When I was first married I had zero money and a new little family to support. So I did what
we all do. I looked around for a good paying job that could help me get through school.
I’d done construction before and knew it paid well. So I found a brick mason looking for a
hod carrier (or “hoddy”). I didn’t know much about carrying hod, but I thought it would pay the
bills. So I signed up.
My first day wasn’t glamorous. My job consisted of keeping the mason supplied in bricks
and mortar. I did whatever he needed so he could just keep laying bricks. I huffed, I puffed, and
I hustled. He paid me four cents a brick and by the end of the day I had made exactly $16.00.
He apologized to me and said the next day would be better. But by the end of the second day
I had only made another $16.00.
I quickly saw this was going nowhere, so after two and half days I ended my brief career as a
I learned some important lessons from that job (and others like it). My employers didn’t hire
me for my brains. They weren’t looking for me to solve problems or come up with creative
ideas. They didn’t need a new way to do things. Instead, they were only looking for someone to
do the heavy lifting carrying things back and forth – and they took responsibility for all of the
forward planning, all of the evaluations and all of the strategy. They only wanted me for
unthinking muscle. What they really wanted was a machine that moved quickly, kept up, and
quietly did their bidding.
No surprise here, but carrying hod is a completely different world than serving as an
architect. An architect is like the conductor of a symphony. An architect relies on skill, training
and a sense of vision to carefully organize a thousand – maybe ten thousand – different variables
into a single cohesive, successful outcome. Hire a poor architect and you get a poor result. Hire
a great architect and you’ve taken a major step towards a successful project.
What’s the difference? A hod carrier needs no skill or training – only willingness and a
degree of tenacity. But a successful architect needs not only tenacity but a highly developed set
of skills, training, education and talent.
Some parties seem to want a mediator that primarily presents offers between parties and makes
demands on the other side. To be sure, a good mediator must be able to skillfully present offers.
But frequently there are considerations other than money that might make or break a mediation.
I used to believe that mediations are driven mostly by two main considerations: risk and cost.
But now I know that many – perhaps most – mediations are driven by three factors: risk, cost
and emotion (or principle). Some parties just don’t want to settle if they think the other side is
getting too much – even if they themselves are getting enough. Other parties want respect,
validation or acknowledgment before they are willing to settle.
These “soft” considerations are real, and they can absolutely determine whether or not a mediation fails or succeeds. Discover the parties’ values and views on these “soft” considerations and you may be able to effectively address unspoken considerations that might otherwise derail a mediation.
A perceptive mediator will fully explore all of these “soft” considerations as necessary, and then address them in a way that makes sense in the circumstances. As a practical matter, this sometimes requires a successful mediator to come up with a settlement package that may be different than the Parties expect. Parties and their counsel often disclose their true values or “soft” considerations to a mediator in ways they would never consider disclosing to the other side. This places the mediator in a unique position to be able to craft a tailored resolution that can match the parties’ values. A mediator serving merely as a “hod carrier” in exchanging demands and offers between the parties may never reach this point. But a mediator serving as an “architect” will frequently be able to come up with a solution that may not have been previously considered.
The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.
Robert B. Jacobs is an attorney, mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at Bob7@RBJLaw.com.