This short podcast is a discussion to introduce the “The Shadow of Mediation”; which is the timeframe that occurs after a mediation conference is held and has ended. The majority of professionals who participate in mediation often behave like once a mediation has concluded, the mediator’s ethical obligations has ended. They are wrong! A mediator’s ethical duty is to the process, profession, parties and the court and does not end when the process does. So neutrals should be be careful.
Stanley Zamor conducts periodic advanced negotiation and mediation advocacy trainings throughout the year where this and other nuances are discussed. During these advanced negotiation/mediation trainings techniques are discussed and demonstrated.
Subscribe, comment about this video and share it with others. If you have any questions for suggestions for future discussions or a question, please forward them to ZamorADRExpert@gmail.com with the subject line “Podcast Inquiry”
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Mediation does not always end when the parties leave the room. Sometimes it lingers in follow-up emails, chance encounters at bar events, LinkedIn connections, referrals, post-settlement clarification calls, or even casual comments made months later. This lingering presence is what can be called the “shadow of mediation.” It is the ethical space where perception matters as much as reality. For mediators and neutrals, especially those operating within structured ethical frameworks such as the Florida Rules for Certified and Court-Appointed Mediators, the greatest risk is often not overt misconduct — it is the appearance of bias created unintentionally after the case concludes.
The Ethical Foundation: Impartiality Beyond the Session
Under Florida Rule 10.330, impartiality means freedom from favoritism or bias in word, action, or appearance. appearance, and includes a commitment to assist all parties, as opposed to any one individual. The rule is not limited to what occurs during the mediation session itself. It extends to conduct that could undermine public confidence in neutrality. Similarly, Rule 10.340 (Conflicts of Interest) and Rule 10.370 (Authority and Professional Advice) reinforce a mediator’s obligation to avoid actions that could compromise neutrality or party self-determination. The key phrase embedded throughout mediator ethics is not simply actual bias, but the appearance of partiality. The shadow forms when conduct, even if innocent, creates doubt.
II. The “Shadow” Defined
The shadow of mediation refers to post-mediation conduct that:
Creates a perception that the mediator favors one party or counsel
Suggests confidential information influenced later interactions
Implies a continuing advisory or strategic role
Undermines the mediator’s neutrality in future related matters
It is subtle. Often unintentional. Sometimes If not always, social.
But perception drives trust — and mediation depends entirely on trust.
III. Cautionary Tales: Where Shadows Begin
1. The Post-Settlement Strategy Conversation
A mediator runs into defense counsel at a CLE event. The lawyer casually says, “Thanks for pushing the plaintiff hard on damages — that helped.”
The mediator responds with a smile: “I knew they were overvaluing the case.”
Even if said jokingly, the comment can be interpreted as alignment with one side’s strategy. If repeated, it could undermine future mediations involving that counsel or opposing parties.
Avoidance Strategy: Do not characterize your mediation moves in partisan terms. Neutral responses protect neutrality.
2. Social Media Proximity
After mediating a contentious commercial dispute, the mediator connects on LinkedIn with only one side’s counsel and later comments publicly on that attorney’s litigation victories.
The opposing side sees the visible online interaction.
Perception shifts.
Avoidance Strategy: Apply consistent professional boundaries across parties. If connecting online, consider balanced professional conduct or simply refrain.
3. Post-Mediation Clarification That Becomes Advice
A party calls the mediator months later asking: “Can you look at this enforcement issue? What do you think the judge would do?” If the mediator begins offering predictive legal analysis, especially favoring one party’s enforcement position, the line between neutral facilitator and advisor blurs. Rule 10.370 warns against providing professional opinion that overrides self-determination or suggests alignment.
Avoidance Strategy: Redirect parties to independent counsel. Provide process clarification, not substantive advocacy or predictive opinion.
4. Subsequent Representation in Related Matters
A mediator is later asked to serve as consultant or expert witness for one party in a related dispute arising from the mediated case. Even if technically permissible under certain conditions, the optics are dangerous. Confidential knowledge — even if not used — creates unavoidable appearance concerns.
Avoidance Strategy: Decline roles that derive from knowledge gained during mediation unless clear ethical authority and full informed consent exist — and even then, consider the reputational cost.
5. Casual Commentary About Parties
Statements such as:
“That plaintiff was impossible.”
“Defense counsel always lowballs.”
“I had to reality-check him.”
