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  • Writer's picturePhilip Reich

Every Mediation is Different

I enjoy golf, and because of my father, began playing at a young age and now try to play when it works into the schedule. I have learned to find satisfaction in the company I keep on the course and not how I play. Golf has got to be one of the most enjoyable yet frustrating things I can do. Every round is different, every swing is different, each hole is different. Really good golfers do a better job of handling all the variables. The more we practice, the more we play, the more consistent our swing becomes, the better we score. Negotiations and mediations are no different.

Negotiations involve people, and everyone is different.

And one’s risks and tolerances vary from day to day. So each negotiation, even with the same people involving the same issues will vary. Change the facts and the negotiation changes. Change the people and it changes even more. Change the issues and the people and… Well, you see what I mean.

Nevertheless, the more you negotiate, the better you get at it.

The more variables that you see, the better prepared you will be. As with everything, the more you experience, the better equipped you are to predict likely outcomes or actions or reactions.

I see and hear of two mistakes that many mediators, especially experienced mediators, often make.

1. One is failing to appreciate or consider the experience of those negotiating.

Those who are inexperienced could make mistakes that someone more experienced might easily avoid. While our job as mediators is to assist in the process (in other words, not hijack the process), we aren’t helping if we don’t give negotiators some feedback on contemplated moves based on our experience. And that means giving feedback to both the less experienced and the more experienced. If someone who has negotiated hundreds of cases fails to appreciate that the person with whom they are negotiating is much less experienced, then our job as mediators is to point out those considerations.

2. The other is failing to appreciate that every mediation is different.

This means listening and observing. As mediators, we can’t blindly go through the motions. We must be in tune with the parties and the attorneys so that we can pick up on subtle clues that might help us help them. And again, help does not mean take the reins.

It’s important for mediators to be experienced negotiators, experienced mediators, and one who can walk the fine line of being helpful without being over-bearing, at one extreme, and providing no value, at the other.


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