Columns

Now, I have written about some very controversial issues, i.e. Trump, Ukraine, Israel-Hamas, the environment and many other topics.

Now, I have written about some very controversial issues, i.e. Trump, Ukraine, Israel-Hamas, the environment and many other topics.

Today, I am taking on an issue I was warned not to tackle. My family and friends repeatedly advised me to leave it alone.  But being a masochist, I can no longer resist; it has bothered me for years.

So here goes: Why do spectators at golf and tennis matches have to be silent?  (There, I did it and I think I hear the outcry already). Let’s begin by applying the “quiet” rule to some other sports.

Scene 1: A Detroit Tiger batter has finished scratching and adjusting his gloves/helmet when an announcement on the public address system commands fans to “be quiet please.” Some 45,000 fans comply.

Scene 2: A Detroit Piston is at the free throw line. A similar announcement orders fans to take their seats, not move a muscle, while the basketball player shoots.  

Scene 3: The Detroit Lions quarterback, ready to take the hike, is bothered by a fan slurping a beer in the upper deck. He stops, points to the stands and the announcer, whose voice reflects annoyance, chastises the offending fan to drink quietly.
None of the above is possible, you say?  Yup, you’re right; very true. So…

Why is golf and tennis different?  What is it about these games that require fans to not only hold their breath, but also are ousted from stadiums and golf courses if they can’t control the sniffles?

The golfing great Tiger Woods became angry when he heard camera shutters click, and at a Wimbledon classic, one player complained that she was bothered by “groans” after she missed a shot. She said a sports psychotherapist was treating her for this mental/psychological dilemma. (I did not make that up; I could never have thought of that.)

In the in-depth interviews I conducted, I was told, “You just don’t understand.” Which, of course, is true. They explained:  it’s a matter of concentration.

Apparently, it takes more concentration to hit a golf ball sitting motionless on a tee, waiting to be whacked than hit a curving, twisting 95-mile an hour pitch from just 60.5 feet away.

A basketball player doesn’t need to concentrate shooting a free throw while fans engage in hilarious antics to force him to miss. Some of the signs and photos can’t be reported in a family newspaper. When the player does miss, given the raciness of the photos, a coach ought to be a little forgiving.

Question: Who needs more time to think: A golfer contemplating a 12-inch putt or a quarterback looking at six hulking, 300-pound salivating linemen who are planning to claw their way through the defensive line to crush every bone in his body.  

The internet provides many reasons (all are really about concentration), one arguing that a tennis player needs to hear the ball hit the opponent’s racket. Apparently, that sound provides vital info for the return.

If sound -- any sound -- is so disruptive, then the first people who should be ushered out are players who grunt, among them the great Serena Williams. Those grunts are annoying, I confess, to me watching on TV. Maybe that’s her secret to winning.

We might also observe golfers don’t grunt even when they hit a drive for some 300 yards. But they do stand like statues on the green when  opponents putt. Professional courtesy.

Concentration?  What about doing backward somersaults on a beam just four inches wide and 4.1 feet off the ground? You think that might need a little concentration?

No, dear tennis players and golfers, concentration doesn’t do it. Citing that as the reason is nothing but sports elitism.  

Then, what is the reason? Answer: Tradition. These were rich people’s sports played at country clubs that required respectable behavior and appropriate manners. People at these clubs didn’t shout, let alone cuss, but behaved “properly.” One professional tennis player, discussing this issue on the web, called his colleagues “dilettantes”

Moreover, tennis was played before royalty and that required acceptable protocol. It still is at Wimbledon where members of the royalty frequently attend matches. No one ever witnessed a king, queen, prince or princess, chugging a beer, and shouting, “Helluva shot, old chum.”

Admittedly, I never met the late Queen Elizabeth but from what I have read about her, I think she would have enjoyed a more raucous scene. I know Prince Harry would.

