Mediation Video Processing

What were the key factors that made this particular mediation successful? Decision-makers of the opposing companies were present and in control After hostilities were expressed, the parties were open to moving from focusing on legal issues to long-term business interests

What were the key factors that made this particular mediation successful? The timing of the mediation was just right. The parties chose a competent and skilled Mediator

What were the key factors that made this particular mediation successful? The Mediator was able to handle effectively the parties’ cultural differences The Mediator inspired trust, assured the parties of his confidence, and insisted on a positive approach The Mediator’s questions were appropriate and elicited the appropriate information

What were the key factors that made this particular mediation successful? The neutrality of the Mediator and of the process was never in serious question Confidences were always respected Impasses were broken with skill

What were the key factors that made this particular mediation successful? The parties were able to decide upon priorities based on their business interests, and those priorities were accurately understood by their counsel, the mediator and their counterparties. The Mediator skillfully handled emotional outbursts “Reality testing” was effectively applied by the Mediator to both parties in a timely way

What were the key factors that made this particular mediation successful? “Prioritizing” was effectively applied by the Mediator to both parties in a timely way The Mediator led both attorneys in the beginning from a confronting attitude to a more understanding attitude The Mediator attempted to focus on the business issues as opposed to the legal positions of the parties

What were the key factors that made this particular mediation successful? The Mediator suggested options as hypothetical ideas, without attribution or endorsement The parties were able to recognize, and were willing to consider, ideas that might add value to them – even if they also added value to their counterparty Post-mediation steps were clearly defined and agreed upon

Is there an optimal time in a dispute to propose mediation? If so, is it at the same point in every dispute? Benefits of Early Use Benefits of Later Use When sufficient facts are available to permit both parties to negotiate intelligently; when direct negotiations have come to impasses; and when both parties want to resolve the case.

What issues are typically addressed before the mediation? Mediator Background and Credentials Conflicts of interest Scheduling of Mediation Mediator’s Retainer Agreement Selection of appropriate representatives Pre-mediation Submissions

How does the Mediator open the process and what are the goals of the opening? Introduction of all parties and their capacities Goal: Reach a mutually satisfactory solution crafted by the parties themselves Mediator’s neutrality and role Verify the authority of parties Explain: the procedures to be used including joint and private sessions the Mediator’s expectation confidentiality Ask participants if they have any questions about the process.

What does the assurance of confidentiality add to the process?

How did the mediator make sure that each party understood the positions of the other party? Is that technique always applicable?

How does the Mediator deal with emotional outbursts? "I very well understand that you are upset. I understand the feelings are running high. So I propose that we adjourn into a private session"

What goals does the Mediator pursue in the initial private sessions to advance the search for a solution? Eliciting parties’ concerns and interests Determining priorities Building Trust “Yes… I understand… I know… I see….” Clarifying Details

What techniques does the Mediator employ in the initial joint sessions? Open-ended questions to the business representative "What do I need to know to understand this matter?" "What did you hope to get out of this course of action?" "What is your goal in this mediation?“ Follow-up Questions Active Listening, Summarization, Reframing, Prioritization, Shelving, Confirmation

Active Listening “Yes I clearly understand, you know? But I need to know more. I mean, what are your real interests in Russia? Why do you now do the big launch?”

Summarization : "If I understood right, you have the luxury Zenitskaya,the super-premium Spartakskaya and you have the premium Dynamoskaya…” List of major issues

Reframing “If they still launch KYK HIGH OCTANE in Russia we will keep and fight for this PICO BELLO OCTAVE to the end!” "Ah, OK, so you would be happy with HIGH OCTANE as long as you are doing the distribution?"

Shelving Confirmation

What are some common mistakes that Mediators might make in the initial joint sessions? Which of these did the Powerbrands Mediator avoid? Failure to actively involve the business participant Focusing on positions rather than interests Use of confrontational questions before trust and rapport have developed Allowing attorneys to dominate responses

What is “reality testing” and how is it used? Realistic view of positions and expectations Confronting a party with objective principles or standards that may be applicable “What do you think if you encounter difficulties with the Russian Government, which is a co-owner of Wonderbrandski, on your distribution channels?” Inquiring about the uncertainty of litigation “What if they succeed with the trademark infringement? What happens?” Inquiring on the consequences of failing to resolve the dispute

What goals and techniques does the Mediator use in later joint sessions? Encouraged consideration of alternative solutions: Generated solutions, hypothetical proposals

How does the mediation conclude?

What roles did the lawyers play in the mediation, and did those roles change during the process? Counsellor Conciliatory Advocate Negotiation Strategist Protector Generator of Value: “But is there something else we might be able to do that we can give them [Wonderbrandski] in value?” Confidential Mirror

The mediation was conducted on neutral ground with a Mediator. What are the implications of this?

Situations where mediation may be unlikely to provide a successful resolution of a conflict Where one party’s top priority is to create a legally binding precedent applicable to disputes; Where one party’s top priority is to create a deterrent effect, to send a signal to other potential disputants Where one of the parties cannot, under any circumstances, be trusted by the other party to respect the terms of a settlement;

Situations where mediation may be unlikely to provide a successful resolution of a conflict Where the particular conflict is one of a series of actions, all of which are inter-connected in such a way as to require resolution of the global set rather than each individual claim; Where there are criminal, quasi-criminal, or public policy aspects to the claim at issue, or where punitive or exemplary damages might be recovered at trial.

Acknowledgement International Trademark Association