tag:blogger.com,1999:blog-10375512811432248212024-03-13T20:08:02.963-07:00View from the Middle of the RoadView from the Middle of the Road is a Mediator's Perspective of Tools and Lessons that can be engaged to make your mediation efforts more successful and effective.Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.comBlogger91125tag:blogger.com,1999:blog-1037551281143224821.post-67317789792144703412014-10-13T10:13:00.002-07:002014-10-13T10:14:33.689-07:00Bargaining with the Mediator<div dir="ltr" style="text-align: left;" trbidi="on">
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After over a decade of mediation, I sometimes find that after the information has been exchanged and the negotiation is ready to begin with dollars, the parties are stubbornly resistant to discussing numbers that will land them within the likely "trading zone". In these instances, I find it is sometimes effective for the mediator to propose her own "hypothetical brackets" to break the impasse before it finds it's way from lines in the sand to footprints in concrete. By making the bracket "hypothetical", the mediator can take the credit or blame for such outlandish values or suggestions and can also narrow the gap and keep the parties moving. <br />
For example, where a party has made an initial pre-mediation demand of $1 million to settle a real estate dispute and the other side could not possibly pay that, even if it agreed, but could, if necessary, satisfy a judgment in the "low 6 figures", the mediator may propose an initial bracket of $100,000 to $500,000 to settle (instead of attempting to negotiate between $1 million and a $10,000. offer all day). The Plaintiff may not agree, but could then "negotiate with the mediator" to propose a bracket of $250,000 to $750,000, instead of sticking at $1 million or $990,000 in response. The other side, hoping to end up between $100,000-$300,000 would be resistant to that, but might propose to the mediator that they would accept a bracket of $150,000 to $350,000. This is a classic "negotiation with the mediator" in the execution of the "what if" game. The likely starting place for entering into the trading zone would then become $200,000 to $550,000, which may jump start the negotiation considerably from the $990,000 to $10,000 starting place. <br />
By negotiating with the mediator instead of the opposing party, the disputants are able to test the values and get into the trading zone in a hypothetical way without making offers that become floors or ceilings for further negotiation if it becomes apparent that the parties cannot get into the same "trading zone" on the day of mediation. Do any other mediators or lawyers find this effective as a strategy to save face and gain information? Are there ethical considerations that I may be missing here?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-2985619732372611372014-09-24T11:27:00.000-07:002014-09-24T11:27:22.203-07:00Getting to the ZOPA in Negotiation<div dir="ltr" style="text-align: left;" trbidi="on">
<a data-mce-href="http://schaumediation.com/secure/wp-content/uploads/2014/09/1280px-Baseball_diamond.svg_.png" href="http://schaumediation.com/secure/wp-content/uploads/2014/09/1280px-Baseball_diamond.svg_.png"><img alt="1280px-Baseball_diamond.svg" class="alignleft size-thumbnail wp-image-1228" data-mce-src="http://schaumediation.com/secure/wp-content/uploads/2014/09/1280px-Baseball_diamond.svg_-150x150.png" height="150" src="http://schaumediation.com/secure/wp-content/uploads/2014/09/1280px-Baseball_diamond.svg_-150x150.png" width="150" /> </a><br />
Yesterday I heard an employment case where a trial lawyer earnestly
believed that he could get an inflamed jury to award his client at least
$500,000.00 based upon the wrongful termination of a young, minimum
wage worker who had less than $20,000.00 in lost earnings and some
challenging facts to overcome. His former employer came to the
mediation prepared to pay his lost earnings (actual damages) if he had
to, but not at all prepared to pay something akin to "punitive" damages
based upon the spin the trial lawyer intended to put on the case.
Clearly, the two parties were not in the same "playing field" and the
old-fashioned distributive bargaining (an initial demand of $650,000 and
an initial offer of $2,000) were never going to work to get this case
settled.<br />
When the parties or their lawyers arrive at mediation
with wildly divergent evaluations of the case, it's worth spending as
long as it takes to discuss and agree upon the ZOPA: Zone of Possible
Agreement, however broad it may be. Just as in baseball, the parties
need to work with their lawyers to determine the boundaries for
negotiation and what is truly "out of bounds". In this case, that
occurred through my own hypothetical negotiations--each time narrowing
the ball field until it became clear to me that the case had a
settlement value of something between $10,000 and $100,000, not $2,000
and $650,000. Once both sides agreed to be in the same "ball park"
realistic negotiation could ensue.<br />
How do you communicate to your
clients or your adversary counsel about the ZOPA before wasting precious
time defining the boundaries of negotiation in mediation?<br />
</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-55303181743518716532014-09-18T07:30:00.000-07:002014-09-18T07:30:01.586-07:00The Angel of Optimism: What to do (beyond Prayer) after a Mediation Fails<div dir="ltr" style="text-align: left;" trbidi="on">
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Mediations happen at all different times in the life of the dispute.
This month, I've mediated two matters that had not yet been filed as
lawsuits, one where no discovery had yet been conducted, and another on
the eve of trial after a previous mediation failed. All of the
disputants came with the hope and expectation that their conflict would
get settled that day. Unfortunately, it doesn't always work out that
way. But after the formal mediation ends, the hard work begins when
phone call and email and private meetings and review of documents takes
place in a painfully slower process than the single day in which
everyone agrees to set aside their other business and concentrate on
just one matter. Parties and sometimes their lawyers are tempted to
give up and proceed to spend the time, money and risk shutting down all
negotiation in the name of thorough litigation--as though they were
never going to revisit the wisdom of a settlement. In those cases, I
urge the litigants to tap gently on the shoulder of their "Angel of
Optimism"/Mediator and allow me to keep them on track and cool as they
navigate the tumultuous waters and get to the other side. In other
cases, I will admit that I end up serving as that pesky little dog who
just won't let go of your pant leg. Somehow or other, the parties are
ever grateful that somebody sees it as their job to keep working for a
resolution--even while they engage lawyers to prepare for the potential
that this is the 1 case they will take to trial this year or next.
Which do you prefer: the angel of optimism or a pesky little dog ever
nagging you to tune back in to the conflict your weren't able to resolve
last week? What other ways do you "stay with the conflict" when it
fails to settle at the mediation session?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-78908340721713110292014-09-11T08:00:00.000-07:002014-09-11T08:00:06.175-07:00Non-Monetary Concessions in Mediation: Can they be Effective?<div dir="ltr" style="text-align: left;" trbidi="on">
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Believe it or not, lawsuits are not always brought merely for money.
