THE COMMON GROUND

FA L L 2 0 2 0 | VO LU M E 2 | I S S U E 2

NATA L I E PA S K I E W I C Z & A NA C R I S T I NA M A L D O NA D O, C O - E D I T O R S

M E S S AG E F R O M T H E C H A I R

Oscar A. Sanchez, Esq.

In the meantime, the Alternative Dispute Section ofThe Florida Bar will continue to put togetherprograms and to help us navigate theseuncertain times, we will continue to monitorproposed rule changes for ADR practitioners, and wewill continue to urge everyone to be kind andunderstanding to each other and to themselves. TheFlorida Bar has a Wellness Center with a Helpline(833-FL1-WELL), an e-Video Counselor, and other

It will indeed be a great daywhen emails, columns, texts,tweets, posts, and introductionssuch as this Message from theChair contain with thewords these uncertain

or some similar phrase.

resources for lawyers feeling the stress of thesetimes. You matter. Please avail yourselves of thesehelpful tools, and please make others aware thatthey exist.

Continued, page 2

I N T H I S I S S U E

3 11/13 Inaugural Arbitration Advocacy Institute

4 The Mind of the Master Mediator From Eye-Rolls to Grimaces: Understanding Body Language

in Virtual Mediations

7 Virtual Hearings and Trial After

9 6-Part Health & Wellness CLE Series

10 Tips From the Masters

14 Why Truth Is Not All That Matters: Misinformation, Self-Deception and Social Pressures

M E S S A G E F R O M T H E C H A I R , C O N T I N U E D

On a positive note, the ADR Section celebrates

its enthusiastic embrace of virtual

technology, such as Zoom, to continue to

conduct mediations and help the courts clear

backlogs, even as the court system grapples with

the difficulties and dilemmas presented by in-

person proceedings.

Trying times present opportunities to learn new

and better ways of doing things. Out of the

darkness comes the light. The ready acceptance

of virtual technology by both mediators and the

lawyers who use them has been accelerated by

the pandemic. Virtual mediations have proven

to be both cost-effective and useful. Many ADR

practitioners and lawyers will continue to

engage in virtual mediations well after the

pandemic is in the rearview mirror.

In closing, take care of yourselves, be extra kind

to yourselves and to others, and look for

opportunities to improve your practice, in these

uncertain times.

Oscar A. Sanchez2020-2021 ADR Section Chairoscar@oasmediation.com

Executive Committee

Oscar A. Sanchez, ChairPatrick Russell, Chair-Elect

Christy Foley, SecretaryKathleen McLeroy, Treasurer

Kim Torres, Immediate Past Chair

Executive Council

2 0 2 0 - 2 0 2 1 L E A D E R S H I P

Deborah B. MastinAlexander MyersAdam M. MyronNatalie PaskiewiczJohn SalmonMeah Rothman TellFran TetunicGlenn J. Waldman

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William G. ChristopherRobert A. ColeJeffrey M. FlemingDavid W. HenryAaron J. HorowitzA. Michelle JerniganKelly Overstreet JohnsonA. Lester LangerAna Cristina Maldonado

Emeritus Members

Lori AdelsonThomas H. Bateman IIIKaren EvansManuel FarachDavid R. Hoyle

Lawrence H. KolinMichael H. Lax

Schickel

Board LiaisonThomas P. Wert

I naugura l A rb i t ra t ion Advocacy Ins t i tu te

November 13 L i ve GoToWeb inar(No t Reco rded f o r Res a l e —Ea r l y -B i rd D i s coun t s Un t i l 10 / 31 )

The ADR inaugural Arbitration AdvocacyInstitute is a one-day, virtual workshop for attorney-arbitrators that will provide coaching on mechanics,technology and professionalism to help Floridaattorneys boost their arbitration advocacy skills.Attendees will increase their knowledge of thearbitration process from beginning to end distinctfrom mediation and litigation and participate invirtual clinics for diverse arbitration practice areas.

More than 30 skilled presenters will demonstrateeffective and ethical techniques that will enableparticipants to reach the highest levels of advocacyin arbitration. The prestigious faculty includesrepresentatives from the American ArbitrationAssociation, the Financial Industry RegulatoryAuthority, the American Health LawyersAssociation and JAMS in addition to some of

most experienced attorney-arbitrators.View the event brochure.

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The event is scheduled for Friday, Nov. 13 from 8:45a.m. to 6 p.m. with an optional virtual networkinghour on Nov. 12 at 5:30 p.m. Details and registrationare available at flabaradr.com/arbitration-advocacy-institute.

