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today.

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Welcome to the audio edition of BHBA's Mediation Training.

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In this episode, your host, Devin Tucker of Alternative Resolution Centers, will guide

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you through communication skills and techniques.

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Let's dive in.

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Today, we will be discussing communication and mediation.

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I've chosen to name this topic, Business is Personal.

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Although as a mediator, you will be serving as a neutral party, you will be dealing with

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a lot of high-conflict emotions and different personality types.

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This is why communication is so important.

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As a mediator, you are the communicator.

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Your main job is to facilitate communication between the parties and between yourself

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in hopes of a peaceful resolution.

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When doing a mediation, it's important to recognize that all the parties involved in

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some way, shape or form are feeling attacked, victimized, or something has occurred where

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they now need to express themselves or defend themselves or advocate for themselves.

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This being said, you may have some of your own preconceived stereotypes.

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However, it's very important that you remove those labels.

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So when working with the parties, as I said before, you may lean more towards the plaintiff

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side or the defense side, but it's important when beginning to work on a dispute, you really

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do try and drop those stereotypes and preconceived notions.

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We really want all the parties to come to mediation with a clean slate to be able to

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express themselves, express the situation, and it is our job as mediators to try our

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best to understand their form of communication and then to properly communicate their thoughts

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and feelings with the other parties in hopes of resolution.

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So with that being said, you are able to create a space where people can feel safe, trusted,

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and they can let down some of those fears that they may have or to release some of the

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targets that they may currently be facing.

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So I just want to reiterate that we are neutrals.

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We are not advocating for one side or the other, but really just trying to neutralize

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the plaintiff.

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From the beginning of mediation to the end, communication will be a major factor.

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So this is a timeline to go over the different steps in a mediation process, and I will go

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over all of these in more detail, but I just wanted to show you that the communication

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really happens when you get the inquiry, when someone reaches out to you, they have questions,

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maybe they see before they have selected you as a mediator, and you really want to do your

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best to understand the nature of the situation as well as to communicate who you are as a

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mediator, your experience, and how that can help you to resolve the matter.

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So I'm going to start next with communication styles.

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So there are four main communication styles, passive, aggressive, passive, aggressive, and

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assertive.

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You probably are very familiar with these communication styles.

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However, I think we tend to automatically label certain communication as someone being

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passive aggressive, or aggressive, or passive, or assertive, without really looking at the

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nonverbal cues that apply to these styles.

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So it's not just how people verbally communicate, but it's also nonverbal.

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It's communication via written contacts, so email or a letter.

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And so it's really important that we identify these communication styles because neither

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is better than the other.

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And when working with parties, you will experience all of these communication styles.

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And even you as a mediator may have your communication style that maybe you use as a

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practicing attorney or as a litigator or as a judge.

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And it's really important that we recognize all of the styles and see the strengths in

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all of them and how we can work with individuals that may have other communication styles different

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from ours.

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So I'm going to share a video, and I think it does a great job of just showing the different

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types of communication styles that you may normally not think of.

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You're probably used to communicating how it's best for you and it's probably worked

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for most of your life.

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And so you maybe have not considered the fact that there are other communication styles

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that may be just as suitable as your own.

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So I'm going to go ahead and play this.

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Let's follow Tim and have a look at what it means.

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If you went backpacking around the world, you would find that people behave in very

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different ways.

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Let's take a simple thing like greeting somebody.

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In different cultures, it can look like this.

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Like this.

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Or even this.

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Now the beautiful thing about our international TESTO community is, you get to meet people

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from all over the world.

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It also means that you have to team up with them for global success in order to avoid

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misunderstandings and to work together effectively.

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That can be tricky because different cultures have different perspectives on things.

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When it comes to time, for example, altered personal space, sometimes intercultural communication

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can be confusing.

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And even simple things like dining habits may need getting used to.

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So how do we gain intercultural awareness?

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By exchanging our different points of view and working in it together as one big community.

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And these 10 bullet points will help us in intercultural situations.

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Be open to new encounters and curious for new experiences.

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Don't be afraid.

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Be vigilant and observe so you won't make a faux pas.

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And of course, respect foreign customs, rituals and culture.

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Be patient and in case somebody does not behave how you expect, don't take it personally.

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Be kind-hearted.

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Share your own customs and culture with others.

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And finally, share your intercultural experience with colleagues and friends.

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That's the way to cultivate intercultural...

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So I really love that video because it talks about a few different things.

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It talks about different communication styles.

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It talks about different styles that cultures use to communicate.

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I think it's really important because you may not have really thought about it, but even

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in just a greeting, some people will greet you and they'll ask you, how's your day going?

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If they are familiar with you, they may ask you, how's your family doing?

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How's work going?

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And have more of a personal conversation with you before getting into business.

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Some cultures are very different.

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They do not want to engage in a lot of personal conversation.

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They come to the conversation and they're ready to get started on the given topic.

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It's important to understand that neither of these is right or wrong.

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It's just a cultural difference or a customary difference.

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And as the mediator, I think the best thing that you can do is start the conversation

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by trying to create an environment where you express who you are and just set up a space

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where people can trust you and get to know you, which will also help them to open up.

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I'm going to talk more about that a little bit later, but I want to go back to the different

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types of communication styles.

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So passive is normally someone that is non-confrontational.

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They may avoid eye contact or close contact.

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We all are familiar with someone that is passive.

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However, I do want to note that in mediation, you may experience individuals who have this

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style and although they may not be saying as much, it is very important to still engage

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with them and to possibly ask them questions that you think may be important to them, even

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if they are not asking those questions or making statements to indicate those questions.

