Mediation Strategies for Advocates: Resolving Conflicts with Expert Techniques

MEDIATION STRATEGIES FOR THE ADVOCATE JOHN W. KELLY, JR. ATTORNEY AND MEDIATOR ADJUNCT PROFESSOR UNIVERSITY OF HOUSTON LAW CENTER

THIS IS MEDIATION NOT MEDITATION OR IS THERE A DIFFERENCE?

MEDIATION A FACILITIATED DISPUTE RESOLUTION PROCESS LED BY A TRAINED PROFESSIONAL MEDIATOR. IT INVOLVES MUTUAL AND MULTIPLE INVOLVEMENT, RESULTING IN A JOINT RESOLUTION.

MEDITATION A BROAD RANGE OF PRACTICES DESIGNED TO PROMOTE RELAXATION, BUILD INTERNAL ENERGY, OR LIFE FORCE AND DEVELOP COMPASSION, LOVE, PATIENCE, GENEROSITY AND FORGIVENESS. IT IS SELF- MOTIVATED, AND INVOLVES SINGLE-POINTED CONCENTRATION OR SINGLE-POINTED ANALYSIS.

WHERE DO THESE TWO DISCIPLINES UNITE RESOLUTION RELAXATION INTERNAL ENERGY COMPASSION PATIENCE GENEROSITY FORGIVENESS JOINT CONSENTRATION OR ANALYSIS

PURPOSE OF MEDIATION FOR THE ADVOCATE OBTAIN ADVERSARY S EVALUATION OF CASE PRIOR TO TRIAL OPPORTUNITY TO OBSERVE AND SPEAK DIRECTLY TO OPPOSING PARTY USE PROFESSIONAL FACILITATOR TO SETTLE CASE, I.E., MAKE HIM/HER YOUR SPOKESPERSON IN THE OTHER ROOM

WHY MEDIATE QUICK RESOLUTION SAVES TIME AND MONEY FOR THE CLIENT REMOVES THE RISK OF UNKNOWN TRIAL KEEPS DECISION-MAKING IN THE HANDS OF THE PARTIES RATHER THAN THIRD PARTIES ALLOWS THE PARTIES TO CONTROL THEIR OWN DESTINY

WHEN TO MEDIATE PLAINTIFF S ATTORNEYS MEDIATE EARLY TO: *INCREASE CHANCE OF RECOVERY OF MONEY SOON WITHOUT ADDITIONAL ATTORNEY HOURS * AVOID DISCLOSURE OF UNFAVORABLE FACTS

WHEN TO MEDIATE FOR DEFENDANTS, LATER SO DEFENSE ATTORNEY CAN EARN ATTORNEY FEES LATER INORDER TO DISCOVER WEAKNESSES OF PLAINTIFF S POSITION EARLY MEDIATION WILL AVOID DISCLOSURE OF DEFENDANT S DANGEROUS FACTS

PARTICIPANTS MEDIATOR YOU YOUR CLIENT (or DECISION MAKER) OPPOSING PARTY (or DECISION MAKER) OPPOSING PARTY S ATTORNEY

WHEN A PARTY IS NOT AVAILABLE YOU CAN T DANCE (SETTLE) WITHOUT A DANCE PARTNER SKYPE MORE EFFECTIVE THAN TELEPHONE TELEPHONE LEAST EFFECTIVE CAN T SEE THE PARTICIPANT SOME COMMUNICATION IS INTERRUPTED

FAMILY MEDIATION THERE NEEDS TO BE A TIME TO VENT PARTIES MAY HAVE NOT SEEN OR COMMUNICATED FOR A LONG TIME PARTIES WANT TO VENT THEIR HURT VENTING NEEDS TO BE KEPT TO A MINIMUM THEN THEY NEED TO GET DOWN TO BUSINESS

WHAT TO EXPECT AT THE MEDIATION I REQUIRE A GENERAL SESSION OTHERWISE, IT IS DOOMED TO FAILURE I NEED TO COMMUNICATE TO EACH PARTY AT THE SAME TIME WHAT THE GOALS AND PROCEEDURES WILL BE EACH PARTY NEEDS TO COMMUNICATE TO EACH OTHER, THROUGH ATTORNEYS OR THE PARTIES, THEIR POSITIONS

WHAT TO EXPECT AT THE MEDIATION BE PATIENT * GOOD SETTLEMENTS TAKE TIME * CANCEL ALL APPOINTMENTS FOR THE DAY * ELIMINATE ALL DISTRACTIONS * DON T TAKE OR MAKE CALLS WHILE I AM WITH YOU

