Bird's Eye View & Special Tips for Representing Parties in Mediation

Bird's Eye View & Special Tips for Representing Parties in Mediation
Produced for LawLine By: Simeon H. Baum, Esq. Resolve Mediation Services, Inc. ( & Stephen A. Hochman, Esq. Copyright Simeon H. Baum 2016; Resolve Mediation Services, Inc Avenue of the Americas, 40th 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. Big topic and Big Program.

Do not ignore: People (Including Oneself) Circumstances Communication
Process Deal

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?

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.

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 8

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 9

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

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.

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)

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.” 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. 16

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 17

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. 18

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 Know when to give case and how cultivate focus on dealmaking

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…] 20

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.

RELATIONSHIPS MATTER Trust and Steadiness. Like dating. The other party wants to know it is safe to try to make peace. Perseverance Sincerity. Character. Humor, used appropriately. 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?

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) 23

DIALING FOR $$ Anchoring Brackets Mid-point messages. Pacing.
Monetizing. Its value and limitations. Time value and relationship to $. 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?

LEVERAGE Use and abuse. Delicacy in communication. 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?

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. 26

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? 27

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? 28

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? Let it happen. The power of trust and its opposite. Light at the end of the tunnel 29

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

HOW DO YOU DEAL WITH: Time: 7-10 minutes [7 is preferred…]
Sam: We have all had challenges in Mediations and Negotiations, where we hit a snag. There are so many ways of saying “No.” Here are a few scenarios, we would like to hear how you would handle them – or how you might hope a mediator could help you with them. What do you do when… A. “I won’t bid against myself.” B. “We never pay more than 30% on a subrogation case.” C. “We won’t negotiate until you drop your demand for interest.” D. “You overpaid business interruption/inventory because you knew it was a good subrogation case.” E. “Juries don’t give a lot of money to insurance carriers.” F. “This is our last/best offer.” G. “I’ll only pay more if the co-defendant pays more.”

WAYS TO OVERCOME IMPASSE
CONDITIONAL OFFER TEXAS 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

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?

A Dozen Common Barriers to Resolution & Ways to Overcome Them

1. Failing to 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.

Get Cellphone for Absent Participant
RECEPTIONIST & OUIJI BOARD. MEDIATION BY SKYPE. Has anyone done this? Does it work? Pros/cons. 38

2. Anger between the Parties and/or their Attorneys
THE MEN ARE EXCITED ABOUT GETTING TO SHOOT A LAWYER. HOW DO YOU DEAL WITH A PROBLEM ATTORNEY?

3. Insufficient focus on underlying interests

A Dozen Barriers to Resolution & Ways to Overcome Them – Cont’d
4. Problematic behavior by a party or counsel at the mediation 5. Disconnects between attorney and client 6. Gaps in relevant information (e.g., as to value or the current state of the law) – Game Theory 7. Failure to communicate or share relevant information with the adversary 8. Poor negotiating skills Some Moves that Can Help Overcome these Barriers (#4): Taking break Selecting persons for meetings Cross caucus lawyers only principals only select representatives from two or more groups e.g., of how that worked where litigators, corp. counsel, and one of the principals with negative history with adverse principal were kept out of the room Caucus Even here can select subset within a single group Multiple tasks at same time E.g., three at once: settlement agreement drafting team litigation analysis team information disclosure team for deal analysis Game Theory – states of knowledge (see Schlosser) (#6) 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)

Negotiation Coach Timing Impact Managing Expectations Tone
Framing / Messages Bracketing End Games

9. Failure to understand the non-monetary consequences of not settling (e.g., adverse publicity) 10. Reactive Devaluation: adversary’s assertions & settlement proposals 11. Focusing on yesterday rather than tomorrow: Emotion, Principle, & Sunk Cost or Loss Aversion Cognitive Barriers – Bring in D Golan points [S Hochman can handle this] Reactive Devaluation Make it mediator’s idea Have mediator endorse idea Offer 2 ideas and let other side choose Loss Aversion E.g. – choice: pay $20 or spin wheel with 3 in 4 chances to attend for free and 1 chance to pay 100 ($25 theoretical cost) what would you choose? what do most choose? Spin wheel! Strategy – pull people away from feeling of loss complex deals that redirect attention (e.g. Henry Kissinger approach in Middle East – no one could tell who was winning/losing) combat selective perception steer clear of deals where one side has to give up something that it assumed it would keep – even if it would be a trade for something better. Why? Loss aversion. Losses are felt more in series of small steps than in one big step. So, bundle multiple losses together, rather than one by one. Converse: the Gandalf effect. Dwarves visiting hobbit home. Go figure. Reframe to recharacterize as other than a “loss.” P suing supplier wanted to get back attorneys’ fees (a loss). Recharacterize “think like a businessman” ROI. Result: from 0 offer to X offer. How does deal look - $ in v $ out. What are pros and cons of cashing in now or cashing in later?

