar Association recently ran an article by Doug Noll, a mediator in California, Hey, I’ll Just Be a Mediator When I Retire!

Not So fast…

I’ve been teaching mediation to lawyers for more than 20 years so I was pleased to see Noll’s article address a core issue that I think the 40-hour mediation training program fails to adequately address: why become a mediator? 

Noll is speaking to lawyers later in their careers who are looking for a plan “B.” He is emphatic in saying that “[T]here’s almost no crossover in knowledge, skills or experience between lawyering and mediation.” Florida’s 40-hour mediator training requires every student to sit in the mediator’s hot seat and at the end is asked to reflect on the experience; the most frequent comment is “it looks easier than it is.”  

So the question why become a mediator? seems pertinent to almost everyone who plunks down their money for the training. Because the  Florida Supreme Court bestows its certification on anyone who sits through the class and completes the observations, there is little opportunity for participants to reflect on whether their interest in becoming a mediator aligns with the essential nature of mediation.

The best mediators are in it for the right reasons and their work reflects their commitment to principles:

·      Helping people faced with challenging controversies and difficult decisions

·      Eschewing advocacy for impartiality

·      Willingly working with difficult people

·      Supporting the goal of party self-determination

Beyond the principles, mediators have to master a whole range of skills that they do not emphasize in law school or in the 40-hour program, e.g. negotiation theory and practice, game theory, behavioral science and a host of other topics.

Good mediators offer the parties a depth of experience, skill, wisdom, a sense of humor and a healthy dose of humility. There are no algorithms or shortcuts; you simply have to show up and do the work.

Don’t Run. Stay and Talk.

I, like every other concerned citizen, want to do something to dramatically reduce gun violence. So when the opportunity presents itself, let’s not run but, instead, stay and discuss this profoundly challenging problem.

We are stuck in a kind of stasis that will persist without a powerful, reasoned basis for change. Not surprisingly, I experience this controversy from the perspective of a mediator with a deeply held personal commitment to and confidence in the power of reason.  My newsletter goes out to lawyers and so I try to offer useful insights into ways of resolving conflict. In this instance, I strongly believe that lawyers/mediators can make an important difference by serving as honest resources for the law of the Second Amendment.

Read (or re-read) District of Columbia, et al. vs. Heller, and every time you have the opportunity,  engage with others and provide insight into what the Supreme Court says the Second Amendment means. Lawyers are trained to read and understand case law; use that skill to shed light on this critical debate. These are dark moments and even a little bit of light may make a difference.

MORE RATIONAL AND LESS EMOTIONAL

More rational and less emotional... It is a widely sought-after state that is seen as better than one infused with emotions. And it is seen by many as the ideal state of mind when resolving conflict. I think that this paradigm, dismissive of emotion, is a pernicious fiction.

Society, in ways largely created by men, exerts tremendous pressure on women to modulate their emotional lives so that they fit the normative view that emotions are merely an impediment to be overcome to get to reasoned thought, as if the two were separate and distinct and not bound up inextricably. The harm from this attitude extends far beyond any conversation about feminist ideology.

At what cost do women push aside their biology in order to negotiate in ways that men see as advantageous?  “Women’s emotionality is a sign of health, not disease,” says Julie Holland, a psychiatrist in New York. http://www.nytimes.com/2015/03/01/opinion/sunday/medicating-womens-feelings.html?_r=0  In her essay in The New York Times Magazine, she wrote about the effect on women of a widely held belief that expressing their emotions reveals that they are weak or out of control.

Men, too, view their emotions as an obstacle to attaining and keeping power. Thus, when confronted with an emotional obstruction to solving a problem, men may be willing to allow for some “venting,” but not a lot of it, before getting back to the problem at hand. In a sense, conflict resolution systems, like mediation, rest on behaviors typically seen by males as essential ingredients for resolving conflict – spare problem solving; short time lines; command and control of the issues, and so on.

The behaviors most often identified as feminine – empathy, patience, compassion, emotionality – are viewed as time consuming obstacles to resolving conflict efficiently. In much the same way as many languages assign a gender to words, today’s mediation would likely be male. But it need not be thus.