PERCEPTIONS STUDY OF HUMAN NATURE PEOPLE WATCHING IDENTIFYING THE DECISION MAKER INQUIRE OF THE MEDIATOR WHAT IS GOING ON IN THE OPPOSING PARTY S CAUCUS ROOM

MEDIATION TECHNIQUES IDENTIFY AND SEPARATE REAL ISSUES FROM IRRELEVANT ISSUES IDENTIFY WHAT IS IMPORTANT TO THE OPPOSING PARTY

MEDIATION TECHNIQUES DO NOT MAKE UNREASONABLE OPENING DEMANDS OR OFFERS *YOU LOSE CREDIBILITY DO NOT GIVE SOMETHING UP WITHOUT GETTING SOMETHING IN RETUREN *NEVER BID AGAINST YOURSELF

MEDIATION TECHNIQUES IDENTIFY OPPOSING PARTY S STRENGTHS AND WEAKNESSES IDENTIFY YOUR STRENGTHS AND WEAKNESSES

MEDIATION TECHNIQUES FEED THE MEDIATOR INFORMATION MAKE THE MEDIATOR THE EXTENTION OF YOU AND YOUR CLIENT CONTROL THE OFFERS AND DEMANDS * DOSES OF REALITY

MEDIATION TECHNIQUES KNOW WHEN TO HOLD THEM KNOW WHEN TO FOLD THEM

MEDIATION TECHNIQUES DON T DRAW LINES IN THE SAND UNLESS YOU MEAN IT * FRUSTRATES FURTHER NEGOTIATION * DAMAGES YOUR CREDIBILITY IF YOU DIDN T MEAN IT

MEDIATION TECHNIQUES INCLUDE LOGIC AND REASONING WITH YOUR OFFERS INSIST UPON LOGIC AND REASONING FROM THE OPPOSING PARTY TO SUPPORT COUNTER OFFERS

MEDIATION TECHNIQUES PROCESS CONTINUES BEYOND THE DAY OF MEDIATION YOU CAN CONTINUE TO USE THE MEDIATOR AFTER THE SCHEDULED MEDIATION COOLING OFF PERIOD MAY HELP THE OPPOSING PARTY APPRECIATE VALUE OF YOUR OFFER

BEST PRACTICES MEDIATION ADVOCACY BE PROMPT BE PREPARED BE INNOVATIVE BE PROFESSIONAL BE LOGICAL BE PRACTICAL BE ARMED WITH INFORMATION

BE PROMPT IT IS UNPROFESSIONAL TO BE LATE IT IS DISRESPECTFULL TO MEDIATOR AND PARTIES IT HINDERS RESOLUTION OF DISPUTE IN THE LIMITED TIME AVAILABLE

BE PREPARED PREPARE AS IF YOU ARE GOING TO TRIAL THE BETTER PREPARED LAWYER HAS A HUGE ADVANTAGE IN THE NEGOTIATION PROCESS BRING THE LAW AND DOCUMENTATION

BE INNOVATIVE THINK OUTSIDE THE BOX CONSIDER SOLUTIONS OTHER THAN MONEY IDENTIFY WHAT YOUR CLIENT REALLY WANTS IDENTIFY WHAT OPPOSING PARTY REALLY WANTS

BE PROFESSIONAL DON T BE A SHOWMAN/WOMAN DON T ENGAGE IN A TEMPER TANTRUM DON T GET EMOTIONAL BE THOROUGH UPON THE LAW AND UPON THE FACTS

BE LOGICAL OFFERS ARE PERSUASIVE IF THEY ARE SUPPORTED BY LOGIC AND REASONING EVERY OFFER SHOULD BE ACCOMPANIED BY ADDITIONAL FAVORABLE LAW OR FACTS

BE PRACTICAL DON T GET HUNG UP ON PRINCIPAL

BE ARMED WITH INFORMATION BRING CASE LAW BRING DOCUMENTATION BRING JURY VERDICT REPORTS BRING PICTURES BRING DRAWINGS

BATNA BEST ALTERNATIVE TO NEGOTIATED AGREEMENT BE SURE THAT YOU AND YOUR CLIENT HAVE LOOKED AT THE ALTERNATIVES THIS ANALYSIS NEEDS TO BE DONE BEFORE THE MEDIATION

THANK YOU CONTACT INFORMATION JOHN KELLY 713-775-3003 johnkelly@experiencedhoustonmediator.com www.experiencedhoustonmediator.com