Tuesday, September 1, 2009

Mediator’s Best Friend: The Toothbrush

I remember well as a young lawyer when the senior litigator in the firm I worked for introduced me to an important client for whom I was about to handle a critical hearing. “Don’t worry about a damn thing”, he said. “Stein may be young but he knows enough that when he goes to this hearing, he’s bringing his toothbrush.”

The client, taking the bait, asked what that was supposed to mean. “That means,” the grizzled litigation war dog explained, “he is either coming back with the decision you deserve, or he is spending the night in jail for contempt of court!”

Great. Not too much pressure.

I’m pretty sure my “mentor” didn’t really mean that I should get arrested. Fortunately I’ll never know since the hearing went my way and all I had to do was nod along as the judge ripped into my opponent for wasting time and judicial resources.

What was important in that life lesson is adopting the determined mind set that such homilies teach us. Be prepared to do whatever it takes to achieve your goals. This lesson serves me well in my mediation practice.

Many times I have a civil mediation that is set to begin at 10:00 in the morning and I tell my wife to please walk the dog and not to expect me home for dinner. And yes, I do keep a toothbrush and toothpaste at my office.

My clients ask me how long they should plan to be at mediation and I tell them that I clear my calendar for the entire day and night. In a civil matter, if progress is being made, it is best practice to stay together until everything is hammered out. You keep momentum and avoid the backsliding and second guessing that can come from protracted breaks.

Now I have been careful to point out that this tactic applies best to civil matters – contract disputes- personal injury – real estate – financial issues - and by that I mean to exclude family law. In family law I find the best practice is to have orderly, time limited sessions. As opposed to mere monetary issues, family matters have repercussions that transcend the financial and such mediations should allow for as much consideration, contemplation, and reconsideration as the parties could possibly want.

When later in my career I was tasked with training young lawyers, I would present them with a new toothbrush before their first hearing. It’s not exactly saying “come back with your shield, or be carried upon it” as Spartan mothers supposedly said to their warrior sons going off to war. I like to think that it is saying be prepared to make every effort to achieve what you set out to do.

It is simply amazing what a trained mediator can accomplish after having embraced such an attitude. I know that nothing that happens in that mediation meeting room can sway or deter me from achieving the best possible result for my clients. My clients often comment on how hard I work and my success rate in excess of the 95th percentile is tangible evidence of the benefit of having that toothbrush always in your pocket.

1 comment:

  1. Good post! Thanks for sharing this information I appreciate it. God bless!

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