There are behaviors in every negotiation that are more often than not expressed by one gender or the other but not exclusively and not all the time.  The challenge is to recognize and understand the behavior without making it good or bad, right or wrong, male or female. It is a skill that will make you a much better negotiator.

Avoiding the Avalanche

I hardly need to mention the avalanche of recent allegations (and admissions) of workplace sexual harassment, sexual discrimination and worse. Employers are facing more and more employment discrimination claims. The EEOC has ramped up its focus on systemic discrimination in the workplace. A prompt, thorough, independent and impartial internal investigation of an employee complaint must be an essential part of your client’s response. By planning ahead, you can help your client avoid costly and disruptive controversies by providing an informed and reasoned approach to early settlement. It can also lay the groundwork for your defense of your client in the event that a lawsuit is filed. 

I have had decades of experience in employment and labor law. I started as a field attorney with the National Labor Relations Board in Tampa, was an associate with Jackson, Lewis and spent more than 25 years in a wide-ranging private practice representing management, unions and individuals.  That experience included trials in federal and state court. I have been a full-time neutral since 1998.  I have mediated 100’s of employment law related claims and have been retained to conduct internal workplace investigations by both private and public-sector employers. I can also serve in the role of ombudsman.

I can provide you and your client with valuable assistance, both practical and legal, for planning, conducting and documenting internal investigations of employee claims and suspected employee misconduct.
 
Please do not hesitate to call or email me with questions. 

HAPPY HOLIDAYS!

10 Foolproof Ways to Wreck Your Next Mediation

Using mediation effectively as a tool to resolve conflict is more challenging than many think. Preparing for a mediation is not the same as preparing for a trial. The skills required to be a first-rate negotiator are, in many ways, different than those of a successful litigator. And just as there are numerous ways that a trial can quickly come off the rails, there are just as many ways that a mediation can start on a downhill slide to impasse.

What follows is not an exhaustive list of mediation mistakes. Instead, these are simply 10 blunders that can sabotage a mediation that I have seen made over and over again. 

1. Spend little or no time with your client before the mediation explaining how he or she can best participate

2. Decide on your opening negotiating position AFTER the opposing lawyer gives his opening remarks

3. Increase or decrease your last pre-mediation proposal without a plausible reason, only that it is being done as retribution for not accepting it when it was made

4. Use your opportunity to talk directly to the other side to predict a certain and disastrous outcome if he or she persists in moving ahead with litigation

5. Make an initial offer that you and everyone else in the room knows is preposterous

6. Insist that the person making the preposterous initial offer make a “reasonable” offer before you will begin negotiating

7. In a case in which your BATNA (best alternative to negotiated agreement) is a jury trial, fail to insist that the decision maker show up so as to miss the opportunity to actually see and talk to the other party

8. Avoid any opportunity to build rapport by refusing to engage in friendly small talk with the other party

9. When given the chance, decline to ask good questions that might encourage detailed responses and create the basis for progress

10. Fail to anticipate having to provide details for your proposals and leave the supporting documents at your office

Keep this in mind: the mediator is there to help you negotiate an outcome that your client and the other side can live with. Choosing an experienced mediator who not only knows best mediation practices, but also what not to do can mean the difference between failure or success.

Magical Thinking and Mediation

Magical thinking: people believing in things more strongly than either evidence or experience justifies. It is a bargaining strategy that I see used again and again in mediations that consistently does not work.

Mediators should be masters at analogizing. Yet, getting people to see time as a stream in which the future is always on the verge of becoming the past is no easy task. Mediators have to constantly ask what is new about the present because “[T]he future may surprise. It surprises because something in the present, hard to see, weakens the past as a guide.” – Thinking in Time (http://www.simonandschuster.com/books/Thinking-In-Time/Richard-E-Neustadt/9780029227916)

People do not often resolve lawsuits (or other controversies) out of fear. They resolve them when the outcomes make sense to them. Their decisions to settle are rooted in self-interest. But self-interest is hard to discern when there is no reasoned way to understand it. For example, a decision to resolve a controversy based on the fact that litigation will inevitably cost as much (or more) than the amount in dispute is an important fact. But the emotional reaction to such an outcome is often subsumed by magical thinking and the power of unreasonable expectations of what is to come based on imagining the past. 

MEDIATION – “IT AIN’T OVER ‘TIL IT’S OVER.”