Sometimes, a gesture of good faith, a sign of understanding, a
non-monetary, symbolic concession can make all of the difference. It
sounds trite, yet many of my colleagues in the International Academy of
Mediators have chimed in to a dialogue about the interesting array of
non-monetary concessions they have witnessed in settling the highest
level of legal disputes.<br />
In my own practice, I had an interesting
real estate dispute between neighbors over the rights to use of a parcel
of land between them. The Plaintiffs were seeking hundreds of
thousands of dollars as damages, claiming that the value of their
property had been substantially diminished. As an interesting, creative
offer, the lawyer for one of the parties offered to purchase the
property from the Plaintiffs at a substantial increase from their
purchase price. Although they did not accept his offer, they did
recognize that perhaps the property they thought had diminished in
value, had in fact appreciated. Rather than holding a clouded
property, they now saw it as the gem they first endeavored to buy. It
was just that minor shift that opened the gates towards a reasonable
settlement.<br />
What are some of the creative ways that you've seen settlements occur that work effectively?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-36813174448431696452014-09-04T07:30:00.000-07:002014-09-04T07:30:00.369-07:00Handling Continuing Continuances of Mediation<div dir="ltr" style="text-align: left;" trbidi="on">
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The lazy days of summer are behind us and most people return in
September with a renewed purpose and determination to take care of
business, stop procrastinating and get back to work. In those cases
where a scheduled mediation hearing is continued more than once, the
mediator is well-served to inquire and consider the basis for the
continuance. Is there a hint that the parties can work out their
differences without the aid of a neutral third party? Has one party
lost hope that any meaningful settlement can be achieved? Is one party
preparing to file bankruptcy, go out of business or abandon the claim?
Is there posturing going on about how the fees should be split and who
should be at the bargaining table if meaningful negotiations are to take
place? Do the parties not wish to invest in the settlement by paying
the mediator's fees in advance as is required by their engagement? Does
one party not wish to pay their lawyer to pursue this avenue? Has the
Plaintiff or his lawyer lost interest in the case and reached the
conclusion that it's not worth pursuing?<br />
As in all facets of
mediation, make no assumptions. Still, I think it's fair to ask the
party who requests the continuance why they are seeking it. Sometimes,
it can give valuable clues into the risks and benefits to settlement
when they ultimately do show up for mediation. How do you handle
postponements and as lawyers, do you reveal the reasons to your
mediator?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-16627189320249937732014-08-27T16:01:00.003-07:002014-08-27T16:01:26.987-07:00Balancing Fairness and Justice: When Just Right isn't Enough<div dir="ltr" style="text-align: left;" trbidi="on">
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As an arbitrator (or a Judge) we have limits--on our outward
demonstration of compassion, our creativity in crafting appropriate and
fair remedies and our moral indignancy where wrongs occur without
remedies. As poorly as we may feel about how someone was mis-treated,
we are constrained to follow the letter of the law (even where it may be
at odds with it's "spirit") and dole out remedies only where each
element of a given cause of action has been proven by a preponderance of
evidence together with actual, credible, available damages. Yet, life
is messy. Memories fade. Documentation is not always what we wish it
were and hindsight is not always perfect. At trial, the evidence may
not be sufficient to meet those high standards.<br />
This week I was
challenged by a multi-day arbitration where I felt personally torn
between the dictates of "justice" (technically, the respondent had no
legal obligation to keep an unwanted, at-will employee when a new
Supervisor came in who disliked him) and the cry for "fairness" which
may have dictated he be given some notice, explanation, that the
termination be based upon legitimate "cause" or at least that he be
given some recognition for the many years of service that the employee
had given prior to the termination.<br />
My struggle ended with my own
suggestion to the parties that before they finish putting on all of
their evidence (and possibly becoming further emboldened in their
positions) and before I was forced to apply the law and reach a verdict
which would be adverse to one and victorious to the other, perhaps they
would like to engage in settlement discussions. Five hours later, and
to my great relief and their great surprise, they had arrived at a very
creative and fair settlement--which had less to do with "justice" than
my verdict would have, but everything to do with "fairness". I am
confident that 2 days into trial, had I not suggested this approach, the
parties would not have recommended settlement discussions to their
respective clients. Both had engaged very competent counsel to win.<br />
Sometimes,
a neutral third party is exactly what the parties need to arrive at the
delicate balance between "fairness" and "justice" that we try to
maintain. Do other arbitrators dare to recommend settlement discussions
during the evidentiary hearing? (I did not serve as the mediator, by
the way, because no one was expecting this would work--so they wanted me
to continue the hearing if it failed.)<br />
I offer this experience as hope for a more balanced future outcome on the tough ones!</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-429723762760945922014-08-21T08:00:00.000-07:002014-08-21T08:00:01.423-07:00Mediating with mental Illness<div dir="ltr" style="text-align: left;" trbidi="on">
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I am increasingly aware that there is a broad spectrum of frustrated
individuals amongst us. Some turn to their doctors, others to lawyers,
still others to clergy members, best friends or family members when
problems seem too great to cope with on their own. What I learned this
week from a psychologist who observed a hearing I conducted, is that
many people with mild to moderate mental health disturbances seek out
validation for their conduct (or vindication for the misconduct of
others) through repeated legal challenges. Whether they are truly
"vexatious litigants" or merely forever challenging authority in their
work place or their communities, there are plenty of instances where my
non-professional opinion leads me to conclude that something other than
the facts and law are driving the particular dispute before me. As we
often say, even with those not mentally ill, "it's never just about the
money". In those cases, it would appear to me that the best "treatment"
that a mediator (or Judge) can offer is to allow the individual to
fully vent, demonstrate attentiveness and understanding and then proceed
to work to find the best outcome possible based upon that genuine
understanding.<br />
Still, I am not a psychologist and frankly have no
confidence that what I do as a mediator is adequate to "hear them out"
and allow the necessary venting. Sometimes, in fact, I am tempted to
blow up at them and recommend they seek out mental help, not legal
help. Of course, I never have allowed myself to go that far, but I
wonder what others do to manage parties who exhibit signs of mental
illness in the course of the mediation? Can it be ignored? Can it be
helped or changed? What are the best strategies to manage these
challenging disputants?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-34683106398059461392014-08-14T12:01:00.000-07:002014-08-14T12:01:00.225-07:00Keeping Your Balance in mediation<div dir="ltr" style="text-align: left;" trbidi="on">
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Mediators are called upon to be chameleons: we need to take on the
stripes of each of the parties, while steadfastly resisting all urges to
lean to one side or another, thereby not only compromising our own
neutrality, but perhaps tipping the scales of justice. This week, I
