2011 Annual Conference Summary

I.Resolving 21st Century Disputes – Geoff Drucker

  1. Theme: Our minds evolved to resolve disputes in the context of a small, simple, stable community; not a dynamic, diverse, and technologically advanced society. Challenges we face today when we encounter conflict include our:
  2. Identity
  3. Ability to make Conscious Decisions
  4. Intuition
  5. Ability to deal with Change
  6. Relationships
  7. Challenges we face regarding identity are:
  8. We tend to think of it as single, static, and essential. So when a dispute threatens our sense of identity, we instinctively react as if the facts and/or the result must be a certain way. We need help to put the threat into proper perspective.
  9. Traditional societies developed rituals for resolving disputes which typically involved intervention by one or more respected elders. We’ve had to recreate this role in modern society by making mediation into a profession.
  10. Our minds are conditioned to think that we must right every wrong. We find it very difficult to accept that in modern society, it is often impractical or impossible to obtain justice. The best alternative is to let go and move on, no matter how emotionally unsatisfying that might be.
  11. Challenges we face regarding conscious decisions are:
  12. Being overwhelmed by too much choice and not knowing how to make up our minds.

a)The most difficult disputes to resolve are often the ones occurring inside of our own minds

b)Communication is the key to clarifying what we want.

  1. Losing our motivation and ability to reach an agreement because of anxiety.

a)Since anxiety is an instinctive reaction to threat, we become less anxious only when we feel less threatened.

b)Mediators can do a lot to help people feel safe through their presence, their choice of location and ground rules, and their control over the process.

  1. Challenges we face regarding intuition are:
  2. Being more dependent on it because we know more and more about less and less.
  3. Being forced to defend decisions we reach through the exercise of judgment by making up reasons
  4. Being less able to read the emotions of others when we communicate remotely (and thereby deprive ourselves of visual and vocal cues)
  5. Being less able to read the emotions of others when we communicate cross-culturally and fail to understand how they express and hide feelings.
  6. Shaping intuition to reflect what we choose to experience rather than how the world actually works.
  7. Assuming that our intuition reflects our conscious beliefs about right and wrong, when, in fact, it may contradict those beliefs.
  8. We make the best decisions by combining reason with intuition.
  9. Challenges we face regarding change are:
  10. Transitioning from one emotionally charged situation to another too quickly, and thereby making decisions about Situation B in light of emotions triggered by Situation A
  11. Anticipating how we will feel about a situation we have not yet experienced.
  12. Our minds are not well equipped to anticipate feelings and typically make the following errors:
  13. Deny that change is occurring
  14. Misjudge how we will react when a change occurs
  15. Exaggerate the long-term impact of change on our feelings
  16. We can best help others make good decisions about proposed changes by:
  17. Making it real—giving them a chance to experience what the change will be like
  18. Accepting that denial and exaggeration are normal reactions
  19. Being careful not to judge people harshly until we have walked a mile in their shoes
  20. Being willing to drag someone kicking and screaming into the future if we’re sure that is the right thing to do
  21. Prosperity and freedom have profoundly altered our relationship with relationships
  22. We no longer need close relationships to survive—just money and casual relationships
  23. As a result, more than ever before, people are resolving conflicts by ending relationships
  24. Ironically, research indicates that close relationships are a key to happiness
  25. Mediators are uniquely positioned to help people restore or maintain relationships

II.The Agreement to Mediate: Bring it Home – Rich Huffman

  1. Executed at the mediation
  2. All participants must sign (even the latecomers)
  3. New Agreements signed at each session
  4. Each counsel gets a copy
  5. Return originals to TMG
  6. Why?
  7. It precludes claims
  8. It protects your files (from being subpoenaed)
  9. Invalidates service of process

III.Managing Emotions: Venting – Barbara Hulburt

  1. Larry Hoover
  2. Allowing parties to talk directly with one another is powerful
  3. Most helpful in personal relations cases
  4. Judge Fitzpatrick – Preference for separating parties right away
  5. Especially in family law cases/divorce
  6. Too much venting can just stir the pot
  7. In divorce cases the parties have probably already heard all the complaints from the other side a thousand times before; sometimes she doesn’t even allow for opening statements; instead she lets them vent to her – privately.
  8. In a personal injury or med mal case, venting and opening statements all together can be helpful since the other side hasn’t “heard it all before.”
  9. Note that even when people think they know what the other side is going to say, there can be utility to the process for them to say it. Recognizing the humanity of the person across the table can be very helpful (even if what they see isn’t particularly flattering.)
  10. Do your “Pre-work” to get insight on the emotional roadblocks
  11. Are there any “loose canons?”
  12. Can the parties communicate?
  13. What are the hot button issues?
  14. Every Case is Different – you must use your judgment on whether to allow venting or not, and to what extent.

