Effective Representation in Mediation NYSBA YOUNG LAWYERS SECTION

Effective Representation in Mediation NYSBA YOUNG LAWYERS SECTION FALL PROGRAM Albany, NY By: Simeon H. Baum, Esq. Resolve Mediation Services, Inc. (www. mediators. com) Copyright Simeon H. Baum 2010; Resolve Mediation Services, Inc. 575 Lexington Avenue, 10 th floor, New York, NY 10022 (212)3556527; fax (212) 753 -0396; http: //www. mediators. com; email: Simeon. HB@dispute. Resolve. com

Braveheart Clip

MUNSCH SCREAM

DISPUTE RESOLUTION SPECTRUM FIGHT COERCION LITIGATION ARBITRATION ADVISORY JURY TRIAL NEUTRAL EVALUATION MEDIATION EVALUATIVE (? ) FACILITATIVE TRANSFORMATIVE NEGOTIATION ACCOMMODATION FLIGHT INACTION/ FREEDOM

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

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

HOW MUCH JUSTICE CAN YOU AFFORD?

BENEFITS OF MEDIATION l SAVES PARTIES: 1. TIME 2. COST 3. DISRUPTION 4. ADVERSE PUBLICITY 5. RELATIONSHIP LOSS 6. LOSS OF CONTROL

BENEFITS OF MEDIATION (cont’d) l AFFORDS PARTIES: 1. SPEED 2. SAVINGS IN COST & DISRUPTION 3. TAILORED RESOLUTIONS 4. CONFIDENTIALITY 5. ENHANCED COMMUNICATIONS 6. IMPROVED RELATIONSHIPS

CARTOON: LAWYER ASSISTED SUICIDE

CARTOON: Patrick Henry

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

THE GREAT DIVIDE

PROBLEM DEFINITION CONTINUUM

MEDIATOR ORIENTATIONS

MEDIATOR TECHNIQUES

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

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

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

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

Intolerable Cruelty Clip

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)

Effective Communication “Why am I talking this LOUD? Because I’m WRONG!”

COMMUNICATION FACILITATORS (ADD HARMONY) INHIBITORS (AD HOMINA) EMPATHY UNCARING IGNORANCE NON JUDGMENTAL ACCEPTANCE REJECTION COMPLIMENTS INSULTS REWARDS (GAINS) THREATS

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 “You mean no one remembered to bring a rock? ”

• 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

Get the Right Parties to the Table “I don’t have to be a team player, Crawford. I’m the team owner. ”

Get Cellphone for Absent Participant “I’ll check to see if he’s available. ”

Power in Numbers

Opening Statement Welcoming Dialogue & Peacemaking Earnest Inquiry Iron Fist in a Velvet Glove

Give & Get Information “I still don’t have all the answers. But I’m beginning to ask the right questions. ”

How do you Handle the Smoking Gun?

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.

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)

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 ………)

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, 9 th dan. Taken from the Aiki New book: Takemusu Aikido Special Edition

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

Settle Now or Wait Until Trial? “Curiosity. ”

The Higher Math of Risk Analysis “We are neither hunters nor gatherers. We are accountants. ”

RISK ANALYSIS 1

RISK ANALYSIS 2

When to Walk Away? “My people will get back to your people. ”

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

GAMBITS FOR CLOSURE (Caution: To Be Avoided if Risks Shift to Evaluative Mode) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. CONDITIONAL OFFER 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

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 2005; Resolve Mediation Services, Inc. 575 Lexington Avenue, 10 th Floor, New York, NY 10022 (212)355 -6527; fax (212) 753 -0396; http: //www. dispute. Resolve. com; email: Simeon. HB@dispute. Resolve. com

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.

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.

Mediation – that Many Headed Beast

CARTOON: ETHICS

SOME ETHICAL ISSUES 1. PRIOR RELATIONSHIP 2. WHITE LIE TO EFFECT SETTLEMENT? 3. TRUTH IN ADVERTISING 4. TASTE IN ADVERTISING 5. CONTINGENT FEE 6. KNOWLEDGE OF ATTORNEY MISCONDUCT 7. KNOWLEDGE OF ATTORNEY INCOMPETENCE

SOME ETHICAL ISSUES (cont’d) 8. KNOWLEDGE OF PARTY OR COUNSEL ABUSE OF PROCESS: e. g. , MEDIATION AS FISHING EXPEDITION 9. KNOWLEDGE THAT A PARTY HAS LIED TO OTHER PARTY 10. CONTROLLING THE OFFER STREAM? 11. PARTY THREATS OF CRIMINAL CONDUCT 12. PARTY PRESENT AND CONTINUING CRIMINAL CONDUCT

SOME ETHICAL ISSUES (cont’d) 13. PAST, UNDISCOVERED CRIMINAL CONDUCT 14. PARTY POSSESSION OF WEAPON 15. GIVING PRIVATE LEGAL ADVICE TO A PARTY, TO FURTHER SETTLEMENT PROCESS 16. GIVING PRIVATE LEGAL ADVICE TO A PARTY ON LITIGATION STRATEGY 17. GIVING LEGAL ADVICE TO PARTIES JOINTLY 18. PRIVATE CALLS FROM PARTY WHO IS REPRESENTED BY COUNSEL