(If it’s not too much to take on at the same time, we might also change the scoring system in tennis.  What the hell is the point of 15, 30, 40 love? The numbers don’t make sense and what is meant by “love?” Yes, I read all the reasons for the scoring, but for the “love” of me, none makes any sense.  How about 1, 2, 3 and when the player reaches 4, he/she wins the game.)

We have witnessed several revolutions in the last half-century. We have made progress in civil rights, women’s rights, LGBTQ+ rights, and in other sectors of society.

It’s time to fight for “fan rights” at tennis matches and on golf courses. With spring upon us, let’s make 2024 the year we begin to cheer and boo at these sporting events.  I will start it if you promise to post bail.

We might just discover it doesn’t make a damn bit of difference -- and that it is a lot more fun.  

And the player who is upset by groans will save a lot of money on therapy.    

   —————

Berl Falbaum is a long time political reporter and author.

It has been more than 30 years since the Michigan legislature imposed “caps” on medical malpractice cases.

It has been more than 30 years since the Michigan legislature imposed “caps” on medical malpractice cases. Since that time there have been only a few challenges to the law. In fact, the paucity of challenges is rather curious, especially given the rather flimsy constitutional grounds on which the law sits. Putting aside the legal merit of limiting recovery on damages, from a public policy perspective, it just doesn’t make sense.

In the late 1980s early 1990s, when states were adopting laws capping damages on mistakes made by doctors and hospitals, studies over the following decades suggested that the industry-proclaimed “health crisis” was not rooted in reality and was likely the product of fear mongering to lower insurance premiums for health care professionals and limit exposure to legitimate claims of injury and death related to sub-standard health care.

For example, one study from the Center for Justice Democracy at New York Law School found “indisputable” evidence that “caps” on damages in medical malpractice cases (euphemistically referred to as “tort-reform”) produced more medical errors and higher health care costs. Perhaps more importantly, the study determined that the adoption of damage caps did not increase the number of physicians, shattering the myth that doctors were unable to enter the practice of medicine due to the high cost of insurance and exposure to significant jury verdicts.

Still, notwithstanding data to the contrary regarding them, Michigan joined a number of other states in the passing of reform placing caps on damages. Following the legislative enactment, medical malpractice cases began to percolate through the appellate system centered on the constitutionality of the new law. In Zdrojewski v Murphy, the first appellate panel to address the issue — in an unpublished opinion — the court embraced the propaganda of a “perceived crises in the health care system” and found the public policy for “reducing medical malpractice liability” (the purported impetus behind the law) was sufficient to pass constitutional muster.

While the special interest of protecting doctors and their insurance carriers from having to be held fully accountable for medical errors influenced one panel of judges, the Court of Appeals quickly reversed course. In Wiley v Henry Ford Cottage (a published opinion) the court was outwardly critical of its predecessor opinion and re-emphasized Michigan’s Constitutional guarantee to a trial by jury did not end at determining liability but extended to the determination of damages. The Wiley court aptly pointed out that the fatal flaw in the Zdrojewski opinion was that the existence of a medical malpractice claim is not a creature of the legislation, therefore not subject to legislative abolishment. In other words, “while the Legislature may take away what it has given, it may not take away what the Constitution has given.” The fundamental unfairness of the caps is simple: arbitrarily reducing the amount of damages awarded by a jury handicaps its ability to provide full justice.

Unfortunately, the Wiley decision did not stand. Under the steady hand of a Michigan Supreme Court regime criticized for wreaking havoc on the rights of personal injury victims, Justice Clifford Taylor penned an opinion that would lead to three decades of discounted justice. Interestingly, the case that cemented the constitutionality of medical malpractice caps did not involve medical malpractice! In Phillips v Mirac, the issue before the Supreme Court was whether a statutory damage cap on lessors of automobiles, i.e., rental cars, for injury caused by the negligent operation of the vehicle) was constitutional. In Phillips, the Supreme Court demonstrated its keen ability to perform the legal gymnastics of a proper constitutional analysis while pivoting toward a retrofitted opinion that protected the economic interests of the insurance industry. In finding caps to be constitutional, the court provided statutory examples of limitations on recovery. Of course, none of the anecdotal illustrations involved pure common law causes of action independent of statutory origin. Conspicuously absent from Justice Taylor’s opinion in Phillips is any reference, analysis, dissection or even mention of the Wiley decision. Perhaps in her dissent, Justice Elizabeth Weaver said it best: “No industry should be allowed to shift its burden of responsibility and accountability to the shoulders of the severely injured merely because it claims to be in crisis.”

