Archive for month: October, 2022

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

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[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)}

By Stanley Zamor

The Defense and the Plaintiff’s attorneys exchanged smiles and pleasantries while the agreement was being signed, then someone stated, “How did we get here. I never settle these cases so early…”. I immediately interjected, “Well, it’s because we mediated like water. And from the orientation (opening statement) forward, you allowed the process to be what it needed to be for the litigants”. I asked the Defense’s attorney, why was his first offer much higher than what they anticipated? Then, I asked the Plaintiff’s attorney, you said the Defense lost their Summary Judgement Motion which would have ended the case before the trial, you have a stronger case, and your 3 recent trial wins mirrors this case exactly. Why demand so much less when you said you are due so much more? They seemed more attentive, and I continued; you both expressed a choice to negotiate differently, so we did. Although we initially went through the merits of your case, how much time did we spend debating the usual arguments showcasing your strengths and highlighting the others weakness? Not much. With this case there was no need to mimic the evaluative style mediators/neutrals use; its mundane, often unethical, and very limiting.  You did not need that, so I played the role I was supposed to and encouraged creative negotiations.  Instead of it being only about who is a better lawyer, whose case is stronger, it became about what solutions can work today. I mediated like water my friends.

“Empty your mind, be formless. Shapeless, like water. If you put water into a cup, it becomes the cup. You put water into a bottle, and it becomes the bottle. You put it in a teapot, it becomes the teapot. Now, water can flow, or it can crash. Be water, my friend.”

— Bruce Lee

The Promise of Mediation

Mediation is a unique process with subtle nuances; it is not a court event. And when facilitated with process-knowledge and a command of varying negotiation techniques the parties can craft/achieve solutions that the court cannot offer. Mediators who remain tied to their litigation roots often neglect the promise of mediation, for the profit of mediation. They rarely invest in expanding their skills/techniques or becoming “comfortably-uncomfortable”, an advanced state. Participants can get more out of mediation if they understand the possibilities of mediation.

“Conflict/Mediation is Constructive…”

Bruce Lee’s words were about resilience.  I find them far deeper and use them as a metaphor and as an approach for creating unique solutions that encourages flexibility, creativity, empowerment, barrier reducing communication, relationship-building, and self-determination.

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

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