Sunday, September 15, 2013

Make no Assumptions in Mediation

     The problems encountered by the Plaintiff are generally laid bare in pleadings and through discovery by the time of a mediation hearing.  After reading and reviewing a comprehensive mediation brief, we mediators can get to a place of thinking we know the darkest secrets which lead to the conflict.  But as a wise mediator said to me once, "you don't know what you don't know".  For this reason, it's unwise to make any assumptions. 
     In last week's mediation against a governmental agency and a former employer, both of the Defense lawyers independently and separately revealed true and shocking facts regarding their own personal backgrounds during the course of a long day's mediation.  One of them, who had flown in from a well established large defense law firm, had grown up abjectly poor and understood the depths of the Plaintiff's financial plight more than anyone may have imagined.  The other had suffered a similar legal issue as a young man and knew firsthand how his past had haunted and plagued his efforts once he changed his life, went back to school and then law school and finally sought a job with a governmental agency, where his legal record threatened to derail the plans he made for himself as a prosecutor many years later.
     On this day after the Jewish Yom Kippur, where the Book of Life is laid open and we are asked to confess our sins and repent for our transgressions, it is a good reminder that not everyone is an open book.  There are dark secrets in every person's past.  If we accept that we don't know the participants in the mediation, we can remain more open-minded, more generous and more creative about the particular dynamics that converge to resolve the most vexing disputes.