Adam J. Halper, Esq.

I’ve had several mediations in the last two weeks. All of them resolved. Almost all of the cases began in a place where the parties were VERY far apart in their initial offer and demand. At the outset, counsel (and parties) expressed fair cynicism that any progress let alone resolution could be obtained. Here are some observations that I wanted to share.

1. Preparation is Key. Counsel prepared mediation strategies that included non-monetary remedies, their own suggestions for impasse-breaking and calculations on their costs beyond litigation (e.g. lost business). Privately, we worked together to prepare their clients (and expectations) for the mediation sessions. Some of this information was conveyed to the other side prior to the day of the mediation. In various ways, counsel transmitted that they were coming to the mediation to reach an agreement.

2. Listening To and Acknowledging the Other Side’s Views. During the sessions, counsel made real efforts to show that they had heard and acknowledged the positions and interests of the other side – without conceding their own. They conveyed transparency in the thinking behind their offers and counteroffers. Largely they did this by…

3…Demonstrating an Appreciation of Risk. Counsel and parties made deliberate moves in ways that showed respect for everyone in the other room and their positions; again without agreement as to opposing positions. Rather, by moving in a deliberate way with carefully crafted messages, they telegraphed that they had heard the other side and appreciated the possibility that a judge or jury might not see it exactly their way.

Preparation. Listening. Demonstrating an appreciation of opposing views. Demonstrating respect for others and an appreciation of risk in the continued swapping of arguments. Commitment to process even if not wedded to outcome.

Maybe there’s a larger lesson in here. :) Maybe for another post.

Happy that these cases resolved.

Happy Monday. Good luck this week.

Today is National Freedom to Marry Day in the United States. I've always loved this quote from Judge Marshall in Goodrich vs. Department of Public Health, the case that made Massachusetts the first U.S. state where same-sex couples could legally marry.

"Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. "It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition."

Case link here: http://masscases.com/cases/sjc/440/440mass309.html

Wishing everyone, married or not, security, safe haven and connection. Happy Monday. Good luck this week.

Last week, I saw two Broadway shows (normally my quota for a year). On Thursday, I attended "Purlie Victorious," (at the Music Box Theater) with colleagues from the New York Association of Collaborative Professionals. Special treat: Lin-Manuel Miranda made an appearance during a post-show conversation with the audience. On Saturday, I attended a "Prayer for the French Republic," (Manhattan Theater Club) with a group of people from my synagogue.

They were very different productions with remarkably similar themes: racism, violence, diaspora, family. These plays were written sometime ago and yet each felt incredibly relevant right now. For me, one of the takeaways was that art can refresh and shift perspective on some of the most challenging questions we face in a way that nothing else can. Looking at hard issues from different angles is critical and the stimulus to do so can be found in surprising places. Maybe the real takeaway is to remind ourselves to be open to that moment.

Happy Monday. Hope you are surprised in a good way this week.

Today is National War on Poverty Day in the United States and January is National Poverty Awareness Month. Sometime ago, I wrote this piece with superstar lawyer and colleague, Caroline Bersak, published in Law360. There are about 38 million people living in poverty in this country now. It's an astonishing number. It turns out that bar associations, legal aid and legal services organizations can make a big difference. If you're a lawyer and you're reading this, maybe check out your local legal services organization. Inquire if there are any projects or initiatives you can get involved in. From experience, I will tell you that you can change the course of people's lives for the better. It's a unique feeling and one that you won't soon forget. Happy Monday. Good luck this week.

Honored and delighted to be a presenter today at Pace Law School's, "Lunch and Learn" series focused on careers in ADR. There were great questions from Vice Dean Jill Gross and the students and some very thought-provoking answers from co-presenters Erin Gleason Alvarez, Sasha Carbone, and Russell Yankwitt. Special thanks to Pace's ADR Society (Marc Bisogno and Stacey Colangelo) and Lori Kanner.

These are my grandparents, Althea and Bill. Bill, served in the US Army during World War II and he fought in Europe. When I was a child, I would ask him questions endlessly about his time in the Army. I think he was immensely proud of his service. I think he never forgot what he saw. I think he detested war. Thinking of him, today. ⁠
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"In war, there are no unwounded soldiers." —Jose Narosky.

Honored and delighted to be a coach/trainer at Part 146 Mediation Training this past Friday. Learned as much as I taught from co-facilitators Erin Gleason Alvarez, Oyebisi Olatoye and the students. Special thanks to lead trainer and ADR Rockstar Erin for organizing and inviting me.

Hi Friends, If you don't know, September 10th marked the beginning of National Su***de Prevention Week. Sometime ago, I heard an extraordinary podcast that dealt with this topic (Rumble Strip). In recognition of this week, I wanted to share it with all of you. ⁠
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When I first heard it, I don't remember what I was doing at the time, but I do remember stopping to give the episode my full attention. More precisely, I felt I had to stop. Recently, this episode aired again (Radiolab). Again, it stopped me where I stood. ⁠
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I know that everyone is busy and that yesterday was so solemn. If you have 34 minutes, this program "Finn and Bell" is worth your time. If you decide to listen, listen to the very end. ⁠
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https://www.rumblestripvermont.com/episodes/422

In the last several days, I find myself placing many, many events on the calendar: client engagements, conferences, CLE, monthly meetings and more. I hope that everyone is enjoying the last days of summer. I hope that everyone is looking forward to a new start in the fall.

