9Adar is February 18 – 24, 2018

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Avoiding Shock and Awe

I would like to congratulate the Pardes Center for Judaism and Conflict Resolution on establishing 9Adar as the Jewish Day of Constructive Conflict and share one tip from my fifty years of dispute resolution experience.

After 50 years of practice in commercial transactions and litigation, I had seen and been counsel in most forms of business disputes. So when I became a mediator and arbitrator of similar problems, I could identify with the lawyers and their clients because I had been in their positions in my practice.

And therein laid the problem.

Because when in the course of a mediation, in the opening joint session the lawyer for one of the parties announced a theory that, in my vast experience, was so preposterous, I immediately announced my shock at such a statement. Bad move.

The basic method in the mediation process is to help the parties arrive at an accommodation that all can accept. So each party has to be free to express the views that are most acceptable to that party, and has to be encouraged to listen with an open mind to the views that are acceptable to the other parties. It is not the place of the mediator to express an opinion as to validity of a party’s views in the presence of the other parties.

So controlling the shock of a statement that appears to be wholly without validity to the mediator is essential. Reacting in the presence of opposing parties makes it appear that the mediator lacks neutrality, which in turn compromises the ability of the mediator to perform the function of a neutral.

Helping the parties to listen to each other with an open mind is a basic part of the mediation process. But it starts with the mediator being able to do so. The mediator must avoid expressing shock or awe at what the parties have to say to each other.

Post  contributed by M. Melvin Shralow, ShralowADR, LLC

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