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today.
Welcome to the audio edition of BHBA's Mediation Training.
In this episode, your host, Devin Tucker of Alternative Resolution Centers, will guide
you through communication skills and techniques.
Let's dive in.
Today, we will be discussing communication and mediation.
I've chosen to name this topic, Business is Personal.
Although as a mediator, you will be serving as a neutral party, you will be dealing with
a lot of high-conflict emotions and different personality types.
This is why communication is so important.
As a mediator, you are the communicator.
Your main job is to facilitate communication between the parties and between yourself
in hopes of a peaceful resolution.
When doing a mediation, it's important to recognize that all the parties involved in
some way, shape or form are feeling attacked, victimized, or something has occurred where
they now need to express themselves or defend themselves or advocate for themselves.
This being said, you may have some of your own preconceived stereotypes.
However, it's very important that you remove those labels.
So when working with the parties, as I said before, you may lean more towards the plaintiff
side or the defense side, but it's important when beginning to work on a dispute, you really
do try and drop those stereotypes and preconceived notions.
We really want all the parties to come to mediation with a clean slate to be able to
express themselves, express the situation, and it is our job as mediators to try our
best to understand their form of communication and then to properly communicate their thoughts
and feelings with the other parties in hopes of resolution.
So with that being said, you are able to create a space where people can feel safe, trusted,
and they can let down some of those fears that they may have or to release some of the
targets that they may currently be facing.
So I just want to reiterate that we are neutrals.
We are not advocating for one side or the other, but really just trying to neutralize
the plaintiff.
From the beginning of mediation to the end, communication will be a major factor.
So this is a timeline to go over the different steps in a mediation process, and I will go
over all of these in more detail, but I just wanted to show you that the communication
really happens when you get the inquiry, when someone reaches out to you, they have questions,
maybe they see before they have selected you as a mediator, and you really want to do your
best to understand the nature of the situation as well as to communicate who you are as a
mediator, your experience, and how that can help you to resolve the matter.
So I'm going to start next with communication styles.
So there are four main communication styles, passive, aggressive, passive, aggressive, and
assertive.
You probably are very familiar with these communication styles.
However, I think we tend to automatically label certain communication as someone being
passive aggressive, or aggressive, or passive, or assertive, without really looking at the
nonverbal cues that apply to these styles.
So it's not just how people verbally communicate, but it's also nonverbal.
It's communication via written contacts, so email or a letter.
And so it's really important that we identify these communication styles because neither
is better than the other.
And when working with parties, you will experience all of these communication styles.
And even you as a mediator may have your communication style that maybe you use as a
practicing attorney or as a litigator or as a judge.
And it's really important that we recognize all of the styles and see the strengths in
all of them and how we can work with individuals that may have other communication styles different
from ours.
So I'm going to share a video, and I think it does a great job of just showing the different
types of communication styles that you may normally not think of.
You're probably used to communicating how it's best for you and it's probably worked
for most of your life.
And so you maybe have not considered the fact that there are other communication styles
that may be just as suitable as your own.
So I'm going to go ahead and play this.
Let's follow Tim and have a look at what it means.
If you went backpacking around the world, you would find that people behave in very
different ways.
Let's take a simple thing like greeting somebody.
In different cultures, it can look like this.
Like this.
Or even this.
Now the beautiful thing about our international TESTO community is, you get to meet people
from all over the world.
It also means that you have to team up with them for global success in order to avoid
misunderstandings and to work together effectively.
That can be tricky because different cultures have different perspectives on things.
When it comes to time, for example, altered personal space, sometimes intercultural communication
can be confusing.
And even simple things like dining habits may need getting used to.
So how do we gain intercultural awareness?
By exchanging our different points of view and working in it together as one big community.
And these 10 bullet points will help us in intercultural situations.
Be open to new encounters and curious for new experiences.
Don't be afraid.
Be vigilant and observe so you won't make a faux pas.
And of course, respect foreign customs, rituals and culture.
Be patient and in case somebody does not behave how you expect, don't take it personally.
Be kind-hearted.
Share your own customs and culture with others.
And finally, share your intercultural experience with colleagues and friends.
That's the way to cultivate intercultural...
So I really love that video because it talks about a few different things.
It talks about different communication styles.
It talks about different styles that cultures use to communicate.
I think it's really important because you may not have really thought about it, but even
in just a greeting, some people will greet you and they'll ask you, how's your day going?
If they are familiar with you, they may ask you, how's your family doing?
How's work going?
And have more of a personal conversation with you before getting into business.
Some cultures are very different.
They do not want to engage in a lot of personal conversation.
They come to the conversation and they're ready to get started on the given topic.
It's important to understand that neither of these is right or wrong.
It's just a cultural difference or a customary difference.
And as the mediator, I think the best thing that you can do is start the conversation
by trying to create an environment where you express who you are and just set up a space
where people can trust you and get to know you, which will also help them to open up.
I'm going to talk more about that a little bit later, but I want to go back to the different
types of communication styles.
So passive is normally someone that is non-confrontational.
They may avoid eye contact or close contact.
We all are familiar with someone that is passive.
However, I do want to note that in mediation, you may experience individuals who have this
style and although they may not be saying as much, it is very important to still engage
with them and to possibly ask them questions that you think may be important to them, even
if they are not asking those questions or making statements to indicate those questions.
We really as mediators do not want to leave anyone out.
So it is our job, especially with clients.
Sometimes if they have a counsel or an attorney representing them, the client themselves may
not be as assertive in how they communicate, although it is still our job as mediators
to check in with clients and to also monitor the relationship between the attorney and
the client.
Obviously, they have hired their lawyer, but we do want to make sure that we consider the
client's interests and sometimes we will have to speak with the attorney and say certain
things to them about advising their client or if they can explain certain elements to
their clients or perhaps asking counsel if they have explained how this works, if they've
explained the applicable laws, all of those things because you will be surprised that
a lot of clients do come to mediation and they're really not sure what to expect.
For attorneys representing them, they have probably done several mediations and it's
something that they regularly do.
However, for a lot of clients, it may be their first mediation.
So asking their attorneys those types of questions and engaging with the client is very important.
The next type of communication style I want to go over is aggressive.
This one is pretty self-explanatory and this is a person who is very straightforward, direct,
maybe confrontational and takes the stance of authority.
Someone that has an aggressive communication style can sometimes be used as a factor to
maybe put fear into another party or for someone to claim their space and their authority.
And so sometimes this type of communication style can be intimidating to even yourself
as the mediator or to the other parties.
It's important to recognize that you will deal with all different types of communication
but as the mediator, it's your job to, like I said, try to control that space.
If you do deal with personalities that have a very aggressive communication style, it's
really helpful to try to say things such as I understand where you're coming from.
I will do my best to express your thoughts and your considerations to the other party
or to the client.
And I guess what I'm trying to say is it's helpful if you can try to deflect the situation
or not the situation, but to try to reduce the emotions that sometimes do come off with
an aggressive communication style.
That way if two parties are speaking to each other, one party does not feel that they are
being attacked.
This is also when you can use your discretion as a mediator, which I will relate later,
but it's not always the right time to bring two parties together.
If you do know that you are working with an aggressive communication style person, you
can always caucus with them separately and have separate conversations before bringing
them into a joint session or even having a private session outside of the client.
The next type of communication style is passive aggressive, which I'm sure we are all familiar
with as well.
This is a person that may not express verbally certain communications, but we may see them
through body language.
