Community Mediation Calgary Society (CMCS)’s Post

Equipping Your Client For Mediation Success, Part 4 One of the best practices to equip your clients for mediation success is to prepare them mentally for the process. In my last post, I talked about helping your client deal with fear. This post focuses on persevering through disappointment. Mediation can be emotional and draining. When your clients know what to expect, their emotions will not sidetrack them from their ultimate goals. Expect Disappointment with Initial Proposals Prepare your clients to be disappointed with the other side's initial proposals. It's extremely common for the opening offers in mediation to be far apart and feel unreasonable or even insulting to your client. This is common negotiation behavior, and you should caution your clients not to get discouraged or give up at this stage. Remind your clients that the opening proposals are just the starting point for negotiations. The other side is likely testing the waters to see how much they can get or how little they can pay. As the mediation progresses, the proposals will typically move closer to a realistic number. I intentionally use the term "realistic number" rather than “middle ground.” Whether “middle ground” represents a rational and reasonable settlement depends upon the law, the facts, and the starting points in the negotiation. Help your client keep their eye on the goal and not on how the parties get there. Persevere Until a Rational Settlement is Reached Prepare your clients to persevere until they have achieved one of the following goals: 1) a rational and reasonable settlement, or 2) the knowledge that the other party has made their best proposal and it is not a reasonable alternative to trial. It can be tempting for clients to want to throw in the towel when the negotiations hit an impasse. But with patience and persistence, a workable solution is often within reach. Caution your clients against giving up too soon. In my experience, most settlements come after the parties work through an impasse, not before an impasse has occurred. Manage Emotions to Stay Focused Mediation can be an emotionally exhausting process, and your clients' emotions may threaten to derail the negotiations. Prepare them for the possibility of feeling angry, frustrated, or even betrayed at various points. When your clients know what emotions to expect, they will be better equipped to manage their reactions and make well considered, logical decisions despite those emotions. Advise them to keep their ultimate goals in mind throughout the process. By setting proper expectations and equipping your clients to handle the emotional component of mediation, you can maximize their chances of achieving a favorable resolution. 

For all the Charleston Kickin Chicken Lawyers on Mediation Rules of Conduct: Rule 11.4 - Conflicts of interest (1) A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest that reasonably raises a question of a mediator's impartiality can arise from a mediator's involvement with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional. (2) A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator's actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context. (3) A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator's impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation. (4) If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator's service creating a potential or actual conflict of interest, the mediator shall disclose it to all parties as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation. (5) If a mediator's conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary. (6) Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals, or organizations following a mediation in which the parties, individuals, or organizations were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest. Those Are Facts Jack!

Equipping Your Client for Mediation Success, Part 3 “Fear is the mind-killer. Fear is the little death that brings total obliteration.” Frank Herbert OK. Maybe that’s too dramatic. But fear is one of the mindsets most likely to hold your client back from mediation success. Fear activates our amygdala, a part of the brain involved with emotional processing. Fear thwarts our ability to make logical decisions. Fear impairs executive functions such as planning, decision-making, reasoning, and impulse control. Fear alters our perception of risk. It may make us overestimate or underestimate the actual risks involved. It can make us overly cautious leading us to miss opportunities because of unreasonable fears. Or, it can lead us to take unwise risks. Fear may cause decision paralysis. What would make a client fearful in mediation? Fear of trial. Let’s face it. Trial is stressful for lawyers. It’s more stressful for clients who have never been there. They don’t know what to expect from the judge. They are anxious about what the other lawyer will say or do. They are intimidated by a box full of jurors and alternates staring at them during trial. Clients can create a mental movie of all their worst fears come true at trial. The lawyer must help the client confront these fears before the mediation. Even though I believe most cases should settle, not every opponent will make or agree to a reasonable proposal at mediation. If the other side doesn’t make a fair proposal, the client must not be afraid to walk away from the mediation. It’s good for the client to have a healthy understanding of the risks of trial, but they must not be so afraid of trial that they can’t walk away from a bad final proposal. Fear of not having a trial. Oddly enough, the same client that is terrified of trial may also be afraid to forgo trial. The client may have an inflated view of likely trial outcomes. The lawyer needs to help the client get over the fear that they are giving up too much by accepting a reasonable and rational settlement. In reality, they might get a better or a worse result at trial. A good settlement eliminates that risk. Closely related to the fear of not having a trial is the fear that any idea proposed by the other side is automatically a bad idea. It’s normal to be wary. Nevertheless, a well-prepared client and lawyer should not let fear cause them to reject a rational and reasonable proposal. Preparing the client on the facts, the law, and the probabilities will help here. #Mediation #SageMediationSolutions #ADR

