New York County Lawyers’ Association BRIDGE THE GAP: ADR, Focus on Mediation – Tips for Counselors and Advocates New York County Lawyers’ Association March 31 & April 1, 2000 Presented by Simeon H. Baum Copyright Simeon H. Baum 2007; Resolve Mediation Services, Inc. 575 Lexington Avenue, 10th floor, New York, NY 10022 (212)355-6527; fax (212) 753-0396; http://www.disputeResolve.com; email:SimeonHB@disputeResolve.com

Braveheart Clip

MUNSCH SCREAM

DISPUTE RESOLUTION SPECTRUM FIGHT LITIGATION ARBITRATION ADVISORY JURY TRIAL NEUTRAL EVALUATION EVALUATIVE (?) MEDIATION FACILITATIVE TRANSFORMATIVE NEGOTIATION ACCOMMODATION FLIGHT COERCION AFTER INITIAL INTRO – DO JUDGE/FRIEND EXERCISE INACTION/ FREEDOM

DISPUTE RESOLUTION SPECTRUM INDIVIDUAL VIOLENCE NEGOTIATION TRANSFORMATIVE MEDIATION FACILITATIVE EVALUATIVE (?) NEUTRAL EVALUATION ADVISORY JURY TRIAL ARBITRATION LITIGATION POLICE WAR SELF HELP OTHER HELP

DISPUTE RESOLUTION SPECTRUM LITIGATION ARBITRATION ADVISORY JURY TRIAL NEUTRAL EVALUATION EVALUATIVE (?) MEDIATION FACILITATIVE TRANSFORMATIVE NEGOTIATION FIGHT OR FLIGHT FORMAL INFORMAL

JUDGE/FRIEND SHOULD PROCEED THIS SLIDE. THE GREAT DIVIDE JUDGE/FRIEND SHOULD PROCEED THIS SLIDE.

SAVES PARTIES: BENEFITS OF MEDIATION TIME COST DISRUPTION ADVERSE PUBLICITY RELATIONSHIP LOSS LOSS OF CONTROL

BENEFITS OF MEDIATION (cont’d) AFFORDS PARTIES: SPEED SAVINGS IN COST & DISRUPTION TAILORED RESOLUTIONS CONFIDENTIALITY ENHANCED COMMUNICATIONS IMPROVED RELATIONSHIPS

MEDIATOR FUNCTIONS 1. CONVENE 2. HELP DEVELOP AND MAINTAIN GROUNDRULES FOR PROCESS 3. FACILITATE COMMUNICATION 4. FACILITATE NEGOTIATION 5. MODEL ACTIVE LISTENING 6. HELP IDENTIFY ISSUES 7. HELP GATHER INFORMATION 8. HELP IDENTIFY INTERESTS

MEDIATOR FUNCTIONS 1. CONVENE 2. HELP DEVELOP AND MAINTAIN GROUNDRULES FOR PROCESS 3. FACILITATE COMMUNICATION 4. FACILITATE NEGOTIATION 5. MODEL ACTIVE LISTENING 6. HELP IDENTIFY ISSUES 7. HELP GATHER INFORMATION 8. HELP IDENTIFY INTERESTS

MEDIATOR FUNCTIONS (cont’d) 9. HELP SET AGENDA 10. FACILITATE GENERATION OF OPTIONS; BRAINSTORM, LOOK TO CREATE VALUE 11. CAUCUS 12. ASSIST IN NEGOTIATION STRATEGY 13. SHUTTLE DIPLOMACY 14. REALITY CHECK (On Positions, Options, Alternatives) 15. FOCUS SETTLEMENT DISCUSSIONS (where driven by parties) 16. CLARIFY AGREEMENT

MEDIATOR FUNCTIONS (cont’d) 9. HELP SET AGENDA 10. FACILITATE GENERATION OF OPTIONS; BRAINSTORM, LOOK TO CREATE VALUE 11. CAUCUS 12. ASSIST IN NEGOTIATION STRATEGY 13. SHUTTLE DIPLOMACY 14. REALITY CHECK (On Positions, Options, Alternatives) 15. FOCUS SETTLEMENT DISCUSSIONS (where driven by parties) 16. CLARIFY AGREEMENT

FISHER/URY MODEL OF COOPERATIVE NEGOTIATION 1. SEPARATE PEOPLE FROM PROBLEM 2. FOCUS ON INTERESTS, NOT POSITIONS 3. DEVELOP OPTIONS FOR MUTUAL GAIN 4. APPLY STANDARDS 5. CONSIDER “BATNA”, “WATNA”, “MLATNA” (BEST, WORST AND MOST LIKELY ALTERNATIVES TO A NEGOTIATED AGREEMENT) (Derived from Fisher, R., URY, W., AND Patton, B. Getting to Yes – Negotiating Agreement Without Giving In. Penguin Books (2nd ed. 1991)

