One of the great privileges of having passed the bar is getting to play judge at various legal competitions. Some get fancy and have you actually don the black robes, others you can show up to in shorts and a t-shirt. My favorite of all of these are the Alternative Dispute Resolution (ADR) competitions that our local law school host. Some are just for the law students at that school and others bring in competitors from all over the country.
They are never boring, sometimes hilarious, and occasionally frustrating. It’s the latter I am going to address. I save my notes from the competitions as there are moments in observing mediations and negotiations where watching the participants sparks an idea or approach.
I was observing and judging a round on an international family law competition. As with all competitions the facts were high drama. Claims of kidnapping, domestic violence, oppression, and financial abuse abounded. The goal was to create, among other things, a parenting plan and perhaps even save the marriage itself.
Competitions are timed, requiring teams to move faster on issues than normally happen in the real world. This time-crush means that building agreement has to happen early and often. And just like in real life, parties sometimes are hesitant to grab a win when it appears.
Since I even I can’t read my handwriting sometimes, the photo says “Guys, don’t be afraid to commit. If you have a win – grab it and build on it.” This is a magical moment in mediation and it never fails to thrill me. It is the moment that the parties have stepped firmly onto the path of an agreement. It doesn’t matter how big or small the win is, a zone of agreement has been created.
I carry a colored pad of paper around with me during mediations (colored so I know it’s mine and remember to grab it when leaving the room) and use it to tract facts, discussions, options, and when the moment comes, a win. I tear off a clean page, write it up, and verbally confirm with the parties.
Then every offer after that includes that win, that first point of agreement. That loose sheet, my MSA summary sheet, is something I can turn around and show the parties in a “hey, here are all of the things we already have agreement on.” As the parties get closer and closer, the obstacles to the last issues seem less insurmountable, turning from mountains into molehills.
So grab that first win and build on it. Don’t fear that agreeing to it means you are giving up or giving in. Rather, it means that you have taken control of the mediation and on the road to crafting your own solution.
