Mediation Blog

Updated: Dec 9, 2021

There is an ingrained misconception that mediation is simply about splitting the difference between competing offers. To make that point, I recently attended a conference, and one speaker stated that her job as an umpire was much different than that of a mediator. To support that claim, the speaker indicated that mediators split the difference during mediation, while her job was to evaluate and value claims. To say that I was a bit disappointed by that comparison would be an understatement.


Past Mediation Practices


There is some truth to the fact that many mediators have in the past and continue to split the difference at mediation. Most lawyers have had this experience where the mediator ends up doing shuttle diplomacy.


Shuttle diplomacy is the practice of certain mediators that go back and forth between the two parties with a legal pad in hand carrying offers and counteroffers. The primary task at hand ends up being the exchange of numbers until each side meets somewhere in the middle.


The practice of shuttle diplomacy usually starts with very high demands and very low offers with tiny increments in between. After a long mind-numbing process, the final resort will be the mediator's use of a bracket to bring the parties closer to settlement or realize they need to go home. While this may be one form of practiced mediation, it is not the only way to mediate.


Mediation 2.o


Mediation appropriately done is so much more than just exchanging numbers and splitting the difference. Splitting the difference at mediation for all cases implies that each party shares equal responsibility, liability, and fault, which is not the case. Stated another way, if mediation was just about splitting the difference, there would be no need for mediators as the parties or an accountant could perform that function.


True mediation in its purest form is the resolution of a conflict. To resolve a conflict, there has to be an understanding of the nature of the conflict and the underlying issues. Understanding conflict and its disputed issues requires gathering and exchanging of information so informed and rational decisions can be made. This means there has to be good communication, honesty, and a non-judgmental assessment of options during mediation. This is more than just numbers.


A mediator determined and interested in resolving a conflict will utilize more skills than just exchanging numbers. Mediation 2.0 will have a mediator first setting the tone for the mediation to be conducive to achieving the objectives for the honest sharing of information.


To achieve the critical need for the sharing of information, the mediator will need to utilize non-judgmental communication methods to encourage the parties to do the same. Many parties just need to be heard before their disputes can be resolved. Proper techniques for listening, speaking, body-language and the use of empathy are all tools in the Mediation 2.0 toolbox. Finally, a mediator must have an open mind to engage in high-end problem solving to move the parties towards a collaborative process for solving their dispute.


Expect More From Your Mediator


If you are only interested in numbers, then perhaps all you need is a number cruncher to split the difference. That, of course, would imply that both sides agree on the numbers and are equally responsible for the conflict. I would suggest that very few mediations are only about numbers or should split the difference.


Likewise, if you are going to mediation to check off a box so you can go to trial, well, then, in that case, any mediator will undoubtedly do. However, if you have a true human conflict and dispute, as most cases are, you then need a mediator that is equipped to do more than just split the difference.


The Takeaway


While many mediators continue only to split the difference does not mean that is what mediation is about. There is so much more to mediation than splitting the difference. Educate yourself on the differences between mediators and then determine whether you need shuttle diplomacy or Mediation 2.0.


If you are interested in learning more about mediation and negotiation strategies, please be sure to check out this site's Resources page.


Stay well,

Patrick Russell

Miami Florida Mediator


Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation


#mediation #adr #disputeresolution #mediationtips

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Updated: Dec 9, 2021

Lawyers and mediators share a common goal, namely, we are problem solvers. How we go about solving problems might be different, but the skills needed for our mission are generally the same.


Mediation Problem Solving


What makes a good problem solver? For starters, communication is an essential skill for connecting with people and solving problems. Likewise, having some subject-matter expertise for the issue at hand will certainly help. Finally, some old-fashioned curiosity, willingness to learn, and the ability to think outside of the box can help generate solutions.


In the end, if you want to hone your craft, you will need to continue to develop your skills and enhance your knowledge. Failing to stay current or to expand your horizons will certainly lead to your stagnation. When that happens, you may find yourself only having skills and solutions for yesterday's problems and not today's problems or those you will undoubtedly confront in the future. Your ability to solve problems is directly proportional to the number of options that you can envision.


Mediation and Continued Legal Education


One way to increase the options available to you to solve problems is by continuing your education and training. Lucky for us, as lawyers, we are already required to do this with mandatory continuing legal education.


What I am suggesting is that when completing your continuing legal education requirements, throw yourself into those courses with genuine curiosity and the determination to learn something new. Choose something that is interesting for you but also something that you can apply to your practice to enhance your options for problem solving. Do not lose this opportunity and simply choose something convenient or that you listen to in the background while you work.


