Mardi Gras – An All or Nothing Lesson

Last evening at the stroke of Midnight, Mardi Gras officially ended. Fat Tuesday, Carnival or Shrove Tuesday. Whatever you call Mardi Gras, the celebration includes rich foods, richer costumes, vibrant music and dancing. It remains the Christian feast before the fast (Lent). In an ironic twist, perhaps this celebration pre-dates Christ as the Roman winter solstice holiday of Saturnalia. Whether adopted from a pagan ritual or begun centuries later, Mardi Gras has been celebrated for well over 1,000 years with local traditions evolving along the way.

Venice, Italy offers the opportunity to avoid the hoi polloi of all the commoners at parades while attending balls and dances intended for the upper of the upper crust. Too fancy? Try Barranquilla, Columbia where you can don an elephant mask complete with a long trunk and large ears like everyone else. Perhaps Binche, Belgium is more your speed where men parade dressed as their wives or mothers. They then dance with brooms to chase away evil spirits. Freud would have a field day with that tradition.

Need to cool down from all the partying? In Goa, India, Mardi Gras revelers douse each other with buckets of colored water. Still too hot? Go to Quebec City, Canada to take a Fat Tuesday snow bath in your bathing suit. If you work up an appetite, return to Belgium for oranges thrown to the crowds from the floats. For dessert, travel to the first place of Mardi Gras celebration in the United States, Mobile, Alabama, to receive that Southern delicacy, Moon Pies, thrown from floats. And for those with a need for more, try Mardi Gras in Cologne, Germany which begins 11-11-11 (November 11 at 11 a.m.) continuing until Ash Wednesday months later.

One Mardi Gras among these stands out for its traditions – New Orleans. As Mark Twain stated: “An American has not seen the United States until he has seen Mardi Gras in New Orleans.” Still being fairly new to the global Mardi Gras scene, the first New Orleans Mardi Gras was in 1857, many traditions can be fairly traced backed to their origins. Reviewing some of this history and traditions allows us to better appreciate the current New Orleans festivities and helps us to understand Mr. Twain’s bold assertion. Surprisingly, in researching this history, an unlikely link between this annual cultural phenomenon and the mediation process became apparent.

In 1857, the Mystic Krewe of Comus secured the assistance of Mardi Gras organizers from nearby Mobile, Alabama to put on a parade including themed floats with masked krewe members. The parade was intended for public participation while the associated formal balls were limited to krewe members. For decades, five krewes – Comus, Rex, Twelfth Night, Monus, and Proteus – controlled the Mardi Gras scene. Membership in krewes was limited to moneyed elites while the parades remained for public consumption. By the early 1900s, those “left out” of the krewes formed their own krewes often based on heritage or even cultural bonds (Irish, Italian, German, African-American krewes).

Notably, the oldest krewe, Comus, stopped parading in 1991 after Louisiana passed a bill requiring krewes to integrate. The Mystic Krewe of Comus gave up a 134 year tradition instead of integrating. The fact that it took until 1991 to compel integration may be more surprising than the facts that a krewe was not integrated by that date or that the krewe opted to end its run rather than integrate.

The Shrove Tuesday elaborate costumes and masks were hardly unique to New Orleans Mardi Gras. Yet, they served additional purposes in the Big Easy. The costumes served as disguises which then allowed some non-krewe members to participate in balls with concealed identities. Some New Orleans costumes served “economic” purposes as well. African-American prostitutes would dress up as “Baby Dolls” (a term coined by their white male clients) to gain access to festivities in the hope of securing work at a time when sex work was racially restricted. The irony of Baby Dolls working the refused-to-be-integrated Mystic Krewe of Comus events is not lost on anyone.

The Mardi Gras color scheme of green, gold and purple is a New Orleans invention originating with the Rex Krewe. The Rex Krewe named a “king” for each year’s Mardi Gras – King Rex. In 1872, that year’s King Rex liked the color combination of gold, purple and green. He decreed them the official colors of the Rex Krewe. In 1892, to add legitimacy or purpose to these colors, that year’s King Rex declared that purple represented justice, green symbolized faith, and gold stood for power. These colors have dominated ever since the royal decrees.

