Mediation Scheduler

Real World Conflict Resolution and Communication Effectiveness:

Enlightened Perspectives on Ethics, Cultural Issues, & Pitfalls of Dealing Poorly

 

Joshua King, J.D., M.D.R. 

Managing Partner, Institute of Advanced Mediation & Problem Solving (I AM)
Attorney & Mediator. Chair-Elect and 2010 Symposium Chair, Utah Council on Conflict Resolution (UCCR); Past Chair, Dispute Resolution Section of the Utah State Bar

Steve Kelson, J.D.

Attorney, Kipp & Christian

UCCR Board Member; Dispute Resolution Section of Utah State Bar Executive Committee; Master of Dispute Resolution candidate, Pepperdine University School of Law, Straus Institute; Distinguished Pepperdine Extern at Institute of Advanced Mediation & Problem Solving

Diane Akiyama, J.D.

Attorney, Office of Professional Conduct, Utah State Bar

Former Director, ADR Programs at U.S. District Court, District of Utah; Former Committee Member for UCCR Symposium

 

 

 

 

 

 

Contentious Tactic

 

HIERARCHY OF CONTENTIOUS TACTICS

 


Tactic


Purpose


Pros


Cons


1


Integration

Butter them up to get your way

Works if opponent is unaware

Can backfire


2


Gamesmanship

Push other off balance

Opponent is unaware

Opponent gets mad and conflict escalates


3


Shaming

Opponent feels so bad he lets you win

Low cost if opponent is unaware

Loses affect over time


4


Promises

Opponent is bought off

Nice and Civil

Set precedent; Promises escalate


5


Persuasive argumentation

Opponent is convinced

It’s civil

Costly; May not resolve problem


6


Threats

Opponent is afraid

Low cost; More effective than promises

Ineffective over time


7


Tit-for-Tat

Opponent learns to cooperate

Produces learning; Helps relationship

Rapid conflict escalation


8


Coercive Commitments

Opponent avoids destruction

Helps weaker party

May not work


9


Engagement (violent and non-violent)

Opponent beaten

Can win

Can lose

* Dean G. Pruitt & Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement (3rd ed. 2004).

**Richard C. Reuben, University of Missouri-Columbia School of Law.

 

 

 

 

Contentious Tactics or Part of the “Dance”? Ethical Considerations

Psychologically aimed tactics:

An extreme opening offer;

Threats, rudeness, hostility and intolerance to intimidate, silence, ultimatums, and stalling;

Withholding concessions and information;

Claiming lack of authority;

Stretching the facts;

Playing good cop/bad cop;  

Standing up and threatening to leave;

Manipulation;

Not negotiating because of the belief in the strength of your case – Is this good-faith?

 

 

Zealous Representation: Communication & Understanding before Negotiation & Mediation

What does it mean to zealously represent your client?

            When? Where? Why? How?

            Does it mean identifying the issue & rule of law & the process of application & analysis followed by fighting like hell for the conclusion drawn by your analysis?

            Does it mean listening to your client, understanding your client’s background, history, morals, values, norms, culture, ethics, family, relationships, needs, wants, desires?

            Would acquiring this information assist the advocate to know what it means to zealously represent the client?

            How would this information assist the advocate in deciding the best forum and context to zealously represent the client?

            Why is this information important?

            DON’T MISS THE OBVIOUS?

 

The context Creates the Content

The environment and context in which we operate is as important to our success as it is to the client’s interests we serve. The context (environment & process) must provide for professional collaboration, option exploration, exchange of thoughts and ideas, progression, creativity, and resolution.

Design for results and value. Design the context wherein zealous representation for the individual client can occur and where communication and resolution can be maximized.

“The era upon us is filled with problems and opportunities that require fresh innovation like never before. Being more efficient or cheaper is no longer enough to be competitive in a global marketplace. We need to conceive new ideas to address the problems and opportunities that surround us – and we need to defy the odds and make these ideas actually happen.”

Making Ideas Happen, Scott Belsky

 

This statement is very relevant to attorneys and ADR professional regarding each client’s problem and how they engage opportunity. 

            Make every effort to provide each client the opportunity to explore every   available and viable option for resolution.  

            By providing a context to communicate, understand and create, the advocate can then employ the skills and resources necessary to make the desired resolution a reality.