• The November 13, 2020, Arbitration AdvocacyInstitute is a live GoToWebinar (not recorded forresale).

• Course number 4222. Approved for 8.5 GeneralCLE credits; 1.0 of which may be applied towardProfessionalism, and 1.0 Technology credit.Participants earn 1.5 additional General CLEcredits for participation in a Virtual Clinic.

• Early Bird Registration Until 10/31: ADR Sectionmembers $100, non-section members $145(includes section membership).

• After 10/31: Section members $185, non-sectionmembers $230 (includes section membership).

• Law School Students $60 (includes sectionmembership).

The Mind o f the Master Media tor

From Eye -Rol ls to G r imaces:

Unders tanding Body Language

in Vi r tua l Media t ions

By David Ross, Esq.,JAMS, New York, NY

This article explores the role of body language invirtual or remote mediations, where mediators seeparticipants in a box and on a screen as opposed to ina chair and in person.

Understanding how mediators gather relevantinformation just by looking at facialexpressions and reactions can help you become amore effective advocate and participant in virtualmediations. Below, I explain why crucial to beaware of your own body language, enabling you tomake smart decisions that can boost your credibility,likability and persuasiveness with the mediator, aswell as your clients, colleagues and adversaries.

Since JAMS began using virtual platformsexclusively in mid-March, the Master Mediatorshave settled hundreds of legal disputes. Importantly,they have mediated an extremely broad range oflegal disputes, from personal injury to sexualharassment to complex commercial matters.

So, my findings and prescriptive thoughts relate tovirtually any type of mediation.

As a reminder of my methodology, I share myinterview questions and, using boxing terminology,provide a summation for the collective answers:

• Unanimous Decision• Split Decision (winner by majority)• Draw (no clear winner)

In a previous article, Zeroing in on Zoom: What Good Mediators Really Think About Virtual Platforms, the Master Mediators I interviewed weighed in on mediating using virtual platforms.

1 JAMS Master Mediators interviewed by David Ross includeDavid Geronemus, Dina Jansenson, Shelley Olsen, Carol Wittenberg, Peter Woodin and Michael Young. 2 Available here.

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While they expressed a Unanimous preference forin-person mediations, they all recognized that,increasingly and by continued necessity, virtualmediation offers an unexpectedly effectivealternative with upsides, including no travel time orrelated costs. They agree that virtual mediations arebecoming easier and more natural.

Interestingly, two Master Mediators felt that virtualmediations can often be more enjoyable and moreefficient than in-person mediations. Participantsappearing from home feel more relaxed and,consequently, may be more transparent about whatthey really need to settle.

In sum, based on the collective view of the six MasterMediators as well interviews with lawyers whohave mediated virtually and my own experienceconducting virtual mediations virtual mediationworks and, is here to stay.

With this in mind, I will now explore new issuesparticular to remote processes.

Is -Body Harder to Read in VirtualMediations?

NO (Virtually) Unanimous Decision

Why Body Language Matters

As Charles Craver, a leading expert on the role ofbody language in negotiation, writes in EffectiveLegal Negotiation and Settlement:communication constitutes a majority of thecommunication conveyed in a negotiation.

To be blunt, body language matters.

And it really matters to the Master Mediators as theytry to assess the credibility of plaintiffs anddefendants who, if the dispute settle, willlikely be witnesses in an adjudicative proceeding.

Continued, next page

T h e M i n d o f t h e M a s t e r M e d i a t o r

F r o m E y e - R o l l s t o G r i m a c e s : U n d e r s t a n d i n g

B o d y L a n g u a g e i n V i r t u a l M e d i a t i o n s

Continued from page 4

Effective mediators also assess the truthfulness andcredibility of negotiators. For example, when anegotiator stakes out an extreme position or declaresa bottom line, the mediator must determine in realtime if they really mean it. And body language canhelp.

The Master Mediators also read body language tounderstand feelings, such as anger ordisappointment, in order to acknowledge thosefeelings and build rapport. Feelings play a role inevery mediation, whether the dispute involvesallegations of sexual harassment, former partnersworking through a partnership dissolution, or astraight commercial dispute where people simplyfeel cheated or wronged.

Good mediators show clients that they are listeningclosely, with curiosity and compassion.

Master Mediators Pay Close Attention to theWhole Person

While a few Master Mediators said that inconsistentstatements and oral evasiveness matter more tothem when assessing truthfulness and credibility,they all agreed that reading a body languagecan help a lot.