Even when anonymized, these comments can signal alignment, disclose confidential impressions, or diminish party dignity.
The shadow deepens when mediators speak too freely.
IV. Why Appearance Matters More Than Intent
Mediators often defend themselves by saying:
“I wasn’t biased.”
“Both attorneys/parties asked, so I provide both of them expected as I have the experience, training and expertise.”
“That’s not what I meant.”
“It was just a joke.”
Intent does not govern perception.
Public confidence in mediation rests on the belief that the neutral is, and remains, neutral. When appearance erodes, the process erodes.
Ethical discipline therefore requires restraint not only in conduct but in proximity.
V. Practical Guardrails to Avoid the Shadow
1. Adopt a Post-Case Neutrality Protocol
No strategic debriefs with one side.
No characterization of party performance.
No predictive analysis favoring one party.
No selective social media engagement tied to the case.
2. Standardize Your Responses
Develop neutral phrases such as:
“My role was to assist both parties in evaluating options.”
“The resolution resulted from the parties’ own decision-making.”
“I cannot comment on party positions or strategy.”
Consistency protects you.
3. Maintain Equal Professional Distance
Familiarity is not favoritism — but unequal familiarity creates perception.
Be aware of optics:
Who sees your public affiliations?
Be continuously aware of your body-language/behavior.
Who perceives your endorsements?
Who hears your praise?
4. Reflect Before Accepting Related Engagements
Ask:
Would a reasonable observer question my neutrality?
Could this create the appearance that confidential knowledge influenced my new role?
Would I be comfortable if this appeared in a grievance complaint?
If hesitation exists, the shadow already exists.
VI. The Ethical Discipline of Silence
Sometimes the most powerful ethical tool a mediator possesses is silence.
Silence after the session. Silence about party strategy. Silence about impressions. Silence about perceived weaknesses.
The shadow shrinks when the mediator’s footprint remains light.
VII. Conclusion: Neutrality Extends Beyond the Room
Mediation is built on credibility.
Credibility is built on impartiality.
Impartiality requires vigilance — not only during caucus, not only during negotiation — but in the weeks, months, and professional interactions that follow.
The shadow of mediation is not misconduct.
It is risk. And ethical excellence requires not only avoiding actual bias, but guarding against its appearance — even when no one is watching.
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In negotiation and mediation, few questions are as revealing—or as effective—as: “Is this the hill you’re ready to die on?” Borrowed from military strategy, the phrase challenges decision-makers to assess whether a contested position truly warrants the cost of defending it. In mediation, this question becomes a catalyst for clarity, helping parties distinguish core interests from ego, habit, or reflexive resistance.
Conflict itself is not the enemy. Misplaced commitment is. Disputes escalate when parties invest time, money, and emotional energy into positions that no longer serve their objectives. Mediation succeeds when it creates space to reassess those commitments. Three mediation skills are particularly effective in turning that reflection into resolution.
1. Interest Clarification: Separating “What” from “Why”
The most common barrier to settlement is confusion between positions and interests. A position states what a party demands; an interest explains why it matters. Skilled mediators help parties articulate the underlying drivers—fairness, security, reputation, control, or closure—beneath rigid demands.
When parties reconnect with their “why,” flexibility increases. A $10,000 impasse may dissolve once a litigant realizes the true concern is acknowledgment, an apology. By clarifying interests, mediators transform entrenched standoffs into problem-solving conversations.
2. Concession-Mapping: Prioritizing What Truly Matters
Not all issues carry equal weight. Effective mediators guide parties through a concession hierarchy—identifying needs, wants, symbolic moves and walkaways. This mapping allows parties to trade intelligently rather than concede blindly.
When parties see which “hills” are strategic and which are merely familiar, they negotiate with purpose. Concession mapping also enables face-saving solutions, allowing a party to step back from a defended position without appearing weak—an essential ingredient for durable agreements.
3. Risk and Decision Analysis: Replacing Assumptions with Reality
Many disputes persist because parties misjudge risk. Skilled mediators introduce plain-language decision analysis: best- and worst-case outcomes, litigation costs, time value of money, emotional fatigue, and opportunity costs. This is not pressure; it is perspective.
When the imagined battlefield is replaced with realistic forecasting, parties often recalibrate. The question shifts from “Can I win?” to “Is winning this point worth the cost?” That reframing frequently opens the door to settlement.