Mediations are like baseball games – no game clock. Both ball games and mediations have average lengths, median lengths and, sometimes, unusual lengths – very short or very long. In baseball, you just keep at it until someone wins because there is no plan B. A mediation, on the other hand, can end because there is a plan B, albeit one in which the winner is decided by a judge/jury and not by players putting runs on the score board, so to speak.

Negotiations require hard work and they take unpredictable lengths of time. And while there are aspects of “game” playing at work in every negotiation, mediations seldom benefit from a game clock. There may be time constraints embedded in the controversy itself but they are different than time constraints on the mediation caused by frustration, impatience, airline reservations or overbooked schedules.

Leave enough flexibility in your schedule so that you, the other side and the mediator have the time it takes to get the case resolved.

MEDIATION MONKEY BUSINESS

I think that helping people reason their way through emotionally fraught conflict is the core competency for a mediator. It is also the most challenging to master. Can I help a person think of a reason that makes sense to him and allows him to unclench his fist?  And can I provide that kind of help and remain true to the essential tenet of mediation – self-determination?

In South Asia, monkeys are sometimes trapped by placing food in a secured vessel with a small opening. When a monkey slips his hand inside to grab the food, it soon discovers that its clenched fist is too large to pull out through the hole. The monkey will remain stuck clinging to the food until someone comes along and captures it. This “attachment trap” is a metaphor for a core Buddhist principle: by holding on to external sources of happiness, we prevent ourselves from being truly free.  (http://rubinmuseum.org/blog/inside-brainwave-2015).

The attachment trap that plagues the monkey is the same problem we struggle with when we try to resolve difficult conflicts. In spite of our evolutionary advantages, we nevertheless keep our fists clenched, holding onto positions that keep us captive – unable to identify and advance our self-interest.

Compared to the monkey, however, we are capable of a greater ability to reason – to take into account competing interests, assess risk and distinguish fact from fiction. It is not easy but with time, energy and the help of a skillful mediator, even seemingly intractable controversies can be resolved.

Mediation Impasse - the death of hope?

Impasse, a predicament offering no obvious escape, is imbedded in the vocabulary of mediation and understood by many as the death of hope. But who believes that every controversy can be settled in an afternoon? In fact, mediations are often the first time that everyone actually understands the problem and the obstacles to resolving it.

Mediation is widely viewed as a one-off, a do or die sprint. The case settles at mediation or it doesn’t and, if it doesn’t, mediation is said to have failed, to have ended in an impasse. Is there a more efficient and economical way to deal with a claim that cannot be settled at an initial mediation than to declare an impasse and return it to the court’s docket? 

The obstacles to settlement cannot always be overcome in three hours. All too often, the parties wind up frustrated because critical information is missing. There is also the matter of emotions, which animate the way people behave and which take time to change. People frequently react to all of this by throwing in the towel and reverting to fighting. They fail to create a plan for dealing with the issues that kept them from a settlement then and there.

Mediations end in impasse for a reason (or reasons.) Consider making a list of the issues that have been resolved and another list of the issues that have eluded resolution. The second list is often surprisingly short and can form the framework for gathering the additional information necessary to push the negotiations forward. Then make a written commitment to meet again after a reasonable period of time and have another go at it. 

Why Would You Mediate with the Wizard of Oz?

The Wizard in the Wizard of Oz was a well-meaning con artist, a frustrated carnival magician from Kansas. He hid behind a curtain and used special effects to manipulate others to do his bidding. His power over Dorothy derived from his remoteness and her imagination.  Until Toto intervened and pulled back the curtain, he exerted control over her and everyone else in Oz. Once he was revealed, his advantage disappeared and he was left to deal with Dorothy on a level playing field. 

So why would anyone agree to participate in a mediation with a decision maker (Wizard) hidden inside a telephone? Resolving the kinds of conflict that you deal with is not easy. Negotiating is an exercise in persuasion that involves communicating facts and feelings and requires all your senses. As someone said, it’s my brain communicating with your brain and lots can go wrong in the distance that separates us. And this pertains not just to the people sitting in the room with the mediator. The decision maker on the phone is also at a big disadvantage. His information is filtered and shaped, albeit with the best of intentions, but it is a poor substitute for firsthand experience. And, just for fun, let’s imagine what that missing decision maker might be doing while you’re talking: reading/responding to/deleting emails; texting; working on another file; talking to someone else; watching CNN; and so forth. Not being in the same place at the same time dramatically diminishes the efficacy of mediation.

