Recently, I conducted two mediations that revealed the importance of flexibility,  creativity and being prepared.

The first one was an alleged wrongful termination case in which the employer was disputing that the alleged employee was even terminated. According to the alleged employer, the alleged employee quit while the employee claimed she was fired.

As the mediation proceeded, the parties slowly began reaching terms of a deal. When I attempted to convey those terms to the alleged employee and her counsel, the alleged employee advised she did not understand the terms as Spanish was her native language and she did not understand English well. Suddenly I was confronted with the notion that this matter might not settle because of a language impasse. But creativity and flexibility won out. I called my bilingual legal assistant who agreed to act as a translator in this Zoom mediation and did so for more than two hours. With her help, the matter settled.

Afterwards, I wondered why the alleged employee’s counsel did not consider having a translator available to insure a smooth mediation. Surely, she must have been aware of the language difficulties faced by her client. Thus, to my list of “being prepared”, I must now include having a translator available when necessary.

The second mediation  focused on flexibility and the importance of the parties to just keep talking to each other. This matter involved two different buyers attempting to purchase the same parcel of land from the seller. While the mediation lasted over seven hours, no definitive resolution was reached but a framework was created by which to resolve the matter.  The parties determined that the easiest resolution was for one potential buyer to buy the other buyer out so that the latter would agree to walk away from the transaction. The issue became which buyer would be bought out. While this was not resolved during the mediation, those seven hours of discussion opened the lines of communication between the parties and their counsel so that in the days after the mediation, the parties are still discussing how to resolve this  matter.  A resolution is near, and I have  no doubt that one will be reached. If anything, the mediation brought home how messy this matter would be to litigate and so if at all possible, a resolution should be found. And so, the parties will keep talking until a resolution is reached.

The morale of this second mediation is the importance of talking to each other. No matter how stymied a party may feel, it is important to keep talking to the other.  With a little brainstorming, the impossible will soon become possible and a solution will be found. Just keep talking to each other no matter what… And be flexible and creative in doing so.

… Just something to think about.



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