Again, this could be someone that is saying they agree with something or maybe they're
excited about something, however, maybe they roll their eyes as they're saying it.
Maybe the tone of their voice is monotone or showing that they're displeased.
They may shrug or cross their arms.
Those are all indicators that perhaps what is being verbally communicated is actually
not in fact how they truly feel.
It's important as mediators to look at these signals and look at these signs because if
this does happen, as you reach settlement, you may or settlement discussions, you may
run into an issue later in the mediation if some of these issues are not addressed in
the beginning.
It's really important to read the room and see as you're going through mediation how
everyone is perceiving information, how everyone is communicating because it is better to address
issues in the beginning of the session as opposed to later when perhaps there is an
offer, but now there are some underlining concerns that were not previously expressed.
That can really alter the timeline of settlement or it can take it off the table.
It's really important that, which I'll go into in a second, but having free mediation
conversations and discussions, you will most likely be able to see what type of communication
styles you are working with.
For the day of mediation, you will be more prepared.
You can take notes for yourself.
That way you can make sure that nothing is left untouched or there's no issues that you
didn't address early on in the session.
The last communication style is assertive.
This is different from aggressive.
This is someone who has a high energy, is probably very passionate about the conversation they're
having and they use additional information to support their points.
They use examples.
They refer to things that have already been said perhaps and they really are an advocate
for their position or what they're trying to convey.
This is not an aggressive communication style.
It is more of a direct style, but it's normally supported by other additional information.
Normally these communication style people, they have a pretty leveled emotional state.
It's just that they are using additional information to get their points across.
They also might use body language using their hands to communicate and those sorts of things.
These are great communication styles to work with because it's very easy to understand
where they're coming from if they're using evidence or they're referring to certain
things that will help you to understand them more carefully.
The only thing I will say about this is if you are working with a lot of assertive type
people, again, you just want to make sure that those people that are not as assertive
are still being able to be heard and are still being able to communicate their thoughts.
If you're in a situation where you have many assertive people, you just want to make sure
that you are just considering other people as well and other communication styles.
As I have mentioned a few times so far, if you are a litigator and moving into mediation
or even if you were a judge, you probably had more of an adversarial position, which
is great.
However, in mediation, we have to undo those skills that we've been taught.
You may use the Iraq method in terms of how you analyze legal issues, which is great as
a lawyer.
However, as a mediator, everything is not going to come down to the legalities.
It's going to also involve people's emotions.
It's going to involve he, say, she, say, which unfortunately we will never be able to know
exactly what happened in a situation or an incident as we were not present.
However, we want to utilize other skills to help us come to a settlement.
A lot of times with cases, there are a lot of emotional factors and a lot of underlining
factors.
As lawyers, we are trained to really not look at all of those factors, but really look at
the substantive issues, the legal issues, and really consider what are the legal issues.
If they're not on merit, then we typically don't really see it as a legal issue.
However, we have to take a more passive stance in terms of our communication as well.
It's not our job to lawyer the lawyers.
We do want to have conversations with the parties and their councils and be realistic
about the potential outcomes.
However, it's not our job to really give direction to council or to parties.
Of course, if you are having a caucus with a lawyer or one of the councils, you can be
direct in terms of talking about if this doesn't settle.
It may be very difficult and trial to get these same results or to even have an offer
similar.
It is okay to mention those types of things, but we just want to be careful of not being
overly assertive and influencing the parties one way or another.
That's really important.
I think this is one of the hardest things for new mediators to really comprehend.
I also believe that in cases I've seen that don't settle a lot of times parties, they
may feel like the mediator is biased or showing bias to one side or the other.
You really want to try to avoid that.
I have some helpful tips of how to do that, which I'll share later.
I just wanted to talk about that.
You probably are the more assertive type.
It could be helpful to take more of a less adversarial role as a mediator.
The next thing I want to discuss is types of nonverbal communication.
This is easier to detect if you are doing an in-person mediation, although it is possible
to detect doing online as well because people do different things.
They turn off their camera.
They mute themselves.
You can very clearly see if someone is not paying attention or they're focused on something
else.
Perhaps actually in an online mediation, you have more of a full scope at one time versus
in person where you're going from room to room.
Nonetheless, these are helpful indicators to go with what I just discussed, which were
more verbal communication styles and let's just jump right in.
Epistemics is basically how it sounds.
The proximity of individuals with one another may hopefully you will speak to the parties
before and you may get some of these indicators.
Perhaps the attorneys may share some of this with you or you will experience this during
the day of mediation, but it really shows the relational bond between two individuals.
For example, it's you are mediating a labor dispute and perhaps you have an employee,
an employer that are both there at the day of mediation.
You may notice certain nonverbal things where perhaps the parties turn their back to each
other.
They don't want to be in a shared space.
They may not greet each other.
They may not shake hands.
Certain things like that, which will be a clear indicator that there is an extreme amount
of tension.
If you do see this happen, which I will go into more later, but you will want to utilize
your discretion in terms of having perhaps monitored bathroom breaks, monitored mail
breaks and various things that you can do if you do see that there is tension between
the parties.
With that being said, we also do experience sometimes where there is a gap between a client
and their attorney, which happens more than you may expect.
Sometimes we do separate the attorney from the client and we don't have the client participate
for a majority of the sessions while we're trying to work with the attorneys to really
focus on the legal issues, figure out policy limits and all of those things, and then bringing
the client in later.
It's really important to evaluate these things.
If you are in the awkward situation of dealing with a client and their attorney that maybe
are not seeing eye to eye, there's different things that you can do to suggest to the council
and to the clients to try to remedy that relationship.
Sometimes there's other things that have happened during the litigation process, or perhaps
if there's offers being made, the client may be upset with their attorney at some point
and they feel like they're not advocating enough for them.
These communication breakdowns do happen.
As the mediator, you just want to be aware and try your best to dispel of these type
of nonverbal indicators.
The next one is kinesics.
This is hand and body signals, which are used to express feelings and thoughts.
This one I think we're very familiar with.
How people are, if they're shaking hands, if they're using their hands and body language
as a means to explain, those are all indicators that people are interested in the conversation.
They're interested in effectively communicating, and they're also interested in making sure
that the people or the audience they're speaking to are able to comprehend and understand what
they're saying.
These are all really good indicators.
It's also, it can be used to show passion.
We do want to look at these things as well.
Sometimes if there's a lack of body language or someone is not as involved, maybe they're
sitting with their arms crossed or stuff like that, then that could also be an indicator
that maybe they're displeased with how things are going, or there's something that they
maybe want to talk to you about in a separate or private room.
These are really good indicators of how people are feeling that you can notice throughout
the session.
This one, chronemics, this has to do with punctuality and timing.
We've all experienced that you have people that arrived to mediation an hour or 30 minutes
before and they're early and they're ready to go.
We've experienced people that are late, maybe just a few minutes or perhaps longer than
that, we experienced things that happened, delays, all of these things, we experienced
rescheduling of mediation.
I think this is something that can be taken lightly because things do happen.
We live in a busy world.
Not always is punctuality a factor of whether or not a person is interested or an indicator
of settlement.
However, you do want to pay attention if people are continuously tardy or that sort of thing
and really tried to make sure that your mediation can be more productive.
This is something that you do want to keep in mind.
Lastly haptics, this is the use of physical touch to show or just the use of physical
touch.
Some cultures, as we saw in the video, they're very friendly.
They may hug.
They may shake hands.