Strategy Over Stubbornness
Effective negotiation is not about surrender; it is about discernment. The most credible advocates fight hard—but selectively. They conserve resources, protect relationships, and advance outcomes by choosing battles aligned with their true goals.
When parties pause to ask, “Is this really the hill I’m ready to die on?” they move from reaction to strategy. And in mediation, that moment of
clarity is often the gateway to resolution.
Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor is a private mediator and is on the panel of mediators at Salmon & Dulberg. He also serves on several federal and state mediation/arbitration rosters. As an ADR consultant/professional he regularly lectures on a variety of topics from ethics to Family/Business relationships. To SCHEDULE A MEDIATION click the link to Stanley Zamor’s calendar https://sd-adr.com/attorney/stanley-zamor/ email his case manager: mariana@sd-adr.com
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A companion article inspired by the Linkedin.com blog ofJason S. Weiss, Esq.
Jason S. Weiss’s reflection on NFL playoff football and in-house counsel life offers more than a clever sports analogy—it captures a truth mediators see every day: conflict management is not an abstract skill reserved for courtrooms and conference tables. It is woven into daily life, professional decision-making, and the culture of organizations, especially law firms.
In mediation terms, some days you are the underdog grinding it out, absorbing pressure, improvising, and relying on fundamentals just to survive. Other days, everything flows: preparation pays off, communication is clean, and clear perspectives/goals makes resolution look effortless. Both scenarios are familiar to mediators—and to lawyers working within firms and corporate legal departments.
Preparation Is Process, Not Luck
In football, turnovers and missed assignments undo even the most talented teams. In mediation and legal practice, the equivalent failures are incomplete information, unexamined case theories/case-law, and poor internal communication. Contracts fail, deals collapse, and disputes escalate not because the law was wrong, but because the process was sloppy/incomplete, not well presented or unclear.
Mediators are trained to slow things down, explore interests/not just positions, and test reality before momentum hardens into impasse. Law firms that adopt this mindset—early issue spotting, candid internal dialogue, and disciplined preparation—are far better positioned to manage risk and client expectations. Preparation is not about predicting every outcome; it is about building options creative enough to handle surprises.
The Injury No One Wanted to Talk About
The moment in Weiss’s piece that resonates most deeply from a mediation perspective is the quarterback injury revelation. A history that mattered surfaced too late, followed by regret, blame, and hindsight judgment.
This is a classic mediation lesson: conflict often erupts not from bad intent, but from incomplete disclosure combined with fear. Parties withhold information because they worry about consequences, judgment, or loss of opportunity. Leaders then react to the surprise rather than addressing the systemic failure that allowed silence to persist.
In mediation, we focus on creating environments where the “hard facts” can emerge early—without punishment, posturing, or ego. Law firms are no different. Associates hesitate to raise concerns, partners may avoid uncomfortable truths, and clients sometimes minimize risks they fear will derail a deal. A mediation-informed culture encourages early disclosure, curiosity over blame, and problem-solving over recrimination.
When the Star Player Goes Down
Another quiet insight in Weiss’s analogy is resilience. Teams that rely solely on a single star collapse when that player is sidelined. The same is true in firms and organizations built around one rainmaker, one expert, or one decision-maker.
Mediation emphasizes shared ownership of outcomes. Agreements endure when all stakeholders understand the deal, buy into the process, and can adapt when circumstances change. Law firms that embed mediation principles—collaborative decision-making, transparent communication, and contingency planning—are better equipped to keep “moving the ball” when disruptions occur.
Mediation as a Daily Practice
Mediation is not just a dispute resolution event; it is a way of thinking. It shows up in how partners manage disagreements, how in-house counsel assesses risk, how teams communicate bad news, and how leaders respond when things go wrong.
Football reminds us that discipline beats chaos, preparation beats bravado, and culture determines whether adversity becomes a collapse or a comeback. Mediation teaches the same lesson: resolution is rarely about winning the argument—it is about managing the moment, the people, and the process with intention.
