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Copyright 2014 by
Jeffrey Foote.
All rights are reserved.


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From Warrior to Peacemaker
Lessons Learned

By Jeffrey P. Foote

In July 2006, my friend and colleague, Mike Withey and I were honored by the TLPJ Foundation (now the Public Justice Foundation) as Champions of Justice. As part of the presentation we were wrapped in colorful blankets by members of the Lummi Nation, a tradition dating back to the end of WWII, when veterans from WWI welcomed the returning warriors home.

It was a career highlight for me to be heralded as a Champion of Justice by my professional peers and, at least symbolically, as a returning warrior by the Lummi Nation.

Upon reflection, it is ironic that I was being celebrated as a champion and a warrior at a time when I was working as a mediator, essentially a peacemaker. After a 30 year career as a trial lawyer, I began a transition in 2006 to a new career as a mediator. That transition is now complete, having tried my last case in the Spring of 2008. In both roles, I’ve learned a few important lessons along the way.

Click here to download a copy of this essay in .pdf form.

About Mediation and Mediators
Not all mediators and not all mediations are the same. Like trial lawyers, each mediator has his or her own unique approach and style, and that approach and style will vary as the facts and personalities of each mediation dictate.

When I was a young lawyer, I attended a full day seminar with only three speakers, all legends of the day: Bob Cartwright and Marvin Lewis, from San Francisco; and Gerry Spence from Wyoming. Bob Cartwright was quiet, deliberative, well organized and polite. Marvin Lewis was vocal and flamboyant, with large fluctuations in his voice and grand gestures. Gerry Spence, dressed in buckskins, was the epitome of the cowboy, tough and masculine. Yet all were masters of their craft. The same is true of mediators. Their personalities and approaches to mediation can be very different, yet equally successful.

Some mediators tend to be evaluative, seeing their role as evaluating the case and getting the parties to accept that evaluation. Others are more facilitative, seeing their role as facilitating communication between the parties to find middle ground.

The best mediators adapt their approach to the situation, considering the case, and the personalities of the parties and their attorneys. They are flexible and creative, being able to adapt, just as a good trial lawyer does.

Look for a creative mediator. He or she will be much more successful than one with a cookie cutter approach.

If you’re working with a new mediator, take time to visit with him or her beforehand so you can understand how the mediation will be conducted. Will there be an opening session? Do you want an opening session? Does the mediator like to work toward an acceptable number through caucus meetings without going through the sometimes frustrating tit for tat negotiation? These are fair questions, and the answers will help you prepare for mediation.

Credibility
Settling cases in mediation is all about credibility. Mediation is about eliminating risk for both sides. The perception your opponent has of your client, your case, and yourself, are driving factors in his or her evaluation of his or her own level of risk. Consciously or not, you are making the same evaluation on your side of the table.

Your opponent needs to know that if the case doesn’t settle in mediation, you will try it and you will do a good job. The only way to gain that credibility is to try cases that can’t be fairly settled and, win or lose (you’ll do both), be prepared and do a good job in trial.

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