The time is now.

Caps on damages have the ulterior consequence of de-incentivizing doctors to behave carefully. Lowering the risk of malpractice lawsuits weakens the deterrent factor necessary to maintain responsible care, judgement and decision making of medical professionals. A jury verdict is not an “award” or “compensation,” these are terms associated with things we achieve or earn. Rather, a verdict is a monetary measurement of human suffering. The idea that caps lower insurance premium costs, increases the number of health professionals and creates greater access to health care has been debunked. The only true consequence of placing a cap on recovery for those who have had the unfortunate experience of unimaginable suffering due to mistakes made by doctors and hospitals is cheating victims of their right to fully recover what has been lost or destroyed.

––––––––––––––––––––

A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.

We’ll start with a Jeopardy!-like format in which contestants are given a fact as a clue and they have to answer with a question. Here is the clue: It is one of the world’s most devastating humanitarian disasters.

We’ll start with a Jeopardy!-like format in which contestants are given a fact as a clue and they have to answer with a question. Here is the clue: It is one of the world’s most devastating humanitarian disasters.

I think I hear a collective response: “What is Gaza?” While the answer is understandable, it is wrong.

It is Sudan which has been met in the world with a silence that is truly deafening.  The global blindness to Sudan, whatever the reasons, clearly demonstrates the double-standard -- once again -- that is applied to Israel and which deserves uncompromising condemnation.
First some facts from internet sources and a cover story, “The Victims of Africa’s Forgotten War,” in a weekly issue of The Guardian on the civil war in Sudan that began about a year ago between the Sudanese Armed Forces (SAF) and Rapid Support Forces (RSF). (Focus, if you will, on the numbers).

 --About 25 million people require humanitarian assistance of which 14 million are children.

--More than 8 million (15 percent of the total population) have fled their homes since the war began.

--Sudan faces the largest displacement crisis in the world. More than 6 million have been displaced within Sudan and almost 2 million have fled the country.  Four million children have been displaced making Sudan the largest child displacement crisis in the world.

--The country faces dire food shortages, the health care system is in desperate shape, and 65 percent of the population lacks access to health care.

--Women are raped in front of their children, daughters raped in front of their parents, children shot through their heads in their beds, others are kidnapped. Even before the war broke out, the U.N. estimated that more than three million women and girls were at risk of gender-based violence.

--The conflict has plunged Sudan into “one of the worst humanitarian nightmares in recent history,” according to one U.N. official. And some warn, the war may trigger the world’s largest hunger crisis.

One doctor, who asked to remain anonymous, told a reporter:

“The roads were filled with the smell of death and gunfire. Bodies were decomposing in the streets, covered in bullet wounds.

“The city was flooded with guns of all types. I have never seen anything like this.”

He said he witnessed gunmen kill residents indiscriminately, and when armed groups started going door to door …killing residents, he and a colleague fled.

Writes The Guardian: “An increasing number [of refugees] are trying to reach Europe as food supplies dwindle in the refugee camps and the eyes of the world look elsewhere.” (italic emphasis mine).

I believe I can conclude that you are responding with disbelief and a surprised, “Huh?”

Of course, that’s the point. There is little condemnation from the U.N. Nightly news shows which, invariably, open with a lead story on the suffering of Gazans, have given little, if any, airtime to the despair in Sudan.  

There have been no protests in the streets or on college campuses. Organizations which posture themselves as being apolitical, for the first time in their histories, found it necessary to adopt anti-Israel resolutions but have ignored Sudan.

