Effective Representation in Mediation

Effective Representation in Mediation
NYSBA YOUNG LAWYERS SECTION FALL PROGRAM Albany, NY By: Simeon H. Baum, Esq. Resolve Mediation Services, Inc. ( Copyright Simeon H. Baum 2010; Resolve Mediation Services, Inc. 575 Lexington Avenue, 10th floor, New York, NY (212) ; fax (212) ;

A Whale of a Topic As Melville comments in Moby Dick, if you want to write a great book choose a great topic.

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

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

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

HOW MUCH JUSTICE CAN YOU AFFORD?

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

CARTOON: LAWYER ASSISTED SUICIDE

CARTOON: Patrick Henry

Make the Most out of the Opportunities Available in Mediation by:
Knowing the Nature of the Process – Negotiation Plus – & Making Fullest, Appropriate Use of the Mediator. What is Mediation? Must understand mediation and its potential to be effective representative Facilitated negotiation Negotiation skills are key Making good use of mediator is key Making good use of the mediation process – client empowerment and recognition – is key Understanding the Nature and Potential of the Mediation Process helps you know how to make the most out of this opportunity. It is a negotiation plus (i.e., a facilitated negotiation). Much good advice on negotiation applies. In addition, mediation offers a skilled neutral who can help with process design, quality of communications, information exchange, management of interparty dynamics and of expectations, assist in thinking about negotiation moves, facilitate and provide risk and transaction cost assessment, analysis of other deal alternatives, and help foster the atmosphere for relationship repair, creative brainstorming and dialogue. QUESTION: Here or with next slide: What do you think is mediator role? Given this role, what are the best actions by the representative?

Pre-Mediation Mediator Selection – Guided by Your Needs & Understanding Possibilities for Mediator Role Selection Not Our Focus Today. But, Keep in Mind – Who is Your Mediator? Mediator Selection What type of dispute? What are client needs? Where is relationship important? Where is communication important? Where is business creativity important? Number crunching and analysis Legal acumen?

Cartoon: Hardin

NOT JUST RENT-A-JUDGE Discuss Role of Mediator: Facilitator
Helping in identification of Interests, problem solving, communication enhancement, Open Up to Question on Expectations of Parties, In-House and Outside Counsel for Evaluation, Persuasion, Risk Analysis, Directiveness.

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

PROBLEM DEFINITION CONTINUUM

MEDIATOR ORIENTATIONS

MEDIATOR TECHNIQUES

Mediator Functions Facilitating: Communication
Identification of Interests Generation by Parties of Options to meet Interests of All Concerned Recognition and Validation of Emotions, Values, Perceptions, & Principles of Parties Consideration of Alternatives to Proposals Discuss Role of Mediator: Facilitator Helping in identification of Interests, problem solving, communication enhancement, Open Up to Question on Expectations of Parties, In-House and Outside Counsel for Evaluation, Persuasion, Risk Analysis, Directiveness.

Various Views of the Mediator
Party Based Mediations (S Mackenzie). [CAN GO INTO SECTION ON CONVENING] Gives examples of where interests focus, party driven process produced superior process and outcomes E.g., identifying ‘er concern re raiding led to settlement P’ship breakup: Independent evaluation of assets scheduled – matter settled Multi-national dispute. Pre-mediation caucuses – settled in opening joint session. Gives examples where structuring discussion to help parties exchange info produces resolution Private meeting of new CEO with old CEO (fraudulently dismissed before sale of co) enables new to empathize/recognize injustice with old and convince old that sale was not contemplated at time of termination Robert Benjamin – Guerilla Mediation – Use of Warfare strategies. Taking holistic approach to human nature – good, bad, and ugly – and acting accordingly Peter Adler – Protean Style – experimenting shallow and deep – and making adjustments on all levels – facilitative, evaluative, etc. Services view. Services provided by Mediator - Myth – Mediator as Settlement Broker (Schlosser) Robert Benjamin – Trickster (e.g., dealing w cognitive barriers) Outcomes v services Services: Convening Creating Safe/Confidential Space Anchoring Adjustment e.g., off hand comment by mediator that in recent, similar cases, settlement range has been in low six-figures Compassion Building Trust Empathic communication Leadership De-escalation [can talk about conflict steps – escalation/de-escalation] Reality checking Facilitation Problem Solving Identification of interests, needs, goals, desires Acknowledgement and witnessing of injustices Information Management and Exchange Decision-making assistance Managing the Auction Negotiation brokering (coaching) Accountability to agreements can always come back to me finalizing terms (bells and whistles) Parties know mediator is watching (honor) Mediator Selection & Style disclosures Dovetails with Convening – style may be function of party/representative needs & preferences, as well as of potential for session or outcome 22