All of these different things to show where they're coming from.
I think that this can be a good indicator.
Not all the mediation that you will do, you'll have parties that absolutely cannot see in
each other.
You will have situations where people will be greeting each other.
They maybe haven't seen each other.
It's good to look at these nonverbal signals and communications to see some of the underlining
things that are happening.
Aside from the communication styles that we have discussed, there are also diversity concerns
that you want to be aware of.
All of the people that you work with will all be different, coming from different backgrounds.
It's important that we utilize the opportunity to have pre-mediation discussions and introductions
as a way to really understand where parties and where people are coming from.
These are just some of the different factors of diversity that come into play in mediation.
There are a lot more.
I'm sorry if not everything is included.
I think that these factors are really important to consider.
Gender is something that is very important.
How men are treated, how women are treated is very different and how we categorize each
gender based off of expectation and all of those things.
It's really important that we're sensitive of these factors.
As a mediator, you are either male or female.
You have a position that you're coming from.
However, once again, we have to be totally neutral.
Although I am a woman, I cannot side with a case just because maybe a woman is the plaintiff
and something has happened.
I have to keep my neutrality and still remain a neutral party.
That is something that I do want to say.
With that same regard, race and ethnicity is another thing that you will deal with different
people from different backgrounds.
It's really important to be aware of the different cultural aspects of different races and ethnicities
and as well as certain things that may affect these different types of ethnicities and races.
Different targets, they may have different security issues or different biases from
either perspective.
If you are in a mediation and you're dealing with any of these categories, you really want
to make sure that you once again neutralize the audience, everyone that you're dealing
with and so we can be really sensitive and aware of this.
Another one that has come up a lot is sexual orientation.
I think that as a society, you need to be more informed and aware of how we are dealing
with other people.
I think that at this point in time, it's really helpful as the mediator to set the stage,
how you identify yourself can help to allow other people to express how they identify
themselves.
You can introduce yourself and then also ask the parties how they would like to be identified.
This is really important, especially because we are dealing with people that we may not
have worked with before or may not know.
Just simply asking them, hi, what would you like to be called?
How would you like me to address you?
This can really eliminate any communication issues or unintended miscommunication that
may occur.
This is really great.
When you are addressing the parties during an opening statement, you can go ahead and
then introduce the individuals as they have described that they would like to be identified
as.
Additionally, age is also a huge factor.
You may be any given age yourself as a mediator and you may be working with clients that are
younger or older than you or perhaps the same age.
It's really important to consider the differences that different age groups deal with and the
sensitivities of age as an issue and as a consideration.
I know that if you're a person like me who's on a very young person, it's really important
to consider the issues that people as they get older, they face and some of the challenges
that they are dealing with.
It's really important to be sensitive to age as well as if you are not representing but
working on a mediation with minors or youth.
It's really important to consider what applies to them, the applicable laws.
It is different for different age groups.
It's really important to consider those things and as you're preparing for mediation to look
at the people that you are going to be working with and to see what different categories
they fit in and how different things may apply to them.
Next is religion and culture.
This really plays a big part in the context and the background and needs of clients.
It's important to try to address these not concerns but these categories to see if religion
does play a part in either the dispute itself or in the mediation.
Some cultures, they may pray at certain times and you want to be aware of this so you can
give ample breaks and be courteous of this as well.
Additionally, as we saw in the previous video, different cultures communicate differently.
We also want to be aware of this and as the mediator, like I said, to try to create an
environment where it can be safe for everyone and everyone still secure.
On that same token, there may be dietary restrictions as well.
These are things that you want to address during a pre-mediation call to figure out
what these restrictions may be and that way you can be prepared for the day of mediation.
Another topic is disability.
You may be working with clients that do have a disability.
It could be physical, mental, or anything in between.
It's really important to be aware of this and try to accommodate anyone that may have
a disability.
Now a lot of mediations are done online.
However, if it is in person, just making sure that the person is able to access the space
adequately and if you do need to make additional arrangements, you are aware of that and you
can make sure this can happen.
Additionally, you can also utilize a hybrid mediation where someone might be in person,
someone may be online, and all of those things.
Additionally, you can also decide when to bring parties into a mediation session.
So even if mediation starts at 10 a.m., but there's a client that may be under distress
or has a disability, perhaps you can bring them in later into the session when it is
a good time to speak with them.
If you're going to be speaking with another party, it's no need to make them sit and wait
if they're really not able to do so.
All of these factors really should be considered before mediation and during mediation.
As I mentioned, I think the reason why this is such an important aspect is because the
parties coming to you are already in a dispute.
The dispute could involve various different things, but this is especially important for
disputes involving discrimination, harassment, termination, displacement, and relocation.
This is true because some of these issues may be the direct reason why the dispute is
happening and why the parties are coming to mediation.
That being said, it's really important to spend time with the parties to understand
what their main concerns are, how they felt that they were either wronged or they were
accused of doing something that they did not do.
It's really important to take the time early on in the mediation to go over these sensitivities
because again, if they're not addressed and there's offers later made that are involving
money, the exchange of money, that's great.
But if there's unresolved conflicts related to these various categories, it's not going
to settle.
So you really want to make sure that you are considering these dynamics because most often
in mediation, the parties may get to a settlement or an agreement financially, but there also
may need to be some additional amendments, for example, apologies to happen or other
things of that nature when there's been a very high emotional farm or dispute that is
taking place.
And if the intention is to remedy a relationship that's going to continue, you especially want
to make sure that these issues are addressed.
A lot of times it is miscommunication, which is the whole topic of my presentation, but
a lot of these disputes may result over a miscommunication.
So as a mediator, we want to really hone in on this and give people a chance to have an
opportunity to express themselves if something did take place that they did not mean or perhaps
understand under these different diversity factors.
This is a great time to explore this, to talk about this and to give parties the chance
to rectify on these issues.
I'm going to share a video now, which I think is truly amazing, just expressing the different
cultural communication differences, diversity factors and all of the things that I have
just discussed.
In high context cultures, yes may mean yes may mean no and yes may mean maybe, depending
on how the yes is messaged.
So it's not just the words, it's actually the facial expression, the tonality of the
voice and the body language.
Whereas in low context cultures, yes means yes and no means no.
I mean what I say and I say what I mean.
Direct.
Think of some of the issues that comes up.
I loved Dave Ulrich's definition of listening.
Listening is not about have you heard me but have you understood what I meant?
I love that definition.
I thought that's really good.
And here's the issue.
If you come primarily from a low context culture, even when someone says no and they say no
without using the word no, you don't actually hear it.
You don't hear it.
So then the issue becomes why didn't they just say no?
If they couldn't perform or couldn't get that done on time, why didn't they say no?
They probably did but you just didn't hear it.
As I was with a meeting with a client some time ago, we were with a Korean organization
and he came out of the presentation saying, I think that presentation went really well.
I said, I don't think it went really well.
So why not?
Because they said they were really interested, they would give it good consideration.
I said, no, that doesn't mean that they're going to give, think about it.
Because when they said that, they took the deep breath in.
So it's just paying attention to the cues.
So when we listen to people who come from high context cultures, they seem to be beating
around the bush.
And we don't hear what they're saying.
Whereas when we're coming from low context cultures, how it comes across the high context
is in fact sometimes we come across as being very rude and very direct.
They say, don't you have any heart?
And you say it in a different way.
So once again, different styles of communication.
And think about that here.
And once again, the thing to remember is that culture is very subjective.