And they pretend to know how they readbody language so effectively, with one MasterMediator exclaiming, articulate how I do it. Ijust

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Their extraordinary skills are likely innate,developed through years of mediation experience.Intriguingly, several Master Mediators speculatedthat they honed their people-reading skills aschildren when they navigated complicated familydynamics, such as an overbearing or controllingparent.

Your Face Is Your Canvas Paint It Wisely

The Master Mediators agreed that while seeing aentire body and observing gestures and

body positions often reveal useful information aboutfeelings or state of mind, seeing a facematters most. And when only a few faces are on thescreen, mediators can see expressions and micro-expressions more easily and more accurately thanthey can in person because everything is magnified.

As one Master Mediator put it, and mouths aremost important. I see emotions on their faces, evenwhen they try to disguise or hide them. Anotherbluntly asserted, get as many clues from the neckup as from the whole body.

Continued, next page

T h e M i n d o f t h e M a s t e r M e d i a t o r

F r o m E y e - R o l l s t o G r i m a c e s : U n d e r s t a n d i n g

B o d y L a n g u a g e i n V i r t u a l M e d i a t i o n s

Continued from page 5

One Master Mediator told the story of aninexperienced lawyer who rolled her eyes andgrimaced whenever she heard something shedisagreed with or believe, perhaps lulled intocomplacency given the relative informality of avirtual mediation compared to court. So, the MasterMediator took her aside to explain that eye-rollsshow contempt and can alienate the person who isspeaking, often making them less likely to want toshare information or collaborate. The young lawyerpromptly stopped the eye-rolling.

Effective negotiators and advocates control whatthey say and how they act, balancing being firm andbeing likable. Despite experiencing strong negativefeelings, they maintain their composure and calmlylisten while they control natural urges to interrupt,challenge assertions or launch personal attacks.

If you want an adversary to listen to your point ofview, best to lead by example by listening to theirpoint of view.

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The same advice applies to how to interact with themediator, with whom you want to build a positive,trusting and collaborative working relationship.

In my next article, titled Shirts and Waterfalls:What to Wear and How to Appear on Virtual

tackle practical issues such asImplications of Your Clothing

Ins and Outs and Pros and Cons of UsingVirtual and more.3

3 Future articles can be found on the JAMS Blog.

David S. Ross, Esq., has been a mediator with JAMSfor nearly 30 years. He specializes in complexemployment and commercial disputes and hasresolved thousands of two-party and multi-partycases, including many class actions. Mr. Rossregularly handles high-profile cases involvingcelebrities, politicians and CEOs of globalcorporations.

While jury trials, for the most part, are on holdduring the Covid-19 pandemic, bench trials andmediations are proceeding virtually, and are provingto be a viable option for parties involved in civil andfamily law cases. Covid-19 has been a challengingtime not only affecting the health and wellbeing ofmany people all around the world, but also changingthe way that people do business. Fortunately, Floridacourts, judges, attorneys, and mediators haveadapted to virtual operations in stride, proving thatwe are able to conduct our line of work fromanywhere.

Courthouses closed to the public and socialdistancing recommendations commenced in themiddle of March, with no guidelines as to whenoperations would return to normal. Even with thatuncertainty, within the first few weeks, mediatorswere able to successfully transition their mediationpractices virtually. Similarly, Judges and courts wereable to successfully transition from in personhearings and trials, to virtual appearances throughvirtual platforms, such as Zoom.

Online dispute resolution (ODR) has been around foryears, but several mediators had not utilized thisform of dispute resolution until the pandemic.Mediators and attorneys have now discovered thatvirtual mediation can be an efficient and effectiveway to resolve cases. Although while conducting andparticipating in a virtual mediation you miss theinteraction of person to person contact, all aspects ofa mediation that would usually take place in personcan still be done virtually. Many virtual platformshave a breakout room feature which allows forparties to caucus and speak privately as they wouldbe able to do in person, with the mediator having theability to go back and forth between the breakoutrooms. With the familiarity of ODR and the virtualplatform, mediations can be conducted efficientlyand effectively, and provide the means to bring acase to a resolution without the need for litigation.During the pandemic, people have enough stress intheir lives.

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Through the use of ODR, parties are able to settlecases and relieve some of the stress that prolongedlitigation may cause. In the unfortunate event thatODR is not successful, parties, for the most part, stillhave the ability to access the courts during thisunprecedented virtual era. While mediating,mediators should keep in mind how an impasseduring Covid versus pre-Covid may send the casedown a very different path.