Mediator Roles Facilitative Transformative Evaluative
Understanding Based Protean Services View Party Based Mediations (S Mackenzie). [CAN GO INTO SECTION ON CONVENING] Gives examples of where interests focus, party driven process produced superior process and outcomes E.g., identifying ‘er concern re raiding led to settlement P’ship breakup: Independent evaluation of assets scheduled – matter settled Multi-national dispute. Pre-mediation caucuses – settled in opening joint session. Gives examples where structuring discussion to help parties exchange info produces resolution Private meeting of new CEO with old CEO (fraudulently dismissed before sale of co) enables new to empathize/recognize injustice with old and convince old that sale was not contemplated at time of termination Robert Benjamin – Guerilla Mediation – Use of Warfare strategies. Taking holistic approach to human nature – good, bad, and ugly – and acting accordingly Peter Adler – Protean Style – experimenting shallow and deep – and making adjustments on all levels – facilitative, evaluative, etc. Services view. Services provided by Mediator - Myth – Mediator as Settlement Broker (Schlosser) Robert Benjamin – Trickster (e.g., dealing w cognitive barriers) Outcomes v services Services: Convening Creating Safe/Confidential Space Anchoring Adjustment e.g., off hand comment by mediator that in recent, similar cases, settlement range has been in low six-figures Compassion Building Trust Empathic communication Leadership De-escalation [can talk about conflict steps – escalation/de-escalation] Reality checking Facilitation Problem Solving Identification of interests, needs, goals, desires Acknowledgement and witnessing of injustices Information Management and Exchange Decision-making assistance Managing the Auction Negotiation brokering (coaching) Accountability to agreements can always come back to me finalizing terms (bells and whistles) Parties know mediator is watching (honor) Mediator Selection & Style disclosures Dovetails with Convening – style may be function of party/representative needs & preferences, as well as of potential for session or outcome 23

Set and Maintain Tone and Atmosphere Conducive to Productive Discussion
Work with the Mediator to Set and Maintain Tone and Atmosphere Conducive to Productive Discussion Atmosphere for: Relationship Repair Creative Brainstorming Dialogue Self Reflection – Understanding What is Really Driving Us – Interests Risk and Transaction Cost Analysis – setting the tone for candid, reflective assessment. Openness to think about deal possibilities – options and alternatives The Mediator takes the emotional pulse of the participants. Cools things down, when helpful. Activates parties when stagnation sets in. Helps clarify communications. Shines spotlight on key points, when appropriate (and at helpful time). In this role, the mediator might seek and benefit from help of counsel. There are times when a strong statement might be helpful. But at other times, the process benefits most from a shift from advocacy to inquiry, from acquisition to working together. The sophisticated representative can take cues from a mediator, or even discuss these options with the mediator, e.g., in caucus. Of course, must trust the mediator (and mediator must be trustworthy). One of the Mediator’s Key Functions is Simply Keeping the Parties at the Table and fostering Constructive Discussion. This happens from the start: Convening: The Power of the First Moment Love at First Sight First Impressions It is done before it starts. Instant connection – pre-connection. Go-Masters Thich Nhat Han: Look in eyes: Darling, it is wonderful to see you here, alive; it makes me very happy. Tat tvam asi. In short, attitude. Kamikaze Blitzkrieg Trust Atmospherics Possibilities What is established? Mediator Competence Confidence – cite M Shaw article Possibilities for Mediation Vision for Mediation

