1. NYSBA Dispute Resolution Section – Fall Meeting
MULTIPARTY MAYHEM
NYSBA Dispute Resolution Section – Fall Meeting
New York Law School
October 26, 2017
Presenters:
Hon. David A. Paterson (former NYS Governor)
Michele Kern-Rappy (NY Supreme Court – Senior Settlement Coordinator)
Simeon H. Baum (
Simeon H. Baum, Esq. , Resolve Mediation Services, Inc Avenue of the Americas, 40th floor, New York, NY (212) ; fax (212)

2. Multi-Party Mayhem VUCA Representation Issues
Caucus Coalition Complexity
Multi-Interest, Multi-Issue, Multi-Personality
Timing on Agenda & Deal Term Solidification
Logistics – All in One Room; Stories Seriatim; String Set of Caucuses
Public Eye & PR
Group & Negotiation Definition – Where does it End?
How Maintain Quality over Clunkiness?
Group Dynamics
Micro Cultures

3. Multi-Party Mayhem NYSBA DRS Fall Meeting October 26, 2017
Sausage Making Laid Bare –
The Consensus Based Risk Allocation Model & Other Approaches to Multiparty Naysayers
Simeon H. Baum, Esq., Resolve Mediation Services, Inc., Avenue of the Americas, 40th Floor, New York, NY (212)

4. Mutual Finger Pointing in the Multi-Party Case
Denial of Fault
Obsession with Percentage Share
Refusal to Pay More than X%
Insistence that other Party Must Pay Y%
Will pay up to X% if other Party Pays At Least Y%

5. Go with the Flow
Give the Parties What They Want – Opportunity to Express Their Views, Needs & Assessments
Rather than Oppose, Use This Information
Rather than Impose (Mediator’s View) Develop Consensus Based Risk & Case Value Assessment
Ultimately, with Parties’ Permission, this can be used to Resolve Case

6. Poll the Parties Take Notes
What is the likelihood the Plaintiff will win at trial, and, if so, how much?
What percentage liability will be allocated to each Defendant?
How much will it cost to try this case?
Take Notes

7. % Chance Plaintiff Wins
Damages
Plaintiff's Comparative Share
Resulting Case Value
Party A
Party B
Party C
Party D
Party E
Party F
Party G
Party H
Party I
Party J
Average

8. Percentage Allocations
Party A
Party B
Party C
Party D
Party E
Party F
Party G
Party H
Party I
Party J
Average

9. Costs Through Trial
Party A
Party B
Party C
Party D
Party E
Party F
Party G
Party H
Party I
Party J
Average

10. Develop Three (3) Pots Trial Outcome & Transaction Costs
Probable Settlement Number
Graduated Lesser Offer Pots (GLOP)

11. Trial Outcome & Transaction Costs
A Collective, Predictive Exercise
Aided By Risk & Transaction Cost Analysis
Depends on Developing Trust in the Mediator & the Process

12. Assumption: Plaintiff Wins Every Time
Damages
Plaintiff Share
Resulting Case Value
Party A 1
$ 2,800,000.00
$ ,866,666.67
Party B
$ 2,300,000.00
0.25
$ ,725,000.00
Party C
$ 2,775,000.00
0.2
$ ,220,000.00
Party D
$ 2,500,000.00
$ ,875,000.00
Party E
$ 2,250,000.00
0.33
$ ,507,500.00
Party F
Party G
$ 3,250,000.00
$ ,166,666.67
Party H
$ 3,750,000.00
$ ,812,500.00
Party I
$ 2,000,000.00
0.5
$ ,000,000.00
Party J
$ 3,100,000.00
$ ,100,000.00
Averages
$ 2,702,500.00
$ ,999,833.33
Case Value Rounded Up:
$ ,000,000.00

13. Assumption: Varying Views of Plaintiff's Likelihood of Getting Any Damages/Winning Anything
Plaintiff Wins
Damages
Plaintiff Share
Resulting Case Value
Party A
0.75
$ 2,800,000.00
$ ,400,000.00
Party B
0.8
$ 2,300,000.00
0.25
$ ,380,000.00
Party C
0.9
$ 2,775,000.00
0.2
$ ,998,000.00
Party D 1
$ 2,500,000.00
$ ,875,000.00
Party E
$ 2,250,000.00
0.33
$ ,507,500.00
Party F
0.66
$ ,138,500.00
Party G
0.5
$ 3,250,000.00
$ ,083,333.33
Party H
$ 3,750,000.00
$ ,812,500.00
Party I
$ 2,000,000.00
$ ,000.00
Party J
$ 3,100,000.00
$ ,790,000.00
Averages
0.801
$ 2,702,500.00
$ ,648,483.33
Likelihood of Winning At Trial can itself be used as basis for negotiation with Plaintiff and Defendants.

