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The Shadow of Mediation: Mediator Ethics, Perception, and the Quiet Risk of Post-Mediation Interactions

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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.

  1. 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.

Mediation on the Field and in the Office: “What Football, Law Firms, and Daily Life Teach Us About Conflict Resolution”

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By: Stanley Zamor

A companion article inspired by the Linkedin.com blog of Jason 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

“An Offer They Can Understand”: Mediation Lessons Through the Lens of The Godfather

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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:

  • Listen beyond the spoken demand
  • Identify underlying motivators
  • Reframe issues into solvable components
  • Recognize emotional drivers (e.g., fear, loyalty, pride)

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

Article_Book Chapter_Mediaton Through GodFater_Version 1 An Offer They Can UnderstandDownload

Why Year-End May Be the Best Time to Resolve Cases

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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

Effective Negotiation Techniques for Professionals

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Mediation/Arbitration

“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

An Alternative to Litigation: “3 Effective Negotiation Strategies”

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“Ultimate excellence lies not in winning every battle, but in defeating the enemy without ever fighting…” –Sun Tzu.

 

As a mediator I continue to study the Sun Tzu’s the “Art of War”. Not because I support War/conflict but rather, I believe that to effectuate collaborative solutions one must be prepared for multiple manners of “warring”. The Art of War offers a great amount of wisdom that can be used in a variety of industries.  As a mediator I have observed disputants being counterproductive throughout a mediation conference because they are too focused on winning, although they both were very interested in avoiding a trial.  It takes a great amount of awareness to help those achieve what they say they want, without them feeling like they gave up what they need…

 

Negotiation opponents often think that the only way to negotiate is to intimidate and by a show of power.  There are a multitude negotiation approaches/styles and they all have distinct advantages and disadvantages. The following are the 3 that I’ve seen initially be more effective:

 

3 Negotiation Strategies

 

  • Reduce the Conflict – Conflict is expensive.  Before you engage in a lengthy litigation matter or negotiation effort, be honest and strategize on the business of conflict.  If there are a multitude of issues, try reducing them to the most essential points of conflict. Often when you have a chance to narrow down the issues that need to be address, you narrow down the cost/time that may be incurred.

 

  • “Enlarge the Pie”– A rarely used technique is to creatively broaden the options of agreeable outcomes. Often disputants only come to negotiate with limited ideas of what is owed or due to them. So, in turn they negotiate with a limited view of possible outcomes.  When you negotiate from a position of having plenty of outcomes you tend to be more flexible and reach agreement easier.  By “enlarging the pie” you create the tone that greater options are available to those with the willingness to seek greater options.

 

  • Separate the Person from the Issue – “If it is only business, keep it that way!” Behavior during negotiation is key, and perception is everything. When parties state “…it is just business, this is a simple case…”, I always expect more much more.  We are all human and therefore what should be simple can easily turn into frustration and lashing out when the other side just doesn’t see how wrong you think they are. Be mindful of harsh negotiations turning into name-calling or personality trait bashing.  To reduce the frustration/emotions, it is always better to objectively remain on the matter in dispute and not who is doing the negotiating.

 

Mediation is artfully delicate process and should be facilitated by a professional neutral with the unique skill sets that promote collaboration, party self-determination while encouraging negotiations.

 

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.

 

3 Effective Negotiation StrategiesDownload

A New Year of Resolve:  Saying Goodbye to LAST-YEAR’S Litigation and Hello to THIS-YEAR’S Agreed Settlement

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By Stanley Zamor                                                                                                                                                            

“It’s 20XX.  Time to let LAST-YEAR go!  You decide.  It is time to accept and expect THIS-YEAR to be the year of RESOLVE!”  During the various mediations I facilitated in 20XX, a common theme I heard by participants to explain their discourse, was that 20XX was a year of build-up, peculiarity and conflicts that seemed to spiral out of control; so the parties (and their attorneys) were ready to settle.  Although parties, and their counsel, self-described the dispute(s) as being “simple”, as the mediation process progressed, simple issues revealed themselves more intractable.  As a professional neutral I am not surprised by parties being unrealistic about the simplicity of their issues (and their resolve).  Managing expectation is not a problem, and it is what a trained professional neutral is trained to do.

