An Alternative to Litigation: Addressing the Imbalance of Power in Mediation
Published : May 2017
Turning Water Into Wine
Turning Water Into Wine[1]
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
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!
[1] This is a companion piece to “Mediate, Like Water My Friend – Reflecting on Bruce Lee” By Stanley Zamor, September 2022
“Mediate, Like Water My Friend – Reflecting on Bruce Lee”
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
The Positive-Impasse: Video-Mediation Observation Recap Discussion
A Positive Impasse? Insurance Property Loss. Kris (mentee) and I discuss and debrief about what she observed and learned by watching Stanley Zamor mediate a First Party Home Insurance case. Debriefing and discussing the process is advantageous for both the observer and a seasoned skilled mediator. The learning process never ends and only makes you better. Every mediation is essentially different, and the dynamics of how parties negotiate is paramount to the process. This mediation ultimately resolved a few days later even though it ended in an no agreement initially. This recap highlights the following (but not limited it): 1) Negotiation styles 2) The stark differences between the Attorney to client relationship and how they negotiation throughout the process 3) Party empowerment 4) Party self-determination 5) The Mediators ethics – Opinion and Advice 6) How to promote negotiations after an impasse 7) Issue presented by advocates/attorneys who may not want to resolve cases.
DEATH OF A MEDIATOR (inspired by actual and true events)
I come to you with a heavy heart. I am gravely saddened for our community of professional neutrals because we have lost yet another dedicated certified mediator. Although Albert D. Results, Esq. (“A.D.R”), principal of the 15 year old firm, Sensible Mediation, Inc. is very much alive, he has shut down his Sensible Mediation, Inc. forever, after a 24-month battle against declining revenues. The closing of Sensible Mediation, Inc. not only effects its principle, who has decided not to recertify and leave Florida, but also its 4 person staff, who are now out of work.
A.D.R was a well-established litigator (over 25 years) who decided to leave the practice of law and answer, what became the feeling of a higher calling, being a certified mediator. It was not solely a profession, a side business, or just another way to supplement income like most attorneys turned mediator. It became a way to impact those who participated in the process of mediation who seeking legal justice. He dedicated himself to conflict resolution and practicing “mindfulness” when mediating.
The circumstances that lead to the death of Sensible Mediation, Inc. is not shocking, just sad and disturbing to know that many dedicated mediators are at risk to the same fate. Some can speculate that it was today’s unstable economy or the inability to adapt to the millennial business climate. No. being more aware than that, A.D.R knew it was cronyism and unethical local mediator practices that Sensible Mediation, Inc. refused to bend to. The large firm cronyism is keeping only certain mediators busy due to personal relationships, while large insurance companies will only select mediators they know serve their interest by conducting mediation how they want. So, remaining true to its ethics, maintaining principles of mediation and practicing more mindfulness cost Sensible Mediation, Inc. its life.
So farewell Sensible Mediation, Inc. and its principle. You fought the good fight and maintain true to what the promise of mediation is. And although your certified mediator life has come to its end, carry on and good luck with your other endeavors.
This is based on real events. The names have been changed to keep the privacy of the principle and those involved.
A.D.R. has given me permission to write this piece and have asked advocates of ADR and mediators who have taken the time to read this, to stand firm and maintain the dignity of the profession by not letting “Large Firm X” or “BIG Company” control how the profession evolves and how mediation is conducted.
I AM Just Asking. Are Mediators/ADR Professionals Uncomfortable with Conflict Outside Their Conference Room?
In Brief: Where are my fellow Mediators/ADR Professionals? I expected to see/hear more from my colleagues hoping to uplift their communities as our country suffers from a deteriorated Law Enforcement & com
munity trust, ignorance, hate and violence. Why is it that when I ask established colleagues for their insight on addressing the current turmoil found with Law Enforcement-Community divides they give me the “I’m uncomfortable look”, they start to blink a lot and avoid eye contact, or they mumble “…they’re not my clients…” WOW!? I just shake my head and say “We don’t have clients. We service individuals, businesses, communities in varying stages of conflict and we help these participants through these difficult issues…”.
It is increasingly clear when the world is being turned upside down and communities are at odds, Mediators/ADR professionals should feel the duty to actively step-in and step-up by offering their conflict resolution skills and to assist with brainstorming solutions and peacebuilding. Are we not the Bridge-Builders of dialogue? Instigators of open honest/transparent communication? Encouragers of respectful cross-cultural, racial and religious background acceptance? Why are so many of my colleagues not comfortable with conflict outside of their conference room walls. I sometimes don’t get it. But then again, I guess for many, this is just a profession and not a calling.
For those who see themselves going beyond the conference room, being uncomfortable while creating an impact, and working on sustainable solutions, I would love to hear from you szamor@i-mediateconsulting.com
Ethical/Moral Obligations of a Mediator: The Issue Regarding the Disbarred Attorney Participant…
So, our issues begins…. A Mediation was scheduled regarding a Circuit Civil matter. All of the noticed parties were present, the mediator, Plaintiff’s Counsel (“PC”),a Plaintiff’s corporate representative (“PR”) with “full authority” to settle, and the Defendant. Before commencing the mediation, the Defendant stated that they recently retained counsel, who will be filing notice of appearance with the Court, so she would like to wait for them to participate in mediation as they are on their way. The mediation conference was scheduled to start promptly at 1:30 pm. The PC and PR stated that they did not mind, so it was decided to wait for the Defendant’s Attorney (“DA”). After 20 minutes, the(“DA”) still did not arrive, but called twice saying they were delayed during the lunch-time traffic. In the effort to move the mediation forward, all the parties agreed to proceed with the DAparticipating via telephone, until he arrived physically. When the DA eventually arrived, now 45 minutes late, he was updated as to the mediations progress. Throughout the mediation process, the DA was uncooperative, disruptive at times, and constantly stated his position not to concede to anything and to leave the mediation. Although the process was contentious, the case was settled, drafted, and signed by the parties and their counsels. After the mediation ended,it was observed that the DA was overly friendly with one of the paralegals and support staffemployees within the office assisting with copies. So, after everyone left, the mediator asked the paralegal if she knew the DA involved in the mediation. The paralegal timidly nodded, smiled and suggested that the mediator conduct a name search on the Bar’s website. The search revealed that the DA had been recently disbarred. Here are just a few of the many issues/questions that we as Mediators must consider.
- Is the mediation settlement agreement valid?
- Given this circumstance should the mediator obligated to ensure a Notice of Appearance was appropriately filed? What about a mediation participant’s right to self-determination?
- Does the mediator have an obligation to inform the Defendant that their attorney, who was not helpful during the process, has been disbarred?