Process Design Agenda – Info, Issues & Breaks Participants & Roles
Work with the Mediator on Process Design: Mediator. before and during the Mediation Session, helps the parties and counsel make decisions about the Process itself; and can help counsel with their own needs for special process design. IN SUM: E.g., SHB as mediation consultant requiring draft of settlement agreement before sitting down to mediation: “bells and whistles” were our “meat and potatoes,” settlement number was dessert. Identify Issues. Work with parties to set agenda. Revise agenda. Counsel and parties can have continuing impact on these decisions, and can use mediator to help carry them out. Helps with Decisions on When and with whom to caucus. Can also help arrange meetings that can make a difference: e.g., SHB as representative in mediation, in pre-mediation statement suggested that a meeting of former lovers, without counsel, might produce settlement. Prepared client for this meeting. At some point in meeting, mediator suggested this. Result: settlement. Helps identify issues, questions to explore and helps select which issue/question to address and when. An art. Sees (and helps with) good times for a break. Catches conversation knots. “Pins” issues. MORE FOR CONVENING POINT: Pre-mediation Calls Joint Call Caucus Calls Who initiates? Confidence built by responsiveness to party initiated moves Planning on Attendance Joint and Caucus call choices Put on spot Get input from one party on other party’s attendees Multi-party session Identify negotiating groups / coalitions / shared interests / shared case theories/defenses Recognizing in-group differences in interests (e.g, counsel, insured, insurer) Who comes to the table? attorneys – which ones? Litigators, negotiators, corporate counsel – special mediation counsel? principals $ people involved/not involved people (no pat answer) experts tech support structured settlement people Cell phone rule for absent parties Pre-mediation Statements Content Exchanged, confidential, one of each? Length and timing Annexed materials Managing Information Exchange – Includes: Documents Depositions Spread sheets Financial info Damages calculations Expert reports Balance cost savings v information needed to enable people to participate meaningfully in talks with sense that rational process is underway rational process does not mean full blown trial follow lead of parties/representatives, but get what you need for sure Managing preparation of pre-mediation settlement communications and analyses Managing self-analysis by parties If there are insipient financial issues/concerns – getting them ready for financial disclosures Managing preparation of parties for Mediation presentations E.g., J Hughes suggesting that each team of counsel be prepared to do legal pitch in attorneys only cross caucus Managing preparation of parties for interpersonal issues at mediation Planning on configurations of mediation meetings, E.g.: Principal only Limited groups Weaning out players with interpersonal issues Or, planning on mini-mediation of interpersonal issues Structuring Agenda in Advance of Mediation E.g., Settlement Agreement first, $ second. Identifying Impediments to Resolution – to some degree a recap of all above – see Bates & Holt article re Construction Mediation, e.g.: ZOPA/Framing Personalities (“destabilizers”) Key participants Dispositive legal issue Technical issue Financial issues Insurance coverage issues Risk analysis Cost analysis Information/Knowledge disparities Consider “game theory” on knowledge: Common Perfect/Imperfect (lack on knowledge of all choices that have been made) Certain/Uncertain (Nature has not yet made all moves) Symmetric/Asymmetric (one side knows more than other) Major cause of impasse Complete/Incomplete (not knowing all of Nature’s moves) Logistics Time Date Place Hotel accommodations Travel plans (no one leaving at 3 pm to catch a plane) Rooms, including for pre-session private meetings Tech issues – for PowerPoint (including tv/audio/computer), video conference, Skype, audio presence, Agenda – Info, Issues & Breaks Participants & Roles Joint or Caucus Anticipated Snags

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

Negotiation Coach Timing Impact Managing Expectations Tone
Framing / Messages Bracketing End Games The Mediator JUST CITE GENERALLY NOW, TO ADD TO LIST OF MEDIATORS FUNCTIONS & PURPOSES. Will address specifics during S Hochman Barriers to Negotiation infra.

Intolerable Cruelty Clip

THE BALANCED NEGOTIATOR
IF I AM NOT FOR MYSELF, WHO WILL BE? IF I AM ONLY FOR MYSELF, WHAT AM I? IF NOT NOW, WHEN?* THE EFFECTIVE COOPERATIVE NEGOTIATOR MAINTAINS: 1. AWARENESS AND ASSERTION OF HIS/HER OWN INTERESTS, NEEDS, EMOTIONS, BELIEFS & VALUES & 2. AWARENESS AND RESPECTFUL RECOGNITION OF THE INTERESTS, NEEDS, EMOTIONS, BELIEFS & VALUES OF THE OTHER PARTY. Eem ayn ani li mi li; ook’sh’ani l’atzmi ma ani; v’im lo achshav ematai? (Rabbi Hillel; Pirke Avoth, 1, 14).

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)

Effective Communication
Lead into looping exercise. Could also jump to Shapiro “5 Core Concerns.” “Why am I talking this LOUD? Because I’m WRONG!”