There are two great ways to accomplish your continued education and skill enhancement objectives. First, you can attend in-person conferences for those subjects that interest you and apply to your practice area. By doing this, you will be exposed to numerous presentations on the subject matter of choice and will mingle with other people that share your interests. Remember that idea for enhancing your communication and people skills?


The second great way to accomplish your continued education and growth is by educating others. Not only can you receive continuing education credits for teaching courses, but the preparation that you will need will certainly enhance your knowledge as well. And again, you will be interacting and communicating with others who want to learn what you have to share. As a win-win, you will be undoubtedly enhancing your communication and people skills.


Putting it to Practice


This month, I will be attending the annual Windstorm Insurance Network WIND Conference in Orlando that covers all matters related to property insurance claims. I do this as a mediator to keep up with the changes in Florida insurance law so I can be better equipped to help resolve insurance claim disputes. Likewise, I will attend the WIND Conference so I can become certified as a WIND umpire for the appraisal of insurance claims. By doing this, I am adding another tool to my toolbox for resolving disputes.


Just the same, later this month, I will also be presenting on a panel for the Broward County Bar Association on the topic of "Mindful Mediation" during the May Wellness e-series. In doing so, I will be able to guide a discussion that I absolutely enjoy and, all the while, hopefully, be able to help better equip others to resolve disputes while at mediation. I consider this to be a win-win.


The Takeaway


So again, educate do not stagnate. You can continue to grow and develop a useful curiosity for solving problems by attending interesting continued legal education programs but also by helping to teach those same topics. Do this so we can have more resolution and less dispute.


If you are interested in learning more, please be sure to check out the Continuing Legal Education page for The Florida Bar and this site's Resources page.


Stay well,

Patrick Russell

Miami Florida Mediator


Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation


#mediation #adr #disputeresolution #mindfulness

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Updated: Dec 9, 2021

May happens to be lawyer wellness month. If the month of May can accomplish one thing, hopefully it will raise awareness for just how important health and wellness is for the legal profession. Simply taking the time to consider the obvious benefits of self-care would be a gigantic step in the right direction. Having an open mind to try to implement some simple changes in June would be the next fantastic result.


The Impact of Lawyer Wellness


At first glance, it seems counter-intuitive that lawyers would need a reminder as to wellness. After all, lawyers as a group are generally highly educated, motivated, and goal oriented. Likewise, lawyers for the most part went into the legal profession to help others, to be dogged advocates, and to make things better. Yet, lawyers all too often and to their own peril, ignore their own health and wellness. How can this be?


The results of ignoring health and wellness for the legal profession are telling. Job satisfaction is in decline, life's purpose is questioned, civility is challenged, waist lines are expanded, physical health problems are increased, depression is on the rise, and suicide continues to shock the profession.


Improving Lawyer Wellness Improves Performance


I would suggest that a step in the right direction is to consider taking an integrated approach to practicing law. What does this mean? Well, if you want to get better physically, you normally begin to focus your efforts on nutrition, flexibility, strength, and endurance. The same applies to your intellect. If you want to learn something new, you conduct research, you read, develop patience, determination, and focus. I think we all can agree that if one system goes out of balance, whether it is your body or your mind, that it will impact the other. Peak performance requires a command of both body and mind.


It would seem to me that as a profession, we may have focused too long and too much on practicing law and not complimenting that with self care for the body and mind. Being subject matter legal experts only, without properly incorporating healthy habits for our body and mind is one of the root causes for declining health and wellness in the legal profession.


In the end, I would argue that to be a better lawyer, advocate, and negotiator, requires you to integrate and maximize your health (the body), wellness (the mind), and your subject matter expertise (the law). You deserve this and so does your family and your clients.


The Takeaway


If any of this resonates with you, I would encourage you to at least try doing something for yourself in the next thirty-days that might be different but all the same better for you. Start out with one new habit for your health, wellness, and subject matter expertise. Try a new exercise regimen or healthy eating practice. Investigate meditation, yoga, getting out in nature, or taking a break from the computer or the telephone. Be curious, expand your mind and stimulate your intellect with a new book, sit for a CLE on a topic of interest, or join a new professional organization. Take this thirty-day challenge and see where you end up. You might just surprise yourself and feel like a whole new person.


If you are interested in learning more, please be sure to check out the Health and Wellness page for the ADR Section of The Florida Bar as well as this site's Resources page.


Stay well,

Patrick Russell

Miami Florida Mediator


Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation


#mediation #adr #disputeresolution #mindfulness

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