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This article by Bart Jackson was prepared for the June 13, 2001 edition of U.S. 1 Newspaper. All rights reserved.
Mediation: Better Results, Fewer Ruined Relations
It’s tempting to say "It’s not personal, it’s just
business," but J.D. Rockefeller knew the real truth: All business
is always personal. "Know the man; then you’ll know his selling
price," the tycoon would mutter to his cronies.
Nowadays, the stiff-necked businessman who backs up his commercial
relationships with a battery of attorneys frequently ends up paying
dearly and unnecessarily. Increasingly, business folk are seeking
not so much victory as solutions among people. Now in some cases facilitators
and mediators are providing firms with swifter, cheaper — and
often more farsighted — solutions to employee claims and business
The fifth annual Alternative Dispute Resolution (ADR) Conference,
"Beyond the Basics: Strategies for Practitioners and Neutrals,"
on Friday, June 15, at 8:30 a.m. at the Sheraton in Iselin is an all-day
event for mediators, and for those who are interested in becoming
mediators. Sponsors include the New Jersey Association of Professional
Mediators, the Institute for Continuing Legal Education (ICLE), the
American Arbitration Association, the New Jersey State Bar Association,
and the Society of Certified Public Accountants. Cost: $210. Call
One thing making this ADR seminar so timely is the recent U.S. Supreme
Court decision concerning Circuit City. By a narrow 5 to 4 vote, the
court upheld that employees who previously agreed to the firm’s policy
of submitting claims to a binding arbitration process must abide by
the outcome. Claimants cannot run to court asking for a second bite
at the apple after binding arbitration (U.S. 1, May 16).
"Mediation has been the true sleeping giant for the past 20 years
and this undoubtedly will arouse it," says seminar host and attorney
Hanan Isaacs. From his offices at 601 Ewing Street, Isaacs has
labored to ward off unnecessary litigation for two decades. Accredited
and active in both the American Arbitration Association and the Association
of Professional Mediators, as well as an adjunct professor of ADR
for Seton Hall Law School, Isaacs says "mediation is older than
written history." When Agamemnon and Achilles arrived at an impasse
before the gates of ancient Troy, they took their case to wise old
Nestor. Such tribal counselor roots, Isaacs says, guide mediators
into humanizing a dispute. "Arbitration serves a definite purpose,
but it is still a win or lose situation," Isaacs says. "It
can give you a single Pyrrhic victory at the cost of a potentially
Even in a strong, straightforward dispute, Isaacs says mediation provides
a broader scope of methods. In a typical case, a buyer might complain:
"I’ve been cheated, you sold me a defective product and now won’t
stand behind your own junk." The vendor might snarl back: "It
was not defective. If your clumsy oafs on the production line had
used it properly, it would have lasted for years."
Amid these glowers and invectives enters the mediator. Mediators are
selected by agreement by both parties from among the New Jersey Association
of Professional Mediators’ 200 accredited members. They have a minimum
of 18 hours of training (the average is closer to 100) of training,
and have apprenticed with seasoned mediators.
The mediator can call upon a creative panoply of techniques not available
to a judge, and often not even to an arbiter. These techniques include:
the in-house facilitator or mediator is to have both sides write out
some basic rules of engagement. This pre-negotiation Geneva Conference
generates spokespeople and eases each side into working together.
Rules might include that the initial brainstorming ideas must remain
unfettered and uncriticized.
"is to discover what each of the disputants really wants out of
this relationship." The buyer probably does not want to gain a
swift and withering settlement that will kill the vendor as a future
supplier. "Tell me how you guys first got started in business
together," Isaacs may ask casually. Then, in an atmosphere of
relaxed nostalgia, come the old stories and hopefully a realization
that the true goal is to get rid of this bad blip and let the relationship
flow profitably on.
Thus seeking the goal beyond the immediate dispute becomes primary
in employee claims, says Isaacs. So often the employee seeks a little
more respect or recognition of his extra efforts. The cash from a
quick fix settlement may temporarily symbolize that respect, but it
won’t solve the problem or fill the employee’s hidden need.
a great advantage over formal litigation. While a judge is not permitted
to speak with either client without attorneys for each side present,
the mediator can meet with one side and quietly delve beneath the
various layers and side issues of a dispute. "Family-held companies
are incredibly riddled with inner fractions and splits," says
Isaacs. "Sometimes if I can spend five hours sewing up the rift
between father and son co-owners, we can return and hammer out a solution
with the original disputants in an hour."
All business is personal. If it opens doors of discovery in marital
counseling, role playing can work just as well in arguments between
a buyer and a vendor, or an employer and his worker. "Get out
of the box," says Isaacs. "Seek that human solution."
like training one’s self out of a job, a good mediator will aid the
disputants, particularly in employee/employer cases, to establish
a set program for handling similar claims when they arise again.
is in no way easy. Staying neutral, but becoming involved enough to
actively seek a creative solution, requires a facile wit and a certain
John Linden, communications chair for the NJAPM, says "I
will never forget standing in an office in Phillipsburg, and watching
the mediator chasing one disputant down the hall and screaming at
the top of his lungs." Apparently he was not quite the right man
for the job. But if you think you can work out a clever solution while
staying aloof from the passions around you, mediating could be the
career for you. You do not need to be an attorney, although many mediators
are, and no license is necessary in New Jersey. Mediators do not need
to be members of the Association of Professional Mediators, but those
who do seek this group’s accreditation must have a minimum of 18 hours
of training — offered at Rutgers and other colleges, and must
serve an apprenticeship. Many members are attorneys or psychologists.
Strong business experience, while considered very much of an asset,
takes a second chair to exhaustive training for the APM Board.
As more and more companies seek to avoid the cost of litigation, it
just might prove a wise move to catch the coat tails of the wakening
mediation giant. All you have to do is stick out your shingle and
start soothing. Good luck.
— Bart Jackson
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