Many different types of hearings were transitionedto a virtual platform, including motion calendar;non-evidentiary hearings; evidentiary hearings; andbench trials. The transition to virtual motioncalendar hearings and non-evidentiary hearingsappeared seamless and is an efficient way to conductthese types of hearings. Before the pandemic,attorneys would commute to the courthouse, waitfor long periods of time for his or her case to becalled, present the case and legal argument to thejudge for five minutes, and then commute back totheir offices. A hearing that may take only fiveminutes could take up to an hour or more of an

time when factoring in the commute andwaiting time. This can be expensive for the client. Inthe pandemic Zoom era, this process has changeddrastically. Instead of the long commute and waittimes, attorneys are able to log onto their computersor smart device from the comfort of their own homeor office and wait in a virtual waiting room until thecase is called by the judge.

Continued, next page

Vi r tua l Hear ings and Tr ia l A f te r

You ’ ve Reached an ImpasseBy Elizabeth M. Edwards, Esq., Family Law Attorney and Family MediatorThe Law Offices of Barry I. Finkel, P.A., Fort Lauderdale

V i r t u a l H e a r i n g s a n d T r i a l A f t e r

Y o u ’ v e R e a c h e d a n I m p a s s e

Continued from page 7

This allows for attorneys to work on other caseswhile they are waiting to be called into the Zoomhearing. Once called by the judge, attorneys have theability to make the same arguments as they wouldhave in person. Thereafter, the judge issues a ruling.By uploading the proposed order through the casemanagement system or other formats designated bythe judge, the order can be signed and returned tothe attorneys within minutes of the hearing, therebymaking virtual motion calendar and non-evidentiaryhearings efficient and cost effective for attorneysand parties.

Transitioning to virtual evidentiary hearings andbench trials have been successful as well. There is alot of detail and preparation associated with virtualevidentiary hearings and trials. Although thesetypes of hearings are able to proceed virtually, thereare adjustments that all participants have to makefrom how things have been done in the past.Attorneys and judges have been accustomed toconducting these types of hearings in person. Havingtrials conducted virtually takes a bit of patience andadjustment. With an in-person trial, there is abenefit to observing a witness testify, including hisor her non-verbal behavior and interpersonal bodylanguage, which can be lost when conducting a trialvirtually. Notwithstanding, there is still the ability tosuccessfully make opening statements and closingarguments; conducting direct and cross examination;entering evidence; stating objections, etc. However,virtual trials take a considerable amount ofpreparation and organization.

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Prior to the pandemic, when an attorney preparedfor trial, he or she had exhibits and copies ready to bepresented in court. Similarly to an in-person trial,attorneys are still required to have their evidenceprepared and pre-marked, but a virtual trial requiresattorneys to go one step further. Now, attorneysmust also pre-mark exhibits on their computer files.Then they must upload exhibits through the casemanagement software, or as otherwise directed bythe judge, in advance of the trial so the judge caneasily access the exhibits. This also requiresattorneys to provide his or her opposing counselwith the exhibits in advance of the trial. Manyjudges require attorneys to have discussions aboutthe admissibility of exhibits prior to trial, which canstreamline the process. There are also programsavailable to attorneys that help organize exhibitsand present evidence at trial such as TrialPad.During the trial, when an attorney is ready to enteran exhibit into evidence, the attorney is able to selectthe document off of his or her computer and sharethe screen with all participants using the screenshare feature allowing attorneys to successfullyenter exhibits as they would do during an in-persontrial.

Objections during a virtual trial are a bit differentthan objections in an in-person trial. During a Zoomtrial, participants are unable to speak over oneanother, so if one attorney objects while the otherattorney is speaking, the objection may not be heardby the judge or the party answering the question.However, this problem can be easily resolved byhaving an attorney hold up a sign to the camerawhich states in bold lettering, or simplyadvising his or her client to wait until after thequestion is asked to see if an objection is made beforeresponding. The latter should be done for an in-person trial as well. Zoom provides the option forvirtual backgrounds which can make an otherwisemessy room look professional. However, if you areutilizing that feature and hold a sign to the camera,the virtual background may prevent the judge fromseeing the sign and the objection. also importantto note, that any noise that is made in the vicinity ofthe microphone can be picked up byZoom. For example, if an attorney shuffles paperswhile another attorney is speaking it cancommandeer the Zoom microphone, and thatattorney can no longer be heard. Therefore, it is goodpractice that if an attorney is not speaking, his or hermicrophone should be muted.

