A Companion Piece By Friend and Colleague John Freud: “Turning Water into Wine”

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By John S. Freud

“Be like water making its way through cracks. Do not be assertive, but adjust to the object, and you shall find a way around or through it. If nothing within you stays rigid, outward things will disclose themselves…”

–Bruce Lee

[1] This is a companion piece to “Mediate, Like Water My Friend – Reflecting on Bruce Lee” By Stanley Zamor, September 2022

Miracles don’t just happen.  They occur, and are then revealed.  For many if not most of us, we must take a giant leap of faith to even begin to be open to the possibility that Miracles can, or could, happen.  Others might argue that Miracles are present for those that choose to acknowledge or recognize the “miraculous” for what it is, or may be – an unexplained phenomenon for which there is no easy answer as to how or why it seemingly, or simply, is.

Christ’s Turning Water Into Wine story (John 2:1-11) is, to his believers, a seminal example of the “miraculous”.  But whether miraculous or not, is interestingly, not the point.  It’s the Belief in the metaphorical outcome of the story that provides the enduringly powerful message to all of us, rather than its historical accuracy or its factual efficacy.  And that message is, anything is possible.

Which leads us to Bruce Lee.  The analogy is not a stretch.  Imaging we are “ water making its way through cracks” might seem at first blush farfetched.  Just like Jesus turning water into wine. But the sentiments underlying both images are the same.  Anything is possible.  What Lee does – and what Jesus omits – is how to make anything possible:

“Do not be assertive, but adjust to the object…nothing within you stays rigid…”

Lee’s “how to” admonitions may be summed up thusly – when adversity comes calling, rather than stiffening your response, soften your resolve.  One “shall find a way around or through” adversity or deep conflict in mediation – “like water finding its way through cracks” – until suddenly “outward things will disclose themselves”. In a negotiation in mediation, the disclosure of “outward things” – drivers of decision making by principals, motivation of lawyers and insurers, and the like – must reveal themselves in order to find the space necessary for compromise.  Belief – and its discontents – must give way to decision-making that opens parties in deep conflict to the possibility for “anything is possible”, which in mediation includes voluntary resolution of the dispute.

Is the mediation environment a crucible for miracles, or as the saying goes, “mediation magic”?  No.  However, it can be, with fully engaged participants and a skilled mediator committed to “anything is possible”, an environment where unexpected, voluntary resolutions for parties in conflict “disclose themselves”.  

If that is Turning Water Into Wine, I’ll have a glass of your finest!

John S. Freud, Esquire, is a Florida Supreme Court Certified County/Circuit/Appellate Mediator, Master Trainer; NADN – Executive Board Member; Texas Mediator Credentialing Association, Credentialed Distinguished Mediator; Nationally Certified Construction Dispute Resolution Services, LLC, mediator (see, johnfreud@cdrsllc.com)

Download – Mediate-Like-water_John-Freud-Turning-Water-Into-WineDownload

“Negotiating with the Enemy – Thoughts”

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The Washington-Relocation


Father’s Attorney: “My client will not give in or consider anything less than what “we” currently have.
My client did not make her leave Florida or the condo he purchased for her. So, for her to now ask for
full time-sharing is NOT going to happen.”


Mother (Pro Se): Please Mr. Stanley help me! I understand everything they said. But here. Read these.
See? I dealt with 3 Domestic Violence cases with him/his family. So, I left my son and Florida. But now
that I am more stable. I am here to fight for my son. All I am asking is that he finishes up to middle
school with me in Texas; then he can do High School with his dad. That is fair. Right?


CONFRONTING THE “ENEMY”


Whether it’s a family or business matter entering a negotiation is never as simple as people think. At
almost every stage of a negotiation emotion plays a part of how you negotiate and ultimately how you
respond. What is also a factor is who you are negotiating with/against and how they respond.
Understanding both sides does contribute to the type of resolve achieved. As I mediate, parties are
usually, only focused on what law, statute, or case-law is used to persuade their position. I understand
that and get it. But then what? During mediation rarely is one side persuaded to giving-in just because
the law/facts (as it is interpreted by that side) convinced them to “take the deal and run”. No. It does
not happen that way. They would just agree to disagree and let the court decide, right? Why is it not
understood that being face-to-face at mediation, is the best time to negotiate with transparency? Yes, I
said transparency. It doesn’t need to be adversarial.


