The Added Value a Commercial Mediation Gives to the Resolution of a Money Dispute Singapore Management University School of Law Geoff Sharp, Commercial Mediator

Good Commercial Mediators…  Settle 80%+ of their cases  Respect and protect the positions of all participants  Do not interfere with the trial process … and somehow manage to help settle cases without leaving a bad taste in anyone’s mouth

Mediating the Litigated Case (Money Mediations) 1.Facilitate the flow of information 2.Facilitate case analysis (risk) 3.Facilitate movement by helping parties to;  Value the case  Move to best numbers  Close the gap

PlaintiffDefendant $600,000$12,500 (punishes plaintiff for outrageous start) $588,000 (reflects movement) $15,000 $585,000“We’re outta here” Emotional level is going up Anatomy of a Positional Impasse

A mediator adds value by countering such barriers to success as…  Reactive devaluation  Parties who mistake a small part of the ‘truth’ for the whole  Bias in its many forms

Money & Non Money A wins B wins Compromise

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The New Lawyer : how settlement is transforming the practice of law The combination of the decline of the full trial with the development of new processes (many of them mandatory) to facilitate dialogue about settlement has changed the environment within which civil litigation occurs. While the impact of these changes is greatest on civil litigators, it also reflects a new attitude toward the use of public adjudication - one that no longer assumes that this is the default dispute resolution. *Julie Macfarlane, UVic Institute for Dispute Resolution

Good Mediation Advocates… 1.are great openers 2.shine in joint session 3.listen & question more than just to rebut 4.are brave holistic advisers 5.do the money thing well

9.00am Pre mediation caucus on the day with each of the parties 9.30am Mediator’s opening comments in joint 9.45am High level party openings in joint - lawyer and client combo - this often turns into an early interactive session 10.30am Identification of a sensible approach to the discussion (what I call the architecture of the day) 10.45am In depth discussion in joint 1.00pm Separate for lunch but with the mediator getting a ‘heads up’ from each group privately over the break and, in a multi party mediation, encouraging any natural (or empathy) groupings to connect Open Understand and Explore

3.00pm Craft proposals in private but importantly deliver in joint – talking to the science and merit of each proposal, often on the whiteboard 3.30pm Repeat (once, perhaps twice) 4.00pm By now we have communicated best numbers and the mediator’s role is to assist to close the gap, often moving off the science/merits. This can efficiently begin by shuttle but can often end with a joint meeting of a strategic mix of participants (just the mediator and decision makers, just the mediator and lawyers etc) when the gap is sufficiently narrowed. Expect false impasse here before eventual agreement after small group checks back with their respective constituents 5.30pm Mediator confirms agreement back to the joint group (‘let’s make sure we are all on the same page’). Expect a few wrinkles here as other minds are applied. Congratulations but we’re not quite done yet. Create Proposals Close the Gap Confirm and Close

5.45pm Convene a drafting group while the others sit around chatting/not chatting depending on the day 7.00pm Close (well)

Communication Orientation HIGH LOW COUNSELOR DELEGATOR EXPERT JOINT PROBLEM SOLVER HIGH TASK ORIENTATION RELATIONSHIPRELATIONSHIP