Of course, there are other humanitarian disasters around the world which have escaped any public outcry. For instance, in the war in Yemen 150,000 civilians have been killed and 227,000 have died as a result of famine and lack of health care.  Another five million -- that’s five million -- are facing a “catastrophic” famine in the coming months and more than 730,000 children are suffering from “severe” malnutrition.

And while the Russian onslaught of Ukraine has faded from public view, the killing continues with tens of thousands of children being

kidnapped by Russia with nary a word of protest from any quarter.

None of this is to suggest that Israel should be immune from criticism or that the plight of Gazans be ignored nor that Israel should -- must -- do all that is possible to minimize civilian casualties. (In a previous column, I have called for the ouster of Israel’s prime minister, Benjamin Netanyahu.)

We are addressing fairness, balance and outright bias which, to understate the fact, has been sorely missing. Consider another example: Israel has been pressured continually to scale down its military operation while Hamas is hardly mentioned. Yet, the war would end immediately if the terrorist organization simply laid down its arms.

So, here is a suggestion to the media: Consider publishing a story on why this is so.  Why is Israel always -- and I use the absolute “always” advisedly -- the culprit?  Why is it faced with international condemnation for a war it did not start and which it has to fight against an enemy that hides behind civilians and promises to repeat its butchery “again, again and again.”  

Why are other calamities ignored?  Why is Israel blamed for civilian deaths by countries who, when they were allies in World War II, deliberately leveled more than a dozen German and Japanese cities?

We won’t even mention the two A-bombs -- “Litte boy” and “Fat man” -- dropped on Hiroshima and Nagasaki, which, the internationally renowned intellectual/writer, the late Hannah Arendt, considered a war crime in her book: “Eichmann in Jerusalem: The Banality of Evil.”  (Also worth noting:  Civilian deaths in World War II totaled between 50-55 million while combatant/military deaths stood at 21-25 million).

The answers to the questions posed above would make fascinating reading. That would be a real public service.    

 
   —————

Berl Falbaum is a long time political reporter and author.

Former Republican National Committee (RNC) Chair Ronna McDaniel’s career as an NBC political analyst lasted all of four days. She did not even get the chance to characterize any election as rigged.

Former Republican National Committee (RNC) Chair Ronna McDaniel’s career as an NBC political analyst lasted all of four days. She did not even get the chance to characterize any election as rigged.

She was hired on March 22 with the major assignment to analyze elections and, then, on March 26 she was fired following an on-the-air firestorm over the appointment.

The criticism came from every quarter of the TV talk show news land. Chuck Todd, a former host of “Meet the Press” and now NBC’s chief political analyst, castigated his employer and did so on the air. MSNBC host Rachel Maddow devoted almost a half-hour of her program blasting the appointment.

On and on it went, interrupted only by commercials.

After all, as late as July 2023, McDaniel still maintained that President Biden’s election was “unfair.” And, the critics had the nerve to point out she tried to convince some electors not to certify the election.

Come on, who would be more qualified to analyze

elections and help us understand who won or lost and why?

Well, the powers to be at NBC decided maybe -- just maybe -- there was some validity to the criticism and cancelled their contract with McDaniel.

Said Cesar Conde, the chairman of the NBCUniversal News group which oversees NBC News, MSNBC and CNBC:

“After listening to the legitimate concerns of many of you, I have decided that Ronna McDaniel will not be an NBC News contributor. No organization, particularly a newsroom, can succeed unless it is cohesive and aligned. Over the last few days, it has become clear that this appointment undermines that goal.”

Okay, even though Conde is more concerned about kumbaya in the newsroom then hiring someone who wanted to destroy democracy and suppress the peaceful transfer of power, he made the right decision. We won’t quibble.

But now we have the opportunity to keep the ball rolling and get rid of several other “tainted” talk show commentators. I’ll name a few, beginning with Reince Priebus, who has joined ABC News as a political analyst.

