Birds Eye View Special Tips for Representing Parties
Bird's Eye View & Special Tips for Representing Parties in Mediation Produced for Law. Line By: Simeon H. Baum, Esq. Resolve Mediation Services, Inc. (www. mediators. com) & Stephen A. Hochman, Esq. Copyright Simeon H. Baum 2016; Resolve Mediation Services, Inc. 1211 Avenue of the Americas, 40 th floor, New York, NY 10036 (212)355 -6527; fax (212) 753 -0396; http: //www. mediators. com; email: Simeon. HB@dispute. Resolve. com
DO NOT IGNORE: v. People (Including Oneself) v. Circumstances v. Communication v. Process v. Deal
Make the Most out of the Opportunities Available in Mediation by: l Knowing the Nature of the Process – Negotiation Plus – & l Making Fullest, Appropriate Use of the Mediator.
Pre-Mediation l Mediator Selection – Guided by Your Needs & Understanding Possibilities for Mediator Role l Selection Not Our Focus Today. l But, Keep in Mind – Who is Your Mediator?
NOT JUST RENT-A-JUDGE
Mediator Functions Facilitating: v. Communication v. Identification of Interests v. Generation by Parties of Options to meet Interests of All Concerned v. Recognition and Validation of Emotions, Values, Perceptions, & Principles of Parties v. Consideration of Alternatives to Proposals
Various Views of the Mediator
Mediator Roles l Facilitative l Transformative l Evaluative l Understanding l Protean l Services View Based
Set and Maintain Tone and Atmosphere Conducive to Productive Discussion
Process Design • Agenda – Info, Issues & Breaks • Participants • Joint & Roles or Caucus • Anticipated Snags
Negotiation Coach l Timing l Impact l Managing Expectations l Tone l Framing / Messages l Bracketing l End Games
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 (2 nd ed. 1991)
ACTIVE LISTENING 1. 2. 3. 4. 5. 6. 7. 8. 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, OPENENDED FOLLOW-UP QUESTIONS. GIVE REFLECTIVE FEEDBACK SUMMARIZING YOUR UNDERSTANDING OF THE PARTY’S STATEMENTS.
Preparation
• Client Preparation • BATNA, Info & Game Plan • Pre-Mediation Conferences • Pre-Mediation Statement – can include: Pertinent Facts Legal Analysis Party Dynamics Settlement History Thoughts for Resolution Annex Key Documents
Power in Numbers
Opening Statement Welcoming Dialogue & Peacemaking Earnest Inquiry Iron Fist in a Velvet Glove
Give & Get Information
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 l Trust and Steadiness. Like dating. The other party wants to know it is safe to try to make peace. l Perseverance l Sincerity. Character. l Humor, used appropriately.
Deal Effectively with Emotional Triggers: Fisher/Shapiro 5 Core Concerns l Appreciation l Affiliation l Autonomy l Status l Role Fisher & Shapiro, Beyond Reason – Using Emotions As You Negotiate (Viking 2005)
DIALING FOR $$ l Anchoring l Brackets l Mid-point messages. l Pacing. l Monetizing. Its value and limitations. l Time value and relationship to $.
LEVERAGE l Use and abuse. l Delicacy in communication.
How do you Handle the Smoking Gun?
Settle Now or Wait Until Trial?
When to Walk Away?
The Light at the End of the Tunnel
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 1. Reframing 2. Hearing Proposals 3. Stroking 4. Silence 5. Caucuses 6. Role Reversal 7. Option Generating 8. Normalizing 9. Taking Advantage of Opportunities for Empowerment and Recognition 10. Focusing on Future 11. Reality Testing 12. Asking Problem Solving Questions Reprinted with permission of Professor Carol Liebman, Esq. , Columbia University Law School
HOW DO YOU DEAL WITH:
WAYS TO OVERCOME IMPASSE 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 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?