ENGAGING THE “ENEMY”


Negotiation “is” an emotional event and although many promote/expect disputants to “take the
emotion out of it…” that is not so easy to do. When dealing with the human condition you are always
dealing with issues of disappointment, unmet expectations, insecurities, and feelings of betrayal that
have permeated the relationships’ core. That is not so simple to ignore; and is always paramount.


SEEING THE “ENEMY”


After thousands of hours of creating solutions and addressing family/business matters I have found that
every dispute is unique, in its own way. However, when seeing people dealing with their adversary, they
often must “see” themselves, or their missed opportunities to recognize concerns that would have
saved them years of conflict/grief. So, for many, the enemy they must confront and deal with, is the
enemy within.

Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified
Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree
(ATD) Mediation Group. As an ADR consultant he regularly lectures on a variety of topics from ethics, cross-cultural issues,
diversity, and Family/Business relationships.


ZamorADRExpert@gmail.com ; www.effectivemediationconsultants.com; www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600

Prepared. Lawyered-Up. We’re Ready to Fight…But Not Settle

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“No One Wins a War…” & “Litigation is War…”

As I closed the door. Exhaled and turned to take my seat at the head of the sixteen person table. I again noticed the impressive tech-heavy modern conference room.  As I looked at the adverse parties and observed the mountains of papers, binders, notes, pens, highlighters and personnel on both sides. I surmised, “Wow, both sides came prepared to ‘war’”.  

My opening statement was short, concise, and I focused on being open to exploring the value of a diversity of perspectives and ideas. LMAO! Once I saw the Plaintiff’s attorney’s smirk and give a “low key” grin I paused, broke protocol, stood up and said to that attorney, “Why are you hear today?” They were silent and appeared caught off guard. Then I turned to the other attorney, “Did you come here to WIN, or negotiate?” Again, another facial surprised expression…” I continued. “We are here to negotiate. We are here to hear and explore opportunities of resolution that may not be what we saw possible. Mediation is not an opportunity to impress upon the mediator how sound your case is or how flawed is the opposing side is, or how “Stare decisis law” compels your legal position… Although you may feel the merits of your case is just. It is the ambiguity that has not allowed you to prevail yet… So! Here, we are. What do you want? And how much are you willing to mutually agree to so you can fight the next fight, move past this issue so you can engage in more pressing ones?”

The room was silent, but the faces were easily understood.  This mediation was not going to be like others. And mediation never has to be a continuation of what they see/feel/do/exercise/experience in court.  Mediation is an opportunity to learn, grow, explore solutions and go beyond what the strategic moves litigation offers.  Litigation is WAR, MEDIATION is the FIRST AND ONLY TIME WHERE SELF-DETERMINATON CAN BE ACHIEVED!

So, as you engage and prepare with your legal team and/or legal counsel, ask yourself, “At the end of the day what do I want to achieve?”  If you want to destroy your adversary; embarrass your former spouse; business partner, relative, friend or employer… mediation may not be what you need/expect.  I have seen the harshest/ugliest of relationships find solace, healing, empathy, understanding and respect within the construct of a “well-facilitated” mediation process, by a full-time dedicated skilled neutral (not a part-timer). Do You Really Want War or Mutual Agreement?

Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified.  Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultant he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships. 

szamor@effectivemediationconsultants.com

www.effectivemediationconsultants.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600

“When You Negotiate/Mediate BEWARE WHO YOU BRING!?!”

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By Stanley Zamor

I was recently called by a mediator colleague who seemed hushed, rushed & speaking in a whispering tone. He was at the commencement of a mediation and excused himself to secretly call me in private.  He nervously explained that as he was about to start a commercial mediation conference, and while ushering the Plaintiff and his attorney into the conference room, they abruptly stopped, turned around and refused to enter after seeing the Defendant and the Defendant’s attorney were sitting with a third person unrelated to the lawsuit. The Plaintiff was highly upset and marched into a smaller conference room stating that he refused to mediate if the other person stayed in the mediation. The Plaintiff felt that the third person is largely responsible for most of the dispute.  The Defendants insisted the third person stay.  The Defendants being sued is a small family business and its principal individually.  The third person identified himself as an Attorney-CPA but wanted to participate in support of his cousin (the business owner) and as a friend of the business; he initially assisted with the company’s accounting, vendor accounts and setup.

