Dispute Resolution Field Manual: Negotiating in the Trenches

By Rodney G. Romano

As litigation costs and risks continue to skyrocket, mediation has become the preferred alternative to settling disputes. As a result, many people view mediation as a kind of career gold rush and are drawn to the prospect of easy money. In Dispute Resolution Field Manual, author Rodney Romano lays out the reasons and obstacles that cause a nearly 90 percent failure rate and how to overcome them. Holding nothing back, he provides frank and practical information about necessary traits and skills to be a good mediator, how to establish and maintain a successful mediation practice, and how mediators can positively affect those who use their services. He details the steps needed for every aspect of mediation both in practice and on the business side. This concise, no-nonsense book is meant to be used as a daily reference for all dispute resolution practitioners and participants.

• Language: English
• Publisher: Page Publishing, Inc.
• Release date: Feb 3, 2022
• ISBN: 9781645844259

Book preview

9781645844259_Ebook_iTunes.jpg

Dispute Resolution Field Manual

Negotiating in the Trenches

Rodney G. Romano

Copyright © 2019 Rodney G. Romano

All rights reserved

First Edition

PAGE PUBLISHING, INC.

New York, NY

First originally published by Page Publishing, Inc. 2019

This book is based loosely on the Army Field Training Manual, US Army Field Manual 3-05.70 Survival. The original idea and format were suggested by John F. Romano, Esq.

ISBN 978-1-64584-424-2 (Paperback)

ISBN 978-1-64584-425-9 (Digital)

Printed in the United States of America

Negotiating in the Trenches

Tactical guidance for the dispute resolution community on the conduct of dispute resolution operations

Maximize benefit and protect against risk

Rodney G. Romano

Distribution restrictions: Approved for public release for those seeking excellent results.

Introduction

The more you sweat in peace, the less you bleed in war.

—Hyman G. Rickover

In the movie The Patriot, General Cornwallis watched battles and made decisions from the top of a hill that was a safe distance away from the battle and out of harm’s way; Cornwallis dealt with goals¹ and strategies of warfare but never experienced the fight in the up close and personal way that a soldier does. In contrast, Benjamin Martin was a soldier and field officer on the battlefield, directly, instantly, and personally affected by the battle. Martin dealt with strategies, objectives, and tactics. Both generals and soldiers play an important role, just as both academics and mediators play an important role in dispute resolution.

The academic is mainly concerned with developing dispute resolution² as a successful social and business model that will help people and society in a general sense but has little interest in the outcome of any particular case and the effects on those particular participants. In contrast, the mediator meets face-to-face with the litigants and can profoundly influence their lives in every case. The mediator deals with emotions and personalities of several people in dispute, up close and personal, constantly striving in the moment to find ways to help them reconcile their positions. Within the span of a few hours, the mediator must identify which issues are causing the disconnect among the parties; assess personalities, temperaments, and moods; win the confidence of the parties to allow for effective issue exploration; actually explore the issues and opportunities; and all the while be designing a process that works best with the issues and personalities involved. This takes more skill and practice than one might think.

Mediation is a boots-on-the-ground process designed to help people find their greatest benefit while protecting against their greatest risks. Sooner or later, all lawsuits are resolved. Mediation explores resolutions that best benefit the parties, their representatives, and the legal system. For the mediator, every case and every participant matters to the mediator’s success. Sadly, many practicing mediators restrict their interest to obtaining and mediating cases as stand-alone pieces of business income without much concern for the broader postmediation impacts on the participants, and too many have little interest in protecting and developing mediation as a profession.

Your time is valuable. What could I possibly teach you that you do not already know? After all, mediation is a simple process, right? First, the mediator convenes an orientation session, being sure to cover confidentiality and self-determination. Then he or she invites counsel for the parties to present their positions. Then the mediator separates the parties into their own caucus rooms and begins to confer from room to room, explore the issues. and bring the parties to a mutual agreement. Finally, the mediator reports the outcome to the court. That’s it, right? Wrong. In my lifetime, I have been a nursing home administrator, a certified general contractor, a board certified civil trial attorney, and a certified mediator. All were challenging, rewarding endeavors, but none of them are comparable to the world of mediation and negotiation. Mediation is a fascinating laboratory of the art, science and psychology of human decision making. There are many variables that change, depending upon how well the parties know and respect each other and the mediator, and the events that are going on in a participant’s life that will affect their mood, motivation, and perspective when that person walks into mediation. Multiply those variables by the number of people involved in the mediation, add in the mediator’s issues, don’t forget the friend or family member on the phone who has no understanding of the issues but has an opinion anyway, and you will begin to appreciate the challenges and opportunities for a devoted mediator to help people figure out the best path for the participants. Oh, and the mediator must do all of these things while being careful not to impose his or her will on the participants.

This manual is written from the perspective of the mediator, the soldier or field officer on the battlefield, as a complement to, not in competition with, the many excellent books about DR written by the academics from a more intellectual, academic, reflective, and impersonal standpoint. In fact, if the DR profession is to progress and become a profession that people aspire to and not something that they do after retirement, then it is imperative that academics and practitioners work more closely.

This manual is intended to help mediators and mediation participants to develop a pattern for obtaining the most successful, effective, and useful mediation process, customizable for each case. While settlement is the primary goal of every mediation, the benefits of an expertly conducted mediation go far beyond settlement. Those benefits include closure, certainty, and stress avoidance for the parties, valuable practice and resource management for the litigators, better case management for claims professionals, and a massive reduction in the demands made upon the judicial system’s resources. It can also be argued that every case affects—at least to a small degree—how mediation is viewed as a process in our society. Every mediation participant will come away with a positive or negative experience, which will have a cumulative impact, like a ripple on the water.

This manual is unique because it is written from the perspective of a full-time practitioner who teaches occasionally and not an instructor who practices occasionally. It is written for people who want a direct, practical, and easy reference guide to use every day and to complement the many scholarly works published on the subject of dispute resolution. Over the years, I have