14. Costs Through Trial
Party A
$ 250,000.00
Party B
$ 200,000.00
Party C
Party D
Party E
$ 150,000.00
Party F
$ 175,000.00
Party G
Party H
Party I
$ 75,000.00
Party J
Average
$ 205,000.00
Rounded Average:
$ 200,000.00
Worth weighing against risk of loss at trial. Collective costs can outweigh risk of loss at trial.

15. Assumption: Plaintiff Wins Every Time
Trial Outcome
Costs through Trial
Combined Case Exposure
Party A
$ ,866,666.67
$ ,000.00
$ ,116,666.67
Party B
$ ,725,000.00
$ ,000.00
$ ,925,000.00
Party C
$ ,220,000.00
$ ,470,000.00
Party D
$ ,875,000.00
$ ,075,000.00
Party E
$ ,507,500.00
$ ,000.00
$ ,657,500.00
Party F
$ ,000.00
$ ,900,000.00
Party G
$ ,166,666.67
$ ,416,666.67
Party H
$ ,812,500.00
$ ,062,500.00
Party I
$ ,000,000.00
$ ,000.00
$ ,075,000.00
Party J
$ ,100,000.00
$ ,350,000.00
Av/Total
$ ,999,833.33
$ 2,050,000.00
$ ,049,833.33
Compare Average predicted Trial Outcome to Cumulative Costs Through Trial. Costs can be averaged where it appears certain defendants might be lowballing estimate of trial costs.

16. Divvy It Up Collective View of Percentages
Overcoming Bias of Single Party with Law of Averages
Overcoming Gamesmanship by Single Party

17. Percentage Allocations
Party A
Party B
Party C
Party D
Party E
Party F
Party G
Party H
Party I
Party J
Total Percentage
0.2
0.25
0.15
0.1
0.05
0.025 1
0.3
0.35
0.075
0.125
Average

18. Convert To $$$ Move from Percentages
Shift from Comparative/Relational Contribution Analysis
Apply to Predicted Trial Outcome
Apply to Combined Trial Outcome & Costs

19. Trial Outcome
Party A
$ ,000.00
Party B
$ ,000.00
Party C
$ ,000.00
Party D
$ ,000.00
Party E
Party F
$ ,000.00
Party G
Party H
Party I
$ ,000.00
Party J
TOTALS:
$ 2,000,000.00

20. Trial Outcome & Costs
Party A
$ ,000.00
Party B
$ ,000.00
Party C
$ ,000.00
Party D
$ ,000.00
Party E
$ ,000.00
Party F
$ ,000.00
Party G
Party H
Party I
$ ,000.00
Party J
$ ,000.00
TOTALS:
$ ,050,000.00

21. Power of Numbers
Collective Sense Overcomes Individual Party Skewing – Spinmeister, Hardball Negotiator, Low Profiler, Finger Pointer
Tyranny of the Majority? The Target Defendant
Finding “Fat”
Interesting Questions on Mediator’s Role, candor, transparency, quality of the process, long term impact on repeat users of the mediator and on mediator him or herself, interparty fairness.

22. Percentage Allocations
Party A (Hardball Negotiator)
Party A (HN)
0.05
Party B
0.25
Party C
Party D
Party E
Party F
Party G
Party H
Party I
Party J
Party K
Party L
Party M
Party N
Party O
Party P
Party Q
Party R
Party S
Party T
Average
0.24

23. Percentage AllocationsHN
Party A (HN)
0.05
Party B
0.25
Party C
Party D
Party E
Party F
Party G
Party H
Party I
Party J
Average
0.23

24. Percentage AllocationsHN
Party A (HN)
0.05
Party B
0.25
Party C
Party D
Party E
Average
0.21

25. Probable Settlement $$$
Based on Conversations with Plaintiff
Guided by Conversations with Defendants, Crystallized through Caucuses and Spreadsheets
Can Be Seen As Percentage of Averaged Trial Outcome & Transaction Costs
Interesting to Compare to Predicted, Averaged Trial Outcome

