Outlandish Mediation Techniques?

Yesterday evening, John Lande sent around the following email on the AALS listserve:  Doug Yarn has a desperate need for “outlandish mediation techniques” that worked.  If you can help, please let him know as soon as possible — email him at dyarn@langate.gsu.edu

This got me thinking–first, if you do have any good ideas and you read this in the next hour–please email Doug directly in addition to posting a comment.  But, second, even if you don’t get to this until after the deadline, this seemed to be a fun idea.  So…blogosphere–what have been the craziest techniques that you have used, and that have worked?  I’m sure it would be great for all of us to hear!

7 thoughts on “Outlandish Mediation Techniques?”

  1. Sometimes the attorneys are the problem. Hatred and contempt brew below the surface as egos bump–all standing in the way of settlement.
    In one recent case I handled the only way out to settlement was to eliminate the attorneys’ participation. The litigants and attorneys knew this reality and, at my request, the litigants agreed to meet with each other on neutral ground without attorneys or the mediator. After 3 meetings the parties settled a complex lease case that was set for trial. The attorneys’ later commended their respective clients’ settlement. Although their was follow up squabling about the releases and stipulated judgment docs, the deal got done.

  2. Back when I was in practice, a friend and fellow mediator was mediating a lawsuit between two high-flying real estate developers. Both thought of themselves as riverboat gamblers, and therefore both said they were more than happy to take their chances in court rather than back off their positions late in the negotiations. They also apparently wanted the other to know they were doing very, very well financially, and so the money didn’t matter. Their positions were about 200k apart.
    My colleague picked up on the bravado and their articulated desire to “gamble”, and suggested that if they felt that way there was no reason to wait for trial–they could gamble right there at the mediation. He prepared a settlement agreement with the amount of payment blank, and put the plaintiff’s last number, the defendant’s last number, and the midpoint figure on three pieces of paper, which he then placed in a basket. He had both sides sign the settlement agreement, which said they would agree to whatever figure was drawn from the basket and written in the blank space. Once the agreement was signed, he had one of the parties (by agreement–he didn’t want to do it himself) draw the number, which they placed in the blank on the agreement. The two developers, who had known each other for years, then went out together for a drink, or so I was told. The settlement agreement is now framed and on display in the office of one of the attorneys who appeared at the mediation.
    I’ve suggested this technique at mediations where there were chest-pounders on either side, and never gotten anywhere.
    mpd

  3. Using magic pennies to get parties to separate the people from the problem. Wrote article about this – will send link when next at my computer.

  4. Reality testing is an essential tool in mediation. Conceptually, a mediator invokes a sort-of reducio ad absurdum argument with the unrealistic party. That is why I have created, Mr. Cookie Sock-Puppet Man. As you can guess, Mr. Cookie Sock-Puppet Man is a well dressed sock puppet. When I have an unrealistic party, Mr. Cookie Sock-Puppet Man suddenly appears and joins the mediation. He is gifted with penetrating googly-eyes and an endearing sock-puppet face which allows him to break through the irrational positions of the party in question by showing him or her just how absurd they are. Some have said that Mr. Cookie Sock-Puppet Man is, and I quote, “unbelievably condescending” and “an unnecessary insult during an already difficult time.” Nevertheless, Mr. Cookie Sock Puppet Man has broken through many impasses by refocusing rage from across the table to his lovable, dopey self.

    Yes, he does often wear a stylish derby.

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