CONFLICT RESOLUTION BLOG

In my March 21, 2019 newsletter, I cited four strategy tips from Harvard Program on Negotiation in dealing with value-based disputes, where a party’s deeply held beliefs can thwart beneficial reciprocal concessions:

• Consider interests and values separately and separating the person from the problem.

• Engage in relationship-building dialogue to facilitate cross- understanding of opposing side’s interests and values.

• Appeal to common or shared overarching values.

• Confront value differences directly, and view such differences as opportunities for value creation. 

(Paraphrased from: Four Conflict Negotiation Strategies for Resolving Value-Based Disputes; Four conflict negotiation strategies for bridging the divide at the negotiation table.

On Sept. 21, 2017 I gave a presentation to attorneys in Ningbo, China on Mediation from a USA Perspective.  A few weeks after, representatives from the Shanghai High People’s Court of the People’s Republic of China and The Steering Office for Judicial Reform of the Supreme People’s Court came to NYC discussing a launch of a mediation program throughout China’s judicial system.    With increased American/Chinese global trade, parties are seeking efficient and effective methods for dispute resolution.  The take-away:  mediation is becoming a viable and attractive option internationally as well as domestically.
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 My recent Newsletter, republished below, discusses SELF-DETERMINATION as a primary characteristic that sets Mediation apart from Litigation and Arbitration.  This blog seeks to share comments and illustrations from diverse legal practices regarding the role PARTY SELF-DETERMINATION plays in resolving specific areas of conflict.

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SELF-DETERMINATION

Mediation is a widely used and growing dispute resolution process in federal, state, municipal, community and private forums throughout the United States.  Parties, however, often lack a basic understanding of the unique characteristics that set mediation apart from litigation and particularly from arbitration.  This series of newsletters discusses the basics, and the controlling governing law.
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 The effectiveness of New Jersey's Rule 1:40 mandated mediation program has been under attack.  I shared my views in a recent NJ Law Journal Article, and invite your response and comments.

http://www.njlawjournal.com/id=1202772991335?keywords=dickey&slreturn=20161106135018

Generating input from  a diverse pool of attorneys will greatly assist in efforts to improve the process!  Please feel free to respond publicly or confidentially to me via email or phone.
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Mediation is not the top choice for every matter: if your case turns on a novel issue of law or a disputed interpretation of a statute; if clarity arising from a court opinion may benefit your clients’ industry beyond the aspects of the specific matter, you may want to take the case to trial.  BUT, statistics show that 98% of cases settle prior to trial.

Even the most skilled negotiator should consider mediation.  Why?

1. CLIENT SATISFACTION
2. NO RISK

1. A SKILLED MEDIATOR IS YOUR NEGOTIATION TOOL

1. CLIENT SATISFACTION

   Clients want their “Day in Court”, but ultimately will have greater satisfaction in – and respect for- negotiations in which they played a significant participatory role.  Mediation offers both.  The confidential caucus permits a party to present its case to a quasi-judicial neutral. The mediation process encourages self-determination so parties can meaningfully assist in fashioning and ultimately agreeing upon a resolution.  Parties avoid the risk of an unpredictable jury, judge, or arbitrator and can avoid protracted court delays and repeated business interruption from an inflexible and unpredictable process. 

2.  NO RISK

   Caucuses are confidential, so there is no evidential risk (i.e., you or your client can’t blow it).  If the mediation does not fully resolve all issues, no litigation rights are waived. 

3. A SKILLED MEDIATOR IS YOUR NEGOTIATION TOOL

Your Mediator should be your ally in the settlement process.  Consider the following:

• Settlement discussions through a mediator do not have a stigma of “weakness.” 
• Mediator can facilitate a focused discovery exchange- particularly valuable with an unreasonable adversary.
• Mediator is a welcomed ally if your client is emotional, unrealistic or otherwise “difficult.” 
• Mediator can lend an objective perspective of legal merits and legal/financial risks.
• Mediator looks underneath the parties’ stated legal position in order to clarify underlying interests- a critical step to breaking conflict barriers.
• Mediator’s role neutralizes power imbalances (party or counsel) which can thwart negotiations.
• The process encourages creative resolution terms not available at trial.

 PLEASE COMMENT AND ADD INSIGHT FROM YOUR EXPERIENCES!

My colleagues and I were interviewed on Princeton TV (Comcast 30 and FiOS 45) which aired Sept. 24, 2015 at 7:30 pm   You can catch the interview on

Your reaction and comments appreciated!