Everyone is interested in making high quality decisions when it comes to resolving important controversies. But decisions based only on what you’ve heard on the phone are a poor substitute for ones made sitting across the table.  Except in unusual circumstances, insist that all the stake holders sit with each other face to face and do the work needed to strike a deal.

MEDIATION AND THE THEORY OF EVERYTHING

First, let me emphasis that I am very skeptical that there exists a theory of everything, much less one that explains human conflict. And I do not believe that there is a single protocol that resolves conflict. Nevertheless, research has revealed recurring patterns in a wide range of human behaviors. Can these insights be used to help people resolve conflict within the system we broadly refer to as mediation?

In a recent essay, When seeing is deceiving, columnist Craig Silverman lead me to The Ravenous Brain, by the neuroscientist Daniel Bor, and these quotes:

Perhaps what distinguishes us humans from the rest of the animal kingdom is our ravenous desire to find structure in the information we pick up in the world. We cannot help actively searching for patterns – any hook in the data that will aid our performance and understanding.

One problematic corollary of this passion for patterns is that we are the most advanced species in how elaborately and extensively we can get things wrong. We often jump to conclusions – for instance, with astrology or religion. We are so keen to search for patterns, and so satisfied when we’ve found them, that we do not typically perform sufficient checks on our apparent insights. www.tampabay.com/...seeing-is-deceiving/2220248

I think these findings are critical to understanding the nature of any particular conflict. And is it not essential that a mediator understand (or at least have a working hypothesis for understanding) the conflict he is there to help resolve? This understanding may mitigate the mediator's urge to supply the parties with a solution but it begs the question how does a mediator apply these insights? What's a mediator to do with them? Are we educators? Isn't teaching a kind of coercion? Are we morally neutral and capable of removing the spectacles of tradition, prejudice, personal experience and dogma? Can we pretend to be Socrates and simply ask questions that will ultimately lead people to the truth? Or do we acknowledge that we all have an agenda, like it or not?

But is it really possible for such neutral communications to occur between men? Is not every human communication a conscious or unconscious impression of one temperament, attitude to life, scale of values, upon another? Are men ever so thoroughly insulated from each other, that the careful avoidance of more than the minimum degree of social intercourse will leave them unsullied, absolutely free to see truth and falsehood, good and evil, beauty and ugliness, with their own eyes? Is this not an absurd conception of individuals as creatures who can be kept pure from all social influence... even that is, without the new knowledge of human beings that we have acquired today, as the result of the labours of psychologists, sociologists, philosophers? Isaiah Berlin, Russian Thinkers, Penguin Classics ebook location 5306,

Unfortunately, these patent contradictions between the mediation vocabulary (neutrality, party self-determination, exploring options, etc.) and what is actually happening in the mediation business are hardly talked about and I think it is time for that to change.

WHAT'S A BRACKET?

Bracketing is an old and simplistic negotiation gambit. It is used a lot and often with bad results. It has nothing to do with any of the real issues of liability or damages nor does it represent a rational process to determine a realistic settlement figure.  Even so, bracketing has a place in your negotiating tool box. If the parties have a mutual and in-depth understanding of the facts and the law, bracketing can bring the money issue to a head sooner than later. It can also encourage a reluctant but informed party to open with a reasoned offer.

Bracketing is essentially a “bid/ask” strategy and its success is almost entirely dependent on persuading the other side to open first with a reasonable proposal. Example: If a mediation begins with no money on the table and a plaintiff thinks that a reasonable settlement is $500,000, then a $1,000,000 “demand” against an offer of $0.00, will inevitably, no matter what anyone (including the mediator) says or does, result in a $500,000 message arriving in everyone’s inbox. And if this opening gambit fails, which it most often does, the cat is out of the bag, so to speak. You have given up a great deal of information (if you are serious about $500,000) with absolutely no promise of getting anything back for your candor. Moreover, you invite what some call double-bracketing, a strategy of responding to a bracket with a bracket but one that moves the mid-point away from yours. That number bears no relationship to anything other than it is a different mid-point.

