Effective mediation techniques
August 6, 2019
Impasse — it’s the bane of all mediators. We know it when we see it. The gap between the parties seems unbridgeable. Neither side is willing to make a move. Emotions are running high, and both sides are ready to walk. What can mediators do to prevent negotiations from reaching..
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Tags:July 31, 2019
In this latest post on applying Talmudic principles in mediation, we discuss the Talmud’s view of mediation as an affirmative moral obligation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). Moral duties are actions we are..
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Tags:July 28, 2019
Two of the primary approaches to mediation are facilitative and evaluative. Under the facilitative approach, the mediator orchestrates a process that facilitates communication between the parties concerning their respective interests and concerns. The mediator typically refrains, however, from sharing an opinion concerning the strengths or weaknesses of either side’s positions...
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Tags:July 17, 2019
In this latest post on applying Talmudic principles in mediation, we will explore a Talmudic insight that can be used to manage high conflict personalities in mediation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). The..
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Tags:July 15, 2019
Traditionally, mediators have helped parties resolve disputes already in litigation. Some of our recent blog posts, however, have discussed how mediators can help nip disputes in the bud before they escalate into litigation in contexts such as estate planning, family businesses, and the workplace. The idea being that lawyers should..
Tags:July 11, 2019
To deter parties from taking frivolous positions in connection with contractual relationships, agreements often contain fee shifting provisions that entitle a prevailing party to recover reasonable attorneys’ fees in any litigation arising under the agreement. The downside of fee shifting provisions, of course, is that they may deter parties from..
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Tags:July 10, 2019
Participants in mediations will be familiar with bracketing — a technique widely used by mediators to bridge seemingly insurmountable gaps between what one side is offering and the other side is demanding. Why bracketing works offers a fascinating glimpse into the psychology of negotiation and mediation. Let’s assume a plaintiff..
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Tags:July 7, 2019
We have previously blogged about applying Talmudic principles in mediation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). This post will explore application of the Talmudic principle known in Hebrew as dan l’kaf zechut, or judging..
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Tags:July 2, 2019
My colleague Josh recently blogged about strategies for handling confirmation bias in mediations. He mentioned I had used a high low agreement to successfully address confirmation bias in an insurance-related mediation. I’ll discuss that case in this post. A start-up title insurance agency (funded by a prominent private equity firm),..
Tags:June 30, 2019
We previously blogged about the process known as “med-arb” under which the parties to a failed mediation agree to retain the mediator to arbitrate their dispute. We also highlighted a particular application of med-arb under which the parties to a mediated settlement empower the mediator to arbitrate any disputes that..
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