COMMUNICATION FACILITATORS INHIBITORS (ADD HARMONY) (AD HOMINA)
EMPATHY UNCARING IGNORANCE NON JUDGMENTAL ACCEPTANCE REJECTION COMPLIMENTS INSULTS REWARDS (GAINS) THREATS

ACTIVE LISTENING LISTEN!
FOLLOW, RATHER THAN CONTROL, THE COMMUNICATION. LEAVE PLENTY OF ROOM FOR EXPRESSION. USE BODY LANGUAGE CONSISTENT WITH GOOD LISTENING. VALIDATE THE SPEAKER’S ENTITLEMENT TO HIS/HER PERSPECTIVE. SHOW EMPATHY – RECOGNIZE THE EMOTIONS AND MEANINGS THAT HAVE BEEN COMMUNICATED. SEEK CLARIFICATION WITH APPROPRIATE, OPEN-ENDED FOLLOW-UP QUESTIONS. GIVE REFLECTIVE FEEDBACK SUMMARIZING YOUR UNDERSTANDING OF THE PARTY’S STATEMENTS.

Preparation “You mean no one remembered to bring a rock?”
What do you do to prepare for a mediation? Develop factual information Develop legal analysis Coordinate with counsel Combine risk analysis with transaction cost analysis to get BATNA. Coordinate internally within Company hierarchy to have appropriate authority. Set 3 possible deal numbers in advance: (1) rationally supported best outcome; (2) reasonable outcome, (3) outcome that is of equal value to going forward with the case (BATNA) – BUT stay open to reevaluate – either way – in mediation. Identify and try to resolve coverage issues in advance of mediation. If not resolvable alone, consider using mediator to do coverage mediation. Have (and help) counsel prepare persuasive information, developed in persuasive form, to be able to share with other parties. See more on Presentation, Slide #____ (Experts, PowerPoint, Blowups, Props, Day in the life). Be sure counsel prepares the Mediator with good pre-mediation statement and supporting exhibits/information. Subro professional review and coordinate pre-mediation statement with counsel, if it does not cause undue delay. “You mean no one remembered to bring a rock?” 37

Preparation Client BATNA, Info & Game Plan Pre-Mediation Conferences
Pre-Mediation Statement – can include: “YOU MEAN NO ONE REMEMBERED TO BRING A ROCK.” Preparation: What do you do to prepare for a mediation? Develop factual information Develop legal analysis Coordinate with counsel Combine risk analysis with transaction cost analysis to get BATNA. Coordinate internally within Company hierarchy to have appropriate authority. Set 3 possible deal numbers in advance: (1) rationally supported best outcome; (2) reasonable outcome, (3) outcome that is of equal value to going forward with the case (BATNA) – BUT stay open to reevaluate – either way – in mediation. Identify and try to resolve coverage issues in advance of mediation. If not resolvable alone, consider using mediator to do coverage mediation. Have (and help) counsel prepare persuasive information, developed in persuasive form, to be able to share with other parties. See more on Presentation, Slide #____ (Experts, PowerPoint, Blowups, Props, Day in the life). Be sure counsel prepares the Mediator with good pre-mediation statement and supporting exhibits/information. Subro professional review and coordinate pre-mediation statement with counsel, if it does not cause undue delay. Pertinent Facts Legal Analysis Party Dynamics Settlement History Thoughts for Resolution Annex Key Documents 38

Get the Right Parties to the Table
Be sure your own person with full authority attends. Use Mediator to maximize likelihood that proper representatives from all parties/insurers will attend. Consider extent to which persons with factual knowledge and Experts will be useful at mediation. “I don’t have to be a team player, Crawford. I’m the team owner.” 39

Get Cellphone for Absent Participant
RECEPTIONIST & OUIJI BOARD. MEDIATION BY SKYPE. Has anyone done this? Does it work? Pros/cons. “I’ll check to see if he’s available.” 40

Power in Numbers Keep in Mind you are using everyone to their fullest and engaged in a group activity. Mediator, Your Clients. Fostering better will with other side. People outside the room – courts, authorities, constituencies. Speak with an awareness of impact on all and to foster best use of all. imagine group holding hands touching two ends of room. Imagine fastest runners in world. Which group touches far end [circles the world] first? Power of collaboration and numbers. Why do Zen Buddhists just sit? Slow it down. Can catch multiple possibilities in a moment, rather than racing through a single process. Intuition & awareness from deep listening. Wu wei. Returns us to beginning: character and doing less is more – opening it to the group for resolution. 41