Continued, next page

V i r t u a l H e a r i n g s a n d T r i a l A f t e r

Y o u ’ v e R e a c h e d a n I m p a s s e

Continued from page 8

During trial, attorneys are accustomed to being inthe same room as his or her clients, paralegals, andother attorneys who assist with presenting the case.When conducting a virtual trial, if more than oneparticipant is in the same physical room, each havinghis or her own laptop or smart device logged into theZoom hearing, only one device can be unmutedwithin the room, otherwise there may be feedback.Therefore, it is good practice that other deviceslogged into Zoom in the same room be muted withthe microphone turned off. Similarly, when awitness is testifying, he or she should be in a separatephysical room on his or her own device. Prior to trial,an attorney and his or her client should have adiscussion as to how they will be able tocommunicate with each other during the Zoom trial.Although Zoom does have a chat feature, it may not

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be confidential nor protect the attorney-clientprivilege. Accordingly, other methods ofcommunication need to be utilized such as textmessages and emails.

Evidentiary hearings and trials via Zoom takepatience and adequate preparation. They can be justas effective as in-person, and most importantly, canbring cases to conclusion. The best way to feelcomfortable and adequately prepared for any virtuallegal proceeding is to practice. With practice andpreparation, a participant can feel confident goinginto a virtual mediation, hearing or trial.

Elizabeth M. Edwards Esq. is an accomplished FamilyLaw Attorney and family mediator who pridesherself in her ability to settle complex cases withoutthe need for prolonged litigation.

Be We l l . S tay We l l . 6 -Par t Hea l th & We l lness Ser ies

Earn hard-to-get Mental Health Awareness CLEcredits by attending or purchasing on-demand theADR Section's six-part, online webinar series thatfocuses on practical tips for maintaining mentalhealth and emotional well-being.

The section partnered with the University of MiamiSchool of Law and Legal Services of Greater Miami,Inc. to produce the webinars. Topics range fromEthical Considerations When Using AlternativeDispute Resolution to Bridge the Justice to

Wellness and the Ever-Present Demandsof Technology.

ADR Section Chair-Elect/Health & WellnessCommittee Chair Patrick Russell initiated the seriesidea. A recent Florida Bar News article describes theseries, which will feature prominent lecturersincluding University of Miami School of LawProfessor Scott L. Rogers, director ofMindfulness in Law Program, and Paula Black, anationally recognized lawyer coach and author of

Guide to Creating a Life Not Just a Living.

Each course in the "Be Well. Stay Well." health andwellness webinar series features a videointroduction by Florida Bar President Dori Foster-Morales, an avid proponent of wellness for Floridalawyers and others in the legal community.

Visit this l ink to get the full schedule, registration l inks, on -demand purchase

information and the latest updates on the series.

I had six hours to chop down a tree, spend thefirst hour sharpening the ax. ~ Abraham Lincoln

To sharpen the ax of our knowledge, we asked ourmediation experts several questions. Our panelincluded attorney-mediators Christy L. Foley, MarkA. Greenberg, Peter J. Grilli, A. Michelle Jernigan,Meah Tell, and Stanley Zamor.

Note: Every mediator on the panel wasinterviewed independently and, for the first best

question (regarding approaching difficultdiscussions), each mediator gave a similar answerthat pointed to active listening and understandingthe emotions driving the negotiations. After the firstquestion, the distinctive style of each mediatoremerges, showing various ways to approach movingthe parties in mediation.

What is your best tip for approaching difficultdiscussions in mediation?

Christy Foley: Start by figuring out what is behindthe battle. Let the people talk their side out and askgood questions to get to the bottom of what is reallybothering them. If you help each person expresswhat they feel is truly important, you can help themmove forward.

Mark Greenberg: Listen. Allow the parties to vent.Be sure to let each side know that there is a reason tolisten as part of this process.

Peter Grilli: Active Listening. Try to understand theemotions of the speaker. If someone feels like theiremotions are understood, they are going to feelbetter and become more responsive. To be clear,active listening is not about why someone feels acertain way, but rather understanding how theyfeel, and reiterating how they feel in a manner inwhich they feel heard, or shows you wish to

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understand. Author and speaker Doug Noll talks about this in his lectures on deep listening.

Michelle Jernigan: As the mediator, you set the toneof in control but not controlling. Recognize thatemotion is part of every dispute and needs to beexpressed. I allow a certain level of anger andfrustration, as long as it does not take over theprocess.

