It's my first introduction to Mr. Mnookin and I'm impressed. He articulated the 3 tensions with clear examples, demonstrating his points effectively. Well done and thank you.
As a teacher of this material I am often very critical of content. Professor Mnookin's points are nuanced and very important in the context of understanding this subject. I prefer a more engaging and less academic style but the expression of "tensions" is beautifully articulated. First rate!
Great video! As far as I see, a mediator is also an agent with his own agenda and interests. So, what is the difference between an agent to a mediator?
If we're strictly following the money, the mediator has the LEAST measurable conflict of interest amidst the professionals involved in the conflict (e.g. respective counsel). The mediator gets paid for the [typically] 1-day mediation event, [typically] at a fixed rate. There's nothing to "milk." If the mediation requires a future session, that's a bad mediator for accepting a case that isn't ready for mediation. The mediator can identify that during the pre-mediation screening. The lawyers, however, are incentivized to keep the billables going indefinitely, or until their mercenary status expires coinciding their client's depleted resources, or otherwise inability to pay. As a prospective attorney, it is not lost on me that lawyers are largely good for nothing, more often than not exacerbating the problem amidst the disputants. Most lawyers drink the advocacy Kool-Aid, wholly discarding the other merits of an exceptional attorney: advisor and counselor to avoid litigation, which is almost always in service to the client. There are exceptions to when litigation is necessary, but it's exactly that: an exception. Ideally, litigation ought to be a defensive measure, not offensive. Offense paints the client as litigious, a stain upon their reputation, and conveys the plaintiff's counsel as unreasonable for essentially picking a fight without having exhausted all other remedies. In the UK, you have your solicitors and barristers, the former a paper-pusher, the latter a litigator. A REAL lawyer is a defense litigator. Anything a solicitor can do, an astute business administrator can do. The problem in the States is that ANYONE with a law license can call themselves a "lawyer," but we all know there are lawyers [shakes head side-to-side] and then there are lawyers [nodding head up and down], the latter being FAR more rare. In the States at least, odds are, if you went to a bottom-rank, diploma-mill "law school," you are terrible at lawyering. I have come to the conclusion those people either wanted the prestige of being to concisely say they are a layer at a cocktail party and/or permit their parents to say their child is a lawyer at a cocktail party -- that's one hell of an expensive way to save face. Of course there are exceptions, and those poor souls are often fighting an uphill battle to differentiate themselves from their school's overall reputation. What a redundantly wasted effort, smh. Diploma mills should be shut down to correct the market, where lawyers are fewer and farther between, befitting higher billable rates because they can actually provide true societal value. It only takes 1 bogus suit brought against you to understand how many shitty lawyers are running around out there.
In my mediation the other party came to the table with no intent to mediate and wanted me to simply go away. This is an EEO case with age discrimination and perceived handicap. It’s in the informal stage. I hv a witness.
Lawyers often will not or do not want the mediator to meet with the client outside their presence. However, this can help if the issue is managing a client’s unreasonable expectations, but it can backfire if it creates tension between lawyer and client. The mediator’s interest is to help negotiate and settle the dispute, but the lawyer is most often the one to pick the mediator.
I went to my mediation alone. My ex had her dad and her lawyer. I was able to negotiate myself out of paying for no more than one hour. 3 hours later I walked out of that office with every box checked I wanted checked. It was fun.
In general Lawyers in my view do not have at all what it takes to be good mediators : they're caught up in a paradigm of polarity thinking : winning OR losing . They compete, do not know how to cooperate. And still they are viewed as valuable in western culture, while they are instrumental in escalating spirals of tension. ...what does this say about our society?
These are some of the kinds of narratives that I encourage all my clients to create when I'm helping them build their practices. Prospective clients want to know that mediators and arbitrators understand their issues, concerns, anxieties, etc. and that an ADR provider can help them. Telling a story in which a prospective client can see themselves is a great way to convey the skillful ways in which a neutral can serve their clients' needs.
Hi from India Good video and well explained. The Good prof could have thrown in a few examples to explain the tensions a bit more . Also if anybody could refer me to a video on conciliation techniques- will be ever so thankful
the three tips, very good points. I see it a little differently, I understand that first there is an agreement , and here is the main necesity of mediation, and then, the negotiation is to land the terms of the agreement. Mediation is substantive, not tangential.