According to Vanity Fair, Priebus advised Donald Trump after the Access Hollywood tape became public, that if Trump did not drop out, he would suffer an election loss worse than Arizona Senator Barry Goldwater did in 1964 when he won just six states for 52 electoral votes while LBJ won 486 electoral votes in 44 states and D.C.

Priebus then made public a statement of his own about the tape in which he stated, “No woman should ever be described in these terms or talked about in this manner. Ever.”

Forgetting he once had a little commitment to basic decency, after Trump won the 2016 election, Priebus served as Trump’s Chief of Staff for six months, defending him not only against charges of sexual assaults on dozens of women, but all the lies and other corruption. He is now an “objective” Republican political commentator.

Then we have Alyssa Farah Griffin, who served as Trump’s director of strategic communications and also assistant to the president. She is a co-host of ABC’s “The View” and a CNN commentator.

Griffin and several of her former White House colleagues frequently appear as “analysts,” criticizing their former boss on policies, policies they probably, at one time, defended or even proposed. They also condemn his character and lies, blatant untruths they helped to cover up when they served in the White House.

Add to the list Marc T. Short, who was White House Director of Legislative Affairs before being name Chief of Staff for Vice President Pence. Thus, he is an expert on the evils of Trumpism first and second-hand. He frequently appears on “Meet the Press,” NBC News, and CNBC.

On the other side of the aisle, we have Donna Brazile, who served as chair of the Democratic National Committee (DNC) and is a regular ABC News contributor.

While she is not plagued with the sins of Trumpism, she sounds more like a cheerleader than analyst. I always wait for her to bring along a set of pom poms.

As can be expected given the positions she has held, all is good with Democratic policies and no Democratic officeholder should be subject to questioning from the president on down.

Here is the major point: Partisans should not be used as commentators. It’s as simple as that. True, we need to hear different voices but they ought to come from analysts who don’t carry partisan baggage, i.e., historians, professors, journalists, and scholars who have studied American politics.

There is nothing to be learned from having Brazile argue with Priebus.  It is shallow and all too predictable. For them, obfuscation is an art.

McDaniel will be the first to tell you that as she watches political analysis in front of the TV instead of participating in the studio.
 
   —————

Berl Falbaum is a long time political reporter and author.

Once again, my editors barred me from seeking press credentials to cover a “fine arts” film awards program in Las Vegas January 27.

Once again, my editors barred me from seeking press credentials to cover a “fine arts” film awards program in Las Vegas January 27.

The event is the AVN (Adult Video News) dinner at which the best in the pornographic film industry is honored. This is the 41st time the program has been held and given my commitment to the highest journalistic principles and the “public’s right to know,” I have asked editors 41 times, through the years, to let me cover the ceremony. Alas, to no avail.

For those unfamiliar with this celebration, let me explain that the AVN hands out “Oscars of Porn” to industry participants.

Like at the Academy Awards, the awards are bestowed in more than 100 categories, ranging from best actor to top director.

Each year as I pleaded with editors, I pointed out that countless questions need to be answered to help the public understand the underpinnings of the awards.  (Since this is a family newspaper and a family column, I need to be careful how I write about my concerns and journalistic interests) That said:

--Like actors in Hollywood, do porn actors take lessons before becoming professionals and qualifying for AVN recognition?

--In the non-porn film industry, actors take lessons in speech. Do porn actors get help with panting, grunting, and other advice that will help them when filmed?

--Do directors shout instructions at actors while shooting a scene? Does that impact concentration and, more importantly, is that cheating and does such help disqualify a potential winner?

--How many times can a director instruct actors to reshoot a scene, particularly males?

--What if the actors complete a scene prematurely?

--Can actors refuse a partner?  You know they didn’t have the Bogart-Bacall chemistry?

Believe me these are just a few, very few, of the questions I have if my editors ever relent.

If I were to cover the awards, being a writer, I would concentrate on the scripts.  They never impressed me. Whoa…I will explain.

When I was a member in a fraternity (mucho years ago) we watched pornography in the basement of someone’s home, with the shades drawn.

