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By Steven G. Mehta

One of the advantages of having a mediator is the fact that the mediator is neutral and not so closely connected to the case.  A recent study has confirmed this concept by showing that people who solve problems for others are more creative than those who are thinking of solutions for themselves.

According to Evan Polman and Kyle Emich, we’re more capable of mental novelty when thinking on behalf of strangers than for ourselves.   Studies have previously shown that the more our distance to a matter is, the more abstractly we can imagine a solution to the problem.

According to several studies done by Polman and Emich, participants were more creative in solutions across the board when they were less connected to the issue.  For example, participants drew more original aliens for a story to be written by someone else than for a story they were to write themselves.  Participants also thought of more original gift ideas for an unknown student completely unrelated to themselves, as opposed to one who they were shared the same birth month.  Finally, people were better able to create an escape route from a trapped tower if were thinking of someone else trapped in the tower, rather than themselves.

The study dealt with unknown people.  But it could be affected if we knew who the person was we were helping.  According to the researchers, it will make a difference who we think we’re solving a problem for.

As a mediator, this concept makes sense.  One of the reasons that parties come to mediators is because of the intellectual distance.  The mediator can neutrally evaluate the case and facts from a distance.  In doing so, sometimes the mediator is able to see a solution the parties might not have otherwise have seen in the first place.   As a mediator, it is also important to make sure to not get too closely aligned with one side or the other so as to maintain the ability to see the forest through the trees.

 

By Steven G. Mehta

Today, 69 years ago, the island of Singapore fell into Japanese hands based upon the unconditional surrender of British Forces.  The surrender was the the largest surrender of British-led military personnel in history.  About 80,000 British, Australian and Indian troops became prisoners of war, joining 50,000 taken by the Japanese in the Malayan campaign.  Britain’s Prime Minister Winston Churchill called thefall of Singapore to the Japanese the “worst disaster” and “largest capitulation” in British history.

According to Wikepedia, by the morning of February 15, the Japanese had broken through the last line of defense and the Allies were running out of food and ammunition. At 9:30 a.m, British Commander Percival held a conference at Fort Canning with his senior commanders. Percival proposed two options: Launch an immediate counter-attack or surrender.  All agreed that no counter-attack was possible. Percival opted for surrender.  Percival formally surrendered shortly after 5.15pm.

The terms of the surrender included:

The unconditional surrender of all military forces (Army, Navy and Air Force) in Singapore Area.

Hostilities to cease at 8:30 p.m. that evening.

All troops to remain in position until further orders.

All weapons, military equipment, ships, planes and secret documents to be handed over intact.

Earlier that day before the surrender, however, Percival had issued orders to destroy before 4 p.m. all secret and technical equipment, ciphers, codes, secret documents and heavy guns.

Percival’s surrender reflects an interesting thing about conflict resolution.  Some people in mediation feel that they can only negotiate when they have a strong case.  Others fail to recognize the realities of their legal situation and believe that their case is stronger than what it actually is.  The reality is that if a party cannot fully recognize the position that he or she is in, he cannot effectively negotiate.  Percival realized that he was negotiating, not from strength, but from weakness.  He knew that he could not make inordinate demands else he and his troops would be annihilated.  He made the choice to negotiate a surrender.  Negotiators in litigation often are in a position of weakness.  Their case is not good and the other side knows it.  But just like Percival, negotiators need to know the alternatives.  Here, the Japanese knew that if they obtained a surrender they would not lose countless lives.  Percival was able to negotiate a settlement given his limited strength.

Often in mediation, people with weak cases need time to recognize the true position; and when they do, they can recommend a reasonable settlement.

 

By Steven G. Mehta

The New York Times has reported that former New York Governor has been appointed to mediate the Billion Dollar dispute relating to the Madoff scam.  Here is an excerpt of the article:

A federal judge on Thursday appointed former New York Governor Mario M. Cuomoto try to resolve the $1 billion dispute between the owners of the Mets and the trustee representing victims of Bernard L. Madoff’s financial fraud.

Burton R. Lifland, the United States bankruptcy judge overseeing a lawsuit brought by the trustee against the team’s owners, said the “special issues” in the case require “an appropriately experienced mediator.”

Cuomo, who began his career in public life as a lawyer and mediator 40 years ago, will not be empowered to impose a settlement, but is expected to take steps to cool what has become an angry public fight.

To read more, click here

By Steven G. Mehta

In some sense, mediators are simply messengers in a war of the parties.  They send and interpret a message from one side to the other.  And we all know sometimes what can happen to the messenger.  Well I thought I might briefly look at the origin of the phrase, “Don’t shoot [or kill] the messenger.”

According to Wikipedia, “Shooting the messenger” is a metaphoric phrase used to describe the act of lashing out at the (blameless) bearer of bad news.  It appears that the original basis for the statement may have come from a related sentiment expressed as far back as 446 B.C in Antigone by Sophocles as “No one loves the messenger who brings bad news”.   Later, it was used by Shakespeare in Henry IV, part 2 (1598)[1] and in Antony and Cleopatra: when told Antony has married another, Cleopatra threatens to treat the messenger’s eyes as balls, eliciting the response ‘gracious madam, I that do bring the news made not the match’.[2]

Going back to Greek history, I thought you might like to the see the concept in action with a slight theatrical embelishment from the movie 300.

As a side note as to why people for a long time have been worried about shooting the messenger.  I think it goes back to fight or flight.  When people hear a message that they don’t like, it invokes the fight or flight reaction in that person.  Rather than run away from the message — and its implications — they choose to fight.

Steve’s Book

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