SOME ETHICAL ISSUES (cont’d) 19. SUBPOENA CONCERNING MEDIATION; BY PARTY TO MEDIATION; BY BOTH PARTIES TO MEDIATION; BY THIRD PARTY 20. LEARN OF CHILD OR SPOUSAL ABUSE 21. HELP THE WEAKER ADVOCATE? 22. HELP THE WEAKER PARTY? 23. KNOWLEDGE THAT PARTIES ARE NOT CONSIDERING EVERYTHING THAT WILL AFFECT THEM IN THEIR SETTLEMENT

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? 26. FOREGO OPENING AND JOINT SESSION, AND GO STRAIGHT TO CAUCUS AS A RESULT OF: TIME PRESSURE; PARTY PRESSURE? 27. SHIFT FROM MEDIATING FOR UNREPRESENTED PARTIES TO REPRESENTING THEM

SOME ETHICAL ISSUES (cont’d) 28. REPRESENT A PARTY TO A MEDIATION IN: THE SAME MATTER; A SUBSEQUENT UNRELATED MATTER AGAINST THE OTHER PARTY; A SUBSEQUENT UNRELATED MATTER AGAINST A NONPARTY? 29. REPRESENT A NON-PARTY IN A SUBSEQUENT MATTER AGAINST A PARTY TO THE MEDIATION? 30. SPLIT A MEDIATION FEE WITH A NON-ATTORNEY CO- MEDIATOR? 31. TERMINATION OF THE MEDIATOR BY THE ONE OR MORE OF PARTIES

SOME ETHICAL ISSUES (cont’d) 32. ROMANTIC INVOLVEMENT WITH A PARTY; COUNSEL 33. GIVING REALITY FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT 34. GIVING LEGAL FEEDBACK ON SUBJECT OF WHICH YOU ARE IGNORANT 35. TELLING ONE PARTY SOMETHING LEARNED FROM OTHER PARTY IN CONFIDENCE 36. SUGGESTING RESOLUTION

SOME ETHICAL ISSUES (cont’d) 37. PARTY BACKS OUT OF OFFER; DENIES MAKING OFFER THAT YOU KNOW WAS MADE 38. 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.

MEDIATION TIPS FROM THE Tao te Ching Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

THINK CREATIVELY & INCLUSIVELY We join spokes together in a wheel, But it is the center hole That makes the wagon move. We shape clay into a pot, But it is the emptiness inside That holds whatever we want. We hammer wood for a house, But it is the inner space That makes it livable. We work with being, But non-being is what we use. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

TIPS FROM THE ANCIENTS ON MEDIATOR QUALITIES The ancient Masters were profound and subtle. Their wisdom was unfathomable. There is no way to describe it; all we can describe is their appearance. They were careful as someone crossing an iced-over stream. Alert as a warrior in enemy territory. Courteous as a guest. Fluid as melting ice. Shapable as a block of wood. Receptive as a valley. Clear as a glass of water. Do you have the patience to wait till your mud settles and the water is clear? Can you remain unmoving till the right action arises by itself? The Master doesn’t seek fulfillment. Not seeking, not expecting, she is present, and can welcome all things.

KEEP IT THE PARTIES’ PROCESS When the Master governs, the people Are hardly aware that he exists. Next best is a leader who is loved. Next, one who is feared. The worst is one who is despised. If you don’t trust the people, You make them untrustworthy. The Master doesn’t talk, he acts. When his work is done, The people say, “Amazing: We did it, all by ourselves!” Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

Communicate Trust & Good Will To Build Trust and Good Will The Master has no mind of her own. She works with the mind of the people. She is good to people who are good. She is also good to people who aren’t good. This is true goodness. She trusts people who are trustworthy. She also trusts people who aren’t trustworthy. This is true trust. The Master’s mind is like space. People don’t understand her They look to her and wait. She treats them like her own children. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

PLACE THE PARTIES FIRST THEIR NEEDS, THEIR PERCEPTIONS, THEIR EVALUATIONS, THEIR OPTIONS, THEIR SETTLEMENT, THEIR VOICE All streams flow to the sea Because it is lower than they are. Humility gives it its power. If you want to govern the people, You must place yourself below them. If you want to lead the people, You must learn to follow them. The Master is above the people, And no one feels oppressed. She goes ahead of the people, And no one feels manipulated. The whole world is grateful to her. Because she competes with no one, No one can compete with her. 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.

GIVE THE PARTIES TIME TO VENT, EXPRESS THEMSELVES, LAY OUT THEIR POSITIONS, LAY OUT THEIR INTERESTS If you want to shrink something, You must first allow it to expand. If you want to get rid of something, You must first allow it to flourish. If you want to take something, You must first allow it to be given. This is called the subtle perception of the way things are. The soft overcomes the hard. The slow overcomes the fast. Let your workings remain a mystery. Just show people the results. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

DO NOT RUSH (TO EVALUATION OR SETTLEMENT) 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.

KEEP AN OPEN MIND (CAUTION ON EVALUATION) If you close your mind in judgments And traffic with desires, Your heart will be troubled. If you keep your mind from judging And aren’t led by the senses, Your heart will find peace. Seeing into darkness is clarity. Knowing how to yield is strength. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

LISTEN RECEPTIVELY Those who know don’t talk. Those who talk don’t know. Close your mouth, Block off your senses, Blunt your sharpness, Untie your knots, Soften your glare, Settle your dust. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.