Mediation Blog

The ancient strategies from "The Art of War" by Sun Tzu, have been applied to so many modern activities, including business negotiations, sales, and even litigation practices in the legal world.


The Adversarial System: I Win You Lose


In the context of litigation, perhaps we should rethink our methods. Often litigation devolves into a scorched-earth and zero-sum game, meaning there is only one winner and a whole lot of debris. If war is truly hell, why would anyone want to wage it?


Many participants in the civil litigation system will reflect afterwards about how terrible and draining their legal case was. Those comments often are from the lawyers themselves who are being paid to play in that realm. Imagine what the actual client feels like.


Casualties in the Civil System


To the extent that statistically speaking almost all cases settle, would it not make sense to create an environment for all participants that encourages resolution rather than rancor? An adversarial system in which the participants have a mindset towards waging war only delays an amicable settlement, reduces civility, and endlessly bogs down judicial resources. As a result, the efficiency and confidence in the legal system is challenged, expenses are increased, frustration and dissatisfaction rise, and the mental health and job satisfaction of lawyers decline. Does this sound familiar?


Getting to We


There can be a better way. All it would take would be a change in perspective. Changing the perspective from waging war to waging cooperation and collaboration. If you start from the perspective of trying to understand, cooperate, and collaborate, would you not be in a better position to find a resolution to your case sooner rather than later?


As we currently do things, we go to war first. Beating up the other side, showing them who the real boss is. It should not be surprising when that tact is taken that you are fed the same medicine from your counterpart. When this happens, are you more likely or less likely to want to make a deal with the other side?


Changing the Perspective


I think we have it backwards. You can still cooperate and collaborate from a position of strength. Nothing is being lost by sharing information and trying to understand where the differences really lie. In fact, by doing this, you are becoming more focused so that better and more informed decisions can be made. That is the art of the deal.


Building Rapport to Collaborate


To get there, you need to be mindful of some very basic skills that you already possess. First, your communications should be honest, sincere, and non-judgmental. Second, you should truly listen to the other side and be curious as to what they believe and why. Third, whatever actions you take should be consistent and helpful to acquiring information that will assist everyone to evaluate their case in a fair and open manner. Finally, while doing all of this, employ a little empathy to put yourself in the shoes of your counterpart so you can see their side of the case and why they view it that way. All of these actions will build better rapport, understanding, and ultimately the willingness to collaborate. With this, a foundation has been set for jointly finding an amicable resolution.


The Takeaway


No doubt that it takes courage to try this. But we all know that warriors have courage. So I say to you civil litigation warrior, do you have the courage to try? You have nothing to lose since you can always go back to waging war. But war, should be your last resort not the first option.


Less conflict. More resolution.



Patrick Russell

Miami Florida Mediator


Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation


#mediation #adr #disputeresolution #mediationtips

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Wishing everyone a wonderful Holiday Season and even better New Year!


We all have plenty to be grateful for including our health, family, friends, and accomplishments throughout this past year. As we gather with family and friends, let's try to savor and be mindful of those special moments. Sit back and observe. Resist the temptation and habit of making the Holidays another to-do list action item. Now more than ever, we all can, should, and deserve to take a step back and just truly be.


Now also is a great time to set some positive intentions for what you want to accomplish for the New Year. I would suggest that you dive deeper and include some intentions for personal growth and improvement. This means more than just losing weight, kicking a bad habit, achieving some financial goal, or buying a material object. Rather, work on yourself for improving a personal skill such as patience, compassion, or empathy while also pursuing deep inner peace and happiness. Ask yourself how you can be a better person. Consider ways in which you can pay it forward by helping others or volunteering as this is also a great way to develop satisfaction and happiness.


Remember, change does not happen on its own. Set the intention with a thought as to what you want to do. Plan actions for how to implement that change. Implement those actions and make them a habit. Next thing you know, you will have true change. If the intention is to have happiness, you may find that happiness is not as elusive as you may think.


Be well and see you on the other side of Next Year.




Patrick Russell

Miami Florida Mediator


Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation


#mediation #adr #disputeresolution #mediationtips

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Get ready. There is a backlog of 2 million civil cases in the State of Florida and the Florida Supreme Court has taken notice.


A recent Florida Bar News article suggests that the Florida Supreme Court is considering some wide-ranging and seismic changes to streamline case management and to reduce the time it takes to get to trial.


A Streamlined and Accelerated Case Management Plan


A Judicial Management Council workgroup has been working on recommendations that would require legal counsel to create a case management plan at the outset with all requisite deadlines that must be adhered to.


Strict Deadlines


The workgroup's intention is to speed up the prosecution of the cases while reducing the time for obtaining hearings and orders. One commentator suggested that deadlines will be strict and continuances will be very difficult to obtain.


What the Future Holds


The work on this project started in October 2019 and the thought is it would take up to 18 months to implement once decided and in final form. Noticeably absent from the workgroup report was any recommendation as to the use of dispute resolution or early mediation to help resolve cases.


The Takeaway


While it is too early to comment in detail, my initial reaction is the Supreme Court possesses a unique opportunity at this time to implement uniform provisions in a new case management plan that provide for dispute resolution mechanisms and early mediation. To the extent that early mediation could result in a resolution, that would certainly reduce cases on the docket and less stress on already tight judicial resources.


The second takeaway is that trial lawyers had better start getting prepared for a whole new world in which their already limited time is going to be even further reduced. Case and time management skills will need to be improved to keep up with this new paradigm. Perhaps this alone will also motivate trial lawyers to analyze their cases more closely for early resolution purposes and to build better skills for dispute resolution.


Only time will tell.


Stay well,



Patrick Russell

Miami Florida Mediator


Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation


#mediation #adr #disputeresolution #mediationtips

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