In Australia, we consider ourselves to be quite open and quite straight.
We take pride in the fact that we call it as it is.
I had a client recently who said to me, Tom, I thought we were direct.
I had a project manager who came from the United States.
And at our first meeting, she had my whole team in tears.
She said, I now know what direct is.
Because compared to her, we were really soft.
However, we compared to the Indonesians, we are direct.
They were indirect.
So culture is always subjective.
It's relative to your point of reference.
Okay.
I really like this video because I think it's a good indicator of just understanding that
how you perceive something may be very different from how the next person perceives it.
So as he was saying from his culture, he's Australian.
He believes that they're very direct people and they say what they mean.
And having an interaction with someone from the United States, they realize that they
are not as direct as someone from the US.
That just really is an example to show that all year intentionally expressing yourself
may be different from how it comes across to the parties.
You will be able to really understand this by utilizing pre-mediation phone calls and
also reading mediation briefs because you will understand where someone is coming from.
And during the day of mediation, you can neutralize the parties and understand more where everyone
is coming from.
So next I'm going to really get into the stages of mediation now that we're more familiar
with the communication styles.
When you get an inquiry and when you're in the confirmation stage, you want to first
communicate a thank you and your gratitude towards the parties as they do not have to
choose you as a mediator.
And you just want to just express that you're delighted and interested to work with them
and that you're passionate about the work that you do and resolving disputes.
So that's the first thing.
The second thing that I recommend is to show the human connection.
Of course, you could immediately go into your qualifications, your experience, all of these
things, which is great, but more than likely they already know that because they found
you and they are now asking you or inquiring for you to mediate.
So they may already know those credentials.
What they don't know is who you are as an individual, your personality, things that you like, your
interests and your passion.
This really separates you and makes you unique as an individual.
When people are involved in cases, they are in the trenches of all of these legal issues,
dealing with their clients, dealing with the other side.
And we tend to lose the human connection aspect.
We as lawyers, we are trying to advocate and we really are focused on the client as a representing
attorney or as a litigator.
So sometimes you lose that human connection and we want to bring that back in because
mediation is really about that human aspect and that human component that cannot always
be fully expressed during a trial or in a litigation proceeding.
So it's really important to be clear that mediation is a chance for people to have that
human connection amongst each other and can really be the turning point in moving a high
conflict dispute to a settlement.
So any way that you can connect with the clients, you should do that.
You may already know information about them that can help you to connect.
So if you know that someone really enjoys sports or perhaps you can make a connection
and talk about sports that you played or that you enjoy watching, this is just an example.
You may not know anything about the party.
So in that case, it's great to just talk about who you are, things that you enjoy, all of
those things.
And it really helps to once again, neutralize things for people to understand that your
human, you're trying to help this and you're not taking an adversarial role.
After that, you can then go ahead and discuss your professional credentials.
Obviously, this is important to do and to go over why you're qualified and why you
can handle this and resolve the dispute.
You do want to also mention this when you're having an inquiring conversation.
The next thing that you'll want to do is go over questions and concern.
You always want to give the parties a chance to ask you any questions or to express concerns
to you.
This could be a pre-premediation call, but oftentimes parties that are reaching out to
you, they will give you additional information that you can take notes on and can be helpful
later on when you're reviewing briefs or having those pre-mediation phone calls.
You always want to give clients a chance to express additional information or ask questions
that you did not previously cover.
Once the parties have confirmed and agreed to use you as mediators, you will be in the
convening stage, which is getting the parties prepared for mediation.
The first is setting the stage.
This really goes back to the previous slide.
Just sending them an email, the inquiring part could be by phone.
Sometimes you get a phone call about your services or you make it an email inquiring.
At that time, like I said, you want to introduce yourself, express who you are, why you're
qualified, and also, of course, go over fees, information on online versus in-person mediation,
all of those administrative things you want to address.
You also want to set up a pre-mediation phone call.
Now, not all mediators do this, but I 10 out of 10 recommend that you do pre-mediation
calls.
The reason for this is you will get so much additional information that will be extremely
helpful that you will already be halfway to a settlement before you even begin mediation.
This is a chance for you to speak to each party separately and to fath a verbal conversation
outside of the mediation brief, which will be very legal, heavy, and substantive, heavy,
which you do need.
But oftentimes, these pre-mediation calls, they will fill in gaps that you will come
across as you're reading briefs.
In these pre-mediation calls, you will want to go over information regarding the day of
mediation, but also discuss mediation briefs, MOUs, and any additional information that
may be particular to your practice or your style or requirements as a mediator.
It's really great because as a mediator, you can create an outline that works for you.
Everyone that mediates does it differently, so you will figure out what works for you,
but the pre-mediation call is the time to address this information.
This is a convening checklist, and this can either be done via email or written communication,
or it can be discussed during the pre-mediation call.
A mediation brief is really important and should be absolutely recommended that you
receive this from both parties or multiple parties if it's a multi-party dispute.
This is pretty much them explaining what has happened, if they're on the plaintive side,
discussing the damages and what they would like to receive out of the mediation on the
defense side.
They will also explain what has occurred, what they're willing to offer to remedy the
situation.
It's really great because if parties have chosen to go to mediation, then they have
indicated that they do want to settle.
If it's been ordered to mediation, which rarely happens, that's different, but more than likely
the parties have agreed to going to mediation in hopes of trying to settle this.
That being said, both sides will offer their damages and offer what they're willing to
offer to remedy this.
Mediation brief is the place where they will do this.
You want to make sure that you give clear direction.
A lot of attorneys have never done mediation.
It's becoming extremely popular now, and I think only 1% of cases actually go to trial,
which means everything is settled before.
That being said, you still want to discuss what a mediation brief is, what you're expecting
from the brief, and all of those good things.
You also want to give a timeline or a deadline for the submission.
The worst thing that can happen is to receive a mediation brief on the morning of mediation.
Sometimes these briefs can be 20 to 30 to 50 pages.
There's a lot of analysis and additional information.
It's really impossible to review that completely on the day of mediation.
You really want to request this by the latest one week before mediation.
The reason is because there's things that you will want to do to prepare for the mediation,
and the brief will be the way that you can really assess the situation.
The other thing that I recommend is an MOU.
This is not something that a lot of mediators that I know use, but it's something that I've
always done, and it's something that I was taught by my mentor.
I'm sure you're familiar with what an MOU is, but in the context of mediation, it really
helps to set up a very easy streamlined settlement agreement once the parties are at that point.
It also is just a great way to show that both parties are committed to settling.
Of course, they are in a dispute, and most likely they're in a litigation process.
They are fighting against each other.
However, at this point in the litigation, like I said, if they've come to mediation
and they are ready to come to the table and negotiate, that is a great thing.
In an MOU, which basically expresses the parties' intentions to resolve, it can list out already
certain things they're willing to either remedy or admit to or whatever the case may be.
It'll be different for every dispute.
However, it's really great if the parties do agree to create an MOU, which then can
also be turned into a settlement agreement.
You already have a lot of the language in there, and that way, during the day of mediation,
parties can revise the MOU and turn it into a formal settlement agreement that can then
be executed.
Not everyone will agree to this.
I don't think it's something that you should make mandatory, but I think that it's something
that you should speak to parties about.
It also helps them to mentally gear themselves up to how settlement will go, because like
I said, some clients may have never been in a mediation and some attorneys may have not
either.
It just helps them to move them closer to the finish line, which is settlement and not
just settlement, but a settlement agreement.