The phenomenon of throwing beads from floats to parade goers dates back to the late 1890s. Initially, the Carnival King would throw fake rings and gems to his loyal subjects. In the 1920s, the krewes all joined in the tradition of tossing glass beads during the parades leading to the current tradition of throwing plastic beads. In 1910, some krewes threw coconuts from the floats as the glass beads that year were too expensive. Not surprisingly, the City of New Orleans has had to repeatedly excavate tons of strands of beads from its storm drains.

A Mardi Gras tradition from Europe of baking sweet treats and pastries before the period of fasting continued in New Orleans. The King Cake containing a special item hidden in the cake well pre-dated any New Orleans Mardi Gras. Indeed, that practice can be traced back to the pagan ritual of Saturnalia. Whoever found the hidden item in the cake would be king for a day.

The New Orleans twist of using a small baby figurine representing the infant Jesus from the Feast of the Three Kings in King Cakes may be more opportunistic than religious. A local New Orleans baker in the 1940s came across a surplus supply of French porcelain dollhouse figures. The baker placed a baby figurine in each King Cake paving the way for a new tradition.

As with many traditions, the origins, if they can be determined, are quite often humble or even non-sensical. A King Rex liked gold, green and purple and two decades later these colors became the unofficial, official colors of Mardi Gras. A King needs to honor his subjects so now everyone throws plastic beads (good thing that the coconuts did not catch on). A baker has a box of baby figurines and now we all hope to get the piece of King Cake with the baby.

In researching these traditions and how they evolved, the actions of the Comus Krewe stood out as a possible mediation lesson. Why would the oldest active krewe opt to render itself irrelevant rather than comply with an integration law. The bill passed in 1991, not 1891. Societal norms and perceptions changed regarding integration decades before this law had to be adopted. Certainly, the law could not come as a surprise to the Comus Krewe in 1991. Perhaps membership had dwindled so much or costs increased so much for the Comus Krewe that they welcomed the 1991 law as an excuse to call it quits. Hopefully, the Comus Krewe members did not genuinely believe integration to be so inherently bad that the self-destruction alternative was more appealing. Regardless of the reason, these actions remain squarely in the “all or nothing” camp. The Comus Krewe ended up with “nothing” rather than address the new reality.

In mediation, many participants start out in the all or nothing camp. Litigants state they will remain firm on principle. Others pledge a belief in legal arguments or summary judgment motions which cannot possibly lose in court. Still others assert that they would rather fight and exhaust all litigation avenues, including appeals, instead of settling with the adverse party. As a mediator, I am fine with these positions being advanced as they convey a seriousness or purpose, a view of case worth, or an understanding of the applicable facts and law. The challenge becomes when a mediation participant becomes stuck on such an issue and refuses to compromise regardless of counterpoints or compromises offered by the adversary.

When a party becomes so entrenched, a reminder of the plight of the Comus Krewe may assist in explaining litigation risks. Trials become all or nothing for the parties. While a large monetary award may be celebrated by a plaintiff, this same plaintiff could be unconsolable if there is a complete defense verdict. The large award would still need to be preserved through appeals. There exist no guarantees anywhere in the litigation process. Instead, trials remain “You win. You lose.” propositions.

In contrast, settlement provides certainty and guarantees the outcome. The underlying dispute ends through resolution instead of the issues being made quite public like the plight of the Comus Krewe. Most often, mediation settlements remain confidential rather than the world knowing who “won” and who “lost”. In mediation settlements, the parties can craft agreements well beyond the claims in litigation. The parties can define future conduct among themselves and not have their conduct dictated by rulings of third parties.

The Comus Krewe had ample opportunity over the course of decades to address its segregation policies and issues. By 1991, they effectively challenged the legislature to act as the Comus Krewe would not compromise. The legislature told the Comus Krewe “You Lose.” In mediation, participants and lawyers must avoid placing themselves in the role of the Comus Krewe in refusing to compromise. The alternative is an all or nothing result. Like the Comus Krewe, you may end up on the nothing side of the equation.

Movement or Flash in the Pan?

