1 Law Professors’ Forum: Mediation Shop Talk Legal Educators’ Colloquium April 18, 2009 organizers Dwight Golann, Art Hinshaw, Carol Izumi, and Peter Robinson

2 Shaw-Goldberg – Study 2 Views of reasons for mediator success Shaw-Goldberg – Study 2 Views of reasons for mediator success AdvocatesMediators Friendly, empathic, likeable, relates to all, respectful, conveys sense of caring, wants to find solutions60%75% High integrity, respects confidences, non-judgmental53%25% Smart, quick study, well-prepared, knows contract/law47% Patient, persistent, never quits35%15% Useful reality testing, evaluates likely outcome; candid33%10% Asks good questions, listens carefully to responses28% Diplomatic; softens bad news; makes suggestions tactfully21% Proposes solutions, creative18%50% Candid, firm as necessary17% Keeps parties focused on issues, manages issue ordering16% Understands people, relationship dynamics, calm, flexible<15%10% Understands culture(s), manages emotion, reframes issues<10%

3 Shaw-Goldberg – Study 3 Advocates' views of reasons for mediator failure Lack of integrity, not neutral, disclosed confidential info, inconsistent evaluations48% Self-absorbed, self-important, not empathic, not respectful, didn't care, didn't listen20% Didn't understand issues/law, not well-prepared16% Not firm/forceful, went through motions, just delivered messages24% Lack of patience/persistence, quits too easily11% Not flexible approach, didn't vary to fit situation7% Failed to propose solutions, not creative3% Faculty/no evaluation7%

4 ABA Task Force on Improving Mediation Quality User comments – what they value – Preparation – mediators, attys, and parties – Case-by-case customization – Analytical assistance from mediator – Mediator persistence

5 Preparation Pre-mediation communication w/ participants (joint or separate) Pre-mediation communication w/ participants (joint or separate) Mediator’s approach and expectations Mediator’s approach and expectations Prompts attorney and party preparation Prompts attorney and party preparation Asking clients what is important and why Asking clients what is important and why Avoid leading clients to unrealistic expectations (zealous advocacy) Avoid leading clients to unrealistic expectations (zealous advocacy) Importance of mediator’s subject matter expertise Importance of mediator’s subject matter expertise Lawyers and clients should be as prepared as trial Lawyers and clients should be as prepared as trial Settlement based upon how much is known about the case Settlement based upon how much is known about the case Should understand the other side as Should understand the other side as Clients who feel their attys prepared them are happier Clients who feel their attys prepared them are happier

6 Customization Timing of mediation Timing of mediation Critical discovery v. full discovery Critical discovery v. full discovery Evaluation of each case’s process needs Evaluation of each case’s process needs w/ parties and counsel w/ parties and counsel Tailoring preparation to each case Tailoring preparation to each case Memo to mediator and/or other side Memo to mediator and/or other side Use of parties’ opening statements Use of parties’ opening statements Overly inflammatory statements and entrenchment Overly inflammatory statements and entrenchment

7 How should we adapt our teaching to accomplish this ?? Can we teach future mediators: Can we teach future mediators: to communicate friendliness and empathy? To be more so? to communicate friendliness and empathy? To be more so? to be and to demonstrate honesty and integrity? to be and to demonstrate honesty and integrity? Can we teach future advocates: Can we teach future advocates: how to select mediators more effectively? how to select mediators more effectively? how to prepare themselves and their clients? how to prepare themselves and their clients? How much flexibility should be in the process? How much flexibility should be in the process?

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9 The mediator was friendly, empathic (60%) The mediator was friendly, empathic (60%) “Because of his sincerity and likeability, he is able to keep people talking when other mediators might lose them.” “Because of his sincerity and likeability, he is able to keep people talking when other mediators might lose them.” “She demonstrates compassion for the client, which makes the client feel that she is working hard on her behalf and tends to make the client trust her.”

10 Honesty and integrity (53%) “He has honesty and integrity. We had absolute confidence that he would not reveal information we did not want revealed to the other side.” “He has honesty and integrity. We had absolute confidence that he would not reveal information we did not want revealed to the other side.” “Another essential quality is her personal integrity – as it is essential to any mediator. Both sides trust that the information she relays is accurate, and that she’s not putting a spin on things to help her get where she needs to go.”

11 How do you account for your success as a mediator? Ability to gain the parties’ confidence75% Ability to gain the parties’ confidence75% Friendly/empathic75% Friendly/empathic75% Honesty/integrity25% Honesty/integrity25% Ability to generate novel or creative solutions50% Ability to generate novel or creative solutions50% Patient, tenacious, never quit15% Patient, tenacious, never quit15% Sense of humor15% Sense of humor15% Understand the rhythm of a mediation;10% Understand the rhythm of a mediation;10% know when to put pressure on the parties know when to put pressure on the parties Assist the parties to understand others’ needs10% Assist the parties to understand others’ needs10% Maintaining an outwardly optimistic attitude10% Maintaining an outwardly optimistic attitude10% Focus the parties on the consequences of not10% Focus the parties on the consequences of not10% settling ; predict the likely result of trial settling ; predict the likely result of trial