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Ten Commandments of Mediation

From an address by Joe Swerdzewski, General Counsel Federal Labor Relations Authority

Used with permission.

Rule One:  Remove all proxy warriors.  That is, change the role of your lawyers and make sure that they understand their role.

Lawyers make excellent servants but terrible masters in a dispute.

Rule Two:  Dispute resolvers should not have a state in the existance of disputes.

  1. Look at the structure of your disputes.
  2. How are you measuring success?  

You want preventative maintenance rather than good response to catastrophes (that could have been avoided).

Rule Three:  You can't buy a better relationship.  It is much better to resolve disputes "on the merits" than to give in to improve the relationship.

Buying off problems only generates more of them.

"Can't buy me love"

Rule Four:  Role-play your opposition in order to understand them, but do not become them.  You need to understand the other side, but you must seek your own best interests.

Walk a mile in their shoes -- not a marathon.

Rule Five:  Understand your best alternative to a negotiated settlement including:

  1. tangible costs (immediate dollars)
  2. intangible costs (relationship costs)
  3. transaction costs (what is the cost of litigating pride?  Millions of dollars every year in the federal system).

Batten down your BATNA.

Rule Six:  Dispute resolution may mean being willing to say you are sorry.  Many, many complaints are really issues of respect -- or feeling issues of respect -- and no more or less.

Apologize for the conflict.

Rule Seven:  Share information.  Withholding information leads to mistrust and prevents a correct evaluation of BATNAs by the parties.

Prevent the blind from leading the blind.

Rule Eight:  Prevent conflict through education.  Teach people the law,and teach them their rights as a part of on-going training and understanding.  Respect and learn from what you teach.

An ounce of prevention is worth a pound of litigation.

Rule Nine:  Establish proper boundaries.  People will argue what they have (If they have the law, they argue the law, if they have the facts, they argue the facts, if they have neither, they pound the table).  Remember that what you feed grows and you have to starve table pounders or violence will drive everything else out of the process.

Replace coercion with persuasion.

Rule Ten:  When all else fails, blame a third party.  Then seek settlement anyway.  See four issues which discusses the four most common reasons for unfair labor practices being dismissed -- and why several of them require resolution in spite of the dismissal.

The "Devil Made Me Do It" as an apology.

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