We just passed the one year anniversary of the horrific school shooting at Marjory Stoneman Douglas High School in Parkland, Florida where 17 were killed. In the immediate aftermath, the “Parkland Teens”, a group of soon-to-be activist high school students, flexed their muscle in forcing national televised forums on gun control; stormed the Florida legislature forcing debate on gun control measures; and rallied tens of thousands for March for Our Lives in Washington, D.C. where they passionately plead for reform on gun control. Unfortunately, the news today is filled with stories of those shot to death by a co-worker in Aurora, Illinois.

I wrote about the efforts of the Parkland Teens last March observing the similarities between their fledgling fight and those of Linda Brown. Linda Brown, the plaintiff in Brown v. Board of Education fame, had then recently passed away. When the lawsuit on behalf of Linda Brown was filed challenging segregation in schools, few recognized that it would become a watershed Supreme Court ruling and key component in civil rights reforms. I marveled at the efforts of the Parkland Teens and asked whether we were at a “Linda Brown” moment concerning how society addresses gun control. Or, were the Parkland Teens merely canon fodder to feed the insatiable 24 hour news channels with their movement to fade with the next catastrophe. See Children Forcing Changes article here.

Now, a year later, I look back to attempt to determine in real time whether the Parkland Teens were anything more than a flash in the pan. Editor’s Note: I always thought that the phrase “flash in the pan” originated with the California Gold Rush in the 19th century. Prospectors would become excited upon seeing something shiny in their pans only to become disappointed when it turned out to be something other than gold. Such would be a “flash in the pan”. Yet, the true origin ties into the use of flintlock muskets during the 17th century or even earlier. These muskets would have small pans to hold gunpowder charges. When the gunpowder flared up, but the musket failed to discharge a bullet, it would literally be a “flash in the pan” — promising beginning only to lead to disappointment. Back to our story. . .

Where Linda Brown sought changes through the courts, the Parkland Teens sought changes through the legislative processes. The Parkland Teens initially succeeded in convincing their home-state legislature to act on the otherwise contentious issue of gun control. The Parkland Teens appeared quite savvy in using social media and benefitted from the national media spotlight to compel the Florida legislature to do something in the aftermath of the massacre at the high school. The Republican legislative chambers passed, and a Republican governor signed into law, the Marjory Stoneman Douglas High School Public Safety Act.

After this law passed, Florida Senate President Bill Galvano noted that the direct lobbying and advocacy by the Parkland Teens was “key” to the bill’s success. He also observed as brilliant the comprehensive nature of the proposals by the Parkland Teens to address many aspects of school safety and not simply gun control. That approach made the bill more appealing to many legislators rather than narrowly focused gun control measures.

OK. The Parkland Teens succeeded in convincing Florida to begin to address the catastrophe in its own backyard while still grieving the losses. Amazingly impressive, but was Florida an isolated situation? What happened after the national spotlight became focused on other issues?

As it turns out, during 2018, twenty six states and the District of Columbia passed into law 67 bills directed at curbing gun violence. The laws ranged from addressing basic gun safety issues, mandating improved background checks, banning gun ownership by convicted domestic abusers, further regulating concealed carry, to even banning bump stocks and large-capacity magazines. These new measures were signed into law by both Democrat and Republican governors. Laws passed on the east and west coasts, in the heartland and, dare I say, even in the deep south. For context, no meaningful gun control measures were passed in any state following Sandy Hook, Columbine and other school shootings.

The Parkland Teens remained directly involved with many of these legislative efforts. State legislators credited the group with influencing, in some fashion, virtually all enactments. Allison Anderman, an attorney who assists and counsels the Parkland Teens, credits the group as “incredibly eloquent and motivated and organized.” The March for Our Lives campaign amplified their message and convinced others to follow the formula for change.

Gun ownership and gun control remain passionate issues in the United States regardless of personal views. Guns are also big business. The clout of the National Rifle Association (NRA) as a behemoth lobbying organization is undeniable. Indeed, the NRA maintains a dedicated lobbying arm and manages its own Political Action Committee. The NRA is acknowledged as one of the three largest lobbying organizations in Washington, D.C. During 2018, the NRA boasted that, by its own count, over 200 “anti-gun” bills were defeated and 7 other bills were vetoed by governors, all with the help of the NRA.