12. Unrealistic subjective evaluations of the litigation or arbitration alternative by the parties or their attorneys – Selective Perception & Optimistic Overconfidence or Confirmation Biases Selective Perception – seeing world only according to our initial hypothesis, despite the availability of conflicting information Don’t read evil intent into the result of selective perception Summarize back other side’s [mis]perception Ask questions around area that has been missed (with reasonable tone) Use visual aids Using different senses feeds into neuroscience piece Optimistic Overconfidence Get analytic to distance discussion from side’s stake in outcome Consider other cases with elements of this case Go point by point in listing of strengths and weaknesses of case Use decision tree, risk analysis -

CHALLENGE: Multi-Party Inter-Defendant Finger Pointing
Looking over the Shoulder at Other’s Percentage.

EVEN GOOD MEDIATORS MAY MAKE
AND NOW: EVEN GOOD MEDIATORS MAY MAKE

1. Failing to Get the Right Parties to the Table

2. Failing to Explain the Mediator’s Role as “Agent of Reality”

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

3. Permitting settlement negotiations to begin prematurely
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. (a) Prior to Permitting the Parties to Vent; (b) Prior to Risk Analysis and Reality Resting.

STORIES & SWISS CHEESE OR DOWN THE RABBIT HOLE
Distinguishing story and actuality Positions & Interests Redux & More Opening holes in the Swiss Cheese 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?

The Higher Math of Risk Analysis

FUD FACTOR: FEAR UNCERTAINTY DOUBT

4. Failing to Orchestrate the Negotiations
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. (a) By discouraging “out of the ballpark” offers; (b) By discouraging moves that send the wrong signal.

5. Failing to Recognize that Unrealistic Expectations Must be Lowered Gradually

6. Being Evaluative*… (b) In a Joint Session. (a) Too Early; or
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. (a) Too Early; or (b) In a Joint Session. * The implication that evaluation is acceptable is subject to debate within the mediation field Copyright ©1999 Stephen A. Hochman

7. Failing to suggest ways to avoid reactive devaluation of sensible settlement proposals from the adversary 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. = e=

8. Believing “bottom line” offers or demands

9. Failing to “test the waters” before making a mediator’s proposal.*
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. * The implication that evaluation is acceptable is subject to debate within the mediation field Copyright ©1999 Stephen A. Hochman

10. Being impatient or failing to be persistent or giving up prematurely.

COUNTERPOINT TO TEN MISTAKES
1. Agent of Reality – beware loss of trust as transparent “Devil’s Advocate” 2. Agent of Reality – recognize at times Perception is Reality 3. Agent of Reality – recognize one lacks Omniscience (one is not G-d) 4. PERMITTING settlement negotiations to begin to early – Transformative mediators follow the parties. They do not see themselves as “permitting” vel non.

Agent of Reality – beware loss of trust as transparent “Devil’s Advocate”

2. Agent of Reality – recognize at times Perception is Reality

3. Agent of Reality – recognize one lacks Omniscience (one is not G-d)

4. PERMITTING settlement negotiations to begin to early – Transformative mediators follow the parties. They do not see themselves as “permitting” vel non.

5. ORCHESTRATING the negotiation – who is the Maestro? 6. Being evaluative – consider that Any Time may be too early. 7. Mediator as goat or goad to avoid reactive evaluation – Danger Will Robinson: who becomes the star of this show? 8. Mediator’s proposal – The waters are always dangerous…..

5. ORCHESTRATING the negotiation – who is the Maestro?

6. Being evaluative – consider that Any Time may be too early.

7. Mediator as goat or goad to avoid reactive evaluation – Danger Will Robinson: who becomes the star of this show?

8. Mediator’s proposal – The waters are always dangerous…..

If not anticipated by parties – they may regret confidential disclosures If anticipated by parties – process is confirmed as “spin the mediator” If some were candid and others withholding – may skew settlement Difficult to continue after delivery of proposal – Under MISTAKES Rule 10, how do we know it is time to call it quits?

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 2015; Resolve Mediation Services, Inc Avenue of the Americas, 40th Floor, New York, NY (212) ; fax (212) ;

Bird's Eye View & Special Tips for Representing Parties in Mediation

Similar presentations

Presentation on theme: "Bird's Eye View & Special Tips for Representing Parties in Mediation"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

Bird's Eye View & Special Tips for Representing Parties in Mediation

Similar presentations

Presentation on theme: "Bird's Eye View & Special Tips for Representing Parties in Mediation"— Presentation transcript:

Similar presentations

About project

Feedback