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 [...]
