Switching chairs from advocate to mediator affords a new perspective. As Michael Dady and others have reminded us over the years, what you see depends on where you sit (or stand). Conduct that I once thought was useful during my 40 years as an advocate, I now see as counter-productive as a full-time neutral. From where I sit as a mediator of franchise disputes, here’s a list of mediation behaviors lawyers should engage in to increase the likelihood of resolution.
Read MoreTen Things an Arbitrator Hates about Arbitration— With Apologies to William Shakespeare and Heath Ledger By Arthur L. Pressman, Arthur L. Pressman Dispute Resolution Services, LLC
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Secrets in Plain Sight: What a Mediator Sees that You May Not. How to Maximize Your Opportunity to “Win” at Mediation. By Arthur L. Pressman, Arthur L. Pressman Dispute Resolution Services, LLC
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The business card is a relic of a trip I took in 1992 or thereabouts to Hong Kong, Tokyo and Seoul with a group of franchise lawyers from all over the globe. Of course, I needed, or so I thought, a business card in Chinese and English.
Read MoreThe best part of Irwin's recollections is his 10 Guiding Principles. There's no doubt to those who knew him that he lived them every day. It's never too late to learn (principle #2), so I am including them for all to read, especially my BU law students
Read Morethe next time you see someone you know or believe your adversary knows as a proposed mediator, don’t be so quick to strike; instead, think about how your very own relationship, or prior mediation history with the mediator or how your adversary’s mediation history with the mediator may enhance your chances for a successful outcome.
Read MoreIn franchise disputes, lawyers and parties who search for mediators drill down on mediators' professional backgrounds, often paying the most attention to whether potential mediators have previously represented franchisors or franchisees. Despite the fact that lawyers generally don't choose their clients - clients choose lawyers - everyone, or most everyone, wants to know if a lawyer being considered as a mediator in a franchise dispute has been identified with franchisors or franchisees.
Read MoreBut there’s a big difference between court proceedings and mediation that explains in part at least why the US lawyer speaks while the client listens – it’s because in court, the rules only allow a client to speak from the witness stand, and then only in response to questions. In court, the lawyer’s license to practice is the lawyer’s license to speak, generally to the exclusion of the client except as witness.
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Before social media, the personals column found at the back of New York Magazine was where readers sought potential mates or more, often beginning their ads, as they were called back then, with the three letter acronym “ISO,” meaning “in search of.” As readers of the ABA Forum on Franchising ListServ know, today’s posters often ask for help in finding potential mediators, albeit rarely with the ISO introduction. While geography sometimes prompts their questions (“Does anyone know a mediator in Dubuque?”), other times members identify the chief characteristics they seek in a mediator. For example, recently there’s been a spate of emails on the ListServ looking for a “strong” mediator.
Read MoreOne of the most noticeable differences between US-style mediation and International Mediation is the role that lawyers play. In US, lawyers are often the literal speaker through which all communication passes; clients may resemble potted plants placed in the room’s corner, particularly in joint session.
Read MoreLast night was the final class meeting of my Negotiation section at Boston University School of Law for the Spring term, and we had a mediation exercise that involved all 20 of my students – four teams each consisting of a mediator, 2 lawyers and 2 clients. The interesting thing about my class is that none of the students is from the United States – each is a young lawyer from another part of the world -- China, Peru, Saudi Arabia, Singapore, Taiwan, Qatar, and Belgium – enrolled in BU’s LLM in American Law program.
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