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Post-New Year’s Goal-utions of a Mediator

It has been one week since we rang in 2016. Resolutions were made and many have already been broken. New gym membership cards enthusiastically obtained on January 2nd have been conveniently misplaced so as not to irritate or embarrass the well-intentioned cardholder (who has not visited the gym since January 3rd). The ‘lost’ card is a victim of the commonly made and quickly dropped resolution to “get in shape”. Similar resolutions, include “being nicer”. “swearing less” and “tolerating people you can’t stand”.

Motivation and behaviour experts tell us that making resolutions is pointless and we are just setting ourselves up for failure. What we need to do instead is to set realistic, attainable goals – the success of which can be easily measured. However, to me, goal setting – even if more effective – does not feel or sound the same as a making resolutions. Resolutions are grand pronouncements and, frankly, people like making and hearing them, otherwise we would stop.  As a mediator, I also like the word ‘resolution’ since mediation is a form of Alternative Dispute Resolution (ADR). It’s just that New Year’s resolutions aren’t particularly useful.

Therefore, I suggest we all adopt (if you would like – there’s no pressure)  the ‘Post-New Year’s ‘Goal-ution’. The Goal-ution combines the best of resolutions and goals. It is a sweeping pronouncement, but it is made only after the euphoria of New Year’s Day has expired. It is lofty, yet it is attainable. It is also measurable, as people can easily provide feedback about success or failure.

The Goal-ution is win-win (or, at least, lose-lose). What else would you expect from a mediator?

Please allow me to share with you my mediator Goal-utions for the remainder of 2016 (and the first week of 2017):

Be it Goal-solved that, henceforth, I shall:

1. Avoid using the following expressions at mediation:

  • “But, surely…” (which only leads to the predictable response: “Don’t call me Shirley”);
  • “It’s an accommodation, not a compromise” (people see through that one); and
  • “What would Trump do?” (After all, I am Canadian. As a mediator, I am also neutral).

2. Ensure that I consistently eat a little something during my full-day mediations. While last year I resolved to eat at my mediations (see my post: The Very Hungry Mediator), I recognize that I should have made it a Goal-ution in order to ensure stricter compliance.

3.  Stop replying to questions about what I think a judge would do if the case went to trial by stating “it depends”. My use of this phrase is as a result of the fact that I am also a practicing lawyer (specifically, a Settlement Counsel) and lawyers are fond of answering questions with “it depends”. This is even a valid answer to “what time is it?”  Instead, my Goal-ution as a mediator is to adopt alternative answers such as “there are many things a judge might do”, or “nobody knows how a particular judge on a particular day might rule on a particular case”. However, a mediator should always refrain from sarcastically retorting “why don’t you go to trial and find out what a judge will do?”. This could be viewed as counter-productive in some circles.

4. Avoid telling too many war-stories during my mediations. By ‘war-stories’ I mean recounting past experiences, on a strictly anonymous basis, for educational purposes to help a party in conflict make a wise decision. Telling multiple war-stories should be the exclusive domain of the parties’ lawyers as lawyers love telling them. In any event, anything so bellicose may not be useful when trying to make peace.

5. Call my mother twice a week. While this appears to have little to do with mediation, it will make my mother happy.

If you would like to ensure that I am reaching my Goal-utions this year, or you simply would like to get your case settled, please feel free to contact me.

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Related (and mildly humourous) articles:

How to Sabotage a Mediation: An Impractical Guide for Lawyers

Learning to Love Electronic Litigation

Mr. Spock, Mediator