My colleague stated that he knew the intricacies of the Florida Mediation rules/statutes/ procedures but was stuck. He did not know quite what to do since both sides appeared so ridged and this mediation took months to set up.  What to do?

INSIGHT, PARTY SELF-DETERMINATION

Mediation is a consensual process whereby parties have the unique opportunity to be in control of their own destiny.  Unlike being in court or an arbitration parties can determine how they negotiate and with who.  Often one side may bring someone to the mediation that they other side feels disrupts negotiations. A skilled mediator will know the difference and will encourage a constructive process and dialogue.  

MY SUGGESTION, HOW TO DISCUSS PARTICIPATION

With the Defendant, discuss that only named parties/parties of interest participate in mediation. However, if the Plaintiff agrees there will be restrictions that must be adhered to. The mediator will ask the third party to leave if his behavior less than constructive.

With the Plaintiff, discuss how a third party may have a value and influence on how the Defendant negotiates by setting them at ease. People usually negotiate better when they feel supported, less stress and anxiety doesn’t cloud their judgement.  

OUTCOME

I was later told that the third-party participated in the mediation conference and offered several strategies regarding how to resolve the matter while maintaining vital portions of the business relationship. They settled in four hours.

Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator.  Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultants he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships. 

szamor@effectivemediationconsultants.com

www.effectivemediationconsultants.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600

An Alternative to Litigation: Can’t Afford a Lawyer. Don’t Need a Lawyer? DIY Solutions, REALLY.

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If You Want to FIGHT…


If you want to fight, go to Court. If you want to bury your opponent in legal fees/cost or be vindicated with a sense of “I put you through same levels of frustration you showed me.” Then go to Court, right? However, if you want to find and create solutions that just “get it done” so you can move on and deal with other life circumstances. Or, if you need to resolve the conflict while repairing some aspect of the relationship, then mediation facilitated by a skilled mediator maybe what you need. And you can often do it yourself without a lawyer.


Sword-n-Sheid vs Bridge-n-Brick


We have been conditioned to believe that you can only find resolve in court. That the only way to get your legal needs met is when you go to court; and you can only do that if you hire a lawyer. While you should use and hire a competent lawyer who will vehemently represent you, most can-not afford competent representation. For those who have participated in the Court system, they will disagree with these comments; and add that after years of waiting, the decision they received rarely satisfied them.

Justice Jorge Labarga, Florida Supreme Court established a commission who conducted a three-year study regarding ‘Access to Civil Justice’. In its’ 2016 results the commission reported that the unmet civil legal needs of the disadvantaged, low and moderate-income Floridians are staggeringly high; mainly due to high legal fees. With over 100,000 members of the Florida Bar, I asked myself, “How is that possible?”


If You Want to Resolve and Move Beyond…


After over 20 years as a certified mediator (and trainer/coach) I have seen how advocates approach and use mediation the wrong way. Let us be straight and clear, mediation is a process that provides an alternative to the high-cost and uncertainty of Court. Mediators are ethically bound by Statute/Rule NOT to give legal advice (even if they are also an attorney) and can be grieved if they do. It is not court, yet many try to operate as if it is. When a skilled mediator knows how to address party needs/wants that mediator can help resolve conflict in a manner that Courts can’t; with or without an attorney present. A skilled mediator through conflict resolution techniques can help transition the discourse while achieving results where the interest/goal is to be done and move past that issue. Or, in many cases maintain a relationship past the dispute.


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the ATD (Agree2Disagree) Mediation & Arbitration, PA throughout Florida. As an ADR consultant & Coach he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.
szamor@effectivemediationconsultants.com; www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600

An Alternative to Litigation: “Part 2, The Basics of Online Negotiation/Mediation: Creating Value Through COVID-19” By Stanley Zamor

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“Thank you for allowing me to be your mediator. If you can clearly see/hear me, please give the thumbs up signal… Thank you. You are all not muted and I will do my best to make this feel comfortable and familiar. Thumbs up if you have participated in mediation and/or negotiations using an online platform. Good. Well mediation is a process and technology allows for more flexibility… I am a third party impartial neutral without the authority to impose a decision/solution… All of the rules of confidentiality apply, and all named parties are present correct?… Now, there may come a time where I may need to meet with the parties and their attorneys privately, or the attorneys privately, or even in rare circumstances just both parties together…You are encouraged and empowered to create your own solution that best satisfies your needs today and craft a Mutual Acceptable Agreement… Are there any questions. Let’s begin.”


