How I Mediate 

I combine my education, training and experience to practice mindfulness based mediation, with an edge.

“Mindfulness” refers to calmly and compassionately engaging the parties and counsel, without judgment or imposing an agenda, in order to understand the conflict and illuminate the paths to resolution. Getting each side to see (and not simply acknowledge) how the other views the conflict is essential to this process.

The “edge” refers to using a variety and combination of mediation techniques including “facilitative”, “evaluative” and “transformational” to get it done – by fostering a true negotiation and efficiently guiding the parties to a durable resolution based on reasons they understand and accept.

My preference is to focus on viewpoints and deal points, not conflict and pressure. At the core of most mediated disputes are differences in viewpoint and goals. I guide the parties in exploring their differences so that they at least understand how their opponents see things – and how the varying viewpoints might play out before a trier of fact. I guide the parties to clarify their goals in terms of distinguishing what they need from what they want, and the relative risk and cost of pursuing each. So my role is more as a coach than a judge. However, when it seems beneficial to moving the process forward, I engage in frank evaluation of the legal issues – drawing on my 28 years of trial practice to provide an unbiased view.

When appropriate, I explore underlying issues such as fairness, honor, reputation, hurt feelings – which often provide keys to unlocking the dispute.

When we get to the numbers, I encourage the parties to avoid posturing and have rational bases for their positions. I use a variety of devices such as “bracketing” to move things along. I judiciously use mediator’s proposals and only after vetting them with counsel.

Prior to the mediation session:

  • I talk with counsel by telephone to get their candid read on the case, to identify client issues, to get consensus on how the mediation will be conducted and otherwise gather information to help me prepare to conduct an efficient and effective mediation.
  • I explore confidentiality issues and, if needed, ask counsel to confer and bring a confidentiality agreement to the mediation for signature.
  • I invite counsel to confer on a draft settlement agreement, with blanks to be filled in, so that we are not left doing that at the end of a long day and to avoid relying on a last minute short form. This also provides an opportunity for counsel to (begin to) cooperate.

At the mediation session:

  • We have each side in a separate conference room. When it seems useful, and with the approval of counsel, we have joint sessions, particularly when it would benefit the information-gathering phase of the process.
    With the permission of counsel, the client is involved in the discussions. This provides more insight into the client’s point of view, interests and needs, as well as investing the client more deeply in the process.

  • I avoid marathon sessions. I have no minimum time blocks for follow-up sessions. However, if it makes sense to stay late to get it done, I am happy to do that.
  • If an impasse occurs, I do what I can to provide value from the process, such as calendaring a second mediation session, assisting in setting a binding arbitration with a mini/maxi, or getting a discovery deal in place. Otherwise, I continually follow up by telephone with counsel.