MEDIATION why what how when where who

MEDIATION why what how when where who

Mervyn Malamed breaks it down.

Mervyn comprehensively unpacks the whys and wherefores – not to mention the who, what, how, when and where of Mediation.

Why Mediation? There’s basically no real downside, minimal risk, and the upside of course, is acceptable settlement.

Mediation is voluntarily – anyone can opt out at any time for any reason, or for no reason at all.

It is non-binding: you don’t form agreements unless you want to (and you can always fall back on litigation or arbitration).

Being informal, Mediation preserves relationships and avoids bad publicity. Discussions can be as free as the parties would like them to be – no content can be used as evidence at a later stage.

Unlike arbitration, the disputants control the outcome – not a third party.

A Mediator is a catalyst for a collaborative approach to brainstorm and ultimately generate creative solutions.

What is revealed and ‘put on the table’ by the parties is like the visible caps of an iceberg. The underlying interests are below the water – to be explored and discovered as common ground, shared interests, and ‘trade-ables’.

The Mediator receives information privately where concerns, weaknesses, strengths, and underlying interests are disclosed. These confidentialities are not available to the other side but do provide the Mediator with a big picture overview. Fresh eyes identify commonalities, the endgame being to activate thinking and creativity, leaving no value on the table.

The cost is minimal and the disputants will have structured a bespoke solution.

Mediators are objective professionals – not only independent and neutral but perceived to be neutral. They facilitate face to face caucusing: private sessions where each party can discuss their issues in confidence. The effectiveness of Mediation depends on frankness: the needs, fears, underlying interests, reservations, bottom lines and options of each party must become known to the Mediator.

Nothing gets ‘heard’ by the other party without explicit permission: each party can ‘lay everything on the table’ freely and openly discuss necessities, negotiables, restrictions, or desirables.

The Mediator accesses the ‘agenda’ of both sides from an impartial standpoint, reframing matters within the big picture with the needs and interests of both parties in mind.

The Mediator will propose “what ifs” to reality test assumptions; delving into issues to find ways of bringing the parties together. Settlement is usually the culmination of several small trades and concessions all wrapped up in a final agreement.

So you have a conflict crisis. When is the right time to call in a Mediator? As soon as possible after negotiations fail. Mediation rather than legal action should be the next step – the quickest and less costly choice. The minute the first shot is fired you’ve entered the ‘Zone of Escalation’ where the conflict takes on a life of its own and intensifies escalates the original dispute, becoming more difficult to control or budget for. Conflict that is complicated by multiple issues triggers further wastes of time, distraction, and expenditure.

Mediation is increasingly being done online through sophisticated and secure video conferencing resources. Getting all parties, possibly their attorneys, and a Mediator together in one place at the same time is challenging and potentially expensive. It is being referred to as the “convening penalty”.

Online Mediation functions in much the same way as ‘live’ Mediation, except that the parties can be scattered across the globe. There is synchronous online Mediation where all parties are present simultaneously. There is also asynchronous online Mediation – where participants can clock in at times that work for them. It can, and usually is, a combination of the two, together with other communications that suit the situation, like email or the telephone. This provides the disputants with a host of options to make the experience as efficient and cost-effective as possible.

The Mediator should be highly trained with a good grounding in dispute settlement, conflict theory and conflict management – with plenty ‘street-smarts’. With years of experience in business, and subsequent training, I have just that. Together with my post-grad Dispute Settlement studies from Stellenbosch University, South Africa, I am an accredited CEDR Mediator (Center for Effective Dispute Resolution, London), qualified to conduct psychometric testing of conflict behavior, a certified trainer of several top conflict management training courses, and have also created my own comprehensive training course. My work aims to save people time, stress, and money.

My real success is in settling matters collaboratively through Mediation.



Mediation has a track record of being successful in well over 75% of cases: it is informal and voluntary, confidential, without prejudice and non-binding.

Mediation is voluntary.

Anyone (including the mediator) may opt out at any time for any reason, or for no reason at all.

Mediation is confidential.

This prevents bad publicity and rumour mongering.

Mediation is ‘without prejudice’.

Anything discussed cannot be used in court proceedings or in arbitration. Your mediator will not testify in court. In fact all notes are destroyed after the process is completed, allowing for discussions to be as free and open as the parties would like them to be.

Mediation is non-binding. The option of resorting to litigation or arbitration remains if no agreement is reached in Mediation. Mediation is increasingly being encouraged by the courts. Indeed, failure to attempt mediation is often frowned upon and in some jurisdictions, penalties in the form of costs-awards are denied.

“Settled on the courtroom steps” is not just an expression. Over 90% of litigated matters get resolved before trial. Mediation circumvents all sorts of costs suffered in such cases – like time, stress, productivity, focus, money and even strain on families.

Mediation costs a fraction of legal action. So the downside of attempting a mediated settlement is low, and the upside of course, is an acceptable settlement agreement. “An ounce of mediation is worth a pound of arbitration and a ton of litigation!”

Joseph Grynbaum, Mediation Resolution International, LLC




Mervyn Malamed, a veteran of the Jewelry Industry, now highly accredited in a second career resolving conflicts through Mediation in the Jewelry Industry.

Mervyn started his career at the bench in 1971.

He is an award winning designer and Goldsmith that founded, and built a jewelry manufacturing and wholesaling company that served over a five hundred stores across the US.

Until 1987, he was an active as a Member of the American Gem Society, the 24kt Club, and served on the Board of the Jewelry Circle of the City of Hope; an organization that “is dedicated to making a difference in the lives of people with cancer, diabetes and other serious illnesses”.