I’ll admit, the dialogue was not the highlight of the films. The films were very much alike with intriguing titles like,” Housewife Meets Flower Delivery Man.”  The script:

(Stage direction:  Flower delivery man rings doorbell.  Off Stage “Ding Dong.”  Woman opens door.)

Flower delivery man: Here are some flowers for you.

Woman: They are beautiful. Would you like to come in?

Flower delivery man: Sure.  

Woman: Let me put these in some water. I will be right back.

She returns half naked and the woman thanks him for the flowers. She did not have to thank him; the flowers were from someone else. She asks if they can reach some kind of “settlement” since she did not have money to pay for the flowers.

Strange how I could remember the dialogue almost word-for-word after so many years.  

It did not really matter whether the character at the door was a delivery man, an electrician, cab driver, roofer, plumber, gardener, pool boy, or the next door neighbor. The only ones who did not succumb were the door-to-door Jehovah Witnesses.

But the major point I want to make is that the scripts were pretty much alike.  As to the acting, well we weren’t watching for that either.

Another question: what do the winners do with the trophies? Are they displayed above the fireplace in living rooms, and what do they tell grandma?  I did not even tell my grandma that I watched porn.

I was curious if the public can attend the award ceremony. Yes, they can. Ticket prices average about $250 for the upper balcony. For about $2,500, you can buy a pass that gets you backstage.

You will probably run into a “porn star” since the publicity brags that about 1,000 will be attending.  

And did you notice that actors in the porn industry are always “stars” -- not just actors -- while in Hollywood you need to reach a certain status to earn that recognition.

I also learned that the AVN has a Hall of Fame. I won’t even begin to discuss the questions I have on how one qualifies for induction. But, I assume, the standards are pretty high.

I do have a suggestion for the AVN. Why not invite Joe Gow, the chancellor of the University of Wisconsin-La Crosse, to be the principal speaker. He was just fired for producing and participating in pornographic films. That would give the event some academic respectability.

I would also like to suggest, humbly, a scene which begins with Gow dressed in cap and gown, handing out diplomas. The scene develops with coeds accepting their diplomas.

So, I will pester my editors again for permission to cover the 42nd annual awards dinner next year.

If you think journalism would be served by having them approve my request, send them an email.

Thanking you in advance.

 —————

Berl Falbaum is a long time political reporter and author.

When mediators build a relationship with party decision-makers, gaining trust and promoting confidence in the mediator and the process, they create the foundation for a successful mediation process. 

I. Introduction
When mediators build a relationship with party decision-makers, gaining trust and promoting confidence in the mediator and the process, they create the foundation for a successful mediation process.  

II. Advance Knowledge
Typically, I know the lawyers who select me, but rarely have I met or known their clients. For me, then, the relationship building process begins the morning of mediation when I convene a confidential, private, introductory/get acquainted meeting with each party and counsel.

By the time of that meeting, I’ve gathered valuable information about each party. I’ve read the written submissions which describe the conflict and the parties. Advocates often attach supporting material such as deposition transcripts, email exchanges, and relevant documents. All shed light on what parties knew, how they think, and how they became embroiled in the dispute. I try not to pre-judge. The summaries, after all, are drafted by advocates and may not be an accurate or honest picture.

After reading the summaries, I call each lawyer on a confidential ex parte basis a day or two before the start of mediation. “How can I help you with your client?” I ask. “Is there a message I can reinforce or a message you’ve been reluctant to deliver on which I can do the heavy lifting?” The question elicits valuable insight essential to my preparation.

Just as I am learning about them, the parties generally learn something in advance about me. First, their attorney has told them good things about me, particularly why I was selected or agreed to. Second, they have my Curriculum Vitae. Third, most people conduct a computer search to see what they can learn. That’s what a content-rich website is for. See, www.starkmediator.com.

III. The First Meeting
I look forward with great anticipation to meeting parties for the first time. It is not at all uncommon to find they are nothing like their description in the papers.