26. Graduated Lesser Offer Pots (GLOP)
Permit Incremental Increases
Made as Percentage of Predicted Settlement Pot
Builds Trust with Defendants
Creates Sense of Control
Offers Stepped Approach to Gaining Contributions From Reluctant Defendants

27. Trial Outcome
Trial Outcome & Costs
Projected Settlement
Smallest GLOP
Largest GLOP
Party A
$ ,000.00
750,000.00
375,000.00
250,000.00
$ ,500.00
Party B
$ ,000.00
600,000.00
300,000.00
200,000.00
$ ,000.00
Party C
$ ,000.00
550,000.00
225,000.00
150,000.00
$ ,500.00
Party D
$ ,000.00
400,000.00
100,000.00
$ ,000.00
Party E
350,000.00
Party F
$ ,000.00
275,000.00
75,000.00
50,000.00
$ ,500.00
Party G
Party H
Party I
$ ,000.00
125,000.00
37,500.00
25,000.00
$ ,250.00
Party J
TOTALS:
$ 2,000,000.00
4,050,000.00
1,500,000.00
1,000,000.00
$ 1,250,000.00

28. Joint Defendant Conference Call
Explain Process
Get Permission - Confidentiality
Consensus Based Risk Allocation
Questions on Mediator Adjustments
Time for Consideration
Telephone Caucuses
Further Adjustments
All At Once or Pot by Pot

29. Divide & Conquer Group 1 – The Gang
Remaining Party – The Reluctant Target

30. Multi-Party Fraud Matter

31. Multi-Party Fraud Matter
Family
Friends
Community
Counsel
Insurer
Court

32. 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. 32

33. Preparation Joint & Separate Conference Calls Pre-Mediation Statements
Spreadsheets
Helpful Counsel
Power of Interpleader

34. Spreadsheets Classes & Flexible Class “Keys.” Examples:
Collateral Assignments Recorded, Unrecorded
No Collateral Asst but Promissory Notes
No Note, but Other Documentation
Claim only; Latecomer
Space for Info Gathering

35. The Human Touch Hand On Shoulder Hidden Widow Shared Suffering
Opening Statement
Food
Later Caucuses

36. Mediator’s Opening Look Across the Table; All Suffering Tragic Event
Chance to Resolve; All Must Agree
Resources Available; Cannot Be Made Whole; Limited Fund Just for You
Better to Resolve Now Than Litigate – Delays, Many Creditors, No Other Resources

37. Opening Statements & Joint Session
Counsel Suggest Their Party Has Top Rights
Pro Se
SHB Summary
Power of Spreadsheets
Resolve Fees with Insurers
Late Caucuses

38. Resolution & Crises
Enter the Widow
Counsel Assist
Power of the Group

39. Surprise Sequel The Power of One
World Traveler Returns
Notice Issue
Standards & Compassion
Capable Counsel as Friend of Deal
Drive to Completion, Desire for Finality
Momentum
New Spreadsheet Column

40. Working When Powerless
Wu – Wei
Non-Doing

41. Forum Selection
Food
Lunch
Copenhagen

42. Representation Issues
Hidden Constituency & Influencers
Determining True Group Representative
Principal/Agent Challenges
Divergent Interests In Group or Groups
Team Relations

43. Public, Publicity & PR The Greatest Sized Multi-Party
Symbolism
Press
Public
Danger of Narrow Focus

44. Leverage in Multi-Party Negotiations & Mediations
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?

45. Trust & Confidence Essential to Team Building
Corporate Coach Lessons
Beware Reactivity
Hold Dinners; Set Agenda
Create Space
Confidentiality is Key. Its absence Chills Effectiveness & Team Cohesion
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?

46. Asymmetrical Demobilization
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?

47. 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. 47

48. Tell Us Your War Stories We Are All Ears

49. 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. 49

50. Opening Statement
Positive Communication
Power of Encouragement
Iron Fist in Velvet Glove
“Let’s start at the very beginning, it’s a very good place to start.”

51. 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 or Delays

52. "We cannot solve our problems with the same thinking we used when we created them." (Attributed to Albert Einstein)