Happy Monday. Have a great week.

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Often, a client will say something along the lines of, "I am so sorry that you are seeing us at our worst."

Usually, my first thought and my first response is, "Maybe I'm seeing you doing your best during one of your worst moments. It's an honor for me to help. Maybe too, you will be stronger on the other side of this moment."

Happy Monday, Friends. Good luck, this week.

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There are good days. There are hard days. Then, there are transcendent moments which remind you why you chose this work in the first place. Happy Monday. Hope everyone is having a good summer.

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Happy July 4th, Friends.

Be curious. Be critical. Be open to new ideas. Be open to change.

Never underestimate the little things. During a recent mediation, counsel used sticky notes to pass multi-part settlement proposals back and forth. Although it became unwieldy at the end (there were many notes), we reached a resolution. I noticed that the sticky notes really helped.

How?

The notes encouraged everyone to actively participate in the discussion. Everyone had a pad and pen and wrote down ideas for settlement. Additionally, they served as a timeline. During the course of the day, we placed the notes side by side to track the progress of our discussions. The colors, the pen marks and the strikethroughs helped everyone to visualize what a global settlement would look like.

Finally, I think that these small, handwritten notes put everything into perspective somehow. Giant problems got much smaller (4” x 6”?) and thus – resolvable.

Even in the context of a bitter, complicated litigation, little things can make a big difference.

Happy Monday. Good luck with your week.

Happy Memorial Day.

Pleased to share my interview with Melissa Goodstein on "Collaborative Chats." For those of you who are unfamiliar with it, the New York Association of Collaborative Professionals is an amazing group and I encourage you to join and to attend their great events and CLE. Special thanks to Abby Curro. Happy Monday and a belated Happy Mother's Day.

Link Here: https://www.nycollaborativeprofessionals.org/collaborative-chats

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Always grateful for the opportunity to do this work.

On May 10th at 1:00PM, the Westchester County Bar Association's ADR Committee will be giving a one hour CLE on (via Zoom) “The Role of Corporate Counsel in Mediations: From Drafting to Settlement.” ADR Rockstars Myrna Barakat and Alfred Feliu will be presenting. Special thanks to Isabel Dichiara and Melanie Zamenhof at the WCBA. Come join us on May 10th for a great class.

Link Here: https://www.wcbany.org/?pg=events&evAction=showDetail&eid=263810&evSubAction=listAll

Last week, I read a great article in the New York Times that may be of interest to mediators. It's about supporting others who are in the midst of a challenging moment. Simply asking the question of what the other person needs may be more helpful than jumping in with problem-solving. Worth 10 minutes if you have it.

Link here: https://www.nytimes.com/2023/04/07/well/emotions-support-relationships.html

Also, check out the link to a scholarly article on "high quality listening."

In the context of mediation. I have never asked the question of whether someone needed to be helped, heard or hugged -- exactly. I often ask, "As we try to get this resolved, how can I be most helpful to you?" I imagine many of you have asked a similar question of parties and counsel. Turns out, you helped them feel a lot better just by asking it.

Happy Monday and welcome back.

Honored and delighted to be a coach/facilitator at a mediation training last week for Judges and Clerks at the Court of Claims. Special thanks to ADR rockstar Rebecca Price from the United States District Court for the Southern District of New York for the invitation.

On March 30th at 12PM, the Westchester County Bar Association's ADR Committee will be giving a one hour CLE on preparing for mediation. ADR Rockstars Abby Rosmarin, Kyle-Beth Hilfer, Marc Sheridan and Russell Yankwitt will be presenting. Come join us on Zoom for a great class.
Link here: https://www.wcbany.org/?pg=events&evAction=showDetail&eid=263809&evSubAction=listAll

...and more. Happy President's Day.

For a long period in my 20's, I didn't own a television. The radio was a frequent companion. During that time, I began to learn that one or two voices could do more than just tell a story. Voices alone could paint a mural in one's mind of images, feelings and thoughts. All you had to do was to listen closely. Years later, that was to be my first lesson on the path to being a mediator.

This past Friday, I attended a Mediator Appreciation event at the U.S. District Court for New York's Southern District. After completing mediation training and a practicum, the SDNY was the first Court panel I was appointed to. Many, many mediations later, I look back at my experiences at the SDNY and the relationships I developed there as some of the most formative ones in my mediation career. Incredibly grateful for this opportunity then, now and for all the moments in between. Always grateful for the opportunity to do this work.

Ideas, positions and interests can change. Beliefs about self and others are not immutable. The future is not written.