IV.Follow Up: “Close the Deal” – Rich Huffman

  1. TMG Historical Settlement Rate:
  2. 85% Settled vs. 15% Not Settled
  3. Our “initial” Settlement Rate is really 70%, with 30% that don’t settle right after the mediation session.
  4. How do we get from 70% to 85%?

a)Through Follow Up!!!

b)15% (out of our 85% settlement rate) are actually settled after the mediation session - in “follow up” mode!

  1. The Basics:

a)Get approval

b)Develop a plan

c)Use a case manager to help remind you

d)Don’t be discouraged; Just do it!

  1. How Long?

a)Subject to your judgment

b)Know when to give up; some cases need to be tried

c)Bill for your time

  • Unless it is minimal (and it didn’t settle)

(a)Consider noting on the bill a “no charge” for follow up time if it is minimal; and the case did not settle

V.Authority and Self Determination – Barbara Hulburt

  1. Getting the right people to the table can be a challenge; it is often the biggest road block because:
  2. They will tell you the “right” people are coming
  3. It’s possible they haven’t even explored who has the ultimate authority
  4. They show up with authority, but not enough
  5. They will say the case isn’t big enough for the adjuster to fly in from out of town
  6. How do you minimize these problems?
  7. Pre-Mediation Phone Calls

a)Get the parties to agree on the conf. call re: who is coming. (To the Plaintiff: “You’ve heard that the Defendant is bringing John Smith from Insurance Co. XYZ. Are you prepared to go forward under these conditions?”)

b)Judge Strickland attended the ABA conference and came back with this technique: During yourexparte call with the Defense after the initial joint call, encourage counsel to bring more authority than they think they will need so that they can go home looking like the “hero of the day” for getting it done for less.

  1. What about authority issues in Multi-party cases?

a)Judge Ledbetter spoke about his experience with a case in which several insurance companies were involved. The challenge was to figure out who the critical players were in each case and to do a “mediation-within-a-mediation” to work out authority issues.

  1. Multi-Party Bargaining: one technique to consider

a)In multi-party bargaining, the mediator should consider whether to go “bottom up” or top down.’

  • The “Bottom Up” technique

(a)This involves incrementally obtaining actual authority from, for example, the defendants.

(b)The mediator would combine these authorized amounts and make an offer to the plaintiff with the total. Importantly, the mediator obtains authorized amounts from the individuals parties (defendants in this example) before putting together a proposal to the plaintiff.

(c)This approach often encounters more conflict among the defendants than between the group of defendants and the plaintiff.

  • The “Top Down” technique

(a)This allows the defendants to bargain as a group without consideration to how the settlement would be funded.

(b)The defendants, as a group, would negotiate with the plaintiff using rational, but unauthorized numbers, to seek common ground.

(c)If a settlement is reached, it is contingent upon the defendants obtaining agreement among them as to how to fund the settlement.

(d)At some point, the mediator would work with the defendants to get either actual or suggested allocations of responsibility for funding the settlement. This can be done on a parallel track during the mediation or afterward.

(e)Generally, obtaining the actual authority occurs after the mediation. This usually takes some reasonable number of days. Thirty days is a typical number.

  1. How do you get the players in the room to be “rational” and move toward closure and self determination?
  2. Just like “making gumbo” – it takes all day to make a roux. You have to the lay the foundation from the very beginning with the parties for them to be patient. Remind them that one day in the life of the case is actually a very short time, not a long one.
  3. Judge Shadrick gets everyone to tell a little something about themselves while the Agreement to Mediate is circulating. This helps to lower the level of animosity or, at the very least, reminds people that those on the other side are also human beings with a life outside of the case.
  4. Judge Harris develops a rapport with all of the parties; it begins with his own introduction, in which he describes a bit about himself and his own history in order to encourage the parties to trust him (and the process).