found myself less than neutral when a woman younger than I teared up and
complained to me that the muscular sprain that she suffered 3 years ago
when she slipped in a store that she was suing, has kept her from
working, having intimacy with her husband and basically has ruined her
life. She still wears an orthopedic brace and claimed to have severe
and disabling pain throughout the 1/2 day hearing. Despite the good
work that I managed to conduct between the parties as to likely outcome
of both liability and damages, Plaintiff refused to accept her
attorney's recommendation of a respectable settlement/compromise in the
disputed claim.<br />
Be reminded that 1 month ago I suffered a fracture
of my foot and chipped two bones in my ankle. I am still wearing a
non-weight bearing boot and still managed to conduct no less than 8
hearings since the accident. Although I am uncomfortable, I am in no
real pain and my bones are healing as they are expected to. Still, it
was excruciatingly hard for me to summon up genuine sympathy for the
Plaintiff--whose injuries, by comparison to mine, were minor and long
ago!<br />
At times like these, I need to remind myself that my
perspective can never be substituted for the parties in the dispute. I
am engaged to facilitate the analysis--but in the end, the decisions,
the risks, the rewards are all in the hands of the disputants. In Yoga,
there is a position of balance that mimics a tree (See inset). At
times of great conflict, it's useful to have such a position to resort
to--a kind of momentary "time out" to re-gain that perspective and
re-focus on the dispute at hand. Mediators sometimes call this
technique "going to the balcony"--a visual of taking yourself out of the
dispute to re-gain that "birds eye view". I'm not sure I accomplished
that in this hearing, but it's a good reminder that even a person with a
broken foot needs, occasionally, to balance on one leg.<br />
What
techniques do you engage to keep yourself balanced in the
negotiation--or is it okay to lean on one side or the other in these
circumstances?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-57704381241829382422014-08-07T08:30:00.000-07:002014-08-07T08:30:00.431-07:00When will this be Over? The Agony of the Drawn Out Mediation Session<div dir="ltr" style="text-align: left;" trbidi="on">
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After over a decade as a neutral, occasionally I can see where the
parties will go and that settlement will be accomplished fairly early in
the process. Last week, I had the pleasure of being "shadowed" by a
student of mediation, who asked me quite directly, "Why is it necessary
to do this back and forth in these instances? Why can't the parties
just get to their number, since it's clear at the outset there will be
an acceptable number in a close range?"<br />
As in everything
worthwhile, my response was that if the parties had to work for the
resolution, they would also have some ownership in it. In my
hypothetical dispute, the initial demand was $100,000. The initial
offer was $10,000, but confidentially, the defense counsel told me he'd
never go beyond $50,000.00. The case settled at a mid-point of
$45,000.00 some 3 hours later, and both sides felt triumphant. I am
confident, as I assured the "mentee" shadowing my hearing that day, that
had I made the offer of $45,000 as the first (but final) offer as
against a $100,000.00 demand, the Plaintiff and her lawyer would have
demanded $90,000 and would not have felt as good about ultimately
accepting $45,000. as a compromise. In fact, they may well have
rejected that offer and let slip away a decent compromise.<br />
Although
sophisticated parties and their counsel are often impatient and want to
begin the negotiating process and conclude it quickly, shortcuts are
dangerous when the mediator is attempting to manage expectations, weave
in sensible tidbits from the varying versions of the factual history and
continually assess the likelihood of success if the matter does not
settle on that day, together with the costs attendant to a failure to
reach an agreement.<br />
In what ways do you pace your negotiations for maximization of success?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-4645540132101356692014-07-31T08:00:00.000-07:002014-07-31T08:00:04.549-07:00Using Diplomacy in Negotiation<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="http://schaumediation.com/secure/wp-content/uploads/2014/07/diplomacyquotes-150x150.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img alt="diplomacyquotes" border="0" class="alignright size-thumbnail wp-image-1190" data-mce-src="http://schaumediation.com/secure/wp-content/uploads/2014/07/diplomacyquotes-150x150.jpg" height="150" src="http://schaumediation.com/secure/wp-content/uploads/2014/07/diplomacyquotes-150x150.jpg" width="150" /></a></div>
In my humble opinion, neither missiles nor trials are effective at
getting the message across to an unwilling, unreceptive party.
In these troubling times in the Ukraine and the Middle East, I find
myself returning to my undergraduate training in International Relations
at Pomona College, where we students of diplomacy were advised to
choose our negotiating partners wisely by picking the person whom we
most trusted to carry the message of our people or our cause with the
most respect, tact and reserve, but forcefully and convincingly.<br />
<br />
During
mediations, at times when the emotions are high and the level of
misunderstanding and distrust even higher, I find myself resorting to
these old diplomatic lessons. I straighten my scarf (preferably an
expensive one from Paris, France), I turn up the highest polite
etiquette (addressing everyone by Mr. or Mrs. and standing when they
enter or leave the room). I breathe deeply before I say anything,
carefully considering the way each message is delivered and received.
In short, sometimes mediation calls for the same formality as
diplomacy. Once the parties have selected a trusted third party
neutral, they are more apt to receive her message with open-mindedness
and even gratitude for leading the way out of conflict. I wish the
Israeli's and Palestinians could agree upon a trusted third party who
might be able to speak so each could listen and listen, so each could
speak. Maybe then there would be some acceptable framework for dialogue
and creative solutions.<br />
<br />
In what ways do you summon diplomacy to achieve better settlement results in litigated cases?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-20951635141488693152014-07-24T07:30:00.000-07:002014-07-24T07:30:00.991-07:00Dancing on One Foot: The Dynamics of Negotiation<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjcRJANViOJXCnzOpeid76w0kVZHjbfo4_Q28wdIFYOJsjnKOa9n8dwpshi39JK17hSa9FJ_NPCWAwlv5ALyfE_ghdX1nAtVrvdZegvzEi2xXkjyJERa33OotgzEkz3dsxmkHugDhXZiDtn/s1600/ralph.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjcRJANViOJXCnzOpeid76w0kVZHjbfo4_Q28wdIFYOJsjnKOa9n8dwpshi39JK17hSa9FJ_NPCWAwlv5ALyfE_ghdX1nAtVrvdZegvzEi2xXkjyJERa33OotgzEkz3dsxmkHugDhXZiDtn/s1600/ralph.jpg" /></a></div>
There is a certain rhythm that develops with every negotiation.
Sometimes, for example, I find myself physically "leaning in" towards
the party with whom I'm working. Sometimes, when I think I need a
position of authority, I stand as I enter a room, whereas at other times
I invite the parties to sit alongside me, suggesting by my position
that "this may take awhile". Even the parlaying of offers and
counter-offers can be fast or slow, laced with a lengthy explanation or
just conveyed through numbers.<br />
Some of you may know that a couple
of weeks ago I stumbled and broke my right foot. This meant that the
last 4 mediations which I have conducted have been completely different
than any that have preceded them. Unable to walk or stand on two legs, I
have stayed seated, at the head of a conference table and invited the
parties to come back and forth to me for every discussion. I have spent
four full days with this new experiment and here are my reflections.<br />
Last
week, it was extremely difficult as I felt I had little control over
the negotiations. I was unable to casually enter either room or whisper
my ideas in the hallways as I may have in a "normal mediation". I was
dependent upon other mediators to usher folks in and out or, in one
case, asked the counsel to advise one another when it was "their turn".