What stands out then with the Parkland Teens is the level of traction and success on various gun control efforts in the face of such staunch opposition by the NRA and similar groups. Jaclyn Corin, a founding member of the Parkland Teens and student at Marjory Stonemason Douglas High School, aptly stated: “I think we moved the needle. Not enough, but we did.”

The Parkland Teens remain active one year later. They seek to create a grassroots army of young people focused on state legislatures, city councils and school boards. They encourage young people to vote for and support candidates for these state and local offices with views and policies aligned with their own. The Parkland Teens recognize that real work gets accomplished at the local level and they witness their influence in the process at those levels.

The success of the Parkland Teens cannot be denied. Absent their efforts, there simply would not have been the new gun control laws in each of the 26 different jurisdictions. As importantly, there would not have been debate or action on such core gun control issues as ownership limits, concealed carry, and bump stocks. It may be difficult to quantify the impact of the Parkland Teens and their followers in these legislative processes, but the fact of their impact cannot be denied.

Just as it took years for Brown v. Board of Education to weave through the courts, it will take years for the strategic efforts of the Parkland Teens to fill local political offices with those who share their policy objectives. We must still wait and see if the Parkland Teens remain a dedicated, viable force for change. What we can conclude, however, is that the Parkland Teens have become established and much, much more than a flash in the pan.

We may need to check back after the next election cycle to see how the kids perform against the NRA. True democracy remains fascinating!

My wife, Kristen, is rooting for the New England Patriots to win the Super Bowl. How can that be?

One of her favorite shirts includes the saying: “My two favorite teams are the Buffalo Bills and ANYONE who beats the Patriots”. Speak of the Patriots and Kristen will lecture you about cheaters who steal signals, dig opponents’ play books out of the trash, and allegedly even bug the opposing team’s locker room. Mention Tom Brady and Kristen will recite all the details surrounding “Deflategate” before she gets into Brady’s “character” issues. Yet, Kristen is rooting for the Pats to win it all in the Super Bowl.

Does Kristen detest the Patriot’s opponent even more so than the dreaded Patriots? No. She has no real feelings one way or the other about the LA Rams. She might be hard pressed to tell you the colors of the Rams’ uniforms. She holds no strong opinions about LA itself. To Kristen, the Rams are simply “there”.

It gets better. After the Super Bowl, Kristen has all but vowed to completely give up on the NFL. Did you hear that NFL advertisers? Kristen, a fairly avid fan, plans to catch up on projects and respond to emails on Sundays next Fall rather than watch your games. Kristen, the reigning champion of her 14 team fantasy football league, would rather get her early Christmas shopping done instead of seeing the games.

What could possibly have happened to so turn upside down the universe that Kristen would actively root for Team Brady, et al. and then walk away from the sport? For Kristen, the integrity of the game (whatever integrity may have remained) was left on the field of the New Orleans Superdome with the now infamous “no calls” of pass interference and helmet to helmet hit late in the NFC Championship game between the Saints and the Rams.

As we all know, including non-sports fans, the referees missed these blatant fouls with precious little time remaining in the game to decide who would advance to the coveted Super Bowl. If called properly, little doubt exists that the Saints would have run the clock down and kicked a “chip shot” field goal to win with time expiring. Instead, to their credit, the Rams tied the game and then exited victorious in overtime. Did this football play transcend sports? Well, during the recent government shutdown, members of the House of Representatives took to the House Floor to introduce resolutions about it.

But, referees are human. They miss calls, even game changing calls. These “no calls” were not reviewable under NFL rules. Sorry Saints. But wait, little known and never invoked NFL Rule 17, Section 2, Article 3 allows the NFL Commissioner to change the outcome of a game, require the game to be replayed, or require the game to be replayed from the time and spot of the offending conduct. To uphold the integrity of the outcome of the game and provide a just result, the Commissioner would surely step in to do the right thing. Right?