Perspective. There’s amazing value in looking at our work from a different point of view. I’m a trial lawyer and a mediator. That means I’m both a consumer and a provider of mediation services. I feel fortunate to be able to do both. It’s always an education. When I am using a mediator, I’m always watching for what is helpful to the process and what is harmful. When I’m serving as the mediator, I’m always trying to take lessons from the lawyers. What did they do to move the needle for their client? What did they do that was not helpful? Last week I was a mediation consumer and our mediator, John Tongier, did a terrific job. From what I can tell, both sides were pleased with the outcome. Here’s what he did exceptionally well: 1)    John was thoroughly prepared. He understood liability, damages and the law. The mediator must understand the case. Understanding the case is essential, but it’s not the only skill a mediator needs to bring to the table. 2)    John’s demeanor in our caucus room was excellent. He read the room and knew how to interact in a constructive way with my client. As important as the law, the facts, and case evaluation is, the mediator’s treatment of the lawyers and the clients is an essential part of getting to an agreement. Mediation is a people process. 3)    He discussed the case with us in a helpful way. He didn’t just convey offers and demands, but he provided wisdom to the parties. We discussed damages ranges, probabilities, the certainty that comes with settlement. We discussed what my client wanted and needed as well as what my client had been through. 4)    As we progressed deeper into the mediation process, John became more evaluative. He provided my client with information with which to make a rational decision, but he didn’t tell my client what to do. To me, this is an important, and often overlooked skill. We often talk about the difference between a facilitative mediator or an evaluative mediator. Most lawyers and clients don’t want a “water carrier.” Nor do they want a bully who tells everyone what they MUST do at the beginning of the process. The best mediators effortlessly flow between being facilitative and evaluative. In my opinion, both sets of tools are important. As a mediator, I strive to do the same. Mediation is messy, human process. It’s easy to get impatient, but the process works. If you need a mediator, I’d be honored to help. You can check my availability in the scheduling link on my profile.

What's that mediation work you do all about? Let me explain... that work falls into three buckets, and by the time it gets to me, the people involved don't think they can solve their problem on their own. In short, they're big mad. But to answer your question, here are my mediation buckets! Bucket 1: Litigated civil mediation in NJ where the County Courts in Jersey refer cases to me. I focus on employment matters and contract disputes. I'm not an attorney, and I don't need to be one for this work. The objective is to get the parties to agree on how they're going to resolve their problem, not to be a lawyer. So, if the parties can agree, we're solid. I facilitate the process to help them figure out where their interests are similar and where they diverge. Bucket 2: I also do non-litigated mediation. This means intervening BEFORE the parties involve the courts. For example, I have a potential case right now where two  organizations are disputing parts of their contract. They're debating whether to start with me rather than starting with the courts because my hourly rate is much better than the lawyer fees and court costs (and I'm easy to work with). I've also had employment matters where C-Suite leaders were feuding. For example, an executive director reached out to me because a senior leader of the team resigned over differences in communication and leadership styles. He wanted to figure out what it would take to get her back (sidebar: this case did NOT turn out the way I thought it would, not at all). Bucket 3: When leaders reach out for team mediation, 99% of the time they don't really want true mediation. True mediation is voluntary on everybody's part and confidential. Most of the time, team mediation isn't voluntary. It's more like, "You're gonna participate because your boss is sick of the drama." In those instances, it's a facilitated fact-finding. I'm trying to figure out what happened and get agreement on a path forward. If during this work I find something that I believe the employer really needs to know, I tell them (Yes, I let the employees know BEFORE they speak to me that 100% confidentiality isn't promised). What I like about mediation work is that the parties are way past ignoring the problem and want a resolution. Conflict avoidance is its own problem and can wreak havoc in business relationships and teams. #allleadershipispersonal #conflictresolution #mediation