If you have this, you can avoid spending a lot of time at the end to try to go over the
agreement.
I've seen in situations where the parties, they agree on a financial amount, they agree
on other remedies, and then they start having an issue while drafting a settlement agreement.
It becomes very technical, and you just really want to avoid that, because once you're at
that point where offers are being exchanged, you want it to be as simple and smooth as
possible.
I really recommend asking them to do an MOU.
With that being said, if they don't do an MOU, I would recommend asking the parties to
share their mediation briefs.
Some parties will absolutely say no, they don't want to do this, but a lot of times
parties will agree to this, and the reason for this is because no one wants to be blindsided.
Everyone appreciates having preparation and really knowing where the other side is coming
from.
I think that if parties agree to sharing their mediation briefs before mediation, it allows
both sides to be prepared.
It allows both sides to consider the other position and then even being more prepared.
This, as people say, it's good to sleep on things.
If parties have a chance to comprehend and take in the other party's position, they can
have a more level-headed perspective during the day of mediation.
This is just really great, so there is no surprises.
People have a chance to consider these potential remedies or think of their own ways that they
could remedy.
Additionally, it gives time to consider policy limits, how much money can be spent, and if
there's ways to other remedies that can happen.
It's a really great option if people do agree to sharing the briefs.
We went over pre-mediation calls, and of course you will want to do an agreement to
mediate and a confining reality agreement.
Sometimes these are a joint agreement.
I've always separated mine, but it's up to you, but it's absolutely necessary to have
both of them.
I'm pretty sure you are familiar with just an agreement to work with another party or
work with parties.
The confidentiality agreement is very important because mediation is confidential.
Everything that happens in a mediation session should be confidential.
You want to make sure that you have all of the parties involved to sign this agreement.
With that being said, also in the beginning of mediation, it's good during your opening
statements to just reiterate that mediation is confidential just so everyone finds a reminder.
I'm going to share a video about first impressions because this is going to be important in these
pre-mediation phone calls as well in your opening statements on the day of mediation.
Hey, Mom.
Yeah, I'm pretty nervous with this interview.
I spent all weekend knowing the microtonics.
I'm ready to crush the interview.
No, I don't know who I'm interviewing with.
I just know her name is Tammy.
She's a part of the front hood.
I don't know much else.
Sorry, I got to run.
I'm walking to the Wii.
Hi, Brett.
Hey, Tammy.
How's it going?
Good.
How are you doing?
I'm doing good.
It was a beautiful day in Palo Alto.
Is the weather always this nice in November?
Yeah, it is.
Is it?
Is this your first time here?
Yeah, I'm from the Midwest and it's snowing already there.
Got it.
Welcome here.
I'm looking at your resume.
How many of you think this is going well so far?
Show of hands.
How many of you think it's too early today?
Let's see what our participants think.
Brett, how do you think it's been so far?
Well, as most of you guys saw, I feel things are going pretty well.
I complimented the weather, talked about the city, and now I'm ready to crush this energy.
Interesting.
By me.
What's your opinion?
I've had ten interviews today.
I don't feel a special connection with this guy.
He doesn't stand out.
Wow.
Did you just see?
I think I can't even...
In the first ten seconds itself, there are such different opinions of how it's gone among
the two people.
First impressions in an interview are critical.
They say don't judge...
Okay, so although this video is showing an interview, I think it's very helpful to just
show that, again, perception is very different depending on where you're seated and who you
are.
In that example, the interviewee thought it was going great and the interviewer did not...
She did not feel connected to the interviewees.
I think the two biggest indicators of a successful conversation are going to be strength and
confidence and then trust and safety.
As the mediator, which I've said time and time again, you control the space of mediation
and so you want to be confident in who you are.
You want to be confident in the fact that you will be able to resolve and help the parties
and that you want to show strength in being able to be a neutral perspective.
That is really important.
Secondly, you want to build trust and safety, which a lot of the things that we've discussed
will really help to do that.
We've discussed being aware of communication styles, being aware of different diversity
indicators.
All of those things will help to create a safe space as well as having those calls, reading
those briefs, helping you to really understand the people that you are going to be working
with and the disputes that you are going to be resolving.
Another really big thing that I learned and my mentors shared with me, never communicate
anything in writing unless you absolutely have to.
When it comes to these mediations, it's really great if you can jump on a phone call or of
course during mediation, you'll be having verbal communication, emails and written communication.
It's very hard to tell the context in time.
As the mediator, you never want to show favoritism or anything like that or cross any of the
lines in terms of being a neutral party.
Just have a piece of advice.
Try to limit those email communications.
If you do have an office that you're working with or that manages or administers your cases,
let them do all of the conversation regarding fees, all of those things and really try to
limit yourself to discussing the dispute itself and additional information that could be helpful
for settlement.
You don't really want to get into a lot of details via email unless it's pretty minimal
things, but that's something that you definitely want to keep in mind.
After you have received the briefs, you've had your pre-mediation calls.
Now you are in the phase of preparing for the day of mediation.
You're now at the point where you want to prepare to help the parties settle.
You want to take notes while you're reading the briefs.
You want to create thought patterns and you want to prepare a mediator summary.
I will go over all of this stuff in the next slides.
Mediator summary, this is my recommendation to you.
It's not absolutely necessary, but it's what I've always done and how I was trained.
The mediator summary is basically a summary of the briefs and the phone calls that you've
had up to this point with the parties.
You want to summarize the dispute itself, trying to neutralize the situation.
You want to go over the plaintiff's perspective, what their demands are, as well as the defendant's
perspective and what they're offering.
Normally they will put an offer in the mediation brief.
Sometimes they won't put an offer, but normally they will put a number.
They may also put certain limitations that they have, so you can see that in your notes.
One of the things that I think is really helpful is your analysis as a third party.
After you're reading this, consider how you, your analysis of what has happened.
It's not taking one side or the other, but it's just your analysis as a mediator of what
you believe to place in the dispute.
Then you will want to write what your strategy to settle would be.
Every case is different, but as you're going through these briefs and you're looking at
these stock patterns, you will see and notice conversations that you need to have.
You will address timing.
If the parties are not cordial and there's a lot of animosity, you will then consider
a certain timing of when to bring the parties together, when to clock it separately.
All of these things, which is really great to have in your notes, it's here, someone
that is working on many mediations and doing them every day.
You will forget certain things.
It's really great to include your own strategies for mediation in this mediator summary that
you can review on the day of mediation.
Next, you want to create a mediators bracket.
Not all mediators do this, but I think it's a secret sauce to do.
This is based off the briefs that you're reading and what the parties have communicated
to you.
It's normally a range, a financial range of how you think the parties will settle the
dispute.
Lastly, the expected outcomes.
It's very interesting because majority of the expected outcomes that I've written actually
do end up settling that way.
I don't know if we're mind readers or anything like that, but as a mediator, because you
have a neutral perspective, you really can see things more objectively and less objectively,
which I think can be a good indicator of the best way to resolve and best way to settle.
I just talked about this, the mediators bracket.
This is the settlement range.
It's normally a financial sliding scale.
It could be what the defense, their limit is or what the plaintiff, their lease that
they would accept.
You won't always know those factors.
You really use your best judgment.
For me as an employment mediator, I know how most of these cases will settle and there's
certain factors that can indicate that if you're doing a wage an hour, then obviously
the rules on how damages are applied.
It really just depends on what type of case you're doing.