Did compelling and clear evidence exist that the calls were missed? The videos confirmed that the Rams defender never even tried to make a play on the ball, but instead tackled the Saints receiver well before the ball arrived. Hmm? Was this situation simply a too close to call judgment call? Consider the statement from the Rams’ player who committed the fouls: “I put his ass on a Waffle House frying pan! It was football! If you don’t know the sport, well, then, news flash: We hit people. It’s the NFL. And, sometimes, we’d rather take a flag and hit somebody than somebody catch and score on us.” Someone needs to counsel this player about legal admissions and declarations against interest.

Ultimately, the NFL itself acknowledged the penalties after the fact. The NFL levied a $27,000 fine against the Rams’ defender for a helmet to helmet hit. Yet, these acknowledgements and a petition with about 1 million signatures demanding justice meant nothing to the NFL Commissioner. He would not invoke NFL Rule 17, Section 2, Article 3. The Rams win. Move on.

But wait, again. Disgruntled Saints fans filed a lawsuit seeking the NFL Commissioner to require a do over. Ultimately, that action did not succeed. Notably, in response for the demand for injunctive relief, the NFL CFO filed an affidavit claiming, in part, that the NFL could lose in excess of $100 million if the Rams-Saints game had to be replayed and the date of the Super Bowl then placed in jeopardy.

Ahh! There it is. The NFL asserting, in open court, under oath, that money was more important than the integrity of the games. I explained to Kristen that one factor a court considers on applications for injunctions is the economic harm which could result. However, the only message Kristen received was confirmation of the NFL’s greed as vastly superior to the quality of the product on the field. You have lost an ardent fan, NFL, not because you missed a call, but because how you handled it.

It struck me that the Rams-Saints game, and its subsequent handling, could be a teaching moment for those involved with settlement of legal disputes. As a mediator, significant effort involves identifying risks for each party and the benefits of avoiding those risks through agreed upon resolution. At length, we discuss “litigation risks”.

Simply put, litigation risks are the wild cards in proceeding to trial. Some such risks are identifiable, but not quantifiable. For instance, the demographics and socio-economics of the potential jury pool may be well understood, but the make-up of the particular jury empaneled for your case will not be known until the trial begins. Similarly, the trial judge may delay ruling on critical motions vital to claims in issue. These types of issues may be identified in advance as realistic risks of proceeding. Parties can attempt to handicap those risks and place some value on them.

The more challenging litigation risks are akin to the Saints-Rams game. These risks are unknowable or unfathomable before trial. If someone postulated these risks as hypotheticals before trial, they would be dismissed as far fetched plots from Grisham novels. But, these things happen and they happen often. Here are a few “life is stranger than fiction” examples from my career.

First, with a two month jury trial heading toward conclusion, the judge casually advised that every Sunday morning, he plays golf with three of the lawyers for the plaintiffs. The judge merely wanted to place that statement on the record as he was certain that no one had issue with social sporting events. Every evidentiary and procedural ruling having been made in favor of the plaintiffs suddenly made sense.

Second, during jury deliberations on Christmas week after a five week trial, the judge advised that he, on his own, reconsidered his jury charge and would add a new element to the claim the plaintiff had to prove. The judge brought the jury back into the courtroom, stated that he meant it when he previously advised that the jurors would be done before Christmas; re-instructed the jury (over objections) adding in a new element which no party addressed during the trial; and instructed the jury to deliberate further. Fifteen minutes later, the “deadlocked” jury returned a verdict favorable to the defendants.

Third, immediately after conclusion of a three week jury trial, a lawyer on our team received a perfumed, heart-laden note from Juror #6 inviting the lawyer out for a cup of coffee or glass of wine. It appeared that the trial was a healthy distraction for Juror #6 as she just went through a difficult separation. The lawyer would have to disclose the note to the court, the adversary, and, of course, his wife.

For the Saints fans, a missed penalty call would be a realistic potential ending to a game. To have the circumstances unfold as they actually played out would be closer to a work of fiction. To result in national attention, debate on the House Floor in Congress, and reliance on an obscure, never previously invoked NFL rule through social appeals and a lawsuit is beyond rational consideration. To have those like Kristen declare that they will no longer be fans of the NFL represent consequences never intended by the NFL powers that be. The outcome of the Saints-Rams game represents the unknowable type of litigation risk.