Part 2 – Creating Mutual Gains and Value


Recently I facilitated an online mediation where both attorneys expressed a frustration with the case and how the matter was being litigated during COVID-19. Everything was an issue, from document production requests/responses, to communicating with multiple revolving attorneys on the case. Nothing was consistent. The above are excerpts from my Mediator’s Orientation Statement (aka the “Opening Statement”) where I addressed the attorneys’ frustrations. IT WORKED!!!! During the process I used the online platform functions to meet separately various times with the attorneys alone and their clients. I was able to create trust in the process, between the attorneys/parties and build perspectives that led to shared mutual goals and a willingness to create an mutually satisfied agreement.


Not enough value is placed on the opening statement (and using an online platform makes is more difficult). Depending on the case & participant specifics, negotiators need to be flexible in their approaches and be prepared to reserve the “Harsh-Tactics” for face-to-face interactions or court!
So, as you negotiate through online platforms think about the following:


1) What do you want out of the process and how will you approach it differently than the usual face-to-face interactions?
2) How have you responded to conflict or the adverse opinions/positions of the other side?
3) How will you participate differently when online?
4) Prepare a brief and concise opening statement that also captures your expectation with online negotiation, AND YOUR LIMITATIONS!
5) Be honest about what you want, and where you are willing to go, save ego for court.


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the ATD (Agree2Disagree) Mediation & Arbitration, PA throughout Florida. As an ADR consultant he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.


szamor@effectivemediationconsultants.com; www.effectivemediationconsultants.com

www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600

An Alternative to Litigation: “Preparing for Negotiations: Do a S.W.O.T. Analysis”

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By Stanley Zamor

So after three intense hours of negotiations where I shuttled between private rooms, I decided to bring the lawyers together in the hallway and I asked them, “Well we have tried for quite some time to find common ground and you both are debating business/legal positions that neither want to move from. If you allow me to, can I approach the remainder of our time in a different way? Both attorneys looked puzzled, yet agreed. I proceed to use an S.W.O.T Analysis approach and after 90 minutes they began to draft a mutually agreement.


So what is a S.W.O.T. Analysis? This acronym stand for Strengths, Weaknesses, Opportunities and Threats. In the late 1960’s Albert S. Humphrey developed this framework to better analyze business/organizational decisions-making. A S.W.O.T Analysis is a tool that can be used in a variety of industries.


The S.W.O.T Analysis has typically been used in a business and marketing context; I like to suggest that it can also be applied in a variety of areas including that law.  It is a helpful guide to analyze and review positions, strategies, ideas or approaches towards a challenging issue.  This article is limited and cannot describe the specifics and intricacies of creating a S.W.O.T Analysis (the literature online is abundant). Consider the following:


Strengths:


Strengths are internal factors that influence your position. List five reasons why you feel your position is strong. Explain why and how you feel that way.


Weaknesses:


Weaknesses are internal factors that influence your position. List five things that are risks for you. Why?


Opportunities:


Opportunities are external factors that influence your case or current position. Opportunities are not as easy to identify as some may think. You must spend time researching your business industry and be honest with yourself about your wants, needs and walk-away points.


1) Identify 5 positives that motivate you to proceed?
2) Identify any interesting trends or similar issues in your industry or legal position that you can imitate or rely on?


Threats:


Threats are usually external factors that influence how to proceed. To review what your threat are a variety of questions should be developed. The following are not exhaustive:

1) List 5 risks you face if you go forward with your position.
2) Should you not prevail as anticipate, does the loss change your position in the marketplace or industry? If so, how?
3) Will your reputation be harmed if you do not obtain a favorable result? If so how?
4) What is your financial risk tolerances?


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultants he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.


szamor@effectivemediationconsultants.com
www. effectivemediationconsultants.com
www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600