You may know more information and some disputes than others, but it's great to have a mediators
bracket that way as you're going through the mediation, you can use your communication
skills to try to get the parties within this range.
Once you get them in that range, then you're in the sweet spot.
It's really good.
I'll go over momentarily.
Once you're in that sweet spot, your communication will then change.
How we start the mediation and how we're communicating in the beginning is going to shift later on
in the mediation as we have to change our style as we're getting closer to settlement.
Fact pattern, this is really great.
Again, this is for your own confidential notes.
It's not to be shared with the parties, but it's essentially things that you notice as
you're reading through the brief.
A lot of times you will see pattern on both sides.
If you're doing a labor case, you may see a common pattern of discrimination that's
cited.
It may be stuff that's preceding the dispute at hand or maybe took place after or maybe
had nothing to do with the dispute itself, but you may hear tones that this person experienced
other forms of discrimination.
That might be a pattern that you are writing down that can be then addressed during mediation
because sometimes that's just it.
Even if you're able to get parties to resolve the dispute at hand, there could be a larger
issue that also needs to be addressed in order to truly remedy the situation because it's
not always just about a financial settlement.
With that being said, on the opposite side, you may notice that an employee had the history
or pattern of being tardy or showing poor conduct or they may have been slipping on
their performance.
It's important to see these things because amongst the legal issues, there's going to
also be patterns that don't really fall into a protected legal class or a legal issue,
but there's still issues that need to be addressed and play a major role in settlement.
Lastly, I'll just comment that this will help you to counter question opposing sides as these
issues are coming up.
It's a great way to indicate certain factors that parties may not be thinking about.
They may have never considered the fact that the opposing party has felt this way or has
been dealing with other issues that are related to the dispute and all these things.
It's a great way to address some of the underlining factors and again, communicate these with
the parties and we'll be closer to settling.
For mediation, you will want to consider breakout rooms and separate rooms.
If it's in person, separating the parties or if it's online, doing breakout rooms.
If you are doing an in-person mediation and you have the space to do it, it's really great
to separate the parties with an empty room in between.
If you have six conference rooms and you have two parties, maybe place one party in room
one and the other in room three or four and you can utilize one of the other rooms as
a room to caucus or even do a smaller joint session.
But sometimes walls are thin and you may be in a seated discussion and you just don't
want one party to hear a private conversation that you're having or they're having with
their client.
We really want to keep mediation confidential and there are points in the mediation where
a caucus needs to happen and where information needs to be private.
So if you can try to separate the rooms that way, if it's in person, that's a really great
idea.
Of course, you may not have the space to do it, so you may have to be a little bit creative.
If you're having an online mediation, of course, you will create breakout rooms in the beginning
of the mediation and I recommend always giving yourself a couple extra rooms so you can have
a sidebar conversation with whoever you may need to.
As a mediator, again, you're using your discretion in terms of how to effectively communicate
with all the parties.
So give yourself some extra rooms and that's always great.
And two, if there's co-counsel, not all co-counsels will want to be in the same room.
They may have different clients they represent or different interests, so they may want to
be separate.
So I just always know what you're dealing with the parties involved and have your game
plan for the day of mediation.
Things that you want to communicate if you are having an in-person mediation, you want
to communicate the address, parking information, especially directions and the cost.
You also want to express food and meal information.
If you order food for your clients or have catering, you want to ask for if there's any
allergies or special requests.
This is really important and will help you out to avoid any unintended issues on the
day of mediation.
Lastly, it's really important to provide a telephone number to the physical office that
you will be at or the office manager if you have one or your cell phone number.
Basically just a contact number because people will get lost.
They will have questions.
So you want to make sure that you're easily accessible on the day of mediation.
If you're doing an online mediation, you of course want to provide the Zoom link with
the meeting ID and password.
The way that I typically do this is I will send it out initially, but also the night
before mediation, I will resend this link.
This is because a lot of people are very busy and they may lose the email or it may be from
a week before and it just makes it very nice if you can just communicate or re-communicate
the link the night before and it can be readily available.
And in that email, you should also include your cell phone number so that people can
text you or call you during mediation if they need to step out or something comes up or
they want to do a private caucus.
You may have the chat function enabled, I typically disable the chat function.
The only way that parties would really be able to communicate in real time would be
to provide my cell phone number and it just makes it a little bit easier, especially if
tech issues come up or any concerns of that nature.
So opening statements, we have touched on some of these things already, but I just want
to reiterate that it is recommended to bring everyone into the main session and greet all
the parties at the same time.
Every mediator does this differently, but I think it's very effective to do an opening
statement with everyone there and to introduce yourself, introduce the parties.
They may already know each other, but it's just a good rule of thumb to go over introductions
and it really does set the stage for the day of mediation and perhaps there's been other
points of communication in the litigation where parties have not been friendly or there's
been some issues.
So this allows you as the mediator once again to control the environment and to use your
communication style to also influence the other people in the mediation to be good sports,
good participants and to show to be cordial amongst each other.
It's also a good time to communicate or disguise the schedule for the day.
If you have, you're going to speak with plaintiffs first, you can go ahead and let them know
I'm going to speak with this council first and then I'll come over to the defense and
speak with you all.
It's good to do this, especially if you are doing an online mediation where people may
be waiting in a breakout room for even 30 minutes to an hour.
You want to make sure that everyone's on the same page and this avoids people feeling that
there's any bias or favoritism.
And lastly, provide your cell phone number again till people have it handy.
Even if you provided it the day before or another time, people lose that information,
they leave emails.
So it's great to just provide your cell phone number.
It can write it down during that time.
So I did mention this earlier, but I want to touch back on this.
So depending on the nature of the dispute, this will not be necessary for probably a
lot of the disputes you're doing.
I think it just depends on the type of case, but you may need to monitor breaks.
So this would include bathroom breaks, meal breaks, or any other break of that nature.
And this is because there are situations where opposing parties do not want to have any physical
or visual contact with each other.
On the plaintive side, if they've been harmed by the defendant, it may be very bad for them
to have any type of confrontation.
And they may not want to see their face, hear their voice, anything of that nature.
It's really important to be respectful of this and it's possible to place that person
in a room that is very far away from the opposing side, as well as escort them to the bathroom
if it's a shared space to escort them to the bathroom or to also coordinate meals.
So if you are ordering catering to designate certain times for the parties to go and grab
their food, that way you're not just having lunchtime and it's a free for all and everyone's
meeting in the kitchen.
You really want to try to limit those additional conversations if there is an environment that's
not good for that.
I've also done several mediations where the opposing counsels, they'll talk in the hallway,
they'll talk over meals and it's a great situation.
They're totally cordial and obviously in that situation, you don't have to worry about this.
But in other high conflict situations, you can really help the parties out by just giving
them some protection and monitoring the environment during the day of mediation.
The next thing that I want to briefly talk about is different listening styles.
This is important for you as the mediator and how you're able to receive information.
So connective listening is basically someone that is listening in hopes of gaining information
that could be valuable.
So in this case, as you're listening, you are looking for information that can be used
to settle.
As you're talking to parties separately or jointly, there will be cues that will let
you know where people are with things, where they're standing and how they're feeling,
which you can use to then move things a little bit forward in the mediation process.
So this is a great type of listening skill to utilize.
The next is reflective listening, which is normally seen as being empathetic and compassionate.
We always want to show this in our mediations, but we don't want to over insert ourselves
with words or guidance.
So we really want to listen more than we are speaking.
