Saturday, July 27, 2013

The Genius of a well crafted Mediation Brief

     I have always loved the written word.  I still write handwritten notes and just purchased a beautiful new pen for signing autographs of my book.  So I appreciate a well-constructed, clear, concise and abbreviated legal analysis in a brief in advance of the mediation.  As with most busy mediators, I read the briefs on the weekend and hope that the details will stick with me on the day of the hearing.  The more evidence that can be clearly highlighted, the happier I am to begin the negotiation with a real understanding of the legal points of contention as well as the facts leading up to the dispute.  It is, in my opinion, also an excellent way for the lawyers to be sure that they cover every salient detail and fully understand the contentions being made by their clients.

Yesterday's hearing was more about the evidence that had NOT been yet produced, than that which had.  In other words, the Plaintiff's brief was accompanied by email correspondence between the former manager and the Human Resources Department that had been obtained by the Plaintiff during his medical leave of absence and in preparation for an administrative hearing which took place long before the lawsuit was filed.  There were declarations by former employees whose Depositions had not been taken.  And there were Proofs of Service and a Notice of Default which had been taken by Plaintiff against the store manager who had seemingly disappeared and become unavailable to testify about her claim that the Plaintiff had committed a theft, thereby justifying his immediate discharge on the day he returned from medical leave.  On the other side, there was a clear reliance upon the testimony of this former manager, who had not yet appeared, was not being defended by the Defendant, and may even have been in default.  It made the allegation that the Plaintiff was terminated indisputably "for cause" a bit less credible.

Always take the time to review your entire file, consider all of the evidence which you have gathered and all that you have not, and lay out the best of your contentions in a written brief for the mediator, at least the week before your hearing.  You will be glad to have an ally who is familiar with your case if you've taken the time to adequately prepare her.

Friday, July 19, 2013

The Art of Effective Interviewing

     Learning to conduct an effective interview is one of the key techniques for resolving conflict.  It creates rapport and conveys understanding.   It will often revealing hidden "drivers" that underlie the conflict.  For example, when asking about a motor vehicle accident in which liability is uncertain, the Plaintiff may reveal that she was scared when she saw the Police behind her (who witnessed the accident) because she was using the cell phone to call for results on a pregnancy test.  She never saw the traffic light, but firmly believed it was green when she entered the accident--since it was green a second or two later when the collision occurred. 
     Mediation trainers teach new mediators to ask open-ended questions--something that is discouraged in legal practice!  Law students are emphatically trained never to ask open ended questions.  As a consequence, IMHO (in my humble opinion), too few lawyers have taken the opportunity to really get to know their client's own stories. 
     The probing, personal kind of questions, such as:  "Tell me more about that" and "How did you feel when it happened?" may serve the mediator well in understanding each disputant and ultimately in unlocking creative solutions which will address the very concrete issues and make a more complete resolution occur.
     In acquiring this skill, there is secondary benefit to a business person, too.  It makes networking kind of second nature.  It is easy for me to walk into a room and learn something personal or important from any individual whom I engage in conversation.  My children have teased me all of my life because I have a way of "taking the deposition" of friends and family:  but mine is a friendly inquisition, not a harsh cross-examination. 
     Ultimately, the greatest benefit to effective interviewing is that I am privy to the most fascinating life stories! It is, every day, a privilege to be on the listening end of folks--both ordinary and extraordinary.

Friday, July 12, 2013

Be an Empty Vessel

John D. Weiss, Esq.
     I attended the funeral of my esteemed colleague and friend, John Weiss this past week.  John epitomized the concept of listening to the parties in a mediation without prejudgment or bias.  Like a good psychotherapist, the mediator's job is to listen, empathize and re-frame in such a way that disputants are truly heard and personal growth is actually possible.  There is an art to offering a different perspective to a person so that, often for the first time, he/she can begin to appreciate the adversaries' point of view.  There is an art to listening deeply, without judgment and echoing back what you've heard in ways that reassure the disputant that you have really heard his story that lead up to the dispute and where he is at that moment in his head and heart.
     I attended John's funeral because, over the years that I've known him, I always felt we had a special connection.  He always made me feel that he was keenly interested in my life and my career.  What I learned there was that it was his gift to make every person he touched feel that way.  The Rabbi shared with us that the lesson he had imparted to his children was that the most important person in the world was always the person standing right in front of them, or the person with whom they were engaged in conversation at that very moment.
     In mediation trainings, we talk about being an empty vessel, or a blank chalk board or any number of cliches.  My friend John Weiss modeled that behavior in genuine interest and an unique ability to tune out the noise of the world when he was engaged in a conversation with you.  Every one of the hundreds of people in attendance at his funeral understood that lesson.  We all knew we were his closest connection:  at least when we were lucky enough to be engaged in a conversation with him.  May his memory be for a blessing, and may I be fortunate enough to carry his lesson forward.