A different vocabulary for mediation

In a recent mediation I walked into the room to speak with the plaintiff and his counsel. The plaintiff's lawyer was looking for the first time at a document that his client had just handed to him. The lawyer had a pained expression on his face, and as I walked in he said to his client, "Oy. This is not good."

For those of you who have never heard the word "Oy," it's a Yiddish expression that loosely translated means "oh no!" or "ouch!" Almost everyone has heard another, more positive expression: "Mazel Tov," a term that literally means good luck, but is more commonly used to mean "congratulations." The words "Mazel Tov" are used to celebrate many occasions, marriages (sometimes divorces), graduations, promotions, college acceptances and often the successful conclusion of mediation. This got me thinking about the connection between Yiddish, this wonderfully descriptive language, of which I speak, unfortunately, only a few commonly known words or phrases, and settling cases in mediation. Because communication is so essential to successful mediation, and because descriptive words always make communication better, I concluded that a Yiddish primer for more effective mediation was in order. Before we begin, a short disclaimer: Although Yiddish is a combination of a dialect of High German and Hebrew, it is usually written in Hebrew letters. Hence, there is no "official" English translation or English spelling for many Yiddish words.

The protagonist in our Yiddish primer, Peter, is defending an owner of a commercial building in a lawsuit where the tenant is claiming that the failure of Peter's client to make repairs to the premises entitles him to withhold rent. The recently agreed-upon arbitrator has scheduled a conference call to set the arbitration date and to discuss the procedural posture of the case.

Because Peter is a kluger (a smart person), an experienced litigator, and a talmide (student) of the mediation process, he knows that he needs a strategy for a successful mediation. Only a schlemiel (a dope) would initiate mediation without a plan, and only a schlemozzle (the sort of dope who, when he drops the toast on the floor, always ends up with the jam side down) would expect to get a good result without a plan.

Peter knows that timing of mediation is critical. He wants to get the case to mediation before the parties start spending money because he knows that many times the attorney fees and costs make it more difficult to settle a case, and that early mediation is usually a better approach. So Peter decides he had better get off his tuchas (behind) and get something started. But Peter is feeling fadrait (unhappy and lost) because he can't get his arms around the claim that the tenant is making - that the landlord is failing to properly maintain the building. Peter decides that he needs a real estate management maven (expert) to help him. Peter knows that he needs a real shtarker (powerful personality) because he believes that the tenant is nothing more than a gonif (thief) who is going to try to put one over on the arbitrator. Peter thinks the arbitrator is smart but he's worried because the arbitrator also seems like he might be too gutmutik (good-natured, easy going) to call the tenant what Peter thinks he is: a kvetch (complainer) and a chazzer (pig). Peter hopes that if his expert is strong, the arbitrator won't buy the mishagoss (nonsense) that the tenant is selling and the tenant will end up with gornischt (nothing) at the arbitration. At the same time, Peter knows that it's important to approach the evaluation of his case with some saichel (common sense), which means that he also has to take into consideration how his own client might be perceived. Peter is concerned that the arbitrator might perceive that his client is a person who is oingeshtupt mit gelt (stuffed with money - meaning, rich) but bilik (cheap) and unwilling to make repairs because he wants to save a dollar. In other words, Peter is worried that his client might come across as not being a mensch (a good person with high morals). Peter knows that these issues create risk. He doesn't want to arbitrate the case and end up with the tenant winning, which would be a kapporah (catastrophe), which Peter needs like a loch in kup (a hole in the head). And he doesn't want to be aft tu tsores (in trouble) with his client if they lose.

