Litigation-I Win, You Lose vs. Mediation-Win/Win

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  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting ...

What if the Debate Were Moderated by a Trained Arbitrator/Mediator?

 


I am guessing like the rest of you, I am still reeling from last night’s presidential debate.  I was so tense during the whole thing that I felt as if I had been through a horrifying experience.

How could that have happened?  Trump came in like a bulldozer and just kept stepping on the gas.  Sadly, Biden did not seem to know how to deal with this attack.  As Dana Bash on CNN stated, “It was a shit show!”

I couldn’t help imagining how I, with my arbitration/mediation skills, could have moderated the debate, which may have resulted in a very different outcome.

State the Rules and Control the Process.

In every mediation and arbitration, I remind the parties that it is my job to control the process.  They provide the evidence and information, but when it comes to procedure, I am the boss.

So, knowing Trump’s track record, I would have sternly reminded the parties of their prior agreement to the debate format.

“You will each have two uninterrupted minutes to respond to the questions.”  That was said but the participants were not forewarned about the consequences of violating the rules.

So, here is my imaginary introduction to presidential debate:

As part of the ground rules, you need to know what will happen if you do not abide by the debate agreement.  First, I will remind you to not to interrupt.  We have agreed in advance that there will be no personal attacks, and each of you will respond to the question as presented. 

If you deviate from responding to the question, I will remind you of what the question is.  If you still persist in raising irrelevant issues, I will award your remaining time to the other party and turn off your microphone.

Once Chris Wallace realized what was happening, Andrea, the fantasy moderator would have said, “Time Out!”  You agreed to a set of rules.  You are not abiding by those rules.  We have ten topics to get through tonight.  Your behavior is not helping the American people choose a president.  I am going to now proceed with each question.  I want to hear your response to that question. 

Trump still persists in his bullying and name calling.

Name That Behavior.

President Trump.  You are acting like a bully.  You are being rude and insulting Vice-President Biden.  That behavior is not acceptable and I will not allow it.  If you cannot control your behavior, I am turning off your microphone.  If that doesn’t work, then I will end the debate early and you can answer these questions in a written format.

Remind the Parties of Their Goals.

If I am forced to turn off your microphone or end the debate early, that will not serve either one of you.  The goal here is for the American voters to learn your positions on the issue of importance in our society.  Your actions are depriving your audience of the opportunity to do that.

Get the Parties to Buy into the Process.

You both agreed to the format of this debate.  You both agreed to debate in the first place because that is part of the election process.  You both agreed that you are here for the voters.

Now can we proceed?

I am happy to serve as a neutral and help you resolve your disputes without resorting to litigation.  Given the availability of Zoom and other virtual portals, I can arbitrate anywhere in the country.  You can contact me at agoldman@goldmanlg.com or 617-953-3760.  Please contact Goldman Law Group today!


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