Reflections on 25 Years of Mediating

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Reflections on 25 Years of Mediating

This month marks my 25th year mediating cases. This had led me to think back on my first mediations and what I have learned since then.

I signed up as a volunteer mediator in New Hampshire in 2000, not long after ADR became mandatory for civil cases. At that point in time, the Clerk’s office would schedule three back-to-back mediations in one day, each lasting two hours. It was a strange combination of speed dating and mediating, all taking place at the courthouse.

I have mediated a lot of cases since then, and hope I have learned a few things about the mediation process. Here are some observations that might be helpful:

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(Almost) Escaping the Rule Against Perpetuities

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There are many things that strike fear in the hearts of law students preparing for the bar exam. The worst for me was worrying that I would get a question on the rule against perpetuities.

The rule against perpetuities is an arcane legal doctrine tracing back to 17th century English common law. We are told that it limits the ability to put long-lasting restrictions on land.

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In Praise of Brevity

/ Clayton Mediation/

There is wisdom in the old saying “talk less, say more.” We sometimes assume in speaking and writing that if a little is good, a lot will be better. Often, the opposite is true.

When sending materials to a mediator on an important case, it is tempting to overdo it. Do you attach the three critical doctor’s notes or do you provide the entire 250-page medical chart? Do you excerpt the one paragraph of contractual language that controls or do you err in favor of sending the entire 100-page licensing agreement? Do you summarize your client’s case in 15 minutes or go on for over an hour?

I think I speak for all mediators when I suggest that less is usually more.

And on that note, I am done.

Trials: a Failure of Lawyering?

/ Clayton Mediation/

In a recent mediation, an attorney shared with me the interesting comment that: “Trials are the result of failed lawyering.”  While that may overstate the case, it struck me as a pretty wise perspective.

While trials have a sacred place in our constitutional, historical and jurisprudential legacy, for most clients they are expensive and terrifying, with uncertain outcomes.  They are a roller coaster with a propensity for ejecting riders from great heights.   

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