"Harmony is not the absence of conflict but the ability to resolve it." This insightful quote reminds us that true harmony does not mean avoiding conflict altogether, but rather possessing the skill and willingness to address and mend conflicts when they arise. It speaks to the importance of fostering healthy dynamics within relationships, organizations, or communities by embracing conflict as an opportunity for growth and understanding. In the realm of professional mediation services, this quote holds significant relevance. Mediation offers a specialized and neutral space where conflicts can be effectively addressed and resolved. Rather than avoiding or suppressing conflict, mediation enables parties to engage in respectful dialogue, enabling them to jointly seek solutions that satisfy all involved. By acknowledging that conflicts are an inevitable part of any relationship or business, professional mediation empowers individuals to develop the essential ability to navigate through such conflicts. The benefits of professional mediation services in achieving harmony are manifold. Firstly, mediation encourages open communication, ensuring that all parties' perspectives are heard and understood. This facilitates the development of empathy and promotes mutual respect, essential elements of any harmonious relationship. Secondly, mediation provides a structured framework led by skilled mediators who foster a safe and non-judgmental environment. Such guidance helps parties uncover shared interests and common goals, paving the way for collaborative problem-solving. Furthermore, mediation offers a flexible and confidential process, allowing participants to freely express their concerns and explore potential solutions without fear of repercussion. This confidentiality instills trust and encourages parties to be fully transparent, further enhancing the likelihood of finding mutually beneficial resolutions. Mediation also tends to be a more time and cost-effective alternative to litigation or continued conflict, ensuring a swift and efficient path toward harmony. Ultimately, the profound nature of the quote lies in its recognition that conflicts need not be feared but embraced. Only through acknowledging and addressing conflicts head-on can we truly achieve harmony. Professional mediation services provide the necessary tools, guidance, and environment to transform conflicts into valuable opportunities for growth, understanding, and ultimately, a lasting state of harmony.

Preparing for Mediation Mediation success hinges on preparation. In my experience, well-prepared lawyers consistently achieve better outcomes for their clients. In the early days of mediation, some lawyers had the attitude that since mediation is non-binding, it did not require a lot of preparation. Thankfully, that attitude has changed. Most of the cases I mediate have well-prepared lawyers. Here’s a tip for taking your preparation to the next level. Most lawyers consider their client’s Best Alternative To Negotiated Agreement (BATNA) when getting ready for mediation. You have to know what your options are when you are considering offers or making demands. Next level preparation is figuring out what your opponent believes their BATNA is . . . . and why. When we consider the case from the other side’s perspective, we get better insight on their weaknesses and our side’s weaknesses. This requires thorough case analysis and self-reflection, but it’s worth it. Here are a few questions to ask yourself as you prepare for your next mediation: ·      What should the other side consider their greatest strength? ·      What should the other side consider their greatest weakness? ·      How does the other side view my side’s strengths and weaknesses? ·      What are the costs and benefits for the other side to walk away from settlement discussions? ·      Why should the other side want to settle—or take their chances at trial? Mediation works because the parties have a chance to see their case from a different perspective. It helps when the parties start that process before the mediation begins. How do you approach preparing for mediation? I’d love to hear your thoughts in the comments.

Mediation Tip: How are mediators different? Over my time as a litigator I saw various types of mediators. Some were retired judges, others were longstanding attorneys and some, I had no clue their background. You would think all mediators are the same. They aren’t. Some have training, others do not. There is not a national organization that monitors or sets rules for mediators. There are a few organizations that mediators can join or be invited to join, but there isn’t a set criteria. Recently, starte bars have required training to become a court appointed mediator. But I’m not aware of any states that have that requirement for non-court appointmented mediation. Mediation is more than just carrying numbers between parties. The mediator’s job is also not to force or compel a settlement or resolution. Also, mediators are neutral, meaning, we aren’t there to tell you how much a case is worth. Our job is to listen to the parties’ positions and start a conversation between the parties that leads to a resolution. We help formulate and convey messages. So how can you help me as your mediator: 1. Send me everything you believe I need to review to understand your positions, contentions and damages. This includes portions of health records or depositions or anything else that will help me understand your case. 2. If there are any liens or anything that has to be paid out of the settlement, please have it in writing. It helps me when I am conveying positions to have good evidence with me. 3. Have a written breakdown of your damages. I’m going to be asking you immediately how you get to your number. Help me understand your thought process. If you are seeking medical bills, have something with the last total. The other side will want to see that. 4. Be on the same page with your client. I know this is tough, but you are already being scrutinized by the opposing side, having a rogue client doesn’t help. Believe me, I’ve been there and there are no guarantees. If you feel like this is a potential, pull me or your mediator out early on, so we can develop a rapport with your client to help you. 5. Mediation is voluntary (unless it’s Court Ordered). No one is forcing you to be there. But, it is a process and I’ve seen people start to get antsy and want to leave. Stay. But also let the mediator know. Don’t just leave. That drives parties away. If I have a situation where it’s clear the matter won’t settle, I speak with the attorneys separately, to see what are the obstacles and to see how to close ground. I then bring everyone together and discuss the progress we have made. I also discuss how to get the matter back when it’s in a better position to settle. Everyone should leave on a positive note, rather than thinking it’s a complete waste of time. 6. Be optimistic. I know it’s hard. As attorneys we get beat down, but you never know what can happen.