But this week, assisted by a couple of well-trained Southern California
Mediation Association's "mentees", my mediations went much more
smoothly. Now, when I stand in place (assisted with the walkers, crutch
or mentee), the disputants know that I am "in command", and when I
wheel myself to their room for a final "closing" discussion on my new
knee scooter, they are so appreciative of my effort that they listen
attentively and are much more deferential than when my two legs dance
over under ordinary circumstances. I have learned to accommodate to the
rhythm as necessary, and more importantly to stay in tune with the
rhythm of the music in new and interesting ways.<br />
I am sure there
are many lessons which I will learn in this summer of non-weight
bearing, but in the dance of negotiation, I have learned that it is
possible to use the change in dynamics to effectively move the parties
towards a resolution, even on one foot.<br />
How do you use the physical movements in your mediation to achieve settlement?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-64294007063323924122014-07-17T16:22:00.005-07:002014-07-17T16:22:48.992-07:00Staying the Course: Follow Up Care in Mediation<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEicdzcD9k4JL4aD5NJIEwdgLGeG5o3qVFO5jmsHSlyCgzgYqOWggmnvq3a22bYdxOEZiVgJK9Fj2iEOtJIgVkyLVZW5ZmcDRIv9jrpqyqCBFmUvmj4CN8IZpz2omvZlmkhheftdXSs7WyrA/s1600/Staying-the-Course1.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEicdzcD9k4JL4aD5NJIEwdgLGeG5o3qVFO5jmsHSlyCgzgYqOWggmnvq3a22bYdxOEZiVgJK9Fj2iEOtJIgVkyLVZW5ZmcDRIv9jrpqyqCBFmUvmj4CN8IZpz2omvZlmkhheftdXSs7WyrA/s1600/Staying-the-Course1.jpg" height="197" width="320" /></a></div>
Last week I was on vacation in Lake Tahoe. While there, I was
contacted by one of the lawyers who had come before me in a mediation
last Spring. Now, some of the pleadings had been amended and new
parties had been added. Not surprisingly, his client had expressed
interest in revisiting the negotiations which broke down at a time when
the numbers being advanced did not seem 'worth it". In between my own
kayaking and hiking, I made the time to follow up and re-engage both
parties in a course leading to settlement and steered them off of their
current course towards trial.<br />
<br />
In another case, there were numerous
decision-makers who had not been present for the full day's mediation
session and could not appreciate the effort or logic to the Plaintiff's
"last, best and final offer" which came at the day's end. For them, I
spent several hours preparing a written, confidential "mediator's
analysis" memo which they could share with the others and use as a basis
to discuss their response after they all had a full opportunity to
review what I had learned about the facts, the legal liability and the
damage claims. They agreed to consider this and respond to the
Plaintiff's demand in a couple of weeks.<br />
<br />
For those of us with a
busy mediation practice, it's not easy to "stay the course" in this way,
but I've been told it is what distinguishes the true professionals from
the novices. Luckily, as I've gained more experience, I find that most
cases do settle in a single day, so my portfolio of "open cases" and my
risk of being interrupted while on vacation grows smaller!<br />
What do you do to "stay the course" where the mediation doesn't result in a settlement initially?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-74193220795756211652014-07-10T10:43:00.000-07:002014-07-10T10:43:00.661-07:00The Lawyer-Whisperer<div dir="ltr" style="text-align: left;" trbidi="on">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEigcvTEnYONQSjchtAInqhr5cps2yQ88rAjjJ1MfbBli1IHI-xnJye0keNwxgcmHCNe-XMO2Frd-EaHgvvEbmEIbl9mTHb_wZ4ZdIHwW9PkNy-14JF3OSIGnxnw6BPoDc-NRSTQuEJ9WQUi/s1600/Businessman-Trade-Secret.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEigcvTEnYONQSjchtAInqhr5cps2yQ88rAjjJ1MfbBli1IHI-xnJye0keNwxgcmHCNe-XMO2Frd-EaHgvvEbmEIbl9mTHb_wZ4ZdIHwW9PkNy-14JF3OSIGnxnw6BPoDc-NRSTQuEJ9WQUi/s1600/Businessman-Trade-Secret.jpg" height="320" width="219" /></a>Occasionally, facts come out in a mediation that are entirely
irrelevant to the dispute at hand, yet appear to be true obstacles to a
successful resolution of it. Recently, for example, I mediated a
pre-litigation employment dispute in which the employer company had been
sold after the employee's termination. That part was well known to
both me and the opposing counsel. What was not known to any of the
participants in the mediation is whether the law firm handling the
defense of the matter would be able to maintain the Corporation as a
client once "NewCo." took over. This meant that the Defense lawyer
wanted to settle the case, but wanted to do so at an attractive enough
rate that his work might gain the attention of the potential new client
as the transition took place.<br />
In an interview with the CEO of
Pepsi on the news last week, Indra Nooyi declared that "women can't have
it all", and yet I have also delicately scheduled arbitrations and
motions, and settled cases to avoid a trial which would otherwise occur
during a still-secretly planned maternity leave by many women lawyers.
As Nooyi suggests, many women professionals still feel the need to keep
secret from their opposing counsel or others the plan to take a 3 or 4
month leave of absence, lest they take advantage of their "delicate
state" (or absence). Indeed, many agree with Nooyi that women
professionals simply "can't have it all".<br />
Practicing law, for most
of us, is both a life-long career and a business. Both factors play in
over the span of life's milestones and business and economic
challenges. When they arise, I summon all of my diplomatic skills to
respectfully confide (with permission of course) in the opposing
attorney as to the little lawyer-secrets that have presented obstacles
to resolution. Usually, once I take them into my confidence, the other
side rises to a respectful and more understanding place and agrees to a
settlement that is attainable under whatever circumstances have declared
themselves, rather than hold out for something that is only a potential
in the future.<br />
How do you handle lawyer-secrets that go beyond the facts of the dispute at hand?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-26638108088174322642014-07-03T08:00:00.000-07:002014-07-03T08:00:03.465-07:00Preparing for the Unexpected<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEggTjxPcGrJpRLFN9qUeqoVzpi7vjGNfCB4Q-rFHOYA4WTdsHPdUTt6KjpRJmW6aHpMJgLbkfyp-o03YdZ5oBZlOrwBeorSuguhS6cYTInnhdAjkTPLhVS6FCZAoXrlWqTyiCq3ct0XTizv/s1600/fireworks036_slide.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEggTjxPcGrJpRLFN9qUeqoVzpi7vjGNfCB4Q-rFHOYA4WTdsHPdUTt6KjpRJmW6aHpMJgLbkfyp-o03YdZ5oBZlOrwBeorSuguhS6cYTInnhdAjkTPLhVS6FCZAoXrlWqTyiCq3ct0XTizv/s1600/fireworks036_slide.jpg" height="176" width="320" /></a></div>
<br />
On this eve of American Independence Day, I am reminded that in
mediation, we always need to be prepared for the unexpected. Yesterday,
fireworks nearly erupted after a full day's mediation when, as the
Defense lawyer began drafting the settlement agreement, his client
raised (for the very first time) that he would be unable to pay any of