Mervyn is also an agitator for fairness which led to his serving as Vice President of the Jewelry Manufacturers Guild for two terms during which time his views were quoted in all of the Jewelry Industry publications, and even in the Washington Post.

He has studied gemology at the De Beers laboratory and qualified as Diamond Grader from the Gemological Institute of America.

He is passionate about ‘giving back’ to the industry by instigating the exponential effects that Conflict Resolution generates. His mantra…

“When you help one person to resolve a conflict, the experience extends to others like family, friends, and colleagues. That can take on a life of its own and spread more than we realize. What a great way to make the word a slightly better place!”

Mervyn is an Accredited CEDR [Centre for Effective Dispute Resolution, London] Mediator – considered to be the international gold standard. He is also a Certified Trainer of several Conflict Management Courses including Conflict Dynamics, Florida’s ‘Becoming Conflict Competent’ and Mediation Training International, Kansas’ ‘Succesful Conflict Conversations’.

“I developed an understanding of the costs associated with the resolution of disputes in the Jewelry Industry through my own outdated and destructive conflict handling.”

The post grad [PG. Dip Dispute Settlement] launch of my second career some years ago has included the creation of my own comprehensive training course, infused with a good dose of ‘street-smarts’.

My work involves Alternate Dispute Resolution and is structured to save people time, stress, and money.”

“Conflict is as natural for people as it is for animals. As long as territory, food, mates, and in the case of humans, money, is limited, there’s conflict.”

Steve Tobak CBS Television: Money Watch




For Mediation to deliver, it has to be cost effective for jewelry disputes. For that reason [and others] Mediation is increasingly being done online through sophisticated and secure video conferencing resources.

Getting all parties, possibly their attorneys, and a Mediator together in one place at the same time for a day or three is challenging and expensive – particularly when a dispute is interstate, international, or even intercity.

Online Mediation may function in much the same way as ‘live’ Mediation does. All parties are online at the same time watching and listening to others’ talking, or speaking themselves. Or one of the parties may be placed on hold by the Mediator [only] while a private discussion is held with the other.

Everyone is ‘in session’ at the same time. This is synchronous online Mediation.

Online Mediation can also be asynchronous where participants can engage at times that work for them. It can, and usually is, a combination of the two.

Asynchronous Online Mediation strengthens the efficiency prospects of Online Mediation in general, and has other advantages that contribute to a successful outcome.

Disputants don’t have to be ‘in the same room’ as a counterpart if they are so uncomfortable that progress is compromised.

Differing time zones become less of a factor.

Private dialog with the Mediator can take place without the counterpart’s needing to wait around kicking their heels until that caucusing is finished.

It gives the Mediator time to think about, or consult with peers on the best course of action [while maintaining anonymity of the parties]

There is time for parties to improve the prospects of a win-win outcome.

For example:

  • Prepare responses with due consideration.
  • Reflect on the matter.
  • Seek advice.
  • Do the homework necessary to ‘reality check’ like finding out exactly what it might cost to litigate.
  • Properly consider the ‘Best Alternative to a Negotiated Agreement’ – or BATNA. Online is the best place for Jewelry Industry Mediation to take place.




As early as possible!

After negotiation and before the first shot is fired!

Mediation should follow right after discussions, statements of positions, and failure to reach agreement.

Before the ‘Conflict Escalation Spiral’ starts.

The vast majority of litigated disputes are settled after costs of all sorts have been incurred. These may include time, disruption, money, and stress that often extends to personal life.

Once escalation starts, often with a lawyer’s letter, it takes on a life of its own in a tit-for-tat game that frequently changes focus from the original dispute, and produces new arguments.

Those ‘second tier’ quarrels generate further escalation that triggers yet more “investment” in terms of time, distraction, and expenditure.

So, if discussions and negotiations fail, Mediation, rather than legal action should be considered as the next step.

If these ‘second tier’ quarrels generate further escalation.

Conflict that becomes complicated by multiple issues triggers even more waste in terms of time, distraction, and expenditure.

It’s not easy to convince your opponent to enter Mediation.

Getting an angry counterpart to agree to Mediation is often a challenge. Information about this valuable resource is the best tool to raise awareness and prevent ‘lose/lose’ outcomes.

Useful information for your counterpart:

Most people have misconceptions of what Mediation really is.

Many understand it to be what Arbitration is – an adjudicative process in which disputants relinquish control over how settlement is reached.

Most people are unaware that Mediation is confidential, informal, and without prejudice. Most significantly, it is essentially a no-risk attempt at fast and cheap settlement that is successful in over 75% of cases – without relinquishing the option of litigation or arbitration if no agreement is reached.

Lawyers are sometimes up to speed, but certainly not in most cases. And sadly, adversarial methods are generally a first step rather than the final step.

A common fallacy is that Mediation is risky because it means revealing weaknesses, strategy, and tactics to the other side. That is just not true. It is the Mediator that needs sensitive information – which is done in private – to find settlement opportunities. (That is why Mediation works when negotiation fails.)

Mediators are privileged and bound by confidentiality and therefore parties are free to proceed to litigation or arbitration without having exposed delicate resources to the other side. Mediation should always be pursued immediately after negotiation and never considered a show of weakness.

“Successful solutions are based on the powerful principle that resolution occurs by fostering the positive, not by attacking the negative… One basic principle has the power to resolve problems: Support the solution instead of attacking the suppose causes.”

David Hawkins, from his book Power Vs. Force.