Meah Tell: The best way is to embrace the difficultdiscussions. When I was a very young mediator, Ihad a pro se divorce mediation and when everythingwas resolved and agreed upon, the husband told methat he just could not sign the Agreement, becausethe Lord told him not to. I decided (then) that whenpitted against that, there was not much more I, alowly mediator, could do. Now when the issue ofreligion comes up, I often try to explore that issue inmore depth. I look to see if that discussion canactually help a party obtain resolution. I try to findout what are the core values and principles,see how that guides the decision, and where can wemove from there? Can their fundamental religiousbeliefs help them see the other party in a differentlight? What is their comfort level and what ismaking them uncomfortable? Try to find thecore values and principles, then try to uncover whatis making them uncomfortable, and then workingout from there, will help you obtain resolution.

Stanley Zamor: Getting through emotions withdiscussion is often what mediation is all about.Explain to the parties that mediation may be difficultand complex, but this is the time and place to havethose hard conversations. In order to obtain buyfrom the participants about the process, I ask them

this I prefer to do that up front together,but if necessary, I will have separate orientationsessions.

Continued next page

Tips From the Mas te rs:

S t ra teg ies in Med ia t ionInterviews and edits by Shari Elessar and Ana Cristina Maldonado

T i p s F r o m t h e M a s t e r sContinued from page 10

What techniques do you use (when negotiationsare bogged down) to generate momentum?

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Michelle Jernigan: Bracketswork. I have also used trialballoons, which is sendingup a signal to see how theparties respond forexample, If I could get theother side to accept x,would you pay Talkingto the attorneys separately

I do that in both rooms, before sharing anythingwith the other side. This allows me to know whetherpeople are still committed to being in this mediation.If they give me an I will ask if they arewilling to budge a tiny bit on X or Y. It can also helpto be the cheerleader. I am here with you and I wantyou to bust through the wall. If we make a dent onboth sides, we can get a hole in the wall so we canmake progress and not waste time.

Christy Foley: When wefeel like we are losingmomentum, I name it. I say,I know we are hitting a

wall, we are tired. Whatcan you give me to jumpstart Labeling helpsparties move from feelingto thinking.

Mark Greenberg: I useseveral techniques:

Sometimes when people getbogged down, I will switchto a subject area thatnarrows the issues to whatthey can more easily agreeon.

This creates momentum and then deal with theemotions and get to the heart of what they cannotagree on. If it is simply money, use brackets tomove people off psychological barriers. If it is notabout money, I ask pointed questions, and see if I canget them to craft their own solutions.

Peter Grilli: Once they getinto the mindset of areasonable range, it renewsmomentum. I use atechnique to allow peopleto define a reasonable

for settlement. I askthe parties, Can we agreethat there is no single

number that is correct but rather a? and Can you try not to get fixated on a

single For example, if they are somewherebelow 25% apart, they have defined a reasonablerange of settlement in which no number is exactlyright or wrong. And I tell each party that it would beperfectly rational to settle within that reasonable

.

without the parties to brainstorm can also beeffective. Finally, I will sometimes use aproposal, where the mediator suggests a solution,and the parties still retain the ability to accept ofreject that solution.

Note: Michelle elaborates on bracketing in ashort video by The Florida Bar Young Lawyersdivision.

Meah Tell: Be proactiveand continually engage allparties and attorneys. Helpthem search for options byemphasizing (i) narrowingthe differences betweenthe parties, (ii) areas wherethey can agree and (iii) notewhere they have worked

hard toward settlement and acknowledge theircontributions. I sometimes throw out trialor alternatives I have seen in the past. Questions likeDo you think it might be helpful to propose

may also close gaps. If the parties doimpasse, I encourage them to continue discussionsand sometimes offer to continue to assist.

Continued, next page

T i p s F r o m t h e M a s t e r sContinued from page 11

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Make them do it. Try to get three points in eachcategory. In caucus, use VED analysis to label issuesas Vital, Essential and Desirable (your best day incourt?), virtually using tools in Zoom or live using awhite board. When the What do you want to

question has failed, turn to How did weget using AI (Appreciative Inquiry) which is away of communicating and asking questions thatcan elicit the positive side of conflict andrelationships within the mediation room.

Note: Upchurch, Watson, White & Maxprovides a SWOT worksheet here.

Help me understand what I have heard from theother party about your challenges can you re-statethem for

Stanley Zamor: I use amodified SWOT analysis,evaluating strengths,weaknesses, options andtruth to help the seethe risks of trial versusresolution. First, draw thequadrant. Second, ask theparties to help fill it in.

"Tips From the Masters" is a collection of interviews with experienced Florida mediators who shareinsights and advice about various aspects of mediation. Learn pro tips from some of Florida's topmediators The column will appear in each issue of The Common Ground publication.