the negotiated sum until after the Christmas holiday brought much needed
revenue back into his business. While this made for a colorful
backdrop to the easy negotiations that had transpired up until that
moment, it also threatened to derail the entire process. At times like
these, I find the best approach is to take a few steps away from the
"fire" and pivot towards giving some space for creative solutions. In
this case, the lawyer and I were able to analyze that this "debt" would
take priority over others if the Plaintiff's counsel went to trial and
got an adverse verdict. Periodic payments made to Plaintiff would be
roughly equivalent to the monthly invoices that the Defense counsel
would be sending in the same period of time. At the same time, I tipped
off the Plaintiff that there was "an issue" about how soon payments
could be made--suggesting he may have to wait until year end. That way,
when Defendant figured out how he could make the full payments within
90 days, it didn't seem quite so shocking and the deal was done. Like
fireworks in the night's sky, some big, scary, fiery events will come
out with a boom and then fizzle into the air again.<br />
How do you handle the late-day fire works and surprises that come up when clients or lawyers erupt unexpectedly?<br />
Wishing you all a wonderful, safe and sane 4th of July!</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-51248074642892677542014-06-26T08:00:00.000-07:002014-06-26T08:00:00.127-07:00The art of Small Talking<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjcifaxyj-FERiTbvbjdkH1_dY07d3aen0D_L-70ZmjgPUzpMSjTUxqx6InkFEwkr1OHGjh1zZ7xkwSNM0IKMtdITjFFtug-hhzAzrYpOcjEDhx2-x1ioZrJ1FzxronFmGv4kMQMerCYbo4/s1600/tumblr_mgzlo2CKaB1qcxh9vo1_500.gif" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjcifaxyj-FERiTbvbjdkH1_dY07d3aen0D_L-70ZmjgPUzpMSjTUxqx6InkFEwkr1OHGjh1zZ7xkwSNM0IKMtdITjFFtug-hhzAzrYpOcjEDhx2-x1ioZrJ1FzxronFmGv4kMQMerCYbo4/s1600/tumblr_mgzlo2CKaB1qcxh9vo1_500.gif" height="180" width="320" /></a></div>
<br />
My friend and "She Negotiator", Victoria Pynchon blogged this week
about women and small talk. Essentially, she reminded me that women are
sometimes superior at making idle conversation (the social grace in
us!) and yet in professional settings have often tried to mask or hide
this innate ability, for fear of appearing shallow.<br />
Here is a cute
little reminder from none other than Larry David that small talk can be
the key to forming the cornerstones of trust, rapport and cooperation
at the beginning, middle and end of a negotiation. It is an art best
practiced at dinner parties and while waiting at elevators, but is an
art worth developing. Invariably, if you work at it, you can find some
common experience or interest with most everyone you meet. A genuine
curiosity about their interests will also serve you well. After all,
mediation is designed to be a way to open up communication between two
sides of a dispute who have shut down. Small steps towards creating a
lifeline between the two will invariably break down the barriers built
up to shield them from the discomfort of the dispute. World Cup Soccer
anyone?<br />
What efforts do you make to engage your opposing counsel
or mediator in "small talk" in order to create rapport and get beyond
polarity?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-13572797734833333132014-06-12T07:00:00.000-07:002014-06-12T07:00:02.670-07:00Lessons from my Father: The Value of a Hearty Handshake<div dir="ltr" style="text-align: left;" trbidi="on">
With more and more mediation hearings occurring before the litigation
gets fully underway, many disputants and opposing counsel have never
met before the mediation hearing. For this reason, I'm finding it
increasingly vital that every mediation hearing begins with a quick
"meet and greet" between the parties and a genuine handshake. Research
backs me up on this. In a study<a data-mce-href="http://schaumediation.com/secure/wp-content/uploads/2014/06/handshake.jpg" href="http://schaumediation.com/secure/wp-content/uploads/2014/06/handshake.jpg"><img alt="handshake" class="alignleft size-thumbnail wp-image-1144" data-mce-src="http://schaumediation.com/secure/wp-content/uploads/2014/06/handshake-150x150.jpg" height="150" src="http://schaumediation.com/secure/wp-content/uploads/2014/06/handshake-150x150.jpg" width="150" /></a>
conducted at the Harvard Business School, subjects were asked to
negotiate a mock purchase and sale of a piece of real estate. The
control group was requested to begin with a handshake. The other group
were seated across the table from one another and most of them entered
into an immediate negotiation without bothering to shake hands
beforehand. Surprisingly, the results for the two groups were
different. After a handshake, both buyers and sellers tended to be
"less misleading" according to the study, and both sides reported
arriving at a deal that seemed fair and evenly distributed, in contrast
to the other group, who reported that the deal was less fair and
imbalanced in many instances.<br />
My father was a successful business
man for over 30 years. For him, "his word was his bond" and he would
routinely buy merchandise for resale in a face-to-face negotiation which
began and ended with a genuine handshake. Last week, I conducted a
pre-litigation mediation. The defense counsel had flown in from
Northern California and had never met the (very compelling) Plaintiff
nor her (very well prepared) Counsel. All interaction up to that point
had occurred via email. There were no depositions and no court
appearances to rely upon. We began with a sincere meet and greet and it
really did set the tone for a successful, deliberate, polite and
reasonable negotiation for the balance of the day. (Of course, unlike
my father, the ultimate settlement was reduced to a writing signed by
all parties at the conclusion).<br />
Even in cases in which the parties
or the mediator decides to dispense with an initial joint session, this
little gesture of a meet and greet and some human interaction, even
touch, may go a long way towards getting even the most contentious
matters resolved civilly and efficiently. Do you insist upon an initial
handshake amongst disputants and counsel?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-47238650949248813732014-06-11T11:15:00.005-07:002014-06-11T11:15:49.313-07:00Ethics and Legal Bargaining: When the Pre-Mediation Goes Up at the outset<div dir="ltr" style="text-align: left;" trbidi="on">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhcKYddF61hrY8LnebrBBm20NgSbrFU1sOpmfDhz-n_Uonvf6jVcFI7q_bFDMdi0zz1otYFrVFDIkC9gxTJ3XC9nllpH_5zyLQ6c4eWWjNoHt9DN8nwBw7ZgSb5Y6DFI-Bd_9SpcB3tJV16/s1600/Secrets.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhcKYddF61hrY8LnebrBBm20NgSbrFU1sOpmfDhz-n_Uonvf6jVcFI7q_bFDMdi0zz1otYFrVFDIkC9gxTJ3XC9nllpH_5zyLQ6c4eWWjNoHt9DN8nwBw7ZgSb5Y6DFI-Bd_9SpcB3tJV16/s1600/Secrets.jpg" /></a>It has happened to me twice in the past two weeks. The Plaintiff's
lawyer has sent a demand letter asking for settlement in a certain
amount without the authorization of her client. The response to the
demand letter was a willingness to attend a mediation, which is then