There are many other effective, creative bargaining strategies that rely on reason and logic, while also acknowledging how people feel about the controversy. Resorting to bracketing because a negotiator is frustrated or impatient is not likely to result in a settlement. Patience and preparation remain the key to a successful negotiation.

As they say in the ad on TV, I know a thing or two because I’ve seen a thing or two. So let me help you make the most of your mediation.

GENDER DISCRIMINATION: MIND THE GAP

Most corporations have policies designed to deal with gender discrimination. This problem is toxic and has no upside. It can be deeply entrenched and there is often a gap between the handbook policy and the reality of the workplace. There is only one way to deal with gender discrimination -  eliminate the gap between what you say you do and what you do.

It will take time to assess the long-term effects (if there are any) that the fall of Bill O’Reilly (and Roger Ailes) will have on women’s struggle for equality and respect in the workplace. For now, there are several important facts about the O’Reilly/Ailes cases that are noteworthy.

First, their behavior harmed people who worked with or for them. Second, their behavior disrupted and damaged the corporation. Third, the decision makers at Fox chose to spend corporate money to settle law suits based on a calculation that valued O’Reilly/Ailes as profit centers above the corporation’s stated commitment to loyalty and fair dealing with its employees and its shareholders.

Many large corporations have the resources to do what Fox did: pay large sums for confidential settlements and attorney’s fees; engage in crisis management; campaign to repair the brand; work to restore lost or diminished employee loyalty and productivity. There are many more businesses without the resources to emulate Fox.

There is no shortage of robust policies to deal with allegations of sexual misconduct. However, they require principled action: prompt, impartial and confidential investigation and a willingness to follow the facts wherever they lead. Certainly, not every conflict between a woman and a man is gender discrimination. But if you do not conduct a thorough investigation and make a good faith decision based on the results, the O’Reilly/Ailes factor can infect your business, too.

DO MEDIATORS SETTLE CASES?

There is no shortage of advice and training for mediators; what is missing is a laboratory in which to examine whether any of it actually works to affect the outcome of a mediation. In other words, with whom do mediators dialogue to place themselves on a scale of effect?

Without that kind of insight, mediation is simply a talent show where the most engaging and entertaining mediators appear to be the best mediators with nothing empirical to support the belief. Whether they actually have an impact on any particular outcome is a speculation - is the mediator merely present during the mediation or is she actually influencing the outcome. And, of course, there is the question whether mediators are even supposed to influence the outcome of a negotiation they are mediating.

Take, for example, Florida's definition of a mediator: The mediator's role is to reduce obstacles to communication, assist in identifying issues, explore alternatives, and otherwise facilitate voluntary agreements to resolve disputes, without prescribing what the resolution must be. Fla. Stat. Ch. 44.403(4)

It begs the question, if not prescribing what the resolution must be can the mediator suggest what the outcome ought to be? If so, what is the process that a mediator should follow to deduce such an outcome or outcomes? And what are the limits of a mediator's efforts to persuade the parties to follow his lead?

We hold these Truths...

 I will for the purpose of maintaining the causes confided to me such means as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law. Oath of Admission to The Florida Bar  https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/4F51651D215A82C085256ADB005D611F

Imagine what the law business would be like if we woke up on a Monday morning and went to work in a “post-truth” world. The Oxford Dictionaries declared “post-truth” as its 2016 word of the year; a state “in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” Travelling down this Alice-in-Wonderland rabbit hole is Gerard Baker’s recent editorial in the Wall Street Journal, Trump, ‘lies’ and Honest Journalism, in which he cautions “I’d be careful about using the word ‘lie.’ ‘Lie’ implies much more than just saying something that’s false. It implies a deliberate intent to mislead.” http://www.wsj.com/articles/trump-lies-and-honest-journalism-1483557700.

Fair enough. But here are a couple of dictionary definitions of a lie: an intentionally false statement; to make an untrue statement with intent to deceive; to create a false or misleading impression. The critical word here is “intention” which begs the question; Is it possible to “accurately know the values (or lack thereof) involved when a person speaks?” Probably not.