In law firms and in life, the question is not whether conflict will arise. It is whether we have built the systems, have the skills, and trust to handle conflict before the injury report comes out too late. Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor is a private mediator and serves on several federal and state mediation/arbitration rosters. As an ADR consultant/professional he regularly lectures on a variety of topics from ethics, diversity/culture, bullying, Community Resolution Design, and Family/Business relationships. ZamorADRExpert@gmail.com ; www.effectivemediationconsultants.com; www.LinkedIn.com/in/stanleyzamoradr. (954) 261-8600
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“An Offer They Can Understand”: Mediation Lessons Through the Lens of The Godfather
By Stanley Zamor
PART 1
How a cinematic classic reveals enduring truths about negotiation, power dynamics, and the human side of conflict resolution
Few films capture the complexity of human conflict and negotiation as vividly as The Godfather. Although the movie centers on organized crime—a world far removed from professional mediation—its storytelling is steeped in themes of power, loyalty, persuasion, and conflict management. When stripped of its violence and illegality, the film offers surprisingly rich insights into how people navigate disputes, build consensus, and reach agreements under pressure.
This article explores the practice and philosophy of mediation through the lens of The Godfather, focusing on the behaviors, principles, and psychological frameworks that skilled mediators embody.
1. Understanding Interests Beneath Positions: Don Corleone’s Quiet Genius
One of the clearest lessons comes from Don Vito Corleone’s approach to negotiation. He listens carefully, quietly watched, asks open-ended questions, and seeks to understand what each party truly wants, and why. With every single ask, he posed a deeper inquiry which was uncomfortable and revealed the true nature of the want and need.
When Bonasera requests “justice,” the Don reframes the request to uncover the deeper interests—respect, acknowledgment, dignity. This mirrors a core mediation principle:
People state positions, but they settle based on interests.
A mediator, like Don Corleone in that opening scene, must:
Successful mediation rests not on adjudicating right and wrong, but on decoding the human needs fueling each party’s stance.
2. Neutrality and Perceived Impartiality: A Lesson in Credibility
Although Don Corleone is not neutral in the political world of the Five Families, he often functions as an impartial convener during disputes. His reputation for fairness, consistency, and honor makes him a trusted figure—even by rivals.
In mediation:
Credibility is currency
Process fairness builds trust
Consistency fosters cooperation
Trust is given when competence in the desired want is understood
Participants will not negotiate in good faith if they suspect bias. The mediator’s ability to maintain neutrality—real and perceived—is essential to productive dialogue.
The Godfather demonstrates that neutrality is not the absence of opinion but the disciplined management of influence.
3. “A Man Who Doesn’t Spend Time With His Family…”: Balancing Power and Relationship
Mediation recognizes that relationships are assets, not obstacles. Don Corleone’s strength comes not from fear, but from the deep loyalty of those around him. He builds alliances through respect, reciprocity, and understanding.
Similarly, mediation emphasizes:
Preserving relationships where possible
Reducing unnecessary hostility
Building solutions that allow ongoing cooperation
Encouraging parties to see each other as partners, not enemies
Even in business disputes, family conflicts, employment disagreements, or commercial cases, resolution often requires people to continue working together. The Corleone model reminds us that maintaining dignity and relationships often creates more durable outcomes than “winning.”
4. The Power of Framing: “It’s Not Personal, It’s Strictly Business”
Perhaps the most famous line in the film offers a profound mediation truth: Parties often personalize conflict that is fundamentally structural or systemic.
Mediators help reframe:
Emotion → Interests
Blame → Understanding
Past injuries → Future solutions
This reframing lowers defensiveness and clears space for creative problem-solving. It allows parties to see disputes not as existential threats but as solvable challenges.
5. Managing Power Imbalances: Lessons from the Five Families Summit
During the historic meeting of the Five Families, cooler heads prevail. Each representative brings power, resources, and entrenched perspectives—but the conversation is structured to prevent escalation.
Key mediation parallels:
Establish clear ground rules
Normalize diverse viewpoints
Encourage equal voice despite unequal power
Redirect aggressive tactics into constructive dialogue
Effective mediators, like Don Corleone in this scene, leverage calm authority to manage high-conflict personalities and keep the conversation focused on resolution.
6. Timing and Opportunity: “I’ll Wait”
Much of The Godfather revolves around the strategic use of timing. Don Corleone and Michael both understand the importance of waiting for the right moment to engage, negotiate, or respond.
In mediation, timing is often the hidden variable determining success:
Parties may need emotional readiness
External pressures (deadlines, costs, risk) can create openings for agreement
Settlement momentum builds when both parties face meaningful incentives
Skilled mediators read these cues and guide the process accordingly.
