Snacks with a view

Issue November/December 2017 December 2017 By Judge Paul A. Chernoff
Dispute Resolution Section Review

I bring sustenance in the form of snacks to each mediation and, where feasible, also take a view of the scene of the dispute; doing both at no expense to the parties. At the start of the plenary mediation session, I explain that I bring snacks as I understand that nourishment fosters a sense of community, stimulates communication, and tends to calm people making them more conciliatory, in other words, they have a “settling” affect. I also tell them that visiting the scene helps me visualize their positions and demonstrates how serious I am about helping them. I must admit that my altruism is tempered by a Machiavellian motive of imposing a subtle sense of obligation on the parties that will result in their being more receptive to what I have to say.

Snacks

Some of my mediations are pro bono as I serve as the “judicial mediator” for parties with limited means at the Middlesex and Norfolk Superior Courts. One morning, my court mediation concerned a serious dispute between Indian (from India) and Caucasian neighbors where my view the previous day revealed a “spite fence” between their properties with video cameras pointing at one another’s homes. My wife commented that the Indian people would unlikely partake in the individually wrapped chocolate covered biscotti that I bring to mediations, in that they would not eat the same “junk food” that I eat. So, I called my daughter-in-law who is of Indian descent and asked her what Indian people snack on. Naina told me to buy Lorna Doones that I picked up on my way to the courthouse and placed on the table (along with the biscotti) at the plenary session. You would have thought that I had brought the “Crown Jewels.” It made an instant connection and I am sure that it contributed to my credibility and the resulting settlement.

At first I brought Dunkin’ Donuts to mediations and quickly learned that after an hour people were reluctant to eat unwrapped food. That led to my bringing individually wrapped snacks to munch on all day, for example, biscotti from BJs. In a dispute between Chinese parties concerning a chartered tour bus accident, I asked a Chinese physician friend what the parties would snack on and she suggested apples, not only because they are a popular food, but also because the word “apple” in Chinese also means “peace.” The parties sincerely appreciated my effort but did not eat the apples then and there and, at my insistence, left with some. (To my mind, the gesture worked.). Yesterday I brought apples, handpicked by me last weekend, to a mediation and no one ate an apple. My wife says that apples are too messy to eat in public. That never stopped me. I bring the biscotti because they are individually wrapped and won’t be deemed unsanitary. For variety I also include packets of Lorna Doones. With so many people, with or without Celiac Disease, now eating gluten free diets, I plan to add a gluten free offering at all future mediations.

A view

The taking of a view prior to the mediation is most effective when I can surprise all of the parties and counsel at the plenary session when I talk about what I have done in preparation for the mediation. In a dispute over removal of a well in Littleton, at the plenary session the lawyers agreed that never had they worked with a mediator who went to the scene. This gave me great traction at the mediation. For an upcoming mediation this week, I took a view of the interior of the home where the disputed work was performed and here quite obviously everyone knows of my view in advance of the mediation session.

Very early on a Sunday morning last Spring, my wife joined me on a view of a private road that was central to a boundary dispute between neighbors in Plymouth County. Tensions ran so high that the Brockton Superior Court had issued an order restraining “drive by staring” by a party who allegedly harassed the other party from his vehicle. Well, the starer was at his post and didn’t hesitate to follow us in his vehicle as we walked on the disputed private road. When I identified myself he seemed to disappear into thin air knowing full well that he was violating an order of the court.

Conclusion

My food for thought on bringing snacks and taking a view is simply to do it. There is everything to gain and nothing to lose other than a minimal financial expense and the investment of a couple of interesting hours.