Opening Statement Welcoming Dialogue & Peacemaking Iron Fist in a
Earnest Inquiry Iron Fist in a Velvet Glove Positive Communication Power of Encouragement Iron Fist in Velvet Glove

Give & Get Information Time: Slides – 1-4 minutes. [movie itself is 30 seconds.] Lead in: The heart of skillful negotiation within or without a mediation context is the art of giving and getting information. Knowing what to say, when to say it, being sure you have information that will enable your counterpart to come to the deal you seek, taking a disciplined approach to delivering settlement proposals, communicating your strengths in a manner that does not vex the other side, but encourages them to change their perspective, and conversely, learning what you can from the other side to help you with your own assessment of strengths, weaknesses in a case, with financial issues, interests, and all other components to making a deal. The key to information gathering is the ability to ask effective questions. We can take a lesson from McCauley Culkin in “Uncle Buck” [Roll it…] “I still don’t have all the answers. But I’m beginning to ask the right questions.” 43

How do you Handle the Smoking Gun?
CHALLENGING QUESTION OF DISCLOSING INFORMATION IN MEDIATION: IF YOU KEEP IT TO YOURSELF, THE OTHER PARTY DOES NOT MOVE, IF YOU DISCLOSE IT THERE IS CONCERN THAT IF THE CASE DOES NOT SETTLE, THE OTHER PARTY WILL WORK AROUND THE PROBLEM. 44

LISTENING BE ALERT TO: 1. INTERESTS 2. ISSUES 3. PROPOSALS 4. FEELINGS
5. PRINCIPLES 6. VALUES 7. RULES 8. VISIONS 9. STORIES 10. BATNAs Derived from Lela P. Love, Training Mediators to Listen – Deconstructing Dialogue and Constructing Understanding, Agendas and Agreements, Pre-publication draft.

Deal Effectively with Emotional Triggers: Fisher/Shapiro 5 Core Concerns
Appreciation Affiliation Autonomy Status Role Role of Emotion E.g. with CEO discovering that other party has been causing harm to customer base with risk of new, more significant litigation Shapiro Core Concerns Whether you're negotiating with an angry boss or a difficult colleague - or, indeed, a stubborn teenager - you can learn to use your emotions to help you achieve the result you want. Building Agreement show you how to control the five 'core concerns' that motivate people: -- Express appreciation for what others think, feel or do -- Build affiliation and turn an adversary into a colleague -- Respect autonomy in others and gain autonomy in return -- Acknowledge status and simultaneously establish your own worth -- Choose a fulfilling role during the process of negotiating Using the latest research of the Harvard Negotiation Project, the group that brought you the groundbreaking book Getting to Yes, this is a superbly practical guide to mastering essential negotiating skills. Handling emotion Bring in D Plant items Fisher & Shapiro, Beyond Reason – Using Emotions As You Negotiate (Viking 2005) 46

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

Reality Testing BATNAs Risk Assessment Transaction Cost
Assertion Credibility Deal Doability Move’s Viability Projected Impact

Settle Now or Wait Until Trial?
SH – LEAD IN FROM DISCUSSION OF BAD FAITH IN INSURANCE CONTEXT. WHEN DO YOU SETTLE RATHER THAN WAIT TO SEE IF YOUR THEORY IS PROVED TRUE AFTER LONG, EXPENSIVE DISCOVERY & TRIAL? “Curiosity.” 50

The Higher Math of Risk Analysis
“We are neither hunters nor gatherers. We are accountants.”

RISK ANALYSIS 1

RISK ANALYSIS 2

When to Walk Away? “My people will get back to your people.”
Time: 2-4 minutes. Recap BATNA Showing commitment with the power to walk away. Know that you are not forced to make a deal. Reading moves and communications in a mediation – Is this an impossible situation? Or, should you persist & persevere? When is it a good idea to take a break? To suspend mediation session? “My people will get back to your people.” 54

