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elements of a good mediation

One of the benefits of a being both a mediator and an advocate is the opportunity to view other mediators at work and try to employ what they do that is effective and avoid what is not.  I recently had a mediation where the mediator announced his expertise in the substantive area — thereby losing a substantial amount of his role as mediator —  and …

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narrative mediation

For the past 18 months or so, I have been studying and trying to implement in my mediation practice, techniques from a “discipline” called Narrative Mediation. Narrative Mediation is not new even though it is relatively new to me. John Winslade and Gerald Monk published “Narrative Mediation: A New Approach to Conflict Resolution” in 2000. Winslade and Monk’s work in turn grew out of narrative …

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Dealing With A Competitive Approach in Mediation

In my mediation practice I have found that cases are much more likely to settle when the parties approach the process collaboratively. For many advocates, their role in the opening session is to soften the other side. This generally means some version of a toned down jury argument. These statements are almost always followed by an unconvincing statement that they are present in good faith …

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how to win every mediation

Any article on winning must start by defining the term. Unlike most of what we do as litigators, mediation never results in an absolute “win.” Some settlements feel more like wins than others and settlement alone is not the right judge of win or loss.  With motions, trial, or arbitration it is usually possible to distinguish a win from a loss, even when there is …

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The Power Of Apology

In my experience, apologies in business or civil litigation mediation are the exception not the rule.  There may be good reasons for this but you should never underestimate the potential of a good apology for reaching a resolution.   Amongst the recent revelations coming from #MeToo the story of Dan Harmon and Megan Ganz did not make a lot of headlines.  I bring it up …

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Power In Negotiation

Benjamin Franklin is credited with saying that “Necessity never made a good bargain!“ In his wonderful book, Practical Negotiating, Tom Gosselin contends that “In negotiating, power is a function of alternatives.”   Gosselin is right, of course, and hopefully a discussion of alternatives brings to mind Ury & Fisher’s BATNA (Best Alternative to  a Negotiated Agreement) concept.  Gosselin goes further though and breaks down the …

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Guided Choice Mediation: Nuts and Bolts

This post is part of our Guided Choice Mediation series, where we explore what it is, why it improves on traditional mediation, and how it works. Guided Choice Mediation is an evolving process that expands and builds on more common place facilitated settlement conferences.  Even a cursory review of Guided Choice principles demonstrates its potential to facilitate early resolution of complex legal disputes where traditional mediation would likely fail. …

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Exciting New Alternatives For Claims Resolution

Resolving commercial and construction disputes is expensive. According to one source, 98% of commercial disputes are resolved prior to trial or arbitration. However, most are not resolved until the parties have spent an enormous amount of time, energy, and money on discovery and motions. Even worse, the parties are usually unable to continue a working relationship after this warfare. Fortunately, there are alternatives — and …

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Can Arbitration Be Saved?

I preface this post with the disclosure that in my practice I serve both as an arbitrator — AAA administered and privately administered — and as an advocate in arbitration. In talking to lawyers throughout North Carolina, I hear the same statement over and over again: I would never advise my client to opt for arbitration over litigation.  Why is that?  Arbitration promises less expensive, …

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The Mediator’s Role In Positional Bargaining, Part 1

In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle.  This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution. If, in fact, negotiations in mediation become an exchange of offers …

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