Mediation as a Cure for the “COVID-19 Caused Conflicts”(CCCs)
In one way or another, nearly everyone in our country has been hurt at least financially and emotionally, if not physically, by the impacts of COVID 19. CCCs have resulted from: Landlords have not been paid lease payments; tenants have not had the income to pay rent; businesses have been forced to operate under new restrictions and many have gone under; families have been stressed either when forced to separate, or in other cases forced to spend too much time together; restaurants have been closed for months and now forced to move outside. Efforts to resolve these conflicts are beginning to materialize as business and communities begin opening up. The menu of dispute resolution options needs to be carefully considered. Direct negotiations of disputes can be the quickest and least cost method of [...]
Lessons Learned in Mediation – Preparation in the Age of Zoom
Preparation is the key to success in any mediation, as it is in most of life endeavors. In this time of virtual mediation and "zooming" to settle disputes, the preparation phase is even more critical than normal times. The first mediation I conducted with Zoom, involved a design-build school project significantly delayed and still under construction when the mediation started. The contract was in danger of imminent termination. With a termination for default, the project enters into an expensive, drawn out, adjudicatory process, where the amount at stake escalates dramatically and chances of early settlement seriously diminish. Keeping everyone engaged is key. Despite the high emotions, the mediator's suggestion on the first call got everyone's attention focused on keeping the contract in place. To the credit of the lawyers representing [...]
Lincoln on Litigation and Lawyers-as-Peacemakers
If mediation had been considered a method for resolving litigation in the 1800's, as it is by most courts today, Abe Lincoln would have likely been a big proponent. Lincoln’s “Notes on the Practice of Law” written in 1850 (fn-1) contains many of Lincoln's impressions and opinions during the time he was a practicing lawyer. One often referred to section is Lincoln’s opinion regarding litigation. This passage reads as follows: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.” The arguments made back then against litigating, certainly hold true today, in particular for commercial disputes. In 1989 Supreme Court Chief Justice Warren E. Burger, quoted Lincoln's comment above in the [...]
