1. New York County Lawyers’ Association
BRIDGE THE GAP: ADR, Focus on Mediation – Tips for Counselors and Advocates
New York County Lawyers’ Association
August 6 - 7, 2004
Presented by
Simeon H. Baum
Copyright Simeon H. Baum 2007; Resolve Mediation Services, Inc. 575 Lexington Avenue, 10th floor, New York, NY (212) ; fax (212) ;

2. Braveheart Clip

3. MUNSCH SCREAM

4. 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

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

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

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

8. HOW MUCH JUSTICE CAN YOU AFFORD?

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

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

11. CARTOON: Patrick Henry

12. Cartoon: Hardin

13. 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

14. 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

15. 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

16. 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

17. CARTOON: LAWYER ASSISTED SUICIDE

18. 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)

19. 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)

20. 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 ………)

21. 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

22. 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.

23. 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.

24. 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.

25. 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

26. Intolerable Cruelty

27. 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.

28. 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.

29. 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 ( 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.

30. 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

31. 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

32. 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) ;

33. 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 (212) ; fax (212) ;

34. CARTOON: ETHICS

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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

45. 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

46. 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

47. 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

48. 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

49. 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.

50. 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.