While I don’t pre-judge, I bring certain presumptions to our first meeting. The conflict is the source of stress. For many, litigation has been an emotional roller coaster ride. Lots of money has been or will be invested in attorney fees and costs with the prospect of more ahead if the dispute doesn’t resolve. Their business or work has been disrupted. They are anxious about their business reputation, continuing disruption of their enterprise, exposure of private, sensitive or embarrassing information, financial loss, damage to future economic prospects, and more. Few come to the table with high expectations their matter will be resolved. Rather, they are often highly suspicious, skeptical of the mediation process, and at least slightly worried their counsel is losing confidence in their claims or defenses. All these issues surface one way or another during our first meeting without my having to directly ask.

Significantly, no matter how experienced or skilled they are at negotiating in their work or professional lives, they generally have little or no familiarity with how law suit negotiations unfold. A key part of preparation is to give them a better understanding of what to expect. The more their understanding is deepened, the greater the likelihood they will recognize the value of the process. See, https://www.starkmediator.com/practice-tips/2021/05/03/negotiation-101-what-parties-should-know-about-negotiations-at-the-mediation-table/

IV. Confidence Building Measures
If the mediation is in person, I always plan satisfactory food service. Many parties are too anxious to sleep the night before a mediation. They may not have had time to catch breakfast. By providing coffee, tea, bagels and cream cheese, and fresh fruit at the mediation, I meet their immediate physical needs, demonstrate sensitivity to their situation, and increase their confidence that there is something worthwhile and positive going on. Besides, as my grandmother taught me: Food is Love. It’s the grand oral equation. Plus, I add cookies and chocolate in the afternoon – reducing the chances we’ll break for lunch and lose momentum.

Before soliciting information, I discuss the confidentiality of the information they will be providing in caucus. The entire mediation process is, of course, confidential as to the rest of the world. What about our private, ex parte caucus communications? I promise that anything they say which they do NOT want communicated, will be protected from disclosure.

If I believe communicating confidential information would be helpful, I promise to ask permission first and explain my reasoning. Final decision remains theirs. The promise of confidentiality increases party trust in the mediator, confidence the process is safe,  and simultaneously encourages candor.

V. Information Gathering
In General: My very first question after explaining confidentiality is, “How ya’ doin’?”

Not expecting that question, most parties are demonstrably relieved, increasing comfort with the process. With a nervous laugh, they typically say they are a bit anxious but otherwise fine, to which I respond: “as your head was hitting the pillow last night any issues or concerns going through your mind?” If something is troubling them, this approach typically brings that out.

I then ask whether they have any questions for me. Typically, there are none. Occasionally, however, their “question” opens the door to a robust exchange about important topics.  

Mediation/Litigation Experience: I’m a great believer in the need to educate parties and advocates about the unique opportunity presented by mediation as a dispute resolution process. The more they know and understand about mediation, the more benefit they will derive and the greater the likelihood of a satisfactory outcome. Mediation is not simply another stop on the litigation express. It is truly an opportunity to take a step back from the conflict, climb up to the balcony, examine perspectives, take a hard look at the risks and their magnitude, and collectively search for a resolution providing mutual benefit and closure.

Their experience and understanding provides a golden opportunity to explain my individual approach to the process and what they can expect from me throughout the day. I assure them mediation is entirely voluntary. No one will twist their arm to settle or deny them food and water until they cry “uncle”. My job, I explain, is to provide them all the information available so that they are able to make a good judgment about whether to settle and on what terms.

Party Preparation: I want to know if their preparation included anything other than speaking to their lawyer. Did they do a Google search about mediation? Did they read any articles? Did they visit my website? Did they review their own lawyer’s mediation statement? Do they think it is accurate? Was anything important omitted? Did they read the other side’s submission? Do they have an understanding of the strengths and weaknesses of their case? As mediation is nothing if not an excellent process for the exchange of information, this discussion reveals what parties need to know to make resolution decisions.

