Mediation Ideologies and Settling Your Commercial Litigation
Geoff Sharp at Mediator blah blah today asks the first academic question with which I was forced to grapple in my LL.M studies at the Straus Institute -- can you cherry pick transformative mediation techniques to settle commercial litigation?
I realized I had re-entered the academy the day Joe Folger -- author, with Baruch Bush, of The Promise of Mediation -- said only transformative mediation "works" and its principles must be strictly followed. 
(drawing courtesy of Charles Fincher at LawComix.com)
Why was this an echt academic moment? Because the course I was taking from Joe -- "Ideologies of Mediation" -- had, before that moment, been suggesting that all ideologies interfere with durable, party-satisfying resolutions. Now it seemed the problem wasn't with ideology itself but with the wrong ideology. Hmmm, felt like law school. Forget Pennoyer v. Neff. It's all about this Buckeye case with the exploding boiler.
At the time, my litigator husband was skeptical of all mediators and all mediation techniques. We took a long walk down a Malibu beach after one of Joe's classes while I tormented him with questions about ways in which mediators could help him settle the case he was then working on -- the World Trade Center insurance coverage litigation.
Frustrated, I interviewed Folger and Bush -- raising Steve's questions -- which I crafted into a Q&A for mediate.com -- Can Transformative Mediation Work in Commercial Litigation?
Later, Ken Cloke (Conflict Revolution) would tell me "you are the technique," opening the door for me to use mySELF to best settlement effect, remembering old lessons while continuing to learn new ones. See We Tell Ourselves Stories in Order to Live.
If you wonder why I'm such a joint session fanatic, it's due largely to Joe's and Baruch's teaching as well as my own experience mediating community disputes locally -- the only place true transformative mediation is practiced. Engage the people with the problem and you're more than half way home. You just have to be capable of getting the lawyers to trust you enough to give up just a tiny bit of control to help the process happen.
As another mentor -- Richard Millen -- taught me, people don't have legal problems, "people have people problems" which are burdened with justice issues.
Choose your mediator wisesly, collaborate with him/her and you will not only settle the case, but emerge with a client who got what he/she/it hired you for -- to resolve the commercial problem and the justice issue that called for the retention of a lawyer in the first place.
And if you're in the UK, check out Justin Patten's post on small companies missing the benefits of mediation -- complete with an offer of a free consultation.
