Last weekend, I attended a conference of fellow mediators. One of the points raised was that mediating via Zoom, or any other video-conference platform requires a different skill set and for those new mediators (of less than three years) , it may be the only skill set they know. That is, they have not developed the skills  to mediate in person. A recent mediation makes me think that this is also true of those attorneys who have been practicing less than three years and thus have never attended an in-person mediation as was the norm in pre-pandemic days. The original session of the mediati ..read more

This semester I am teaching an online Employment Dispute  Mediation course at USC Gould School of Law. Using employment law as the substantive vehicle, I am teaching my students essentially how to be mediators from “soup to nuts.” In teaching them how to mediate, I note to my students repeatedly that mediation is a process of change. Through the hours of negotiation, the mediator uses persuasion to help the parties  change their perceptions of the events in question and to change their way of viewing the conflict and how to resolve it. Implicit in this concept  that mediation is ..read more

Why do mediators request briefs from the parties? No- it is not just to learn about the case. Their more important function is to force the parties to think and analyze their case; to give some thought about the strengths and weaknesses of their respective cases and consequently, their position on settlement. Recently, I had a mediation in which only one of four parties (one plaintiff and three defendants) provided a brief. And that one brief was from a peripheral defendant. Although I was a little concerned about the lack of briefs, my experience taught me that cases could still settle withou ..read more

No doubt, you have encountered the situation where you are addressing a group of people and ask a question and are met with silence… absolute quiet! It feels awkward… no one is answering your question.(Indeed, Anglophones can not tolerate more than four seconds of silence while the Japanese can tolerate about eight seconds.( https://www.bbc.com/worklife/article/20170718-the-subtle-power-of-uncomfortable-silences) This has happened to me in my teaching. But rather view it as an awkward moment that must be filled with words, I use it as a teachable moment: silence is a great tool in a mediator’s ..read more

Thanks to “safer at home” orders, I, like many other mediators, have spent my time learning the intricacies of video conferencing and more specifically Zoom as it has become crystal clear that mediations by telephone or video conference will be the “new normal”. It will be many months if not years before we conduct “in person” mediations again. Yet, as I do teach ADR ethics at USC law school, it struck me that there may be some additional ethical considerations involved in these online dispute mediations than those occurring with “in person” mediations. The simplest of searches indicated that ..read more

Searching for some inspiration for my next blog post, I came across an article in The Conversation entitled, “How the presence of pets builds trust among people”. Noting that 90 million American households have at least one pet, the author Megan Mueller notes that “… research shows our pets can also strengthen our relationship and trust with other people…. [P]ets contribute positively to trust in our broader social communities.” (Id. at 1.) Having a pet serves as an ice breaker. I do not know about your dog, but my dog Buddy is very sociable. Whenever he sees another dog on the street during o ..read more

Teaching the art and science of mediation brings to my consciousness a lot of pointers that otherwise reside in my subconscious. Two of them are the fine art of persuasion and the tool of persistence. The textbook used in class (Frenkel, Douglas N.  and Stark, James H.  The Practice of Mediation (3d.ed., Wolters Kluwer, New York, 2018)) defines “persuasion” …”as an attempt to alter another person’s attitudes or actions” (Id. at 247.)  The authors note that the most effective persuasion “is done with others, and not “to others” as “[c]ompetent adults generally cannot be persuaded ..read more

The end of the semester is drawing near in my online employment mediation dispute class. The theme of the last discussion board is reflective: what three things has each student learned from or skills developed or improved upon in this course. There is a saying to the effect that as much as students learn from the teacher, the teacher learns from the students. Teaching this course and reading the reflective posts of my students have led me to ponder what skills are needed not only to be a good mediator but also to be a good friend. So, my response to this reflective discussion board would be t ..read more

I have had several mediations lately in which the approach of the parties clashed. The clash can be labelled as the one-shot player vs the repeat player.(See: Is That All There Is? The Problem in Court-Oriented Mediation by Leonard L. Riskin and Nancy Walsh, 15 George Mason Law Review ___ (2008) ) The one-shot player is typically the plaintiff (although it can also be an individual defendant) who usually has very little if any experience with lawsuits and court proceedings. The plaintiff finds herself involved because of a unique experience that in all probability she wished had never happened ..read more

In preparing to teach a class on mediation ethics, I read Mediation Ethics  edited by Ellen Waldman (Jossey-Bass, San Francisco, 2011). In it, she makes a point I had never thought about: The Model Standards of Conduct for Mediators are inconsistent. (Id.  at 13-14.)  (“Model Standards”) While the Model Standards are not law, they are aspirational and are taught as guiding principles to all aspiring mediators. And throughout our training, the Model Standards are continuously referenced. But, they are not consistent. As one example, compare Standard 1 on Self-Determination with S ..read more