For litigants, having the judge change the rules after years of litigation and lengthy trial because it was Christmas week is not the result any party desired. That action guaranteed two things: a costly appeal and even more costly re-trial. Having Juror #6 show up with a bottle of wine may confirm that you connected with the jury, but not in a manner which did you any favors to preserve the outcome of the trial. These circumstances could not have been anticipated before trial, but each threatened the outcome of the trial. They are among the unknowable litigation risks.

Trials are unpredictable. That much is certain. How they will be unpredictable is the unknown and unknowable. These risks cannot be avoided and they are a challenge to quantify. This challenge does not mean they can be dismissed or avoided. Just the opposite. Parties need to understand that their cases, no matter how well prepared, will not play out as anticipated. The question becomes whether the unknown is a simple mis-step or a landmine for your entire case. If you are still not convinced, just ask the Saints. But do not bother to ask Kristen. She is no longer a fan.

Let Them Eat . . . McNuggets

Editor’s Note: This article is grounded in college football and politics. It is about neither. Followers of this blog understand that I do not take sides in politics and especially do not take sides in the religion known as college football.

The Clemson Tigers football team continued their National Championship celebration with a visit to the White House. Alas, due to the federal shutdown, a number of White House workers have been furloughed. Who would feed the dozens of these enormous young men and their equally large appetites on their visit? President Trump floated, then immediately dismissed, the notion that the First Lady and Second Lady could whip together a few salads (difficult to visualize that one!).

Fear not, the Fast Fooder in Chief devised a game plan for this football team. Trump directed his staff to provide “McDonald’s, Wendy’s and Burger King with some pizza” for the Clemson Tigers players and coaches. Complying with this charge, the White House staff broke out the good China, lit the candles on the candelabras, and set forth an array of fast food on gleaming silver trays.

Meeting with the press, standing proudly behind mounds of nicely arranged fast food containers, President Trump boasted: “We have 300 hamburgers. Many, many french fries.” As to the fare consisting of burgers, fries and pizza, Trump declared: “We have everything that I like.” As to serving fast food for an official White House event, Trump responded: “I would think it is their favorite food.” It is this last statement which got me thinking — more on that point later.

Trump then noted the unusual nature of the event had been driven by the government shutdown. Trump took the opportunity to cast blame on others for the shutdown while a White House communication noted that the President himself would personally pay for the feast. Whew! The taxpayers really dodged one on these costs. Let’s place politics to the side, talk some football, and have all enjoy tons of fast food for one evening!

But would all Clemson Tigers enjoy this smorgasbord of fast food? Meet Donna McCain, culinary professional and Executive Performance Chef of Clemson Tiger football. First, think about that. Clemson football has a full time Executive Performance Chef on its staff. A quick check of the University of Alabama website confirms that the Crimson Tide employ full time positions of Director of Performance Nutrition and two Assistant Sports Nutritionists. Is it any wonder that these programs with such resources are at the pinnacle of their sport year in and year out?

As Executive Performance Chef, McCain describes her position as half of her duties in the kitchen and the other half in educating the players. She meets regularly with players, monitors their eating habits and assists them to properly fuel their bodies. McCain conducts one on one cooking classes with the players. These classes stress the importance of nutrition and consequences of smart choices in food selection while teaching basic cooking skills. Chef McCain teaches life lessons.

McCain’s passion seeks to create a culture for the Tiger football program. McCain has become a mentor to many players who witness improvements in the weight room and on the football field which they credit to better nutrition.

Would culinary champion Donna McCain approve of the White House menu loaded with Quarter Pounders, fries and chicken strips? Probably not. Would McCain at least argue for some salad options? Probably so. But, hey, it is only one meal and part political stunt at that. McCain stresses a lifetime of good habits. Let’s face it, we all have bad diet days. We can let one meal slide.

