A Mediator’s Toolkit: Repetition

by Rich Cassidy on September 15, 2014

The life is like a tightrope walking. Handcolored etching «Lebenslauf» (English: «Life» or even «Biography») by Adi Holzer 1997 (Work number 850). It is a part of the Rosentaler Suite from the year 1997.One of the best mediators that I have ever seen in action makes a practice of repetition. No, I don’t mean that he repeats what he says over and over.

I mean that he listens carefully to one side of the dispute and before he turns to the other side, he repeats what he heard, almost verbatim. Then he does the same thing with the other side.

Why? Because by doing so, he demonstrates conclusively to each party that they have been heard. That’s important.

I haven’t quite been able to master that technique, and even if I could, I would not use it in every case. Not every party is so eager to be heard that this technique is useful.

But I have adapted the technique to my own skills and the needs of the parties in my cases.

Most of the time, demonstrating real understanding is very important. In such a situation, I try to summarize what a party has told me using everything that seems important to me. Then I ask: Is that it? Do I understand what you are trying to tell me?

Sometimes I don’t get all the important points. But when I don’t, the party tells me so. And then I do.

I like it because it really helps to engage all the parties. It makes sure that I really do understand. And it makes sure that the party knows that I understand.

It does one more thing: Because I am explaining each party’s side of the story in front of the other party, it makes clear to all sides that there is, in fact, an articulable other side of the story. That is often new news!

It’s not for every case. It takes concentration and analysis. But it helps settle cases.

Rich

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The Limits of Judicial Impartiality

by Rich Cassidy on September 12, 2014

1courthouse462x231Some years ago,  I visited the Massachusetts Supreme Judicial Court in Boston.

Inscribed on a plaque outside the courtroom is language from the first constitution of the Commonwealth of Massachusetts:

It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is therefore not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.”

–Article XXIX,  A CONSTITUTION OR FRAME OF GOVERNMENT,  Agreed upon by the Delegates of the People of the STATE OF MASSACHUSETTS-BAY,–In Convention,–Begun and held at Cambridge, on the First of September, 1779, and continued by Adjournments to the Second of March, 1780. (Emphasis added). 

The principal author of the Massachusetts Constitution was John Adams.

I love the phrase: “as the lot of humanity will admit.”  That is all that we can aspire to.

Judges are, after all, human beings.

They go to the bench with their own experiences, their own history, and even their own biases. These characteristics don’t disappear with the oath of office. The best judges will strive to see their own biases and to neutralize them.

None will succeed all the time.  We must be satisfied with honest, good faith effort.

Rich

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Military Justice in the United Kingdom: Justice is Not Simple.

September 8, 2014

Today, OnLawyering.com is fortunate to have a guest post by Robert Seymour, a retired Judge Advocate. In the United Kingdom, Judge Advocates preside over courts martial. Judge Advocates are civilian lawyers appointed in the same way as any other member of the British judiciary. The case of Alexander Blackman, a Royal Marine sergeant, has attracted world-wide attention. […]

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Uniform Law Conference of Canada Adopts the Interjurisdictional Recognition of Substitute Decision-Making Documents Act

September 3, 2014

On August 14, the Uniform Law Conference of Canada adopted the Uniform Act on Interjurisdictional Recognition of Substitute Decision-Making Documents. The Act is intended to insure that plans for health care and financial management, such as powers of attorney and health care powers, are portable among Canadian and United States jurisdictions. According to SLAW, Canada’s […]

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Legal Education and Access to Justice: A Glass Half Empty or Half Full?

August 20, 2014

Under the leadership of outgoing American Bar Association President James R. Silkenat, the Association took a major step in the right direction this year by recognizing that the crisis in American legal education represents the crossing of problem with opportunity. We are a nation in which many millions of Americans can’t find lawyers to help effectively […]

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ABA President William C. Hubbard Calls for Criminal Justice and Sentencing Reform

August 16, 2014

The American Bar Association’s incoming President, William C. Hubbard, delivered an eloquent speech at the 2014 Annual Meeting last Monday in Boston, calling among other things, for change in our criminal justice system. It’s a system that incarcerates too many people, for too long, with an impact shocking it its disparate effects on members of […]

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Chief Justice John Roberts Addresses the ABA House of Delegates: “No Person, No Matter How High, is Above the Law.”

August 11, 2014

Chief Justice Roberts addressed the ABA House of Delegates at the 2014 Annual Meeting today to begin a year of celebration of the 1215 signing of Magna Carta. He traced the history of Magna Carta as essentially the settlement of a squabble between a venal king and his feudal barons. He noted that Magna Carta […]

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The Judge of Your Swing: Reflections on the 2014 Annual Meeting of the Uniform Law Commission

August 3, 2014

I’ve been at home for two weeks from the 2014 Annual Meeting of the Uniform Law Commission in Seattle. It seems like I have not had a moment’s breath since I returned. But sometime, probably in my sleep, I have begun to integrate my experience at the meeting into my customary way of seeing the […]

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Vermont Senators Leahy and Sanders Honor Gov. Hoff

July 18, 2014

Post Updated with Video Clips from the Floor of the United States Senate WASHINGTON, July 17 – In joint remarks before the U.S. Senate today, Sens. Patrick Leahy (D-Vt.) and Bernie Sanders (I-Vt.) honored former Vermont Gov. Phil Hoff, who just turned 90 years old. Hoff served three terms as governor. First elected in 1962, […]

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The Uniform Law Commission Meets Thursday July 11, 2014 in Seattle, Washington

July 10, 2014

The Uniform Law Commission begins its 2014 Annual Meeting on Thursday July 11, 2014 at the Westin Hotel in Seattle, Washington. Meeting in its 123rd year, the Commission, also known as the National Conference of Commissioners on Uniform State Law, faces a challenging agenda. More than 270 lawyers, judges and law professors — appointed as […]

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