I always say that mediation is people's opportunity to speak when they otherwise may not have
the chance.
And it's not a child.
So it is confidential and things are a little bit less, not serious, but they're less binding.
So I think that it's important to realize when it's time to do reflective listening,
you may have a moment with a client where they are simply venting.
That information probably will not be used later or to be for the other party, but it's
more for the individual themselves to express how they're feeling and for you to just be
a great listener.
The next is conceptual listening, which are comprehensive listening, which is essentially
you listening, taking notes, using your analysis to make conclusions or to have draw conclusions.
This is what you will also be doing when you are going over mediation briefs and during
parts of the mediation.
You will also be obviously using this, taking notes.
If you're looking at documentation and stuff like that, you will be making your analysis
based off of what you're hearing and the evidence provided.
Lastly is analytical listening, which is great to have, although you just want to make sure
that again, you're not in an adversarial position where you're taking a stance one way or another.
But analytical listening is like I said, using those fact patterns and confirming facts based
off of what is being communicated.
So this is something that you will utilize and really for the benefit of once again,
trying to move parties closer to settlement.
I did go over this, but I just want to show now where we're at as well in the training
as an mediation.
So the first step is the inform and listen.
This is inquiry and convening.
The next is actually being in mediation and facilitating negotiations and mutual discussion,
which we have gone over.
And lastly will be the settlement phase.
And this is when you are at a point where you believe the parties are now ready to negotiate
a settlement agreement.
So as you're going through mediation, you want to make sure, as I mentioned that all
the parties feel that you are spending equal and adequate time with them.
So while meeting with one party, you could potentially give the other party an assignment
or ask them a question or a series of questions that they can work on while you're poccasin
with the other party.
This is great because it allows for a nice timeline of mediation and a nice flow.
It also eliminates wasting time and going back and forth when parties can be working
in the midst of you poccasin with the other party.
And hopefully it'll be a nice flow where you can go back and forth and bounce ideas off
of talking to each party.
And again, your goal is to try to get as close as you can to that mediators bracket.
And as you're going through, just get closer and closer and towards the end be in that
sweet spot that I mentioned.
So poccas, I'm sure you're familiar with this term, but in case you're not, this is
the opportunity to have a private conversation.
It may be with just an attorney.
It may be with an attorney and their client.
Sometimes it'll be a joint poccas where you have both councils there, but not the clients
present.
And this is really great to just get information that should not be disclosed in a joint session.
There are certain things that will happen in a poccas that you will never share with
the other party, but it is helpful for you to know so that you can know where parties
are coming from.
So I use poccas all the time.
It's just great to utilize this.
Joint session, I think this is typically what everyone thinks of as mediation that everyone
is just in one room and you're just going back and forth.
That's normally not how it works.
You will do a lot of poccas sessions and you will have a few joint sessions.
This will either be with the councils themselves, as I mentioned, or later on when you're at
the point where a settlement is taking place and offers are being made at this point.
Maybe another time to have a joint session.
And then lastly, at the end, once offers have been accepted and parties are just going over
the settlement agreement, and certain logistics is another time that you would do a joint
session as well as in the beginning of the mediation during introductions.
So I just want to say a few things that you should never say as a mediator.
Number one, never announce a defendants policy limit.
That's an absolute no.
Even if you are aware of this, you never want to disclose this to the other party.
It will just be a horrible turnout and you really want to maintain a certain level of
privacy.
You also never want to insult or critique one party in front of the other.
If you do have to say or need to say important information to a party, you want to utilize
a pocus and express those thoughts in that place.
And lastly, you do not want to ever say this is never going to settle.
You do not want to show pessimism as the mediator, the parties are trusting you.
They themselves have been unable to resolve this on their own.
And so now they've come to you to help them save the day.
So you never want to show any signs of pessimism or anything like that.
You want to stay positive.
And you want to stay enthusiastic about the opportunity to settle.
So there's some questions that I drafted here that will help you get closer to settlement.
And you will know when you're at that point in the mediation where you feel that clients
are now ready to have those conversations.
So some of the questions you may ask are, have you considered the outcome if you do
not make a substantial offer to plaintiff and the ramifications of not settling before
trial?
On the flip side, you can also talk to the plaintiff and say, have you considered that
if you go to trial, you will most likely not get an offer close or the same amount that's
being offered today.
So those are both questions to bring reality into the fact that whatever offers are on
the table during mediation will be very different than if it goes to trial.
Another question you may ask is, are you willing to face the public aspects if this does not
settle?
And you know what kind of case this may be a bigger factor, but either parties are concerned
about confidentiality.
If it doesn't settle and a trial happens, then it will become a public concern.
And if, for example, if this is a labor and employment dispute, regardless of the outcome,
it could be if a plaintiff wins and it's something with their previous employer, it may affect
them from getting another job in that field.
If the defense loses, it may show distaste towards their company and may affect their
performance.
So there's all of these things that you want to bring to people's attention without inserting
your opinion, but doing it in a way of asking questions.
This is a great strategy, like I said, to not show favoritism, but to get people to really
think about what's going on.
So again, yes, if this does not settle, would there be challenges in the future for future
engagements?
And another question, which may seem so simple, but to just re-bring it back to the question
of if the parties are interested in a positive outcome, if it's for themselves or their client,
sometimes you have to reel back in attorneys because again, they're trying to get a winning
result, which to them may be them winning the other party losing, but in mediation, we really
try to go with a win approach.
So it's just good to bring that back to the table.
Sometimes during the mediation, parties may lose sight of why they're actually there.
So these are all questions that can help you get closer to settlement.
As I mentioned, if it is halfway into the mediation and you are not close to settlement,
you do want to change your communication a bit and to go over some of the things that
I just mentioned, ask some of those questions and all of those things.
And hopefully by this point, you've addressed the financial and emotional burdens and you
can move more into negotiation.
So factual evidence first, emotional distress.
As I mentioned, the legal issues are the legal issues and the law is the law, but the emotional
implications and factors of disputes are a very different thing.
And you really want to be aware of this and really need to mediate these issues just as
you would the factual evidence.
Even if it's he say, she say, and you don't know what actually took place at a given time,
you still need to address how people were emotionally infected by this because continue
to mention mediation is a chance and maybe one of the only chances that people have
to resolve these emotional conflicts during legal proceedings, there's not a lot of space
for that.
Of course, you can ask for emotional distress and all of these things, but to really have
a chance to display that, there's really not to verbally display that clients may not have
another chance.
If you can try to get this handled earlier in mediation and leave the second half to
negotiation, that would be a great strategy.
So this is just another example of how you can try to move the conversation along and
get the parties to move closer to settlement.
You probably have already identified or parties are identified what their priorities are and
what's really important.
So at this time, you may have discussions with them and try to get them to meet in the
middle or different things of that nature.
Okay, at the point when the parties are ready to negotiate, if they haven't already started
negotiation, we want to have a separate caucus, like I said, and have a similar discussion
where you're asking some of the questions that I just went over and really planning
the statements so that parties are changing their gear from expression about what happened
and moving more into how do we resolve, how do we remedy?
Of course, as I mentioned, the beginning is really utilized for people to have their day
in court, even though it's their day in mediation, really to express themselves, talk about what
happened during the dispute and go over some of those factual evidences or those logistics.
But then you want to move the parties into negotiation.
So it's great if you, like I said, have separate caucus, but have a similar discussion.
So priorities leading to offers.