In his famous little book, On Bullshit, http://press.princeton.edu/titles/7929.htm, Harry Frankfurt makes an important distinction between bullshit and lying that I think is particularly pertinent:  Both the liar and the bullshitter try to get away with something. But ‘lying’ is perceived to be a conscious act of deception, whereas ‘bullshitting’ is unconnected to a concern for truth. Frankfurt regards this ‘indifference to how things really are’, as the essence of bullshit. Furthermore, a lie is necessarily false, but bullshit is not – bullshit may happen to be correct or incorrect. The crux of the matter is that bullshitters hide their lack of commitment to truth. Since bullshitters ignore truth instead of acknowledging and subverting it, bullshit is a greater enemy of truth than lies.

There is, however, no real distinction between a lie and bullshit when it comes to the form or meaning of what is actually said. When a person rejects the very idea of being true to facts and turns, instead, to an ideal based on what they assert to be a sincere belief in their own substantial and determinate nature, then, according to Frankfurt, this sincerity is also bullshit. https://philosophynow.org/issues/53/On_Bullshit_by_Harry_Frankfurt

 “Why don’t you believe him? Why isn’t it taken at face value?” Conway said in exasperation. “You can’t give him the benefit of the doubt on this and he’s telling you what was in his heart? You want to go with what’s come out of his mouth rather than what’s in his heart.” https://twitter.com/NewDay/status/818444732934201344

FIRST YOU WIN THE ARGUMENT…

In this recent political season, it was a binary world with only 2 outcomes – winning or losing. You didn’t find First you win the argument, then you win the vote on a bumper sticker.

Likewise, many people lack a personal philosophy that is grounded in negotiation and compromise – in Getting to Yes. They see every conflict as a zero-sum game. Too many clients are angry and cynical with unrealistic expectations of their lawyer and the legal system. They are ready to blame others for their own unfortunate circumstances. A sense of accomplishment can be elusive for a lawyer.

But there is a bright side to all of this gloom. Trials, which allow only win-lose outcomes, are slowly being supplanted by structured negotiations with judicial oversight. Lawyers seem to me to be getting better at negotiating. Negotiating a deal that ends a challenging and expensive controversy can provide a level of satisfaction and accomplishment that far exceeds winning the jury or judge lottery.

Fierce litigators, long at the top of the lawyer food chain (and grist for bad lawyer jokes), are slowly being replaced by successful negotiators who can craft outcomes grounded in reality. I for one, am optimistic that in time, things will get better.

Why and What Should We Want to Know About Mediation

I think that the field of mediation lacks a serious commitment to any systematic study and rigorous evaluation of what mediators do when they mediate. There is no data to support an assertion that any particular strategy or behavior engaged in by a mediator has any effect on the behavior of the participants or the outcome of their negotiation. Moreover, I am unaware of any set-pieces, akin to plays on a football field, that mediators use again and again that have been tested to determine if they correlate, much less cause, any particular behavior or outcome.

What there is in abundance is a literature filled with stories told by mediators who claim to have found the truth when what they really want is recognition or to gain a competitive advantage in the marketplace; likewise, with workshops and seminars that infer that something a mediator does (or should do) actually causes people to behave differently while participating in a mediation.

We need not stay stuck in this dark cave. A huge volume of mediations happens everyday. These sessions offer sociologists, psychologists, legal scholars and academics and others a laboratory to observe and study mediators’ actions while they work with real people involved in real conflicts.

Mediation confidentiality serves an important purpose but it need not be an iron current. All that typically emerges from a mediation is a written agreement. Lost is the opportunity to work out the conditions under which a particular strategy might actually work and the inferences that might reasonably be reasonably drawn from that analysis. Also lost is the opportunity to examine the inferences people actually have drawn from it under different conditions, what they thought it implied and what it inspired them to do. This process can reveal intriguing intellectual and practical possibilities that mediators might otherwise overlook. Researchers routinely observe, study and gather intimate information from people while successfully guarding their privacy.

The judicial system has a vested interest in understanding and improving the efficacy of the mediation process, inasmuch as judges compel people to participate and pay for it. I think that a carefully drawn provision carving out an exception to confidentiality that allows for the scientific/academic study of mediation would be a great benefit for both mediators and those who participate in the process.

I, for or one, would like to know if what I do really works or not and why.