7. Respect: The Foundation of Effective Conflict Resolution
Throughout the film, respect is a universal cultural currency. Disputes arise not only from substantive issues, but from perceived affronts, broken trust, or violations of dignity.
Mediation recognizes that:
Respect is the gateway to communication
Parties engage more constructively when they feel heard
Acknowledgment of harm often matters more than remedies
The Corleone philosophy—“You come into my house…with respect”—underscores a core mediation tenet: Respectful dialogue is the foundation for sustainable agreements.
Conclusion: What The Godfather Teaches Us About Mediation
While The Godfather is not a model of lawful dispute resolution, its narrative illuminates timeless truths about human behavior and negotiation:
Understanding interests is more powerful than reacting to positions
Neutrality and credibility anchor the process
Relationships shape outcomes
Reframing creates space for solutions
Power dynamics must be managed, not ignored
Timing matters
Respect transforms conflict
In mediation—as in the world of The Godfather—resolution is ultimately about human psychology. It is about creating processes where people feel heard, respected, and empowered to make decisions they can live with.
The film’s most enduring lesson for mediators may be this:
When you understand people—what they fear, what they value, and what they hope for—you can help them find agreements that were previously unthinkable.
“Conflict is inevitable, so is the resolve…” -Stanley Zamor
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Mediation Resolution: Why Year-End May Be the Best Time to Resolve Cases By Stanley Zamor
It’s that time of year again—when the fall season blends into the holidays, calendars tighten, and organizations shift into planning mode for the year ahead. While most people associate this period with celebrations and reflection, it is also one of the most advantageous times to resolve conflict through mediation. In fact, year-end mediation has repeatedly proven to be an effective strategy for addressing interpersonal struggles, closing challenging cases efficiently, reducing risk, and positioning individuals and businesses for a smoother new year. Mediating now can promote reach resolutions that better address parties’ interests, preserving relationships, and avoiding the uncertainty of trial. Many scholars/strategist have come to view Fall and year-end as the optimal settlement window. Here’s why.
Key Rationales
Urgency and Momentum: As Fall transitions into Winter, year-end obligations naturally create a sense of urgency. Companies face audits, reporting deadlines, budgeting cycles, and contractual renewals. Individuals, too, aim to tie up loose ends before the new calendar year. These pressures can fuel settlement momentum, prompting parties to make substantive concessions that might be harder to obtain in slower seasons.
Certainty and Risk Management: No business wants to carry unresolved litigation into a new quarter—or worse, a new year. Concluding disputes before January reduces exposure and gives leadership a clearer operational landscape.
Administrative Calm: Surprisingly, the December–January period often brings fewer docket pressures and scheduling conflicts. Courts enter slower cycles, and counsel may have more availability. This calmer environment creates space for more thoughtful deliberation and reduces the external disruptions that frequently stall negotiations earlier in the year.
Relationship and Reputational Considerations: For many organizations, starting the year with lingering disputes can strain internal dynamics and stakeholder relationships. Early-year closure signals strong governance, responsible conflict management, and reputational maturity. It also allows parties to reset and move forward without the baggage of unresolved conflict.
Practical Considerations for Implementation
Proactive Timeline Design: Begin mediation planning well in advance of year-end to ensure scheduling aligns with fiscal and operational demands.
Incremental Settlement Pathways: When full agreement is unlikely before December 31, consider staged or partial settlements with defined milestones.
Multidisciplinary Consultation: Involve tax, financial, and legal advisors to ensure that settlement terms align with regulatory, accounting, and operational frameworks.
Bottom Line
While year-end timing will not determine the outcome of every dispute, combining strategic timing with thorough preparation and skilled mediation can significantly enhance clarity, efficiency, and the likelihood of a durable, enforceable resolution. For many, Fall and the holiday season may indeed be the most timely and effective moment to bring closure and move confidently into the new year.
Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal/state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultant/professional he regularly lectures on a variety of topics from ethics to Family/Business relationships. ZamorADRExpert@gmail.com ; www.effectivemediationconsultants.com
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“Effective Negotiation Techniques for Professionals”
Every day is an exercise in negotiation! Negotiation is an essential skill in today’s fast-paced and often contentious business environment. Whether you’re dealing with internal team conflicts or external partnerships, mastering effective negotiation techniques can lead to more favorable outcomes and healthier relationships. This article will mention just five of the best negotiation techniques that professionals can utilize.