 

 

 

EffectiveCommunication in Negotiation and Mediation


 

1.                                          Listen, learn and ask questions that enable you to understand the opponent’s perspectives, issues and interests

 

2.                                          Look for hidden values and interests that can be used as leverage in the negotiation stage

 

3.                                          Pay attention not only to what is being said, but also to body language, the opponent’s reaction to your statements, and how the opponent frames things. 93% of communication is non-verbal 

 

4.                                          “Disarm” the other side.  Acknowledge some of the weaknesses of your case

 

5.                                          Don’t be too anxious to negotiate – let the client have his/her day in court.  A lot of times people are recalcitrant to negotiate or give up anything until they feel like they have been heard or they have let go of some emotion.  Provide a platform for this to be done effectively

 

6.                                          Consider meeting privately with the mediator to “take the temperature” of the mediation.   Caucusing with the mediator ensures that you understand everything you need to and that the mediator understands you

 

7.                                          Ask the mediator for his or her impressions before moving into the negotiation stage

 

8.                                          Ask the mediator what the opponent is really there to do, if they indent to negotiate, settle, dance, etc. 

 

9.                                          Use the mediator as a sounding board.  You do not want to expose your case if the other side is not going to respect what you put forward

 

10.                                      It is important to make good use of the caucus before heavy negotiating begins in order to make sure the mediator is on the same page as you and that the case is postured to enter negotiations 

 

11.                                      Once the advocate has adequately communicated what is needed and has gained everything he or she needs from the opponent and the mediator, the process should be postured to enter an effective and productive negotiation.                                                                                                           

12.                                      Determine with your client the extent of his or her involvement. 

 

13.                                      Will the client direct his or her questions at you or the mediator?

 

14.                                      Will the mediator direct his or her questions at the advocate or the client?

 

15.                                      Talk to your client. Does the client need to feel heard before he or she can negotiate?  Make sure the ground work has been laid before trying to negotiate.      

 

 

 

 

HOW TO HANDLE THE BELLIGERANT PLAINTIFF OR DEFENDANT IN THE MEDIATION SETTING THROUGH COMMUNICATION & UNDERSTANDING

Hypothetical: The belligerent mediation participant really doesn’t want to be here.  He’s skeptical of the process.  He wants to shut things down after the first two exchanges.  He hates the other side.  Surely, nothing good could ever come of this futile exercise.

Potential Remedies/Solutions:

  1. You first need to build a relationship with this party.  You must show a genuine interest in his background, his family, where he works and why he’s so angry.  In other words, you must find a way to win just a small part of participants’ trust.  He/she must feel safe in dealing with you.  You may need two separate caucuses before you achieve this objective.  This “trust building” process may take all day, but you must keep looking for ways to earn it.
  2. A related goal is the genuine expression of empathy.  But forget it if your expressions of empathy or understanding are not genuine.  But who can fail to understand the anxiety and uncertainty associated with lawsuits?
  3. Don’t pull any punches about the objectives of mediation; that is, we’re here to find a way to settle our differences.  We’re here to compromise.   There is no “black and white” in selling this principle. You must develop your own style and approach.    
  4. Early on, it’s important to explain that the mediation process often takes a great deal of time.  We’re dealing with sharply differing points of view and perceptions of what’s right and wrong.  In short, we’ll need time to understand one another and to craft solutions.  Too often, litigants are inclined to believe that, if a solution is not achievable by the lunch hour, the chances of settlement are bleak.  Not so.  It takes time to resolve problems that may have been developing for years.
  5. In the mediation business, we often remark that the parties need “time to dance.”  This is absolutely true.  Indeed, mediations often don’t begin to yield a consensus or “movement” until the late hours of the night.  So stay the course.  Don’t get impatient.  In my experience, as an attorney for mediating parties or as a mediator, most cases settle after the dinner hour.  In short, don’t encourage your clients to run for the exits at the first, second or third impasse.  To put it bluntly, fatigue is often the best catalyst for a settlement. Stay the course.
  6. Don’t be in a hurry to run from one caucus to another. Take your time getting back.  Give the parties time to talk together and to strategize with their attorneys. If you return too soon, the perception may be that you haven’t spent enough time with the other side to be persuasive.
  7. Don’t uncritically carry a new proposal back to the other side.  You may be persuaded that the proposal in question will only inflame an already superheated situation.  In short, as a mediator, you need to manage emotions. You may not succeed in that endeavor and receive an ultimatum.  But I doubt it.  Mediation parties most often give substantial deference to a mediator if the mediator has taken the time to earn their trust.  In short, you’ll usually want to suggest a “kinder and gentler way” that will avoid a premature folding of the tents.
  8. A caveat:  Make very certain you’ve been authorized to disclose information that has been provided to you by one party to the other.  Often enough, a party will disclose information or confidences to you believing, but not explicitly stating, that such information is for your ears only. Such a perceived breach of trust could be the death knell of your credibility.
  9. Assume you’ve been in a heated mediation for six hours and one or both of the parties argue that it’s time to throw in the towel.  They complain, “We’re just too far apart, we’ll never be able to agree.”  At this juncture, some mediators will respond as follows:  “If you walk now, will your problems go away?”  The answer is an emphatic “No.”  The parties’ problems will not go away, but will most likely get worse.”  Indeed, the last two hours of any mediation is often the most difficult and at the same time the most rewarding.
  10. Mediating solutions to difficult and emotionally-charged problems is very satisfying.  Accept our wishes for great success in your mediation endeavors.