FISHER/URY MODEL OF COOPERATIVE NEGOTIATION 1. SEPARATE PEOPLE FROM PROBLEM 2. FOCUS ON INTERESTS, NOT POSITIONS 3. DEVELOP OPTIONS FOR MUTUAL GAIN 4. APPLY STANDARDS 5. CONSIDER “BATNA”, “WATNA”, “MLATNA” (BEST, WORST AND MOST LIKELY ALTERNATIVES TO A NEGOTIATED AGREEMENT) (Derived from Fisher, R., URY, W., AND Patton, B. Getting to Yes – Negotiating Agreement Without Giving In. Penguin Books (2nd ed. 1991)

URY TECHNIQUES FOR COOPERATIVE NEGOTIATIONS (IRIMINAGE) 1. GO TO THE BALCONY (DETACH) 2. STEP TO THEIR SIDE 3. REFRAME 4. BUILD A GOLDEN BRIDGE 5. USE POWER TO EDUCATE Derived from: Ury, W. (1991). Getting Past No: Negotiating Your Way From Confrontation to Cooperation. New York, Bantam Books. Aikido images of Iriminage taken from ………)

URY TECHNIQUES FOR COOPERATIVE NEGOTIATIONS (IRIMINAGE) 1. GO TO THE BALCONY (DETACH) 2. STEP TO THEIR SIDE 3. REFRAME 4. BUILD A GOLDEN BRIDGE 5. USE POWER TO EDUCATE Katatedori Iriminage: Demonstrated by Morihiro Saito, 9th dan. Taken from the Aiki New book: Takemusu Aikido Special Edition

TEN THINGS NOT TO DO IN MEDIATION 1. Tell Party she is a liar. 2. Give up. 3. Stay on $ only, missing integrative possibilities. 4. Gag the client. 5. Balk at emotion.

TEN THINGS NOT TO DO IN MEDATION 1. Tell Party she is a liar. 2. Give up. 3. Stay on $ only, missing integrative possibilities. 4. Gag the client. 5. Balk at emotion.

TEN THINGS NOT TO DO IN MEDIATION 6. Misread late high/low demand/offer. 7. Do not have person with authority. 8. Do not anticipate need of other party for information. 9. Give ultimatum. 10. Misunderstand role of mediator.

TEN THINGS NOT TO DO IN MEDIATION 6. Misread late high/low demand/offer. 7. Do not have person with authority. 8. Do not anticipate need of other party for information. 9. Give ultimatum. 10. Misunderstand role of mediator

Morat Scenario You represent Sasha Baron Levy, Producer and star of the movie Moreat. Levy, along with 21st Century Wolf, One World Productions, Everyboy Pictures, and Silver/Butcher Productions, has just been sued in state court in Tennessee by three out of four college students from Tennessee State College, who made certain ill-considered remarks when they appeared in Mr. Levy's movie in a drunken state. Although all four had signed releases, their attorney, Mr. Larry Olivier, is claiming that they were defrauded into signing the releases and that the movie makes them appear in a false light. They are demanding $200 million in damages.

Levy views this lawsuit as a typical American "lawsuit without any basis" and vows to defend it as a matter of principal. Although he admits that the students were inebriated at the time they signed the releases, he says that no one forced them to drink and that the releases were signed voluntarily. All of the students were under 21 at the time, however, and under Tennessee law such releases are voidable, particularly if the beneficiary of the release is a Yankee or a foreigner. Moreover, there is real concern that the Tennessee judge may enjoin further showings of the film which is currently at the peak of its profitability. On the other hand, the students were given a copy of the tape just after it was made (exactly 12 ½ months ago) and under Tennessee law claims for false light must be brought within one year of when the plaintiffs knew or should have known of the claims.

On your advice, and the advice of his agent, I. M On your advice, and the advice of his agent, I. M. Greedy, Levy has reluctantly agreed to mediate before the august mediator, Solomon T. King. Adapted from role play and questions developed by Rona Shamoon (of Skadden Arps) & Simeon H. Baum (www.mediators.com) for NY State Bar Association, ADR Committee presentation on How to Be an Effective Representative at Mediation, at NYSBA Annual Meeting, held in NYC, January 25, 2007.