A Dozen Common Barriers to Resolution & Ways to Overcome Them
1. Failing to Get the Right Parties to the Table
Get Cellphone for Absent Participant
2. Anger between the Parties and/or their Attorneys
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
Negotiation Coach l Timing l Impact l Managing Expectations l Tone l Framing / Messages l Bracketing l End Games
A Dozen Barriers to Resolution & Ways to Overcome Them – Cont’d 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
A Dozen Barriers to Resolution & Ways to Overcome Them – Cont’d 12. Unrealistic subjective evaluations of the litigation or arbitration alternative by the parties or their attorneys – Selective Perception & Optimistic Overconfidence or Confirmation Biases
CHALLENGE: Multi-Party Inter-Defendant Finger Pointing l Looking over the Shoulder at Other’s Percentage.
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 l BATNAs l Risk Assessment l Transaction Cost l Assertion Credibility l Deal Doability l Move’s Viability l Projected Impact
3. Permitting settlement negotiations to begin prematurely (a) Prior to Permitting the Parties to Vent; (b) Prior to Risk Analysis and Reality Resting.
STORIES & SWISS CHEESE OR DOWN THE RABBIT HOLE l Distinguishing story and actuality – Positions & Interests Redux & More l Opening holes in the Swiss Cheese
The Higher Math of Risk Analysis
FUD FACTOR: FEAR UNCERTAINTY DOUBT
4. Failing to Orchestrate the Negotiations (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*… (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 e= =
8. Believing “bottom line” offers or demands
9. Failing to “test the waters” before making a mediator’s proposal. * * 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.
COUNTERPOINT TO TEN MISTAKES 1. Agent of Reality – beware loss of trust as transparent “Devil’s Advocate”
COUNTERPOINT TO TEN MISTAKES 2. Agent of Reality – recognize at times Perception is Reality
COUNTERPOINT TO TEN MISTAKES 3. Agent of Reality – recognize one lacks Omniscience (one is not G-d)
COUNTERPOINT TO TEN MISTAKES 4. PERMITTING settlement negotiations to begin to early – Transformative mediators follow the parties. They do not see themselves as “permitting” vel non.
COUNTERPOINT TO TEN MISTAKES 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…. .
COUNTERPOINT TO TEN MISTAKES 5. ORCHESTRATING the negotiation – who is the Maestro?
COUNTERPOINT TO TEN MISTAKES 6. Being evaluative – consider that Any Time may be too early.
COUNTERPOINT TO TEN MISTAKES 7. Mediator as goat or goad to avoid reactive evaluation – Danger Will Robinson: who becomes the star of this show?
COUNTERPOINT TO TEN MISTAKES 8. Mediator’s proposal – The waters are always dangerous…. .
COUNTERPOINT TO TEN MISTAKES If not anticipated by parties – they may regret confidential disclosures l If anticipated by parties – process is confirmed as “spin the mediator” l If some were candid and others withholding – may skew settlement l Difficult to continue after delivery of proposal – Under MISTAKES Rule 10, how do we know it is time to call it quits? l
COUNTERPOINT TO TEN MISTAKES If not anticipated by parties – they may regret confidential disclosures l If anticipated by parties – process is confirmed as “spin the mediator” l If some were candid and others withholding – may skew settlement l Difficult to continue after delivery of proposal – Under MISTAKES Rule 10, how do we know it is time to call it quits? l
ATTORNEY ROLE IN MEDIATION 1. Process Guide 2. Mediator Selection 3. Case Analysis; BATNA Analysis 4. Pre-Mediation Communications with Mediator 5. The Written Submission 6. Bringing the Right Parties to the Table 7. Bringing Necessary Information to the Table 8. Roadblock Anticipation & Strategies 9. 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. 1211 Avenue of the Americas, 40 th Floor, New York, NY 10036 (212)355 -6527; fax (212) 753 -0396; http: //www. dispute. Resolve. com; email: Simeon. HB@dispute. Resolve. com
- Slides: 74