VI.Pricing: Getting it Right – Rich Huffman

  1. Trends
  2. Struggling Economy
  3. Tight credit market
  4. Failing businesses
  5. Fewer lawyers taking responsibility for payment
  6. Some even “game the schedule” by giving us inaccurate information about the financial structure of a dispute
  7. On Hourly Rates
  8. Verify the quoted fee on the conference call
  9. Call us with problems/inconsistencies
  10. Help us to ACT before the session
  11. Retainers – Before the Case Convenes:
  12. Recognize that it is a retainer case
  13. The standard retainer amount is 12 hours
  14. Get the Case Manager to request more retainer when it is needed
  15. Work with the Case Manager
  16. Retainers – After the Case is Underway
  17. Work with the Case Manager
  18. Request replenishment if needed
  19. Do it before the money runs out
  20. Decide whether the we hold the excess retainer or release it

VII.Negotiating Techniques – John OBrion

  1. Bracketing
  2. The elements of bracketing

a)Bracketing is a technique used in negotiating financial disputes.

b)Rather than exchanging a single number, a party may propose brackets.

c)The proposing party may offer x conditioned upon the other party responding with a specified y.

d)The x and y create brackets.

e)Brackets establish a range of negotiation and can give the receiving party a sense of where the proposing party wishes to go.

f)The responding party may:

  • Accept the bracket in which case the proposing party must make the next move, or
  • Reject the bracket and respond either with an alternative bracket or a single number, or not at all.

g)Brackets can be negotiated in several rounds of bargaining.

  1. Tips for Bracketing

a)Be optimistic and show optimism at an offer of $10,000

b)You will have to deal with the issue of “Who goes next?”

c)Don’t use brackets back to back

d)Use them when communication breaks down, but not too often

e)Remember: Some people hate brackets

  1. Ratios
  2. Another technique is “Ratios.”
  3. An example: If the parties are 200k apart (the plaintiff has demanded 300k, and the defendant has offered 100k), and the defendant is only willing to go to 150k, then the defendant should move 25% for every move made by the plaintiff. (The total move from 100k to 150k is 50k and that number is 25% of the total gap between the parties.) By so doing, the defendant will arrive at its planned 150k, unless the bargaining terminates without settlement.
  4. This technique can be used equally by defendants and plaintiffs.

VIII.Closing Summary – John McCammon

Our Heritage and DNA / Our Challenges and Emerging Circumstances
Simple / Complex
Tribal / Global
Slow paced / Fast paced
Life threatening / Stress inducing
Fight or Flight
  • Irrational
  • Act first, think later
/ Optimized in Strategy
  • Rational
  • Deliberate

Risk Aversion / Increasing in risks
Oriented to the past
  • Ritualistic
  • Retribution
/ Oriented to the future
  • Changing protocols
  • New behaviors

  1. We are ill-equipped to get anything done considering where we’ve come from
  2. We need to be aware of these fundamentals to understand ourselves and our customers better.
  3. How do we best use this knowledge to help our customers?
  4. Complexity v. Simplicity

a)Acknowledge complexity; understand and embrace it

b)Work toward simplicity by

  • Identifying the issues
  • Analysis
  • Solutions
  1. Tribal v. Global

a)Empathize with their:

  • Myopia
  • Fear of unknown
  • Distrust of opposition

b)Educate them regarding:

  • Perspective of opposition
  • Good faith of opposition
  • Similarities of opposition
  1. Slow Paced v. Fast Paced

a)Acknowledge their need to tread

  • Carefully
  • Slowly

b)Educate them on the pace of

  • Changing circumstances
  • Mediation
  • Litigation
  • Accumulation of expenses
  1. Struggle to Survive v. Stress

a)Their life is not at risk

b)But other interest are:

  • Status
  • Financial condition
  • Personal relations

c)So, protect them

  • Safe surroundings (office; caucus)
  • Quiet
  • Time and space to:

(a)Think

(b)Talk

d)Respect them

e)Calm them

f)Affirm them

g)Listen to them

  • Venting is not a waste
  • It may be essential to

(a)Understanding them

(b)Respecting them

(c)Liberating them

h)Trust them, so they will be free to:

  • Act
  • Trust you

i)Demonstrate professionalism

  • Establish your authority
  • Establish your competence
  • Cover the bases; for example, addressing authority issues
  • Be resourceful; for example, bracketing
  1. Fight or Flight v. Optimizing Strategies

a)Expect

  • Fight or Flight
  • Irrationality
  • Retribution

b)Promote

  • Assessing best choice among alternatives (BATNA)
  • Rationality

(a)Evaluation (information)

(b)Without intimidation (advice)

  • Deliberation

c)Teach them to deal with opposition

  • Appropriately
  • Effectively
  1. Risk Aversion v. Increasing Risks

a)Understand their anxiety

b)Analyze the risk

  1. Past v. Future

a)Expect their clinging to:

  • Status quo
  • Familiarity
  • Sunk costs
  • Rituals
  • Retribution

b)Encourage them to look to the future

  • New patterns
  • New relationships
  • To “let it go”
  • To go forward

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