“The Elephant In The Room” By Jeff Krivis

 

 

 

Paradigm Shift: The Value of Creativity & Innovation

Creative professionals are those who generate ideas for a living. They are usually responsible for the design, entertainment, literature, and new businesses that bring meaning to our lives.

Rarely, if ever, are legal professionals such as mediators, arbitrators and attorneys considered creative professionals or artists.

But legal professionals are relied on to create, innovate and perform, and their success relies on their ability to do so.  They must create and innovate to survive in the marketplace. 

They must inspire and assist their clients to create ideas and solutions. Everything they do is a creation and innovation.  

Zealously representing a client includes doing everything one can to allow the clients to more effectively create and innovate in their own sphere.  This is what brings value to our lives, to our profession and our clients.  Don’t fear of the unexplored. 

Representing a client in a manner unique to the client and to the traditional approaches, may create unique and ground-breaking ideas and resolutions. The success of carrying out this philosophy creates success and value for the advocate and client.  

Understanding the real client and creating the physical context and process provides a higher likelihood of genuine and meaningful creativity and innovation wherein the capacity to make ideas happen can be developed and more meaningful resolutions can be created. 

I AM Video of Space 

Stanford d.school 

  

Conclusion: The Value of the Context & Creating in it

Mediation provides each participant the opportunity to create and influence. As you engage in this process consider these comments from Amazon CEO Jeff Bezos:

 

“Tomorrow (today), in a very real sense, your life — the life you author from scratch on your own — begins. How will you use your gifts? What choices will you make? Will inertia be your guide, or will you follow your passions? Will you choose a life of ease, or a life of service and adventure? Will you wilt under criticism, or will you follow your convictions? Will you bluff it out when you’re wrong, or will you apologize? Will you play it safe, or will you be a little bit swashbuckling? When it’s tough, will you give up, or will you be relentless? Will you be a cynic, or will you be a builder? Will you be clever at the expense of others, or will you be kind?

I will hazard a prediction. When you are 80 years old, and in a quiet moment of reflection narrating for only yourself the most personal version of your life story, the telling that will be most compact and meaningful will be the series of choices you have made. In the end, we are our choices. Build yourself a great story.”

 

 Other Resources:

 

Contentious Tactics?  What the Rules Say: 

 

The conduct would have to be extreme to be a rule violation but the Rules that might be applicable are:

           

 R 4.1 (Truthfulness in Statements to Others) 

                       

In the course of representing a client a lawyer shall not knowingly (a) make a false statement ofmaterial fact or law to a third person; or (b) fail to disclose a material fact, when disclosure is  necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by R 1.6.

         

 R 4.4 (Respect for Rights of Third Persons)

                       

(a) In representing a client, a lawyer shall not use means that have no substantial purpose  other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

 

Standards that might be applicable are:

 

            #1. Lawyers shall advance the legitimate interests of their clients, without reflecting any ill-will that          clients may have for their adversaries, even if call upon to do so by others.  Instead, lawyers shall treat         all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous   and dignified manner.

 

            #2. Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected.  They are        tools for effective advocacy and not signs of weakness.  Clients have no rights to demand that lawyers     abuse anyone or engage in an offensive or improper conduct.