1. Building Rapport and Trust
Successful negotiation begins/relies heavily on trust and rapport. Building a connection with the other party can lead to more open communication and a willingness to compromise. Simple gestures like maintaining eye contact, being polite, and finding moments of humor can help establish a positive relationship. Trust is built over time, but during a negotiation even small, consistent actions can foster goodwill/Trust.
2. Active Listening
Active listening is a skill that must be developed. We are not born active listeners. Yet active listening is a cornerstone of effective negotiation that often gets neglected. It involves fully concentrating, understanding, and responding to what the other party is saying. By physically demonstrating genuine interest, you create an atmosphere of respect and openness. Techniques include nodding, summarizing what the other person has said, and asking clarifying questions. This not only helps in gathering crucial information but also makes the other party feel valued.
3. Establishing Common Ground
Finding commonality between parties can significantly ease tensions and foster collaboration. Start by identifying shared goals, values, or interests. This technique encourages a collaborative mindset and can shift the focus from adversarial positions to mutual benefits.
4. Emphasizing Interests Over Positions
A common pitfall in negotiations is focusing on fixed positions rather than the underlying interests. Positions are often rigid egocentric and can lead to a stalemate, while interests are flexible and can open avenues for creative solutions. For example, instead of sticking to a specific salary demand, a candidate might express their need for financial security, which could be addressed in various ways.
5. The BATNA Principle
Understanding your Best Alternative to a Negotiated Agreement (BATNA) is crucial. This concept, popularized by Roger Fisher and William Ury in their book “Getting to Yes,” refers to the best course of action you can take if negotiations fail. Knowing your BATNA empowers you to negotiate from a position of strength and clarity. It helps in setting realistic goals and knowing when to walk away from an unfavorable deal.
Take-Away
The aforementioned techniques are just a few of many I will be discussing in upcoming articles. Ultimately, the goal of negotiation is not just to reach an agreement, but to build lasting relationships that can withstand future challenges.
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/professional he regularly lectures on a variety of topics from ethics to Family/Business relationships. ZamorADRExpert@gmail.com ; www.effectivemediationconsultants.com; www.agree2disagree.com; www.LinkedIn.com/in/stanleyzamoradr. (954) 261-8600
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Ok. I have to finally say it! There just seems to be no way around the F-bomb being dropped or used during mediations (or a negotiation). I mean, if it is not used by the parties, then it will be used by their advocates/representatives. And advocates/representatives drop the F-bomb more than most, because as advocates/representatives, that is their job. I get it. I’ve been told that divorce/family attorneys, must drop that F-bomb during their opening presentations or they’ll be perceived as not doing their job? Wow! And as a third-party neutral the F-bomb almost makes the hairs on my neck, stand-on-end. Because once I hear them start their statement, end their statement, or even worse, look me in and say in an inquisitive AND probing tone, “Isn’t that ‘fair’ Mr. Mediator”… “I just want what is fair for my client”…. “We’re trying to be ‘fair’ here” … “We are being more than ‘fair’”… Yes, Fair. That F-Bomb can completely make a mediation negotiation go left.
So I ask, is it possible to avoid the F-bomb during a mediation? The simple answer is no. The more complex answer is, “maybe” or “so what”. What is fair? Fair is about perspective. When negotiating it is completely subjective. When dealing with heightened emotions it cannot be achieved because the parties and their advocates believe only their perspective is the best and more fair and reasonable (shhhhh! The R-Bomb, that’s for another article).
Expanding Fair
The perception of what is fair; or being fair in mediation negotiation hinges on several key factors, one of which is the ability of the parties involved to set aside their ego. When disputants are entrenched in their positions, driven by personal pride or a fear of losing face, it becomes challenging to engage in constructive dialogue. Here are a few reasons why letting go of ego is essential when trying to be fair in mediation negotiations:
1. Openness to Compromise: When individuals prioritize their ego, they become less flexible and more focused on winning rather than finding a mutually beneficial solution. Letting go of ego allows for a willingness to consider alternative viewpoints and compromise.
2. Active Listening: Fair negotiation requires active listening, where each party genuinely seeks to understand the other’s perspective. Ego can hinder this process, as individuals may be more focused on defending their stance rather than listening to the other side.
3. Building Trust: Negotiations thrive on trust. If parties are defensive or overly concerned with their self-image, it can create an atmosphere of suspicion. By minimizing ego, negotiators can foster an environment of mutual respect and collaboration.