So basically at this time, you will be asking the parties to really prioritize how they
intend to resolve the issue and really get down to those key issues.
There may be a lot of things that have been in discussion, but at this time, you really
need to try to guide them to focus on the specific points of resolutions.
I use labor and employment a lot, but if the settlement, if there is a potential for reinstatement
of a job or something of that nature, and that is a priority for the plaintiff, then
that's something that should be addressed.
Because again, it could be presumed that the financial settlement is the main concerns,
but it's not always the main concern.
There's also other concerns and priorities that parties have, as well as on the defense
side, if they do agree to a certain offer to offer the client, they then want to make
sure that they are released from other litigation or other related disputes that may be with
the plaintiff.
So there's various things that are important.
Also confidentiality could be a huge factor.
So you want to be able to help the parties to truly narrow down what their best settlement
would look like.
So offers, so you will want to ask the defense to make an offer that you can present to the
plaintiff.
And here you want to use your discretion.
If the defense is giving a very low ball answer, which I mean offer, which may be offensive
to the plaintiff, you're going to use your discretion and you're going to have a conversation
with them and let them know based off of this and based off what the plaintiff has explained.
You don't feel like they have fully evaluated the concerns, all of that.
And you want to try to get the defense to make an offer that is presentable to the plaintiff.
Now of course, in the first offering stages, the offer may be very different, but if you
can try to get it in a presentable form, that's that it's not always going to be perfect.
Of course, you could still express the offer to the plaintiff and they could still be very
upset with the offer.
But if you can try to use your discretion based off of what from both parties, that is a great
idea to do.
Sometimes the parties will go back and forth on offers and it may start, for example, at
500,000 an offer and then the plaintiff may say they want a little bit more, it may go
to 600,000 and you may be going back and forth with the parties to negotiate these offers,
which is very normal.
And if you get to a point where you're at a standstill and no one is budging, this is
a good time to reinstate some of the questions.
If you haven't already asked those questions or to bring them up again, because I do feel
that once people realize the reality of the situation of going to trial and if you can
effectively communicate that, they really do take a second thought and try to be more
susceptible to a negotiation.
Just a note here, just be careful of how you're sharing these offers amongst the parties
and try not to offend or upset anyone.
But of course, people will get upset, they're in a dispute, so do not be alarmed if this
happens or it doesn't go as you initially planned.
That's how it goes sometimes.
Just stand your ground and like I said, if you're in that sweet spot where you're in
the mediator's bracket, then you're in a really good place.
So hopefully you get to a place where the parties have now accepted or they're talking
about accepting the offer and now they've accepted.
You want to, again, make this nudge.
They're still, they're almost there, but they haven't fully agreed.
You just want to really use your discretion and try to push them into settling.
Sometimes parties will say they need to think about it or stuff like that and you really
want to encourage them to sign a settlement agreement on the day of mediation.
If it's not possible, of course, there's so many situations where it will settle after
mediation and I'll go into that in a moment, but the best thing you can offer them is to
try to have them sign a settlement agreement during mediation.
As a mediator, it's not your job to draft a settlement agreement, but it wants to help
the parties organize themselves to have the settlement agreement created.
So depending on the nature of the situation, you want to facilitate that and get them to
start working on it.
If you're, if it's an in-person, you can help the party by printing out the first draft
and distributing it so both parties can look at it.
So those are things you can definitely help to make it a little bit smoother or easier,
but again, it's not your job to create that settlement agreement or to edit and revise
it.
That's on the onus of the parties.
Hopefully they have counsel who may have already had a version created through an MOU or a
potential settlement agreement.
So this should really be where the last of the time is used and again, be available for
feedback and you do want to review the settlement agreement just to ensure that what has been
rivally expressed is the same thing written, but again, it's going to be on the onus of
the parties to make sure that this is drafted correctly.
So in the event that the case is not settled during the day of mediation, it's imperative
to follow up with the parties and let them know that you will be doing.
If you're in a situation where the parties are really close, but they just need more time,
maybe they need settlement authority, or maybe they just need to consider other things or
there needs to be additional information, then you can create a mediator's proposal.
And how this works is it will include the terms and offers that the parties have tentatively
agreed upon and you will ask them that you will give them a deadline of when to respond
back to you with specific verbiage saying, I accept this proposal.
I do not accept this proposal.
And like I said, the time deadline is very important because you want to be there on
both parties.
You don't want to give one party more time than the other.
And then you will let them know that at that point in time, once you've received the responses,
you will then let the parties know whether or not it's been accepted or denied.
Maybe you give them one week to respond to you and that's pretty standard.
This is very helpful because like I said, even if you think that it's not going to settle
and maybe things went really bad at the end and that you lost a little bit of hope, oftentimes
people do come to their senses after the fact and they realize that they're not going to
get the same type of settlement if they go to trials.
A lot of them do turn around and they'll come back and they'll accept it or they may
reach out and do some minimal negotiations with the mediators proposal.
But I honestly haven't seen where you're doing a ton of negotiation when you're in this mediators
proposal phase.
So it's a really great strategy and a lot of cases if they don't settle the day, they
will settle through a mediators proposal.
If both parties accept the mediators proposal, you want to give them 48 hours to sign and
prepare a settlement agreement.
It's really important again, the timing because you don't want people to change their minds,
forget or anything of that nature.
You want to lock this settlement agreement as soon as possible.
So if they both accept the proposal, you want to give them 48 hours to sign the proposal
and then to prepare an agreement.
So worst case scenario, if the proposal is not accepted, then your next step is to follow
up with the parties, express to them that you're available to do a second session if
they're ready.
If you have additional information, for example, if it's a PI case and there needs to be an
IME done or something like that, you can basically say, I know there's other things that need
to be done before the parties are ready to discuss again, to negotiate.
I would be happy to do a second session when you're ready.
Just let me know.
Those types of conversations are really great to have.
So it's good not to be discouraged with yourself, but just try your best to follow up and send
a reminder for yourself to check in two to three weeks after mediation because things
do change and you just want to stay abreast and try to settle all your cases that you
mediate, even if it's not the day of mediation.
And this will help the dispute itself and also help your business as a mediator.
So the last thing, as I just mentioned, is keep in contact.
If they settle, great, keep in contact and let them know you're available if any other
disputes arise or for other matters.
And again, if it didn't settle, just think them for the opportunity and let them know
that you're available.
Also it's good to let people know that not every mediation will settle in the first
session.
That's very normal.
Some disputes take multiple sessions.
Try to also let them know for them as parties to not be discouraged as well and that you're
willing to give it another session if they would like to do so.
In a nutshell, all the things that we have gone over from beginning to end really in
regards to communication will truly impact the result of settlement.
I mentioned from the inquiring stage, understanding the clients, understanding the parties, understanding
the communication styles, cultural and diversity indicators.
That's going to be really important in your communication, also providing clear and concise
direction on what the parties should expect prior, during and after mediation will also
help you to get closer to settlement.
And as I mentioned earlier, requiring mediation briefs to be sent to you and also the option
of sharing them as well as an MOU will exponentially speed up the road's resolution.
I have seen this really do wonder, so I really recommend this.
And lastly, if a settlement agreement is not signed or executed during mediation, a mediators
proposal often does the trick.
So I would definitely recommend that.
And again, how you communicate if something doesn't settle is also going to be important.
Again, never show pessimism.
Always encourage the parties that there's still an opportunity to negotiate, to resolve
and to settle, and always reiterate that trial is probably not the best outcome.
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