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Mediation Tip: Always Perform Your Post-Mediation Action Review

March 19, 2013

In World War II, every Army Air Corps flight crew-member who participated in any air raid and survived, immediately upon their return, and usually even before obtaining food or drink, was required to give a detailed post-action report of everything they did or saw in that attack.  And each man’s report of their individual experience from their individual perspective was fully recorded.  And, those records were then carefully analysed to improve on the performance of the next raid.

This post-action practice is still followed in every branch of the military, in one form or the other: immediate consideration of  the effectiveness of selected  past experiences  to achieve better successes in the future.

Experience has always been the best teacher.  Who does not know the famous quote: “Those who do not learn from history are doomed to repeat it”?   

And, successful people in all walks of life have always known the value of actual experience and the value of reviewing/recording every experience before it fades.  Such a pattern of reflection and recordation is critical to learning from any experience.

It is thus equally true in the practice of law.

Whether a post-hearing or post-trial action review, each day of your trial, or a post-mediation critique and reflection, the sooner you can stop, thoughtfully reflect, and at least mentally record, those things that seemed to work and those that did not, the more likely learning from those experiences will allow your successes to grow.

And,  at first, it will be easier to reflect upon your failures.  Success is fine, but rarely a good teacher.  Don’t we generally learn more from our “failures” than our successes?

Later, you may wish to also consider any observed pattern of what worked, apparently, in you successes.  This is harder as euphoria usually blocks out the review.  But, believe me, the better lawyers take as much from their victories as their failures.

As a trial lawyer, I tried, early, to make a habit of always conducting a post-review/self-critique of everything I did in my practice, after the fact.  And, particularly in my trial efforts. 

At trial, even as a young lawyer, I also insisted upon having at least one other human being present with me for any important event, including trial.  It is very hard to both perform and review your own actions at the same time.  Obviously, if you did it, it must have been right?  Wrong.  Having an assistant of any kind at your trial allows you an objective person to question or affirm your trial actions and strategies.  There is no such thing as a bad second opinion if it is honestly given with an intent to assist.  And, any outside opinion is better than none.  Sometimes “lay” people have more valuable insights than other lawyers!

Fortunately, in most mediations, regardless of the side you represent, you will most likely have someone else with you.  It could be co-counsel,  your client, an insurance representative or any other observing participant available to review your day’s efforts.  So, before you close your books for the day, take a moment to at least inquire of that person or persons of 1) anything they would have done that was not done (always a good question for your client; before knowing any outcome) 2)  anything done they would not have done  and 3) what seemed to work or seemed not to work of those strategies you shared with them during the mediation.

Such an inquiry need not be lengthy.  And, trust me, you will get some feedback.  (If you don’t they obviously didn’t believe you really wanted to know.)  But, this feedback is only intended to then get you started in your own re-thinking of the entire process and making those mental, or better, written notes of what different approach you might try, next time!

The most important critique, however, is your own self-critique.  building upon the insight of others given you, try expanding upon your own analysis.

Begin by honestly appraising what your opposition did or did not do that affected your thinking.  If it affected you, either way, learn from it.  Consider how you could adapt their successes to yours.

Next, consider the “golden rule”; if it was done to you and you liked it, try it in reverse.  It really does work!  And, even if your opposition knows you are copying them, they will appreciate your effort.  Some have even suggested that “plagiarism is the most sincere form of flattery”!

Then, taking all of these ideas, write down some “new techniques” to consider, “next time”.   And, keep a running list to consider. 

Finally, use this checklist, updated with each effort, on your next effort to try out a new idea or two.  Or, to strike off what doesn’t seem to work. 

Then, simply repeat the process.  Trust me, it works.

(FYI:  This “educational blog” originated out of my personal practice of reviewing and recording my own post-mediation observations for my own Mediator education and self-improvement in a personal “log-diary”.  I then decided that sharing such generic experiences and pro-active suggestions with those of you who wished to improve your own success, seemed more productive to the process and ultimately hopefully only made my efforts (and those of other mediators) easier!)

And, don’t forget your mediator as an important resource for your post-mediation review.

If you have the right mediator, they will want to help.  Their entire job is to help everyone find an alternative to trial.  Your honest inquiry, if truly honest, will obtain you some honest answers.  They want you to excel at mediation technique.  They know they get the credit if you are successful!  (And the blame if not!)

In gathering these insights and suggestions, recognize that there will be differences of opinion on almost everything.  But, in the end, as with any seminar, you can learn about at least one new idea and then decide if it fits you.  And, there is nothing to lose by the effort.

But, it is that one new idea or ideas and observations and suggestions that your hear,  weigh, try to accept or reject that make the exercise so worthwhile.  Unless you are the exception, likely you can use some new “material”.

Fortunately, the practice of law, so far, is not war.  But, take a tried and true idea learned the hard way from war;  learn from your every experience.  To do that you will need to remember to always conduct a post-action review.

In mediation, your post-mediation action review will become one of your best tools to increase your own success in those mediations that come thereafter.

Dan, from Melbourne, Florida.

2 Comments leave one →
  1. March 20, 2013 1:19 pm

    These after-action reviews can be very helpful in almost any professional undertaking.
    Like you, I have found them helpful after mediations. I am often surprised by what I said or what a party said that was the turning point in the mediation. What calmed people down? What motivated them to change positions? Taking note of these turning points builds our portfolio of tools for future mediations.
    Thanks for your post.
    Sara Rickover

    • March 21, 2013 8:50 am

      Thanks for the input and support. Your input and that of others are a big contribution to those that follow this blog to help others help themselves. Dan

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