1. FEDERAL BAR ASSOCIATION Fifth Annual FBA Hawaii Conference
HAWAII CHAPTER
Fifth Annual FBA Hawaii Conference
December 6, 2013
Royal Hawaiian Hotel
Copyright Simeon H. Baum 2013; Resolve Mediation Services, Inc Avenue of the Americas, 40th floor, New York, NY (212) ; fax (212) ;

2. Chapter 3: Mediation & Discovery Simeon H. Baum ThomsonReuters/Westlaw
FEDERAL BAR ASSOCIATION
HAWAII CHAPTER
IP, e-Discovery & ADR
December 6, 2013
Royal Hawaiian Hotel
Chapter 3: Mediation & Discovery Simeon H. Baum ThomsonReuters/Westlaw
Copyright Simeon H. Baum 2013; Resolve Mediation Services, Inc Avenue of the Americas, 40th floor, New York, NY (212) ; fax (212) ;

3. Time & Cost

4. 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 4

5. 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 5

6. 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.

7. 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)

8. HOW MUCH JUSTICE CAN YOU AFFORD?

9. OTHER BENEFITS OF MEDIATION
Party Control of Process
Party Control of Outcome
Flexibility of Remedy
Building Understanding
Enhanced Communications
Relationship Preservation or Repair
Reducing Reputational Risk
Limiting Disruption
Confidentiality & Information Disclosure

10. Information Spectrum MEDIATION DISCOVERY PARADOX:
MORE INFORMATION IN LESS TIME

11. Informational Aikido – Bypassing Entanglement
So, we have an exercise to start off the morning. 11

12. Mediation Discovery Paradox Cont’d More Information in Less Time
Hashing it Out – Directly or With Experts
Reducing Informational Asymmetry
Going for the Gold – Selecting Key Discovery
Plain Inquiry, Plain Talk
Greasing the Wheels of Discovery
Forgiveness and Accepting the Unknown (forgive & forget)
Let them speak. Let the criticism, complaint, emotion come.
Keep a safe distance. Not too familiar, but also there, attentive, present and receptive. Where appropriate, step off the line of direct attack.
Do not fight against the force.
Join with the parties. Sit on the same side of the table. Take their needs and concerns as ones own. Show empathy.
Reframe. 12

13. Developing Information in Mediation
Preparation Tips – Pre Mediation Statement and Initial Disclosures
Taking a break – for experts, deposition, D&I, etc.
Tax information
Third parties
Financial Information
Collaborative Info Development
Let them speak. Let the criticism, complaint, emotion come.
Keep a safe distance. Not too familiar, but also there, attentive, present and receptive. Where appropriate, step off the line of direct attack.
Do not fight against the force.
Join with the parties. Sit on the same side of the table. Take their needs and concerns as ones own. Show empathy.
Reframe. 13

14. 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?” 14

15. 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 15

16. 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.” 16

17. 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.” 17

18. Developing Information in Mediation
Preparation Tips – Pre Mediation Statement and Initial Disclosures
Taking a break – for experts, deposition, D&I, etc.
Tax information
Third parties
Financial Information
Collaborative Info Development
Let them speak. Let the criticism, complaint, emotion come.
Keep a safe distance. Not too familiar, but also there, attentive, present and receptive. Where appropriate, step off the line of direct attack.
Do not fight against the force.
Join with the parties. Sit on the same side of the table. Take their needs and concerns as ones own. Show empathy.
Reframe. 18

19. Confidentiality and Disclosure
Let them speak. Let the criticism, complaint, emotion come.
Keep a safe distance. Not too familiar, but also there, attentive, present and receptive. Where appropriate, step off the line of direct attack.
Do not fight against the force.
Join with the parties. Sit on the same side of the table. Take their needs and concerns as ones own. Show empathy.
Reframe.
Skimming Cream from the Milk – Double Blind Disclosure
Disclosures Just for Mediation – e.g., Financial Information 19

20. Broader Range of Information Today’s Theme
Interests
Issues
Proposals
Feelings
Principles
Values
Rules
Visions
Stories
BATNAs – including Legal & Deal
Let them speak. Let the criticism, complaint, emotion come.
Keep a safe distance. Not too familiar, but also there, attentive, present and receptive. Where appropriate, step off the line of direct attack.
Do not fight against the force.
Join with the parties. Sit on the same side of the table. Take their needs and concerns as ones own. Show empathy.
Reframe. 20

21. The Spigot of Disclosure

22. 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. 22

23. Zone of Possible Agreement

24. 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.” 24

25. Mediating Discovery Disputes
Pragmatic & Holistic – one piece relates to all
Lift a Pebble and Embrace (& be Embraced by) the World
Can do it – All the usual approaches can apply to the limited issue

26. Unique IP Considerations – Pressures & Issues
Cicada Syndrome - Time
Hen & Chick – Inventor Love
a/k/a Pygmalian (sp) – High Hopes
Newton/Leibnitz – Dynamic Duo
Same in Art & Fashion
Grey Zones – scope definitions
Cultural Issues – multinational deals

27. Unique IP Considerations – Pressures & Issues
Role Differentiation & Varying Capacities
In the Dark - $$$
Scope definition

28. Unique IP Considerations – Resolutions
Marketing
Licensing
Royalties
IP transfers … Buy-back
Market/territory division
$$$
Scope definition
Joint Marketing and Cross Marketing
Functional Division (retail, mftr, wholesale, domestic, global)
Restructuring