scheduled for 1-2 months after the demand was communicated. Then when
they arrive at mediation, the demand doubles or triples--simply so that
they can get back to an ultimate settlement at very near that original
demand.<br />
While it may be a breach of ethics to make a demand to
settle a case without specifically gaining the client's authority, the
other challenge is that it creates some awkward moments as the
negotiation begins by going backwards, not forwards at the start of the
mediation hearing for both client, mediator and the other side of the
dispute. For a mediator, it is a minefield when this discrepancy or
intention is discovered for the first time in an initial session with
Plaintiff and his counsel. Where it occurs, I have had concerns about a
breach of fiduciary duty to the client and may first discuss the issue
privately with the Attorney and then, if they insist upon opening with a
demand that is higher than their pre-mediation demand, unless there are
new facts or circumstances, I will ask them to articulate the basis for
that move directly to opposing counsel.<br />
In both instances, simply
walking gently down the path of understanding why the attorney made the
initial demand and why the client insists upon starting at a higher
demand may be all it takes to untangle the mess and advance the
negotiation instead of jump backwards and head towards an impasse. One
of the best ways to avoid this is to question the lawyers before the
mediation hearing as to any pre-mediation settlement dialogues and
whether anything has changed to cause them to re-evaluate those numbers
as a starting place. They will likely reveal their issues during that
pre-mediation conference call and allow you to break through this
ethical minefield with all parties and their counsel in tact.<br />
What do you do when there is this apparent reversal or re-appraisal at the mediation hearing?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-38558488407092512042014-06-05T09:08:00.000-07:002014-06-05T09:08:08.584-07:00Foreign Exchange: When Eastern Yuan meet Western Dollars<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjb9iOss-oHp4glVRrunUF0L4570J5jVoi-vZE0JkDZyJVkiMScOtH37gog5xylrbnKVGEx9n0HxJh9tPkBfP1Vix_LmYNSfkDJrSM24Oor_0niy_Gza65kx3wfJfy1g4XMMVjghCjdeEWT/s1600/xChinese-Yuan-ETF.jpg.pagespeed.ic.xhts-MPEHM.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjb9iOss-oHp4glVRrunUF0L4570J5jVoi-vZE0JkDZyJVkiMScOtH37gog5xylrbnKVGEx9n0HxJh9tPkBfP1Vix_LmYNSfkDJrSM24Oor_0niy_Gza65kx3wfJfy1g4XMMVjghCjdeEWT/s1600/xChinese-Yuan-ETF.jpg.pagespeed.ic.xhts-MPEHM.jpg" height="290" width="320" /></a></div>
This week I mediated an interesting dispute between a Chinese
employer and it's former employee, who was an American citizen working
in America for the Company at the time of the termination of his
contract. It was interesting to learn that apparently the remedy in
China for the wrongful termination of an employment agreement is a
maximum of eight weeks of earnings. Here, the remedy may include actual
lost earnings (back pay), front pay for some reasonable period of time
(the reasonable amount of time estimated it will take to find
alternative equivalent employment), emotional distress and attorneys
fees. In California, this often results in even higher settlements when
issues surrounding wage and hours are factored in. In this case, it
amounted to a (confidential) six figure settlement. But that is where
the real cross-cultural challenge began, not ended.<br />
As a student
of International Relations in the 1970's, there simply was no discussion
about concepts like "money laundering" and business ventures with the
New Republic of China. At that time, China was a Communist country
which was not open to conducting business with U.S. citizens. As I
recall, it was not yet open to American tourists either. So it was some
surprise to learn that the Chinese employer here considered the problem
of transferring hundreds of thousands of Chinese Yuan to America in a
lump sum completely daunting. In all likelihood, he believed it would
be held up by the Chinese government and may take many months and great
efforts to get the money out of the Country. On the other hand, there
was so much distrust between the parties that neither one were
comfortable with a protracted payment plan which could be in the maximum
of $10,000.00 USD increments. That seemed to be the magic number which
could fly under the radar of the government and not be flagged for
scrutiny or held up upon transfer.<br />
Ultimately, the creative and
cooperative lawyers, once they arrived at a deal on the settlement of
the case, agreed to using a Chinese escrow. Defendant will put all of
the money into an account, and the escrow will be charged with sending
the funds over a period of months until fully paid directly to the
Plaintiff's lawyer. The use of a trustworthy neutral third party is,
of course in my view, brilliant!<br />
I offer this as a lesson in
cross-cultural negotiation in an arena that I have never had to delve
into before. What creative ways have you developed to move money from
one currency and country to another safely and legally?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-72946833683471569182014-05-29T08:00:00.000-07:002014-05-29T08:00:02.479-07:00Taking Time Out from the Mediation Hearing<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEipQctQnmFySUg-Ge8XiFVrjIJTQbV-tLH8uLs2n3rv-sf3TSwbp34pLE2MJu4vWamBJ_FsCrSy2gCEOWAUSUpeGnCt9GevDNVUFUqLVIih-8VqUvyxqv4upsJCcFoKrPPPPuYtbkQ03jGL/s1600/Catalina320a.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEipQctQnmFySUg-Ge8XiFVrjIJTQbV-tLH8uLs2n3rv-sf3TSwbp34pLE2MJu4vWamBJ_FsCrSy2gCEOWAUSUpeGnCt9GevDNVUFUqLVIih-8VqUvyxqv4upsJCcFoKrPPPPuYtbkQ03jGL/s1600/Catalina320a.jpg" height="241" width="320" /></a></div>
On weekends, you can find me aboard our sailboat, aptly named, "Time
Out". Last week, I had two mediation hearings which could not settle on
the day of the hearing. Rather than declare an impasse, however, I
simply called a "Time Out". In the first case, there was some yet-to-be
discovered documentation which Plaintiff's lawyer believed would
support his contention that the basis for the termination was pretextual
and the true basis was disability discrimination. In the second, the
Defendant Company had been sold and there was limited settlement
authority from the old Company, given that they had already sold the
case--both costs of defense and damages to a wealthier new Company, who
would assume all future risk by mid-summer.<br />
Our boat's name is a
metaphor for taking time "out at sea" and the album name for the jazz
record by Dave Brubeck, "Take Five" (our previous boat's name). But in
the case of a mediation, there are many compelling reasons to call a
"time out" rather than an end to a mediation hearing. A "time out"
assumes it is temporary, as contrasted to a "time in". Negotiations may
be resumed at a time when they are likely to be more fruitful. Like
sailing, it also suggests that at least one, but often both sides need
to take a little perspective before proceeding and closing the deal.<br />
The
post script is that one of the cases has rescheduled for another full
