July 15, 2019

July 15, 2019

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Making Mediation Music: I’m Singing This Tune

Jeff  Kichaven, a widely respected and experienced mediator, hit the perfect note in his recent article, “Understanding Mediation’s ‘Apex Conversation.’”  My own perspective, as both a participant in mediations and as a neutral, reflects Jeff’s point in underscoring the process as much as the substance of dispute resolution.  First, after going through a day or two of “the dance,” the clients must face the reality that “if the case indeed is to settle, the client must change her point of view, and consider new options.”  The mettle of the effective mediator is tested by knowing when the timing is right and how to articulate an alternative route to resolution.

The second point that Jeff makes, and one that I have long advocated, is to do away with “yesterday’s” version of the joint session.  There is very little efficacy in having each side reiterate inflammatory arguments in order to impress his or her clients.  I heartily agree that a different approach to the joint session is required, and one that does not require rehashing old arguments. 

As Jeff says, one approach is to allow “each side [to] give and receive complete, often new, information about each other’s stance on the rubber-meets-the-road issues, interests, needs and values.”  Another option is to allow each lawyer to articulate the other side’s position as a means to reflect that they, in fact, understand each other’s argument.

All in all, I believe the way forward to dispute resolution is giving the mediator the role of a conductor, helping each side to play their own parts and eventually bring the parties to an understanding that resolution is better than the alternatives.

© 2019 Neal, Gerber & Eisenberg LLP.

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About this Author

Jill B. Berkeley, Partner, Neal Gerber law firm
Partner

Jill B. Berkeley chairs the firm’s Insurance Policyholder practice group. Chambers USA reports that clients describe her as “a breath of fresh air in litigation,” and “an outstanding lawyer with encyclopedic knowledge of case law.” She is recognized by her peers as having “great stature nationally” and being “a pillar of the policyholder community.” Jill represents policyholders and claimants in insurance coverage disputes involving toxic torts and hazardous wastes, environmental pollution, construction, products liability, intellectual property, first-party property, business...

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