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Exploring Neutrality: A Narrative Approach

Neutrality and perhaps as important the perception of neutrality is one of the most precious assets a mediator brings to a mediation.  In facilitative and evaluative mediation, the two predominant models used in civil case mediation, mediators work hard to maintain their ability to engage the parties from a position of neutrality.  This tension is never higher than when we use evaluative skills as a …

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Virtual (ON-LINE) MEDIATION

Life has changed at a blistering pace as a result of COVID-19.  The courts are essentially shutdown and deadlines have been extended.  Social distancing and sheltering in place as well as travel restrictions obviously impact scheduled mediations and scheduling mediations. On March 17, 2020, the North Carolina Dispute Resolution Commission issued the following statement: “all mediations under a DRC program shall be conducted remotely, if …

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Does Narrative Mediation Have A Role In Civil Case Mediation?

As briefly described in a previous post, I have been studying a mediation model called narrative mediation and implementing some of its techniques in my practice.  Narrative mediation techniques are focused on improving the relational aspects of conflict — that is improving the relationship of the parties.  This is why narrative mediation has a strong foothold in family mediation and community mediation in some places …

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Bracketology

In virtually every mediation that bogs down, I am asked about the use of brackets. Brackets have their place but to state the obvious: the use of brackets will not change parties’ calculation of their BATNA (Best Alternative to Negotiated Agreement), will not affect their underlying interests, or their perception of the right or wrong of a settlement. These are the real drivers toward settlement …

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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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