day of hearings after negotiating an acceptable bracket within which to
begin and resume negotiations. The other is parlaying offers and
counter-offers by telephone, now fully appreciating that there is
limited time to continue negotiations before they will have to start
over with new decision-makers in the board room.<br />
In what ways do you communicate a willingness to continue negotiation when you hit what would otherwise appear to be an impasse?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-64158841597208421222014-05-22T10:09:00.000-07:002014-05-22T10:09:00.031-07:00To the Success of Women Neutrals<div dir="ltr" style="text-align: left;" trbidi="on">
<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg247Y9ygQUZntizm8mciBWC1mhXF_EkKc-De_DcaWKRHvP5DMpfBGjZZ2phJD228dxEKEXqcbAkyAJKLH4D3mhqzGTiia_Dve2gO7TG2VMPERPlxUhcIce8jQdpIx83wwWKAYTlyxMGePh/s1600/business+women.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg247Y9ygQUZntizm8mciBWC1mhXF_EkKc-De_DcaWKRHvP5DMpfBGjZZ2phJD228dxEKEXqcbAkyAJKLH4D3mhqzGTiia_Dve2gO7TG2VMPERPlxUhcIce8jQdpIx83wwWKAYTlyxMGePh/s1600/business+women.jpg" height="228" width="320" /></a></div>
I am honored to have attended the reception for the Top Women Lawyers
last week (and to have been photographed by the L.A. Daily Journal with
honorees, Susan E. Hollander and Diane M. Doolittle in the LADJ
5/16/14). I also attended the California Women Lawyers 2014 Conference
last week, "celebrating 40 years of Advancement". Although I was struck
by the awesome accomplishments of my cohort of women professionals at
both events, I was equally troubled by the very current and persistent
challenges still facing younger women as they enter the legal
profession, and those in the middle of their career, still trying to
juggle the demands of practice, family and self.For example,
according to keynote speaker, Professor Joan C. Williams, who is
Distinguished Professor of Law at Hastings and author of 8 books, most
recently, "What Works for Women at Work" (co-written by her daughter,
journalist, Rachel Dempsey), 40 years ago, only 15.9% of partners in
major American law firms were female. In 2013, that figure was only
16%. Where are all of the women lawyers hanging their shingles then?<br />
In
a fascinating study conducted in 2013 and presented by Patricia
Gillette of Orrick, Herrington and Sutcliffe, LLP on "Rainmakers", the
Lawyer Metrics group found that the top personality traits and behaviors
of rainmakers of both genders were "engagement" (a desire to be highly
engaged and place a high priority on work-related activities) and
"dominance" (a tendency to exercise power and influence over others).
Part of me was left wondering whether these traits are primarily
feminine or masculine and whether, though rainmakers of both genders had
similar traits, there were in fact fewer women who naturally had an
instinct towards "dominance", for example.<br />
Finally, I attended an
intriguing presentation by Kimberly Papillon on Implicit biases in
decision-making, which called into play all kinds of brain tricks which
we are nearly powerless to overcome as human animals. For example, it
is nearly impossible to resist reading the word "BLUE" when the print is
in the color Yellow and asked to identify the color, not the word.<br />
In
what ways do you consider your gender affecting your
practice--positively or negatively? What strategies can women adopt to
overcome some of these inherit biases or should we just "let it be"? In
what ways may the gender of your neutral affect both process and
outcome of your mediation hearings?<br />
<br /></div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-10632279849371593652014-05-15T11:33:00.000-07:002014-05-15T11:33:00.391-07:00The Value of a Good Faith Gesture in mediation<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgRr72Psi0RMH8CY7lmTjKlXgZwBZNObhjxVI-G49atygALzybAQCW4Xu3_A8CSvtHVIOOVscrPpNCZnFXTEJOTiwjVlXFrx3MuTLDKfD_x12OCPVMJ72oMF-myBCOq3zTsqnXKkOE0_QRc/s1600/business+catering+office+buffets+meetings+sandwich+platters.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgRr72Psi0RMH8CY7lmTjKlXgZwBZNObhjxVI-G49atygALzybAQCW4Xu3_A8CSvtHVIOOVscrPpNCZnFXTEJOTiwjVlXFrx3MuTLDKfD_x12OCPVMJ72oMF-myBCOq3zTsqnXKkOE0_QRc/s1600/business+catering+office+buffets+meetings+sandwich+platters.jpg" height="249" width="320" /></a></div>
This week I learned something from a friend and colleague, Steve
Rottman, who, more often than I do, mediates at the lawyer's offices.
He sets up the condition that whoever has the convenience of holding the
hearing in their office must pay for lunch and parking for all parties.<br />
When
I arrived at the Defense counsel's very elegant offices this week, I
tried this out. Though this had not occurred to the young associate
before I arrived, he reluctantly agreed to bring in sandwiches and
salads at noon for all participant's at his client's expense.<br />
As
most mediators know, the negotiation seldom begins significantly before
noon, so the timing could not have been better. Miraculously, the
Plaintiff reduced her demand by $25,000. when the lovely, catered salad
arrived. She was hungry and hurting, and this put the first smile on
her face that I had seen that day. Then, when the very difficult moment
came when the parties were down to the last $5,000 in the negotiation,
the receptionist was leaving the office for the day, and (at my
suggestion) asked to collect the Plaintiff and her attorney's parking
cards, so she could validate the day's parking.<br />
Voila, the case was settled in the very next move.<br />
Sometimes,
a very small gesture of good faith (in this case probably a total
investment of $100.00) can go a long way towards signaling
cooperativeness and indeed, gaining cooperation towards resolving a
contentious dispute.<br />
In what ways do you value and encourage these gestures of good faith?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-75562444022844228202014-05-08T08:00:00.000-07:002014-05-08T08:00:01.988-07:00Apologies in Mediation: Are they Effective or Overstated?<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjXeDEywzAf8GDftYZbeepqPpvwX68pg3Xyim4XUesrEcyL3ttPHDJSfti9zlsjDeAIalc-kc0R7P4H-6HgoP9RoucCY5hO8qlrAxtqKC7Cmw7wnMcUS77ROQ9hJp5bNNbHJty4P1U2sE7D/s1600/win-win-300x285.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjXeDEywzAf8GDftYZbeepqPpvwX68pg3Xyim4XUesrEcyL3ttPHDJSfti9zlsjDeAIalc-kc0R7P4H-6HgoP9RoucCY5hO8qlrAxtqKC7Cmw7wnMcUS77ROQ9hJp5bNNbHJty4P1U2sE7D/s1600/win-win-300x285.jpg" height="304" width="320" /></a></div>
I had the privilege of learning from Professor Peter Robinson of The
Straus Institute for Dispute Resolution that a well-articulated apology
can go a long distance towards resolving even the most contentious
commercial dispute. Yet, it is such a difficult word to summon when
being sued by another person, as it may suggest acceptance of blame,
guilt and responsibility for some conduct which has legally been
"denied".<br />
<br />
In employment mediation, particularly where there has
been a longstanding relationship between employer and employee, I find
that there are many very solid non-monetary options which can go a long
distance towards resolving the dispute. Beginning with a candid