ATTORNEY ROLE IN MEDIATION Process Guide Mediator Selection Case Analysis; BATNA Analysis Pre-Mediation Communications with Mediator The Written Submission Bringing the Right Parties to the Table Bringing Necessary Information to the Table Roadblock Anticipation & Strategies Opening Statement

ATTORNEY ROLE IN MEDIATION Process Guide Mediator Selection Case Analysis; BATNA Analysis Pre-Mediation Communications with Mediator The Written Submission Bringing the Right Parties to the Table Bringing Necessary Information to the Table Roadblock Anticipation & Strategies Opening Statement

ATTORNEY ROLE IN MEDIATION (cont’d) 11. Organized Presentation of Information 12. Guardian & Guide 13. Communicating Risks & Possibilities 14. Assisting in Communications 15. Negotiation Consultant 16. Brainstormer; Option Generator 17. Crafting Settlements Copyright Simeon H. Baum 2005; Resolve Mediation Services, Inc. 575 Lexington Avenue, 10th Floor, New York, NY 10022 (212)355-6527; fax (212) 753-0396; http://www.disputeResolve.com; email:SimeonHB@disputeResolve.com

ATTORNEY ROLE IN MEDIATION (cont’d) 11. Organized Presentation of Information 12. Guardian & Guide 13. Communicating Risks & Possibilities 14. Assisting in Communications 15. Negotiation Consultant 16. Brainstormer; Option Generator 17. Crafting Settlements Copyright Simeon H. Baum 2005; Resolve Mediation Services, Inc. 575 Lexington Avenue, 10TH floor, New York, NY 10022 (212)355-6527; fax (212) 753-0396; http://www.disputeResolve.com; email:SimeonHB@disputeResolve.com

SOME ETHICAL ISSUES PRIOR RELATIONSHIP WHITE LIE TO EFFECT SETTLEMENT? TRUTH IN ADVERTISING TASTE IN ADVERTISING CONTINGENT FEE KNOWLEDGE OF ATTORNEY MISCONDUCT KNOWLEDGE OF ATTORNEY INCOMPETENCE

SOME ETHICAL ISSUES PRIOR RELATIONSHIP WHITE LIE TO EFFECT SETTLEMENT? TRUTH IN ADVERTISING TASTE IN ADVERTISING CONTINGENT FEE KNOWLEDGE OF ATTORNEY MISCONDUCT KNOWLEDGE OF ATTORNEY INCOMPETENCE

SOME ETHICAL ISSUES (cont’d) KNOWLEDGE OF PARTY OR COUNSEL ABUSE OF PROCESS: e.g., MEDIATION AS FISHING EXPEDITION KNOWLEDGE THAT A PARTY HAS LIED TO OTHER PARTY CONTROLLING THE OFFER STREAM? PARTY THREATS OF CRIMINAL CONDUCT PARTY PRESENT AND CONTINUING CRIMINAL CONDUCT

SOME ETHICAL ISSUES (cont’d) KNOWLEDGE OF PARTY OR COUNSEL ABUSE OF PROCESS: e.g., MEDIATION AS FISHING EXPEDITION KNOWLEDGE THAT A PARTY HAS LIED TO OTHER PARTY CONTROLLING THE OFFER STREAM? PARTY THREATS OF CRIMINAL CONDUCT PARTY PRESENT AND CONTINUING CRIMINAL CONDUCT

SOME ETHICAL ISSUES (cont’d) PAST, UNDISCOVERED CRIMINAL CONDUCT PARTY POSSESSION OF WEAPON GIVING PRIVATE LEGAL ADVICE TO A PARTY, TO FURTHER SETTLEMENT PROCESS GIVING PRIVATE LEGAL ADVICE TO A PARTY ON LITIGATION STRATEGY GIVING LEGAL ADVICE TO PARTIES JOINTLY PRIVATE CALLS FROM PARTY WHO IS REPRESENTED BY COUNSEL

SOME ETHICAL ISSUES (cont’d) PAST, UNDISCOVERED CRIMINAL CONDUCT PARTY POSSESSION OF WEAPON GIVING PRIVATE LEGAL ADVICE TO A PARTY, TO FURTHER SETTLEMENT PROCESS GIVING PRIVATE LEGAL ADVICE TO A PARTY ON LITIGATION STRATEGY GIVING LEGAL ADVICE TO PARTIES JOINTLY PRIVATE CALLS FROM PARTY WHO IS REPRESENTED BY COUNSEL

SOME ETHICAL ISSUES (cont’d) SUBPOENA CONCERNING MEDIATION; BY PARTY TO MEDIATION; BY BOTH PARTIES TO MEDIATION; BY THIRD PARTY LEARN OF CHILD OR SPOUSAL ABUSE HELP THE WEAKER ADVOCATE? HELP THE WEAKER PARTY? KNOWLEDGE THAT PARTIES ARE NOT CONSIDERING EVERYTHING THAT WILL AFFECT THEM IN THEIR SETTLEMENT