Given culinary professionals on the staff — chefs who work to alter the perceptions about foods and stress nutritional needs — perhaps President Trump may not be correct in declaring: “I would think it is their favorite food.” Was this White House dinner an opportunity lost? Perhaps Clemson’s Chef McCain could have been consulted on the food choices. Perhaps the White House could have used its soap box to emphasize how better eating habits and better nutritional education assisted this football program in elevating player performance.

I think it is more likely that the White House suffered from what all of us do every day. We make assumptions. The White House assumed that virtually everyone, especially young people, genuinely enjoy fast food. The thought process probably did not go much beyond “get them McDonald’s, they will love it.”

A number of years ago when one of my sons was in high school, I volunteered to drive a number of players to a tournament across the state. The tournament went late and I ended up with a vehicle full of hungry, grumpy teenagers fairly late in the evening. We found an open Taco Bell and stopped for food. Each player dutifully placed an order while never even glancing up at the menu. I observed how each player knew what they wanted without consulting the menu. One responded that he has the menu memorized as he eats his dinner 3 or 4 nights a week at Taco Bell. Yum! Perhaps President Trump’s assumption was well founded. Personal note: To this day, I am proud to say that I have never eaten anything from Taco Bell.

Now past teenage years, I observe the eating habits of my sons. Apparently gone are the days of pining to stop at fast food joints. They prefer to quickly fry up some vegetables and add chicken or beef for a meal rather than make a stop for burgers and fries. Fast food is not completely gone from their diets. It appears relegated to road trips or times when no other option appears in view. Their friends appear to share the same view of deep fried cuisine. Even absent an executive chef culinary coach, the concept of better food choices is getting through to at least some in the next generation. This dynamic does not bode well for long term stockholders of McDonald’s and the like.

Yet, I think President Trump and most Americans would assume that the twenty-something crowd would cite McDonald’s, Wendy’s and Burger King among “their favorite foods.” Perhaps they don’t. As a mediator and mediation participant, I must constantly remind and caution myself not to make or rely on assumptions. The most common assumption I hear as a mediator is the refrain that the other party only wants money, and as much as they can get. It is true that monetary relief is most often the exclusive form of relief available. It is also true that the lawyer’s job as advocate is to secure the best resolution possible which means the most money. Yet, I often hear that the aggrieved party desperately desires something more than money. They may want validation of their claim. They may want an apology. They may want a promise that the opposing party will institute preventative measures so that others do not become aggrieved. They may simply want to know that they have been heard.

When assumptions start to enter the equation, the mediation participants can easily become entrenched in their positions. However, there are preventative steps the mediator and practitioner can take to avoid this pitfall. One step is to be direct. Rather than assume about an adversary’s motivation, inquire about it. Ask what is needed to get the parties closer to settlement (besides each party raising or lowering demands). In one case, a party included as part of each offer a demand that settlement funds be paid within 2 weeks. That point alone became the obstacle to resolution. With direct inquiry, all parties learned that the plaintiff cared not when settlement would be paid, but that her lawyer needed the fees from these funds within 2 weeks to meet his firm’s fiscal year end. A structure then easily fell into place to accommodate the lawyer.

Second, make inquiry of the mediator. That professional has a feel for the dynamics in each negotiating room. The mediator may be able to suggest approaches or positions which would be well received by the opposing side. While the mediator should be taking these steps already, a plain discussion may spur different ideas or approaches.

Third, caucus with just the lawyers. There may be challenges between lawyer and client such as unreasonable expectations of the client. In a private caucus with just lawyers and the mediator, one attorney may be able to disclose such difficulties with all then crafting an approach to address the situation.

Fourth, think beyond the claims in dispute. Many times, litigation or settlement positions can be driven by external factors. In business settings, perhaps a corporate transaction is behind the scenes which precludes consideration of certain points. Litigants may be addressing personal and family issues unrelated to the claims. The adversary may not be able to disclose such circumstances, but may be able to educate the other side that different factors need to be considered.

These steps, and additional tools from the the mediator’s toolbox, can assist to avoid bad consequences from assumptions. The next time you assume that everyone wants fast food or you assume that an adversary is being unreasonable, just remind yourself that Chef McCain and all her efforts may be just behind the scenes. Many times, other issues are in play and you can figure out how to use them for your benefit.