explanation for why the termination occurred, beyond the terse and
legalistic "not for cause" severance letter, an employee can begin to
see the reason why no early explanation was offered. Often, the
employee is desperately seeking alternative employment and payment of a
fair severance plus a letter of reference or even assistance in finding
another job can go a long way.<br />
<br />
As a mediator, I try to find out
the underlying interests of the parties before I begin to work through
the financial negotiation. Though it may be hard to orchestrate, a
genuine apology for the conduct that got the parties to the litigation
may unlock the doors towards an end to it. How often do you hear an
apology and is it a sign of "backing down" or just human decency?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-23743027332630763052014-05-02T08:23:00.000-07:002014-05-02T08:23:00.175-07:00Start the Music: Dancing through Mediation<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgiDv9XUtdrz1EgMMEjbWijYYNmC7hEBrdQCEklUzOHoIH2NsvqjQY1rWWUlIOjpULrlY5rueC1QnihRkgENIjl0aG7yJUaN2ncCdLsrzOtq9tRegCLE214YmV6j4nSivxZ6QXvaasmUyNJ/s1600/Dance-of-Opposites_Kenneth-Cloke.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgiDv9XUtdrz1EgMMEjbWijYYNmC7hEBrdQCEklUzOHoIH2NsvqjQY1rWWUlIOjpULrlY5rueC1QnihRkgENIjl0aG7yJUaN2ncCdLsrzOtq9tRegCLE214YmV6j4nSivxZ6QXvaasmUyNJ/s1600/Dance-of-Opposites_Kenneth-Cloke.png" height="320" width="214" /></a></div>
I read Ken Cloke's newest book, "The Dance of Opposites" over the last
weekend and then yesterday I attended an excellent training by my
friends and colleagues at the IAM, Tracy Allen and Eric Galton at the
United States District Court. They reminded me of a concept Tracy
calls, "People Moving" as a means to getting the parties out of position
that appears to be heading towards impasse or "stuck". In essence, the
concept is simple in both dancing and negotiating: if you stop moving,
the dance is over. Tracy reminded me that although we mediators are
"on the move" throughout the day, shuttling between the two or more
rooms in private sessions, the lawyers and their clients are physically
"stuck" in a single "position": a metaphor for the oppositional
positions of adversaries in litigation. Getting them out of their
complacent seats, up on their feet, moving them to a different room,
with different light and art work can sometimes be all it takes for them
to gain additional perspective and to see the conflict from a different
point of view. Simple, elegant and brilliant! I have reviewed Ken's
book for an upcoming article and will publish it for you soon--but for
now, I highly recommend getting out of your seat and getting a copy of
it. It is highly readable, ambitious and inspired--just like it's
author, Ken Cloke.</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-71248223439813636642014-04-25T08:10:00.000-07:002014-04-25T08:10:00.145-07:00Strategies for Staying out of the Dispute when it gets personal<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhqZv8r2x5eXmQvxvOIK3xxr-WsxcZzPAbEkzfw-iDbJ90JbDwy0jXzG5naPKsl_0skoWXkBGgi-lPtBYggYQogbev8ZmTYMEbDig3tRR1j60Yc3Mxsk49KwF605-4SugnMuhuElGN0yF3h/s1600/lighthousethumb.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhqZv8r2x5eXmQvxvOIK3xxr-WsxcZzPAbEkzfw-iDbJ90JbDwy0jXzG5naPKsl_0skoWXkBGgi-lPtBYggYQogbev8ZmTYMEbDig3tRR1j60Yc3Mxsk49KwF605-4SugnMuhuElGN0yF3h/s1600/lighthousethumb.png" height="212" width="320" /></a></div>
Every once in awhile, a frustrated advocate will take their wrath out
on me, their humble mediator. This happened this week when I sent an
email to one of the advocates, who had to leave early from a mediation
hearing on Friday, requesting that he and his client return on Monday to
complete the unfinished negotiations. I had the full weekend to
consider a new approach: one that would delve deep into the factual
basis for his client's claim for indemnity. When Monday morning
arrived, instead of expressing delight that the former employer had
settled the case in chief and agrred to pay all of the damages on behalf
of his client, the lawyer for the employee was furious--apparently at
me for a failure to call his cell phone and instead leaving a very
formal email (sent by my case manager, not me) requesting them to attend
the continuance of the hearing set for Monday, but sent after business
hours!<br />
<br />
Because it was my responsibility to give notice and get
everyone as ready as possible to successfully complete the negotiations,
I took it quite personally. At times like these, I find it useful to
figuratively "go to the balcony", by which I mean literally to take a
walk, chat with colleagues and regain my balance and perspective. I am
engaged to perform a job and if I allow myself to be ensnared in the
conflict, I am ineffective. Still, it was challenging to bring myself
out of the conflict so that I could effectively conduct the balance of
the negotiations before me with my usual even-handedness.<br />
What
strategies do you employ to stay out of other people's disputes as
mediator or to avoid pointing fingers as the mediator as a target?<br />
<br /></div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0tag:blogger.com,1999:blog-1037551281143224821.post-10084027068672040802014-04-18T11:05:00.000-07:002014-04-18T11:05:00.813-07:00Those Nightmare Stories: Are they Useful in Mediation?<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiF-LDb2XPQ2Y3NEQZ8Jp2Hi3v3NbFApDQzqMr6fBXFfMJSguOqVVnPV8P_c-GL5R_TftTrsONhzDyMd2pNAHaP01hpDvopwMjcDDo6GNKM3AR79IzOx9UtNF2-2osRoNwnDang-a2y3KLW/s1600/Sleep-nightmare.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiF-LDb2XPQ2Y3NEQZ8Jp2Hi3v3NbFApDQzqMr6fBXFfMJSguOqVVnPV8P_c-GL5R_TftTrsONhzDyMd2pNAHaP01hpDvopwMjcDDo6GNKM3AR79IzOx9UtNF2-2osRoNwnDang-a2y3KLW/s1600/Sleep-nightmare.png" height="226" width="320" /></a></div>
Mediators and attorneys generally discuss the alternatives to a
mediated solution in terms of risk analysis, cost analysis, investments
of time and likely verdict potential in litigated cases. But
occasionally, a case goes awry in ways that seem unpredictable and
aberrant. Are these stories useful to help get cases settled or is it
too easy to discard these as hyperbolic nightmares?<br />
<br />
In a recent
appeal from a Labor Board Commission ruling, both sides rejected a
Mediator's proposal of the amount of the award plus 25% for attorneys
fees. The attorneys fees would only be awarded to the employee if the
employer lost it's appeal--as a kind of penalty for appealing a Labor
Commission ruling and incentive to simply pay the award. The shrewd
Employer in that case decided rather than to pay the award plus 25% as I
had proposed, that he would simply dismiss the appeal and pay the Labor
Commission award alone. The employee's lawyer brought a motion for
fees and costs crying unfairness and gamesmanship. The Judge, however,
was constrained by the letter of the law and dismissed the motion. No
fees were awarded.<br />
<br />
It is a bit of a nightmare, but maybe makes a good story as to the strange tentacles that come with the law. Useful?</div>
Anonymoushttp://www.blogger.com/profile/09085529138666321761noreply@blogger.com0