In the pursuit of justice, retaliatory actions often perpetuate a cycle of violence, leading to a world devoid of understanding and compassion. This quote by Mahatma Gandhi reminds us of the futility of seeking vengeance as a means to resolve conflicts. Instead, opting for professional mediation services can lead to transformative outcomes. Professional mediation services bridge the gap between conflicting parties by providing a neutral and safe space for dialogue. By encouraging open communication and active listening, mediators enable individuals to express their concerns, grievances, and aspirations constructively. Through this empathetic approach, mediation fosters understanding, empathy, and the opportunity to unearth common ground. The benefits of professional mediation services extend beyond resolution. By actively involving the parties in the decision-making process, mediation imparts a sense of ownership and empowerment, reducing the likelihood of future disputes. Additionally, engaging in mediation allows individuals to preserve relationships, be it in personal or professional realms, while addressing the underlying issues causing the conflict. Moreover, mediation offers a holistic approach that considers the emotional, cultural, and contextual intricacies surrounding a dispute. By fostering respect and encouraging empathy, mediators support diverse perspectives and enable parties to attain resolutions that are fair and mutually acceptable. This collaborative approach avoids the "win-lose" mindset often associated with adversarial legal processes, striving instead for "win-win" outcomes. In a world plagued by blind retaliation, professional mediation services illuminate a path toward genuine understanding, healing, and long-lasting resolutions. By replacing vengeance with compassion, mediation empowers individuals to forge new relationships, transform conflicts into opportunities for growth, and ultimately create a world where empathy and understanding prevail.

Emotions can make or break a mediation. Ignoring the parties’ emotions can derail the entire process. Unregulated, strong emotions can make it harder for parties to exercise logic and make difficult decisions. But when managed effectively, emotions can lead to breakthroughs and resolutions. As a mediator or a lawyer representing a party at mediation, it's helpful to have a toolkit of techniques for managing the parties’ emotions. Here are some strategies that have proven effective in my practice: 1. Establish ground rules that promote respect, active listening, and open communication. This sets the stage for productive dialogue. In other words, create a setting where neither party feels attacked and both parties can feel heard. 2. Acknowledge parties' emotions without judgment. The mediator needs to help the parties feel heard and understood, reducing defensive reactions. If you are a lawyer representing a client in a mediation, you will need to do the same thing with your client. 3. Reframe. In most legal disputes, the parties see the same facts from a different point of view. Each party has a story in their head about what “really happened.” The mediator can help the parties see the situation from a different perspective. This can diffuse negative emotions and shift the focus to problem-solving. 4. Encourage breaks. When tensions run high, take a break to allow parties to cool down and return with a clearer head. 5. Model calmness. As a mediator or a party’s attorney, your own emotional state can help or hurt the process. Remain calm, even in the face of intense emotions, to help de-escalate tensions. 6. Caucus privately. Meeting with parties separately allows the parties to express their emotions and explore options without the other party present. 7. Focus on the future. I remind the parties not to focus on the past because we cannot change it. We can only work on a better future. Encourage parties to focus on their long-term goals and the benefits of resolving the conflict. This can motivate them to manage their emotions productively. Managing emotions is a crucial skill for mediators and parties alike. When parties are in the grip of strong emotions, their ability to process information and think logically can be impaired. And, this makes it harder to reach a reasonable and rational settlement. A word of caution, though. While it is important to deal with emotions, it’s important not to dwell on them. The emotion of outrage is intoxicating and addictive. It gives parties a feeling of superiority over their counterpart. This is why many social media algorithms put information in your feed that makes you angry. As mediators we need to acknowledge each parties’ emotions, but we must not inflame their emotions. What strategies have you found effective for managing emotions during mediation? Share your experiences and insights in the comments below.