4. Focus on Interests, Not Positions: Effective negotiation involves focusing on underlying interests rather than rigid positions. Letting go of ego enables parties to explore their true needs and desires, leading to more creative and satisfactory solutions.
5. Reducing Conflict: Ego-driven negotiations often escalate into conflicts. By setting aside personal pride, parties can approach the negotiation with a problem-solving mindset rather than a combative one, reducing the likelihood of confrontation.
The Take-Away
In summary, fair negotiation is only achievable when parties can transcend their egos, allowing for open communication, trust-building, and a focus on collaborative solutions. This shift not only enhances the negotiation process but also fosters better relationships moving forward. A skilled mediator is tasked with continually adjusting and refocusing the participants throughout the mediation negotiation process. It is therefore the skilled, and ethical mediator that is essential in assisting the participants negotiate beyond the ego. A subsequent article will better explore mediator’s best practices and ethical skills that addresses ego and creative solution building.
So rather than debate and attempt to convince why opposing parties are wrong, third-party neutrals should help acknowledge the emotion in the dispute then focus the parties on adjusting the emotional component and reframing it as what makes good “business sense” or what are the best ways to maximize outcomes given the circumstance as they appear that day. By helping the parties adjust their lens regarding receiving justice and reaching/giving what is fair, they are more open to reaching a agreement that is acceptable that they helped craft.
So, there is no “fair” in mediation negotiation in the sense that most expect. There is accepting an idea that being fair is not going to be the same for everyone involved in the conflict. And, there is respecting another’s perspective of fair and adjusting participants’ ego while negotiating so a mutually acceptable resolve can be achieved if that is the common goal.
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“Greg, if you would have better advised me of the extensive cost of this litigation, I might not have let it go this far. But now, I am so financially committed, I have to see it through, even though it may bankrupt me…” I stated, “Although you are heavily engaged in litigation, now that you are at mediation, you have a real opportunity to reduce further expenses while reaching a resolution you create…” Unfortunately, this was a real statement made by a Plaintiff expressing his frustration to his attorney. The mediation ended, and resulted in a settlement 3 hours later.
The Real Cost of Litigation
We live in a great country where our legal system is not perfect, but is available to those who choose to use it. So how expensive is litigation anyway? Um, although the initial cost of a civil suit varies depending on the lawyer you choose and the type of case, it is not unusual for either party to spend close to $100,000 in a contentious business lawsuit. How? Well, a brief example is when taking the deposition of five people, who are potential witnesses:
* Attorney’s replenishable retainer of $5,000, used for initial costs/filing and commencing discovery of the lawsuit;
* Attorney charging $300 per hour – research and preparation for five, eight hour witness depositions – $2400 x 5= $12,000. Further consider the cost of travel and deposition transcripts (usual cost $1000 each x 5= $5,000);
* Other basics litigation costs include (but is not limited to) hiring expert witnesses; research/study of reports, analysis, or other projects ordered by the court; attorney hourly fees; copy fees; computer legal research services; secretarial and paralegal fees; external consultants, and specialist fees; private investigator, electronic discovery maintenance, and trial demonstrative aids, etc.
The Truth Is Real
Unfortunately, even though our civil litigation system is considered to be the best in the world, it is so costly, and the rewards (if any), are sometimes too far delayed to enjoy the benefits. So that is why mediation is available and the courts are encouraging parties to mediation early as an alternative to trial. In many areas of the law, like in Condo & Home Owners Association cases, you must mediate before you litigate.
The Cost of Mediation
Contrary to litigation mediation cost fractions less and mediating before you file a lawsuit can save you tens of thousands of dollars. The comparative math is:
* Typically, mediators charge $300 per hour for five-hours. (shared between the parties) So, $1500, and you are done!
* If you have an attorney, add the cost of their time too. Regardless, your cost can be under $3000 and you’ve reached a resolution that you’ve created and controlled. When you litigate you will triple that cost for the uncertainty of an outcome. Hmmmm… Make a business decision, you have options.
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 has a private mediation and ADR consulting company. He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.
https://www.effectivemediationconsultants.com/wp-content/uploads/2018/03/Busness-Decision-scaled.jpg17072560szamor@effectivemediationconsultants.comszamor@effectivemediationconsultants.com2018-03-30 17:40:322022-11-08 22:48:25“Let’s Make A Business Decision, Let’s Mediate”