The Light at the End of the Tunnel
Mediators Can See The Light At End of the Tunnel. This Much Used Metaphor still Offers direction to Representatives and Parties in Mediation. One benefit of using a mediator is that caucuses, distance (neutrality), experience and insight – as well as information gained in caucus and through confidential submissions – can enable the mediator to see deal possibilities, or at least the probability of an eventual resolution, when things might look bleak indeed. As a result: When the mediator asks you to hang in there, hang in. Help the mediator get the best glimpse of available light by sharing information with the mediator. (smoking gun slide?) Be willing to engage in Meta Talk with the Mediator even when there is a vast spread in the actual offer/concession history. Sometimes “end game” discussions can be useful ways to break logjams. Question for Participants – Present tension of sharing or withholding information. What do you do/think/prefer? What variables change your approach? 55

DO NOT RUSH (Go Slow to Go Fast)
Prevent trouble before it arises. Put things in order before they exist. The giant pine tree Grows from a tiny sprout. The journey of a thousand miles Starts from beneath your feet. Rushing into action, you fail. Trying to grasp things, you lose them. Forcing a project to completion, You ruin what was almost ripe. Therefore the Master takes action By letting things take their course. He remains as calm At the end as at the beginning. He has nothing, Thus has nothing to lose. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

BE FLEXIBLE Men are born soft and supple;
Dead, they are stiff and hard. Plants are born tender and pliant; Dead, they are brittle and dry. Thus whoever is stiff and inflexible Is a disciple of death. Whoever is soft and yielding Is a disciple of life. The hard and stiff will be broken. The soft and supple will prevail. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

TWELVE TOOLS FOR CREATING MOVEMENT
Reframing Hearing Proposals Stroking Silence Caucuses Role Reversal Option Generating Normalizing Taking Advantage of Opportunities for Empowerment and Recognition Focusing on Future Reality Testing Asking Problem Solving Questions Reprinted with permission of Professor Carol Liebman, Esq., Columbia University Law School

GAMBITS FOR CLOSURE (Caution: To Be Avoided if Risks Shift to Evaluative Mode)
CONDITIONAL OFFER TWO-STEP TECHNIQUE BEST OFFER (alleged BOTTOM LINE) “MEDIATOR’S SOLUTION” ONE TEXT APPROACH BASEBALL ARBITRATION SECRET POLL DEADLINE ADJOURNMENT EXPERT OPINION CHOOSE ANOTHER PROCESS

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 Lexington Avenue, 10th Floor, New York, NY (212) ; fax (212) ;

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 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.

Mediation – that Many Headed Beast
Party Based Mediations (S Mackenzie). [CAN GO INTO SECTION ON CONVENING] Gives examples of where interests focus, party driven process produced superior process and outcomes E.g., identifying ‘er concern re raiding led to settlement P’ship breakup: Independent evaluation of assets scheduled – matter settled Multi-national dispute. Pre-mediation caucuses – settled in opening joint session. Gives examples where structuring discussion to help parties exchange info produces resolution Private meeting of new CEO with old CEO (fraudulently dismissed before sale of co) enables new to empathize/recognize injustice with old and convince old that sale was not contemplated at time of termination Robert Benjamin – Guerilla Mediation – Use of Warfare strategies. Taking holistic approach to human nature – good, bad, and ugly – and acting accordingly Peter Adler – Protean Style – experimenting shallow and deep – and making adjustments on all levels – facilitative, evaluative, etc. Services view. Services provided by Mediator - Myth – Mediator as Settlement Broker (Schlosser) Robert Benjamin – Trickster (e.g., dealing w cognitive barriers) Outcomes v services Services: Convening Creating Safe/Confidential Space Anchoring Adjustment e.g., off hand comment by mediator that in recent, similar cases, settlement range has been in low six-figures Compassion Building Trust Empathic communication Leadership De-escalation [can talk about conflict steps – escalation/de-escalation] Reality checking Facilitation Problem Solving Identification of interests, needs, goals, desires Acknowledgement and witnessing of injustices Information Management and Exchange Decision-making assistance Managing the Auction Negotiation brokering (coaching) Accountability to agreements can always come back to me finalizing terms (bells and whistles) Parties know mediator is watching (honor) Mediator Selection & Style disclosures Dovetails with Convening – style may be function of party/representative needs & preferences, as well as of potential for session or outcome 64

CARTOON: ETHICS

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

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

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

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

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

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

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.