Party/Business Background: After the various preliminary matters mentioned above, I turn to learning about each party or, in a commercial dispute, their business. “Tell me about [yourself/your business],” I ask; then sit back and listen. “Sometimes it becomes important to know something about [you/your business] when I’m in the other room. I know a little from the written mediation summary, but not that much and I generally can’t leave the room to come over here and ask, so let’s talk about it now.” People appreciate the opportunity to tell you who they are or describe the enterprise they’ve built or proudly worked for. Patient listening instills confidence, builds credibility, and enhances the relationship.

Goals and Objectives: Next, I solicit party goals and objectives. “Without telling me a specific number, in broad general terms, what do you hope to gain from the mediation process today? What are your goals and objectives?”
Some parties appear shocked as no one has ever asked them this question. Before completing their list, I ask counsel if they have anything to add. Sometimes the list of goals reveals whether the party is approaching mediation realistically or not. Sometimes, the list leads to a better understanding of the underlying needs and interests driving the dispute. In any event, this question has a powerful impact on the development of trust
and confidence in the mediator.

VI. Techniques
One message: After we’ve had a thorough discussion in the “get acquainted” meeting, I ask if there is any one message they truly want delivered to the participants in the other room. Sometimes this can move the mediation forward – as with declarations of an intent to find an off ramp to the dispute - and sometimes it can stimulate a constructive discussion about who the other side is, what motivates them, and how best to communicate with the person making the decision in the other room.

Service as Negotiation Coach: As the only person who will be in both caucus rooms, the mediator is in a unique position to anticipate how various proposals and counterproposals will be viewed when communicated. Part of the mediator’s role is serving as a negotiation coach. I remind parties that I will not tell them what to settle for, but I do ask permission to “push back” on an unproductive proposal to see if we can’t figure out a better way to approach the next round. Advice about how to “package” a proposal can be especially constructive.

Reframing: We train new mediators in the 40-hour basic training to use reframing when parties make opening statements. The technique is equally powerful throughout the day, especially when parties escalate or crank up the emotions.

Reframing shows parties that you’ve heard and understood them. If I can repeat what they said in my own more neutral or abstract words the temperature is lowered and we can move forward.

Providing Process Information: Discussion topics with counsel often involve legal issues like dispositive motions, the admissibility of evidence, jury selection, and judicial track records. Parties feel left out and confused. I bring the clients back in by explaining what we are discussing and why it might be important. “Judges have track records,” I might explain. “The judge you’ve drawn in this case is considered plaintiff oriented. That means, a motion to dismiss these claims is unlikely to be granted. (Or vice versa). We’re discussing what that might mean for this case.” Parties appreciate these explanations and start paying closer attention.

Remaining Calm, Neutral and Engaged: People can get emotional in the mediation process, even sophisticated participants. They can escalate. They can grow impatient. They become hyper-critical of unproductive proposals. They express consternation and hostility when the other side fails to match a concession or match a productive proposal. By maintaining our neutrality, remaining calm and confident in the process, and reminding everyone of the progress made to date, mediators are role models for optimism, patience, and rationality.

VII. Conclusion
When parties trust the mediator, have confidence in the process, and value the relationship growing stronger throughout the day, a solid foundation is laid for considering proposals thoughtfully, weighing risks realistically, and finding a solution providing mutual benefits and gain to all. Building a solid relationship with the parties is well worth the effort and will pay dividends in a negotiated resolution.

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Until he retired at the end of 2022, Sheldon J. Stark offered mediation, arbitration, case evaluation and neutral third-party investigative services.
He was a Distinguished Fellow of the National Academy of Distinguished Neutrals, continues to be a Distinguished Fellow with the International Academy of Mediators and was an Employment Law Panelist for the American Arbitration Association.

He is also a member of the Professional Resolution Experts of Michigan (PREMi).

He is past chair of the council of the Alternative Dispute Resolution Section of the State Bar of Michigan and formerly chaired the Skills Action Team.

Stark was a distinguished visiting professor at the University of Detroit Mercy School of Law from August 2010 through May 2012.