Do you have any favorite mediation tips or juicy war stories? Would you like to be interviewed forthe from the column? Email Cristina Maldonado and Shari Elessar and let us know youare interested.

The Mas te rs

Christy L. Foley, Esq. is a Florida Supreme Court certified circuit civil and county court mediator. She has beenmediating since 2009, focusing on business law, employment law, insurance law, construction law, real estatelaw, technology law, and landlord/tenant law.

Mark A. Greenberg, Esq. brings over two decades of trial experience to his civil mediation practice. He hasrepresented defendants and plaintiffs and has a rare combination of first-party coverage and third-partypersonal injury experience.

Peter J. Grilli, Esq. has been mediating since 1993 and has mediated more than 5,500 cases, including civil

litigation in federal and state courts.

A. Michelle Jernigan, Esq. has mediated thousands of cases throughout Florida since launching her mediation

career in 1987.

Stanley Zamor is a Florida Supreme Court Certified Circuit, County and Family Mediator, Primary Trainer and

Qualified Arbitrator.

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Why Tru th I s No t A l l Tha t Ma t t e rs :

M is in fo rmat ion , Se l f -Decep t ion

and Soc ia l PressuresBy Dr. Dzmitry Yuran

Professor of Journalism and CommunicationFlorida Institute of Technology, Melbourne

Communication technologies facilitate the exchangeof information. But what exactly are we exchanging?Is it facts, or is it opinions? Is it an accuraterepresentation of reality or wishful thinking? Theanswer is not a very simple one, even when itappears obvious. For one, what is sent into thecommunication pipeline is not necessarily what wereceive (or perceive) on the other end. It is importantto try and remember that each conversation hasmore than one party, and each party comes tocommunicate with their own goals and agendas inmind. Sharing information is not an end-goalin this process, but a mere conduit between ourneeds and the world outside. Not everyone goes intoa conversation and posts on social media to sharewhat they think to be useful information for others.The accuracy and factuality of information we shareare often the last thing that comes to mind when wespeak up or hit .

Research in the fields of Communications and SocialPsychology has unveiled a few interestingtendencies in our relationship with information,many of which have to do with what we really useinformation and media for. We need to try our bestto understand how communication technologiesaffect us, allow us to influence others, and help orprevent us from finding common ground. This needis especially pronounced right now, during the globalpandemic, when we are forced to rely on technology

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more than ever to stay connected, when stayinginformed means navigating through a myriad ofchoices.

Well before algorithm began filtering outthe posts we may not like, we had started doing soourselves. Selective exposure is a well-documentedphenomenon (since the 1960s) in communicationresearch. It describes our tendency to avoidinformation and content that contradict our beliefsand convictions. Changing a belief requires a seriouseffort and promises very little obvious reward. Infact, changing mind on an important issue mayalienate a person from a group of like-minded peopleand shatter their established social structures. This isnot something humans, who survived through agesby relying on each other, evolved to do. In the age ofon-demand global communication, refusing toconsider another opinion and finding support for theone you already hold becomes so much easier. Justclose that browser tab or block that acquaintancefrom your social media and your beliefs are safeexactly where they are.

Even when we are forced to face facts and datacontradicting what we believe to be true, we manageto force them into submission and make themsupport our arguments somehow.

Continued on Page 16

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A 1975 study at Stanford started the tradition ofresearch on confirmation bias, or our desire andability to make whatever new information we comeacross fit with our existing knowledge and beliefs.The Stanford study participants were asked to takepart in a rather gruesome task, sorting through 25suicide notes and figuring out which were real.

Some were led to believe they were very successful.They were told they guessed 24 out of 25 notes right.Others were told they only got 11 correct worsethan a coin toss. Neither of the two stories was averified fact. Participants were simply randomlyassigned to the two groups. Even after the study,when participants were debriefed and told that theirstellar or terrible results were a complete sham, the

group was still sure they were prettygood at sorting suicide notes and the other groupthought they were quite bad at it. Since the initialstudy, the fields of psychology and communicationhave amassed a great deal of evidence that wecherry-pick facts and evidence, and simply ignorethe obvious, to remain comfortable in ourconvictions.

It appears that we can easily ignore or misinterpretnew information, but what about the old data storedon our marvelous personal computer, the humanbrain? Well, it turns out our hard drives are not ashard after all. An interesting research techniquecalled at the originated from a 1995 studyby Elizabeth Loftus. Professor Loftus had familymembers of study participants supply her with realmemories about them, and then she added anotherone to the mix while interviewing her subjects,getting lost at a mall. A quarter of participants wentalong with the false, implanted recollection of theirpast lives; they even supplied the researcher withnumerous details about their non-existentexperience. They told Dr. Loftus all about theappearance of people who rescued them, as well asother sensory details of the created memory. Sincethen, numerous studies on false memories have usedthe at the technique and found a greatdeal more evidence of how unreliable our personalinformation storage facilities are.

