Please upgrade your browser.

Pushing the Boundaries of Facilitative Mediation

Pushing the Boundaries of Facilitative Mediation

How far are you willing to push the boundaries of traditional facilitative mediation?



Full Transcript

I’ve got one attorney that I work with a lot who, every time I walk into his room, it’s a money negotiation. He represents hospitals, oftentimes, and doctors in malpractice claims and every time I walk into his room, as we’re going back and forth with dollars with the other room, not to say that there aren’t non-economic terms at work, but just focusing on the dollars, he’ll say, ‘Well, Lee Jay, the way that I look at this, our next move could be X or it could be Y. Which do you think I should do?’ He’s testing. He’s the defendant so if I took the higher amount every time, he would say, ‘Oh, Lee Jay’s just trying to get the case settled. He’s not really giving us a sincere answer.’ So sometimes, and first of all, the act of telling him what I think is one that I would think might get under your skin a little bit.


I tell him, if he says, ‘Well, my next move is either $150,000 or $160,000, what do you think we should do?’ I’ll tell him, ‘Sometimes, I think you need to put the $160,000 on the table because I think they need to see more movement from you in order to have the psychological confidence to continue to work with you.’ Or I’ll tell him, ‘No, I think $150,000 is enough this round. I don’t think that going to $160,000 is going to get you any better response from the other side. Keep the other $10,000 in your pocket. Play the $150,000 right now,’ as though we’re playing poker or cards of some sort, ‘and use the $10,000 next time. Your last move was $20,000. They moved $60,000 in response to it. You’ve got three for one on your money. I don’t think you need to put the extra $10,000 out there.’


That’s me responding to him challenging me and testing me to be his coach in negotiation. Now, this brings up a really important point and this may be another one that gets under your skin, and if I succeed at that, I’ll be happy because as you know, and I think as you do too, I like to provoke us to think differently. I like to stretch our imagination a little bit. I think Einstein said, ‘A man’s mind, once stretched, never regains its original form.’

About the mediator

Lee Jay Berman Profile Pic

Lee Jay began as a full-time mediator and trainer over 18 years ago, and has successfully mediated over 1,700 matters. He is a national panelist with the American Arbitration Association, a Distinguished Fellow with the International Academy of Mediators, internationally certified by the IMI, and a Dispute Resolution Expert with the United Nations Development Programme. In 2008, Lee Jay founded the American Institute of Mediation offering “W... View Mediator