 

So, how do mediation participants leave the past and the old year behind (analogous to litigation);  and move forward like a New Year’s Eve countdown, eager to see the ball drop in Times Square, and at the stroke of midnight, be ready to usher in a new year, a new resolve, an agreed settlement?  The anticipation and expectations of a new year bring new hopes, new dreams, and the achievement of new goals.  But timing is the key; and unless participants are ready to reach a resolution, they will not settle.  To gauge unsure participants and their preparedness to settle, after their 2013 cynical statements, I offered for consideration, “…Preparing a mediation settlement agreement is like preparing for a new year, with New Year’s resolutions.  You craft your goals, and how you want your present and future to be; while litigation focuses on the past year that is now gone.  Litigation forces you to relive regrets, wrongs, missed opportunities and hurts.  Although litigation is your right, and allows you to receive a decision, others ultimately assign a value to your position, with which you may not agree.  Your hurt feelings and intangible concerns are rarely addressed in litigation; and the ‘I SHOULDAS, I WOULDAS, I COULDAS…But I DIDN’T…’ do not get expressed.  However, during a mediation session, there is usually an opportunity to address such concerns and that is when it becomes easier to start fresh, new, and agree to resolve the matter through an agreed settlement…”

 

After further dialogue and self-assessments, most of the participants saw the value of reaching a settlement agreement that day and were ready to resolve the matter.  I was told that after the mediation session, the settlement agreement created gave them the ability to move forward, onward and upward.  Holding on to the past through litigation felt like dwelling on the “yesterday”, it held them back; and also, living to litigate a case, continued to hurt more than help.  While creating and preparing a settlement agreement, helped set clear future goals, let them be heard and more importantly, allowed for forgiveness and the acceptance of an, “I’m sorry…”.  HAPPY NEW YEAR!

 

(updated, 2018)

“Getting What You Want in Mediation”

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“Getting What You Want in Mediation”

By Stanley Zamor

(January 2018)

Set The Stage

As the parties entered the room, I stood smiling and welcomed each person as they took their seat around the conference table. I stood at the head of the table and observed the perfectly quaffed group of 10, they all seemed to share the same blank expressionless face. Something recently happened… And that something was not good.  As each side gave their opening statement they mentioned the results of a Summary Judgement hearing that took place just 2 hours prior to the commencement this mediation.  The judge made a partial ruling that both parties claimed to give them some sort of victory.

In brief, for over 3 years of litigation multiple businessmen, in two consolidated cases, spent millions of dollars to prominent law firms to keep pushing their positions until the eve of trial.  But now, after long eloquent statements outlining how the law supports their position(s), I asked them something that seemed to perplex the entire group.  I asked, “Now that we have heard each perspective and how right each party thinks they are; what do you want?…” They all agreed that they wanted finality and (read below for the rest). I said, “Good.  Then let’s get to work…”

At The Ready…

One of the difficult defining points of mediation is to reduce the barriers of communication.  Litigation is innately adversarial in tone and process.  Mediation conversely encourages collaboration while reframing the tone of the dispute, to where parties may feel able to design their own resolution.

Often, once a case is filed in court, disputants never see each other outside of a court related event.  Since mediation is an informal process, disputants have an opportunity to use their own words during mediation in a conversational tone, and not only in the usual adversarial posture.  A skillful mediator can use that opportunity, to shape the discussion to where both parties can feel heard/good about being flexible and seeing where resolution may creatively lie.

Mediation will not replace litigation, it is simply an option that works when parties need an alternative.  Legal rights and duties are important but many times when parties are given a neutral space to express what they want, they are able to resolve issues themselves.

Their Wants:

So, what did these disputants want, and did mediation give to them?  The following are a few of the things that the disputants told me they wanted and after a 5 hour mediation, they created an agreement that was satisfied with:

  • Someone to admit wrong and to be held accountable,
  • To be able to move forward and beyond that business dispute,
  • To take the lessons learned and establish better systems to limit/protect themselves from future litigation,
  • To recoup/cover a portion of monies spent on legal fees,
  • To make more money, smarter.

 

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.

szamor@effectivemediationconsultants.com

www. effectivemediationconsultants.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600