 

 

 

 

Statutory and Legal Guidelines for Ethical and Effective Communication and Negotiation

UADRA 78B-6-201

UUMA 78B-10-101

Reese v. Tingey, 177 P.3d 605 (UT 2008)

URCADR Rules 101-104

UCJA Rule 4-510

Model Standards of Conduct for Mediators (AAA, ABA, ACR)

 

 

 

 

HYPOTHETICAL

 

CASE NAME: Wilma Williams v. Pinto

 

ATTORNEYS/REPS: No atty for Williams. Pinto: John

 

TYPE OF CASE: Workplace discrimination and harassment

 

POSITIONS: Williams wants to be promoted for a period of at least five years or wants pack-pay for 16 years. Pinto wants to terminate relationship.

 

INTERESTS: Williams wants: 1) Guy above her demoted b/c of his discrimination;

2) her stature back with peers; and 3) Diversity issues resolved within company.

 

Pinto does not want her around because they feel she is not capable of managing others. She is ineffective. 

 

STARTING OFFERS: Pinto offered severance of 9 months.

 

ACTION/TECHNIQUES in MEDIATION:

          Empathy: To H in beginning  “You guys are in a tough business.” (He continued to talk casually about this.)

To Williams  “Anything we can do to help we will do. I’ll be a resource to you.” “I want to find out what this is all about. What do you want to accomplish?”

          Transparency: He met individually with both sides then before bringing them together he prepared and coached each side on what was going to happen in the joint session.

          Evaluated options: Mediator wrote on the board “staying” and “leaving” then listed what each would look like:

Staying                                                                       Leaving

– Promotion to meaningful job

– IPP (Improved Performance Plan) which could equal termination if she performs bad- Out-placement program

– Early retirement plan at age 55

 

Mediator then helped her evaluate both and said, “I want to create value for you. You can stand up for what you think is right, but I am concerned you might get shafted twice.  I’ve mediated over 4K cases…”(talked about toll and burden of going to court vs. taking an offer today).  Williams brought up possibility of a harassment claim and evaluated that. Mediator said “The harassment must be on basis of sex, ethnic origin, race, etc. Not being introduced at a social function is not enough. I am looking for a smoking gun. Give me a smoking gun here. I want to take something over to them to make them think about this if you can give me something.” (He then gave example of the harassment case where the guy took a photo of his rear end while in the bathroom and gave it to the girl. She had the photo; that was a smoking gun).

Mediator took the early retirement option Williams came up with to other side pretending it was his idea (thought Pinto would automatically reject it if they thought it was her idea) Pinto shot it down but made an offer of:

1 year’s salary ($80k) plus benefits and $10 placement program and keep her phone line open for her for 90 days. (They felt this addressed concerns Williams had expressed earlier)

 

          Created value of the offer: Mediator presented the options that failed or weren’t as appealing (IPP & early retirement & promotion, etc.) then presented Pinto’s present offer. He created value by being personal and reality testing: “Wilma, do you really want to be at Pinto? It is obvious you’re not happy there. Court will take two years. You will be out of a job. What are you going to do everyday for two years without a job? No one will hire you because they will see you have an open case with another employer. Depression can set in (shared example of case women lost and then appealed then won but paid tons of fees and had to deal with many psychological problems, etc.).  I know that if you don’t take the deal you will be fired and you will get nothing today from Pinto. You will then go on to court with your attorney where you will just be a file; here you are a person. There is something on the table that I believe speaks to your interests.” She thought about it and settled feeling very good about it.

 

AGREEMENT: Yes. 1 year salary and benefits, message on for 90 days, financing for her 2 cars for 1 year and $10K placement program.

 

GOOD QUESTIONS AND COMMENTS:

To H “What does she (Williams) want?” “What do you think the best approach is?” “Is there anything you are concerned about that jumps off the page?”

To Williams  “How does Pinto see the situation?” “What do you have to support discrimination?”

 

 

Possible Ways to Create Value

 

If she goes:

 

          Severance package (3, 6, 9, 12 month’s salary)

          Maintain benefits for a period of time

          Leave voice message and voice mail open for a period of time

          Finance the company car for a period of time

          Pay for a replacement program or for a headhunter for her to obtain new employment

          Negotiate an early retirement package

 

If she stays:

 

          Promotion or move her to a different position

          Implement diversity/sensitivity training

          Take action against other employees who were involved

          Put her on an Improvement Performance Plan (evaluate her work periodically)

 

Other:

 

          Apology or statement of misunderstanding

          Hire her as an outside consultant or independent contractor

          Reduce attorney’s fees (Many times this can be the closer)

 

 

Interests v. Positions

 

Litigation v. Mediation

 

Client Preparation

 

Parties Expectations