An interesting detail about false memories, andpossibly other subconscious massaging of

information we do, can be illustrated by a curiousphenomenon dubbed Mandela effect. NelsonMandela, who was incarcerated in the 1980s, servedas the President of South Africa between 1994 and1999 and passed away in 2013. However, this fact didnot stop people around the world from

that he died in prison in 1980s. FionaBroome, a self-described paranormal researcher,coined the term Mandela Effect first and used thephenomenon to explain all sorts of unexplainedthings on the dedicated webpage and beyond,illustrating how easily our minds rush to makingconnections and filling gaps. This non-scientificdiscovery helps illustrate how social our informationmanipulations could be. The at the studyparticipants did not come up with false memories ontheir own, a researcher planted them. People did notrecall news coverage of death bythemselves, it was a shared in acommunity sharing a set of beliefs in paranormaland other phenomena. Community is a veryimportant keyword here.

Our group identity is crucial for our perception ofwellbeing, and there is experimental data to provethat. Our need to belong is rooted in our evolution asa group species. It can directly affect our memory,just like hunger would make us pay attention to foodfirst and everything else later. But there us more toit. As we strive to fit in with our tribe (a politicalparty, a religious group, a nation, a sports-team fanclub, you name it), we avoid, disregard, and twistfacts about our reality. A recent article inPsychological Inquiry reminds us that the socialscientists studying these very phenomena are notimmune to them either. It takes time and deliberateeffort to minimize the unintended gaps andinaccuracies we cause in our worldview.Unfortunately, our relationship with information isanything but deliberate.

Polls conducted by Pew Research have shown socialmedia outpacing newspapers in popularity as themain source of news; they are catching up to radio,news sites, and TV. On social media, according to anMIT study, false news often spreads faster than thetrue news. A recent report from Pew Researchshowed that Americans relying on social media for

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W h y T r u t h I s N o t A l l T h a t M a t t e r s :

M i s i n f o r m a t i o n , S e l f - D e c e p t i o n

a n d S o c i a l P r e s s u r e sContinued from page 14

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news get their facts wrong more often than othergroups. But why do social media us get thingswrong?

A Columbia University study showed that 6 out of 10of us share without reading, withoutany effort to verify the accuracy and authenticity ofthe content we share. A large study from StanfordUniversity found that 82% of American middleschoolers struggle to distinguish neutral reportingfrom news stories such as intentionallyfabricated disinformation, sponsored advertisinglabeled as such, and industry-financed reporting thatwas compromised by conflicts of interest.Anecdotally, workshops on misinformation and fakenews I have conducted over the past few years leftme convinced that this issue does not stop withyoung people. In fact, according to a 2018 PewResearch study, older generations are worse attelling news and opinion apart. Even the journalism-major underclassmen that I have taught for the past

10 years struggle to distinguish news reports,editorials, and sponsored content. In my technicalwriting classes, I teach students the value ofacademic research, but also of its fluid nature andhow it strives to paint a fuller picture of the worldaround us. knowledge may become outdatedin light of new discoveries, but GeneralRelativity does not necessarily nullifydiscovery of gravity. To build a sharedunderstanding and find a common language, it isimportant to remain flexible and accepting of newfacts. Equally important is to remember that whatwe may see as a picture of the world, maysimply be lacking a few details. Ongoing opendialogue is key to common ground.

Dr. Dzmitry Yuran is a professor of journalism andcommunication at the Florida Institute ofTechnology. He teaches science journalism,international political communication, internationaljournalism, online reporting, and less specializedcourses in communication.

W h y T r u t h I s N o t A l l T h a t M a t t e r s :

M i s i n f o r m a t i o n , S e l f - D e c e p t i o n

a n d S o c i a l P r e s s u r e sContinued from page 15

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The Common Ground is a publication of The Alternative Dispute Resolution Section of The FloridaBar. Statements of opinions or comments appearing herein are those of the contributing authors,not The Florida Bar or the ADR Section.

Newsletter editors Natalie Paskiewicz and Ana Cristina Maldonado are soliciting articles for theSpring 2021 edition of The Common Ground. Please contact them at natalie@pazmediation.com andacmaldonado@uww-adr.com.

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