While it is obvious that law is significant in legal disputes, how the law is used is not so obvious. This piece uses Oliver Wendell Holmes’s famous definition of the law as “prophecies of what the courts will do in fact,” rather than rules expressed in statutes, case law etc. It discusses two aspects of…

I was puzzled to get an email from a mediator thanking me for my recent post, which advocated using a unified conceptual framework of unbundled mediation interventions. The puzzling part was that she wrote that it helped to “validate my theory that ‘bundling’ of mediation models can be appropriate and effective in the right case…

A quarter century ago, Professor Leonard Riskin published an article describing a grid of mediator orientiations including a facilitative-evaluative dimension.  Despite critiques of this framework, including by Riskin himself, many mediators, trainers, and teachers still use these concepts as mediation models, expressing strong feelings that one model is good and the other is bad. These…

“Managing a Client’s expectations and advising them on a course of action turned out to be far more difficult than negotiating with the other Party.” So wrote newly-minted Indian lawyer Varsha Manoj about her experiences negotiating with her clients. Many lawyers in the US and other countries undoubtedly have similar experiences. Legal clients often experience…

I write this in the aftermath of yet another mediation in which the protagonists exhibited symptoms of having been seriously traumatised by the litigation process to which they had been exposed. Depression, suicidal thoughts, anger, loathing, destroyed relationships, large amounts of money spent with no discernible value. And this was a commercial situation, not a…

What mediators do with words

‘The world is made, not found’ (W. Barnett Pearce) (1) I just spent an intensive weekend on Zoom with my students, helping them navigate their early steps into mediation practice. So much has changed. I have never met most of them face to face; we sit at home on our screens; there are no coffee…

“The grandchildren put out a treble tongue, Law is the senses of the young” W H Auden, “Law like Love” “In a room where people unanimously maintain a conspiracy of silence, one word of truth sounds like a pistol shot.” ― Czesław Miłosz (Polish-American poet, 1911-2004) A couple of months ago, our 15-year old granddaughter,…

Introduction “A great many people think they are thinking when they are merely rearranging their prejudices.” William James Whether as mediators, advisors or parties in dispute, we consider ourselves rational, open minded thinkers. We make decisions in an objective, non-biased fashion, don’t we? Sadly, not often. We are all susceptible to a swarm of cognitive…

Mediation can be an intense experience for parties and their advisers. Often there is a lot on the line. In the substance there may be money, control, reputation, pride. In the process, there are challenges such as influencing other parties, getting the best deal possible, making well-informed judgment calls about risk, developing effective offers, and…