SOME ETHICAL ISSUES (cont’d) SUBPOENA CONCERNING MEDIATION; BY PARTY TO MEDIATION; BY BOTH PARTIES TO MEDIATION; BY THIRD PARTY LEARN OF CHILD OR SPOUSAL ABUSE HELP THE WEAKER ADVOCATE? HELP THE WEAKER PARTY? KNOWLEDGE THAT PARTIES ARE NOT CONSIDERING EVERYTHING THAT WILL AFFECT THEM IN THEIR SETTLEMENT

SOME ETHICAL ISSUES (cont’d) 24. LEGAL ADVICE TO PARTIES TO HELP THEM EFFECT THEIR SETTLEMENT AGREEMENT? 25. TELL THE PARTIES THE PROCEDURAL ROPES, THE SCOOP ON A JUDGE? FOREGO OPENING AND JOINT SESSION, AND GO STRAIGHT TO CAUCUS AS A RESULT OF: TIME PRESSURE; PARTY PRESSURE? SHIFT FROM MEDIATING FOR UNREPRESENTED PARTIES TO REPRESENTING THEM

SOME ETHICAL ISSUES (cont’d) 24. LEGAL ADVICE TO PARTIES TO HELP THEM EFFECT THEIR SETTLEMENT AGREEMENT? 25. TELL THE PARTIES THE PROCEDURAL ROPES, THE SCOOP ON A JUDGE? FOREGO OPENING AND JOINT SESSION, AND GO STRAIGHT TO CAUCUS AS A RESULT OF: TIME PRESSURE; PARTY PRESSURE? SHIFT FROM MEDIATING FOR UNREPRESENTED PARTIES TO REPRESENTING THEM

SOME ETHICAL ISSUES (cont’d) REPRESENT A PARTY TO A MEDIATION IN: THE SAME MATTER; A SUBSEQUENT UNRELATED MATTER AGAINST THE OTHER PARTY; A SUBSEQUENT UNRELATED MATTER AGAINST A NON-PARTY? REPRESENT A NON-PARTY IN A SUBSEQUENT MATTER AGAINST A PARTY TO THE MEDIATION? SPLIT A MEDIATION FEE WITH A NON-ATTORNEY CO-MEDIATOR? TERMINATION OF THE MEDIATOR BY THE ONE OR MORE OF PARTIES

SOME ETHICAL ISSUES (cont’d) REPRESENT A PARTY TO A MEDIATION IN: THE SAME MATTER; A SUBSEQUENT UNRELATED MATTER AGAINST THE OTHER PARTY; A SUBSEQUENT UNRELATED MATTER AGAINST A NON-PARTY? REPRESENT A NON-PARTY IN A SUBSEQUENT MATTER AGAINST A PARTY TO THE MEDIATION? SPLIT A MEDIATION FEE WITH A NON-ATTORNEY CO-MEDIATOR? TERMINATION OF THE MEDIATOR BY THE ONE OR MORE OF PARTIES

SOME ETHICAL ISSUES (cont’d) ROMANTIC INVOLVEMENT WITH A PARTY; COUNSEL GIVING REALITY FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT GIVING LEGAL FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT TELLING ONE PARTY SOMETHING LEARNED FROM OTHER PARTY IN CONFIDENCE SUGGESTING RESOLUTION

SOME ETHICAL ISSUES (cont’d) ROMANTIC INVOLVEMENT WITH A PARTY; COUNSEL GIVING REALITY FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT GIVING LEGAL FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT TELLING ONE PARTY SOMETHING LEARNED FROM OTHER PARTY IN CONFIDENCE SUGGESTING RESOLUTION

SOME ETHICAL ISSUES (cont’d) PARTY BACKS OUT OF OFFER; DENIES MAKING OFFER THAT YOU KNOW WAS MADE PRESSURE FROM COURT (purely hypothetical): TO SETTLE; FOR INFORMATION Ethical Issues Derived in part from Institute for Conflict Management, Inc. training materials; and from Robert A. Baruch, Ethical Dilemmas, In Golann, D. (1996). Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators. Aspen Law and Buisness.

SOME ETHICAL ISSUES (cont’d) PARTY BACKS OUT OF OFFER; DENIES MAKING OFFER THAT YOU KNOW WAS MADE PRESSURE FROM COURT (purely hypothetical): TO SETTLE; FOR INFORMATION Ethical Issues Derived in part from Institute for Conflict Management, Inc. training materials; and from Robert A. Baruch, Ethical Dilemmas, In Golann, D. (1996). Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators. Aspen Law and Buisness.