Effective mediation techniques

August 13, 2019

From the Talmud: How Empathy and Curiosity Help Mediators Resolve Disputes

Josh Fruchter
In this latest post on applying Talmudic principles in mediation, we discuss two vital mediation techniques — encouraging empathy and exhibiting curiosity — that emerge from a Talmudic legend concerning Alexander the Great (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source..
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August 8, 2019

I’m Sorry: The Power of Apology in Mediation

Josh Fruchter
As children, we were taught by our parents and teachers to take responsibility for our actions and apologize if we damaged someone’s property or hurt someone’s feelings. See Professor Jonathan Cohen, Advising Clients to Apologize, 72 S. Cal. L. Rev. 1009 (1999). Yet, ironically, as adults — if we cause..
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August 6, 2019

Top Strategies for Preventing and Breaking Impasse in Mediation

Josh Fruchter
Impasse — it’s the bane of all mediators. We know it when we see it. The gap between the parties seems unbridgeable. Neither side is willing to make a move. Emotions are running high, and both sides are ready to walk. What can mediators do to prevent negotiations from reaching..
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July 31, 2019

From the Talmud: Is Mediation of Disputes a Moral Duty or a Utilitarian Exercise?

Josh Fruchter
In this latest post on applying Talmudic principles in mediation, we discuss the Talmud’s view of mediation as an affirmative moral obligation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). Moral duties are actions we are..
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July 28, 2019

When Does Evaluative Mediation Cross the Line from Neutral Analysis to Legal Advice?

Josh Fruchter
Two of the primary approaches to mediation are facilitative and evaluative. Under the facilitative approach, the mediator orchestrates a process that facilitates communication between the parties concerning their respective interests and concerns. The mediator typically refrains, however, from sharing an opinion concerning the strengths or weaknesses of either side’s positions...
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July 17, 2019

From the Talmud: How to Manage High Conflict Personalities in Mediations

Josh Fruchter
In this latest post on applying Talmudic principles in mediation, we will explore a Talmudic insight that can be used to manage high conflict personalities in mediation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). The..
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July 15, 2019

Can Mediators Add Value in the Transactional Context by Rescuing Deals at Risk of Falling Apart?

Josh Fruchter
Traditionally, mediators have helped parties resolve disputes already in litigation. Some of our recent blog posts, however, have discussed how mediators can help nip disputes in the bud before they escalate into litigation in contexts such as estate planning, family businesses, and the workplace. The idea being that lawyers should..
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July 11, 2019

Should Fee Shifting Provisions Condition Recovery of Attorneys’ Fees on Participation in Mediation Before a Lawsuit is Filed?

Josh Fruchter
To deter parties from taking frivolous positions in connection with contractual relationships, agreements often contain fee shifting provisions that entitle a prevailing party to recover reasonable attorneys’ fees in any litigation arising under the agreement. The downside of fee shifting provisions, of course, is that they may deter parties from..
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July 10, 2019

Bracketing in Mediation: When to Use It and Why It Works

Josh Fruchter
Participants in mediations will be familiar with bracketing — a technique widely used by mediators to bridge seemingly insurmountable gaps between what one side is offering and the other side is demanding. Why bracketing works offers a fascinating glimpse into the psychology of negotiation and mediation. Let’s assume a plaintiff..
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July 7, 2019

From the Talmud: Making Peace in Mediation by Giving Others the Benefit of the Doubt

Josh Fruchter
We have previously blogged about applying Talmudic principles in mediation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). This post will explore application of the Talmudic principle known in Hebrew as dan l’kaf zechut, or judging..
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