Notes from discussion at the 2001 Member Training

General

  1. Overarching themes are the presence of the appropriate decision makers and follow-up.
  2. We have learned that it takes integrated skills to do this work. Not only must we have the hard skills of intellectualism, experience, savvy, focus, analytic insight, and closure orientation, we must also have empathy, listening skills, sensitivity to the needs and interests of the players and personal warmth.
  3. Empathy means understanding without necessarily agreeing.

Pre-mediation conference

  1. Cover the bases; use your “Suggested Procedures” list
  2. Set the tone as collaborative problem solving; coach the gunslingers.
  3. Identify attending decision makers; cross-examine regarding the nature and extent of their authority; obtain buy-in from adverse counsel.
  4. The use of separate conferences is acceptable
  5. The use of a joint conference followed by separate conferences can be considered.
  6. Identify constraints: time, logistics, etc.
  7. Ascertain the nature of the services they want, i.e., evaluative? Update this throughout the process.

The Mediation

Come early - bond.

Mediator Introduction

  1. Set the tone: risk assessment, collaboration, compromise, respect, courtesy, etc.
  2. Use “Suggested Procedures.”

Advocates’ Presentation

  1. Active listening is critical. This involves patience, eye contact and other body language. Does note taking undermine or bolster the perception, and reality, of active listening?
  2. Summarization is useful. The real question is to what extent the mediator summarizes – in a few sentences or in detail?
  3. Do not ask controversial questions in the presence of all? It does not close the gap it only moves the battlefield.

Caucuses

  1. With whom do you meet first? In whose court is the ball?
  2. Early caucuses are useful for information acquisition, venting and bonding. Stay neutral. Identify needs, interests, hot buttons
  3. Identify obstacles to settlement – then work on them
  4. Insufficient information
  5. Difficult attorneys
  6. Difficult parties
  7. Emotions
  8. Faulty analysis
  9. Etc.
  10. Frame communications in a positive light
  11. Manage expectations
  12. Stay positive, patient and persevering
  13. Cutting to the chase may be counterproductive; they seem to like incrementalism
  14. Let them know that they amount of time spent with a particular party is not relevant
  15. Consider joint conference with:
  16. Attorneys
  17. Parties
  18. Everyone
  19. Any other combination that will move the process forward

Closure

  1. This is why they hired us!
  2. Identify barriers to settlement – then work on them (see 3. a – f above)

3. Consider playing the “what if?” game to get them to move

The End

  1. Always be the last one standing. Be strong. They need your stamina and optimism
  2. Ignore their posturing that :
  3. This is the end
  4. There is no hope
  5. We wont move any further
  6. The other side is not acting in good faith
  1. Whatever happens, make it clear:
  2. legal agreement
  3. no agreement
  4. points of understanding, but no legal agreement
  1. No report can be made to a referring court except:
  2. settled
  3. not settle
  4. pending

Follow up

  1. This is huge
  2. Get permission
  3. Get understanding about billing

Ethical Prohibitions

We cannot:

  1. Urge, counsel, or advise the parties to take a certain action
  2. Make a specific prediction about the resolution of a legal dispute

Evaluation

  1. This is information
  2. Hold off on this until:
  3. Late in the ball game
  4. They really need it
  5. They are begging for it
  6. You know enough about the case to evaluate
  7. You are sure you have sufficient experience and analytic ability

Conclusion

Trust yourself – that is what got you into the Group

Negotiation Pointers for Advocates

Information acquisition is key to effective negotiation. Listening is the most important aspect of information acquisition. Implicit in listening is that the listener is not talking.

Building a Customer Base

1. Be:

  1. skilled
  2. available
  3. flexible
  4. visible
  1. Close the deal
  2. Follow up to assist in closing the deal that does not close
  3. Follow up to thank them for the opportunity to be of service