MEDIATION TIPS FROM THE Tao te Ching
Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

THINK CREATIVELY & INCLUSIVELY
We join spokes together in a wheel, But it is the center hole That makes the wagon move. We shape clay into a pot, But it is the emptiness inside That holds whatever we want. We hammer wood for a house, But it is the inner space That makes it livable. We work with being, But non-being is what we use. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

TIPS FROM THE ANCIENTS ON MEDIATOR QUALITIES
The ancient Masters were profound and subtle. Their wisdom was unfathomable. There is no way to describe it; all we can describe is their appearance. They were careful as someone crossing an iced-over stream. Alert as a warrior in enemy territory. Courteous as a guest. Fluid as melting ice. Shapable as a block of wood. Receptive as a valley. Clear as a glass of water. Do you have the patience to wait till your mud settles and the water is clear? Can you remain unmoving till the right action arises by itself? The Master doesn’t seek fulfillment. Not seeking, not expecting, she is present, and can welcome all things.

KEEP IT THE PARTIES’ PROCESS
When the Master governs, the people Are hardly aware that he exists. Next best is a leader who is loved. Next, one who is feared. The worst is one who is despised. If you don’t trust the people, You make them untrustworthy. The Master doesn’t talk, he acts. When his work is done, The people say, “Amazing: We did it, all by ourselves!” Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

Communicate Trust & Good Will To Build Trust and Good Will
The Master has no mind of her own. She works with the mind of the people. She is good to people who are good. She is also good to people who aren’t good. This is true goodness. She trusts people who are trustworthy. She also trusts people who aren’t trustworthy. This is true trust. The Master’s mind is like space. People don’t understand her They look to her and wait. She treats them like her own children. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

All streams flow to the sea Because it is lower than they are.
PLACE THE PARTIES FIRST THEIR NEEDS, THEIR PERCEPTIONS, THEIR EVALUATIONS, THEIR OPTIONS, THEIR SETTLEMENT, THEIR VOICE All streams flow to the sea Because it is lower than they are. Humility gives it its power. If you want to govern the people, You must place yourself below them. If you want to lead the people, You must learn to follow them. The Master is above the people, And no one feels oppressed. She goes ahead of the people, And no one feels manipulated. The whole world is grateful to her. Because she competes with no one, No one can compete with her. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

BE FLEXIBLE Men are born soft and supple;
Dead, they are stiff and hard. Plants are born tender and pliant; Dead, they are brittle and dry. Thus whoever is stiff and inflexible Is a disciple of death. Whoever is soft and yielding Is a disciple of life. The hard and stiff will be broken. The soft and supple will prevail. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

If you want to shrink something, You must first allow it to expand.
GIVE THE PARTIES TIME TO VENT, EXPRESS THEMSELVES, LAY OUT THEIR POSITIONS, LAY OUT THEIR INTERESTS If you want to shrink something, You must first allow it to expand. If you want to get rid of something, You must first allow it to flourish. If you want to take something, You must first allow it to be given. This is called the subtle perception of the way things are. The soft overcomes the hard. The slow overcomes the fast. Let your workings remain a mystery. Just show people the results. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

DO NOT RUSH (TO EVALUATION OR SETTLEMENT)
Prevent trouble before it arises. Put things in order before they exist. The giant pine tree Grows from a tiny sprout. The journey of a thousand miles Starts from beneath your feet. Rushing into action, you fail. Trying to grasp things, you lose them. Forcing a project to completion, You ruin what was almost ripe. Therefore the Master takes action By letting things take their course. He remains as calm At the end as at the beginning. He has nothing, Thus has nothing to lose. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

KEEP AN OPEN MIND (CAUTION ON EVALUATION)
If you close your mind in judgments And traffic with desires, Your heart will be troubled. If you keep your mind from judging And aren’t led by the senses, Your heart will find peace. Seeing into darkness is clarity. Knowing how to yield is strength. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

Those who know don’t talk. Those who talk don’t know.
LISTEN RECEPTIVELY Those who know don’t talk. Those who talk don’t know. Close your mouth, Block off your senses, Blunt your sharpness, Untie your knots, Soften your glare, Settle your dust. Quotations from Mitchell, S. (trans.) (1991). Tao te Ching. New York, Harper & Row.

Effective Representation in Mediation

Similar presentations

Presentation on theme: "Effective Representation in Mediation"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

Effective Representation in Mediation

Similar presentations

Presentation on theme: "Effective Representation in Mediation"— Presentation transcript:

Similar presentations

About project

Feedback