Peter is also keenly aware that success in mediation starts with finding the right mediator. In this case, Peter believes that he needs someone who can figure out that the tenant is beyz (bad) and who can also realize that the tenant is hakn a tshaynik (talking nonsense). In short, he needs someone with a strong personality and substantial real estate experience. Peter does his homework and asks around in the community for references for a good real estate mediator. When he finds the person who he thinks might be good, he picks up the phone and makes a call to the potential mediator to have a direct conversation about the mediator's approach and experience. Peter decides to have a tuchas on tisch (literally, "butt on the table" but figuratively, "bottom line") conversation with the mediator to express his concerns. Satisfied that the mediator is right for the job, Peter proceeds to suggest the mediator to his opposing counsel. Peter's opposing counsel is an apikoros (skeptic) about using the mediator that Peter is suggesting. Peter proposes that his opposing counsel call the mediator directly so that she can form her own conclusions. Peter has shpilkes (he's on pins and needles) waiting to hear, but learns that counsel has talked with the mediator, and is satisfied with the mediator and the parties set a date.

Peter knows that he has three major jobs before the mediation: (1) prepare his client; (2) prepare his opposing counsel and her client; and (3) prepare the mediator. Peter is a firm believer in the idea that showing up for mediation without preparing is just yutzi (stupid).

Peter starts with client preparation. He explains to his client that settling a case at mediation requires compromise. Everyone has to give a bissel (a little) to get a case settled. Also, while nobody wants to appear shvahk (weak), it's good to recognize that every case has both strengths and weaknesses. Peter explains that it's the job of the mediator to focus on these strengths and weaknesses as part of an overall evaluation of risk. Peter also makes sure that his client will be available for the whole day of the mediation and doesn't have other commitments that will distract him from the task at hand.

Peter also has to prepare his opposing counsel. Because he knows that the important facts will eventually make their way to the surface, vos vet zein vet zeinI (what will be will be) and he's giving away nothing by highlighting them now, he writes a long letter to his opposing counsel before the mediation in which he explains why his client was reasonable in not making the repairs. In this letter, Peter provides information from his expert that in similar situations commercial landlords are not obligated to make the repairs in question and generally don't do so. Peter makes this effort, in part, because while he respects his opposing counsel, he also feels that she lacks a certain amount of iberlebung (experience). He figures that the more information she has before the mediation, the better. Peter offers have the two mavens (experts) speak on the phone before the mediation so that they can at least narrow the issues if they can't reach agreement.

Now Peter needs to prepare the mediator. Peter wants to write an effective mediation brief. He knows that in a good brief, less is often more, and he also knows that the "back story" is sometimes much more important than the pure legal and factual issues. In this regard, Peter's client has told Peter that the tenant informed his next-door neighbor in the building that his business is kaput (broken, finished) and that he's feeling farfaln (hopeless) about the future. Peter suspects that the tenant really just wants out of the remainder of the lease and that he knows that his claims are worth nishtikeit (less than nothing) and are just a negotiating tactic. As it happens, Peter's client has a new tenant lined up for more rent and his client would be kvelling (feeling extremely happy) if he could get the existing tenant out of the building immediately. Peter decides to publish a nonconfidential brief to his opposing counsel, but he also gives the mediator a "pocket brief" for the mediator's eyes only. In the pocket brief, Peter suggests that getting the tenant out may be the way to settle the case.

At the mediation, the mediator spends time with both parties discussing the various issues and risk that both parties face in the lawsuit. A short while after the mediator conveys a demand from the tenant to the landlord, the mediator raises with the tenant the possibility of ending the lease early with no penalties. As Peter predicted, the tenant, who was no shmegege (fool), realized what a mechihah (blessing) this would be and immediately agreed. The mediator prepares, and the parties sign, a memorandum of settlement to "seal the deal."

Peter looked like a big macher (V.I.P.) to his client, who was schlepping nachas (thrilled), especially because Peter had scheduled the mediation and settled the case in a terrific way before his client had spent too much money on fees and costs, which might otherwise have been a real shand (shame).

So, the moral of our story is that careful planning will avoid your being farblondzhet (lost, bewildered or confused) and will help you achieve a great result for your client. Dressing well and knowing a bissel (little) Yiddish might help, too.