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We really as mediators do not want to leave anyone out.

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So it is our job, especially with clients.

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Sometimes if they have a counsel or an attorney representing them, the client themselves may

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not be as assertive in how they communicate, although it is still our job as mediators

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to check in with clients and to also monitor the relationship between the attorney and

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the client.

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Obviously, they have hired their lawyer, but we do want to make sure that we consider the

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client's interests and sometimes we will have to speak with the attorney and say certain

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things to them about advising their client or if they can explain certain elements to

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their clients or perhaps asking counsel if they have explained how this works, if they've

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explained the applicable laws, all of those things because you will be surprised that

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a lot of clients do come to mediation and they're really not sure what to expect.

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For attorneys representing them, they have probably done several mediations and it's

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something that they regularly do.

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However, for a lot of clients, it may be their first mediation.

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So asking their attorneys those types of questions and engaging with the client is very important.

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The next type of communication style I want to go over is aggressive.

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This one is pretty self-explanatory and this is a person who is very straightforward, direct,

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maybe confrontational and takes the stance of authority.

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Someone that has an aggressive communication style can sometimes be used as a factor to

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maybe put fear into another party or for someone to claim their space and their authority.

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And so sometimes this type of communication style can be intimidating to even yourself

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as the mediator or to the other parties.

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It's important to recognize that you will deal with all different types of communication

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but as the mediator, it's your job to, like I said, try to control that space.

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If you do deal with personalities that have a very aggressive communication style, it's

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really helpful to try to say things such as I understand where you're coming from.

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I will do my best to express your thoughts and your considerations to the other party

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or to the client.

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And I guess what I'm trying to say is it's helpful if you can try to deflect the situation

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or not the situation, but to try to reduce the emotions that sometimes do come off with

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an aggressive communication style.

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That way if two parties are speaking to each other, one party does not feel that they are

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being attacked.

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This is also when you can use your discretion as a mediator, which I will relate later,

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but it's not always the right time to bring two parties together.

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If you do know that you are working with an aggressive communication style person, you

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can always caucus with them separately and have separate conversations before bringing

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them into a joint session or even having a private session outside of the client.

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The next type of communication style is passive aggressive, which I'm sure we are all familiar

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with as well.

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This is a person that may not express verbally certain communications, but we may see them

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through body language.

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Again, this could be someone that is saying they agree with something or maybe they're

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excited about something, however, maybe they roll their eyes as they're saying it.

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Maybe the tone of their voice is monotone or showing that they're displeased.

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They may shrug or cross their arms.

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Those are all indicators that perhaps what is being verbally communicated is actually

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not in fact how they truly feel.

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It's important as mediators to look at these signals and look at these signs because if

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this does happen, as you reach settlement, you may or settlement discussions, you may

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run into an issue later in the mediation if some of these issues are not addressed in

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the beginning.

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It's really important to read the room and see as you're going through mediation how

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everyone is perceiving information, how everyone is communicating because it is better to address

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issues in the beginning of the session as opposed to later when perhaps there is an

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offer, but now there are some underlining concerns that were not previously expressed.

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That can really alter the timeline of settlement or it can take it off the table.

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It's really important that, which I'll go into in a second, but having free mediation

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conversations and discussions, you will most likely be able to see what type of communication

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styles you are working with.

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For the day of mediation, you will be more prepared.

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You can take notes for yourself.

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That way you can make sure that nothing is left untouched or there's no issues that you

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didn't address early on in the session.

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The last communication style is assertive.

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This is different from aggressive.

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This is someone who has a high energy, is probably very passionate about the conversation they're

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having and they use additional information to support their points.

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They use examples.

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They refer to things that have already been said perhaps and they really are an advocate

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for their position or what they're trying to convey.

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This is not an aggressive communication style.

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It is more of a direct style, but it's normally supported by other additional information.

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Normally these communication style people, they have a pretty leveled emotional state.

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It's just that they are using additional information to get their points across.

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They also might use body language using their hands to communicate and those sorts of things.

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These are great communication styles to work with because it's very easy to understand

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where they're coming from if they're using evidence or they're referring to certain

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things that will help you to understand them more carefully.

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The only thing I will say about this is if you are working with a lot of assertive type

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people, again, you just want to make sure that those people that are not as assertive

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are still being able to be heard and are still being able to communicate their thoughts.

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If you're in a situation where you have many assertive people, you just want to make sure

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that you are just considering other people as well and other communication styles.

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As I have mentioned a few times so far, if you are a litigator and moving into mediation

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or even if you were a judge, you probably had more of an adversarial position, which

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is great.

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However, in mediation, we have to undo those skills that we've been taught.

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You may use the Iraq method in terms of how you analyze legal issues, which is great as

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a lawyer.

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However, as a mediator, everything is not going to come down to the legalities.

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It's going to also involve people's emotions.

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It's going to involve he, say, she, say, which unfortunately we will never be able to know

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exactly what happened in a situation or an incident as we were not present.

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However, we want to utilize other skills to help us come to a settlement.

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A lot of times with cases, there are a lot of emotional factors and a lot of underlining

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factors.

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As lawyers, we are trained to really not look at all of those factors, but really look at

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the substantive issues, the legal issues, and really consider what are the legal issues.

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If they're not on merit, then we typically don't really see it as a legal issue.

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However, we have to take a more passive stance in terms of our communication as well.

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It's not our job to lawyer the lawyers.

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We do want to have conversations with the parties and their councils and be realistic

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about the potential outcomes.

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However, it's not our job to really give direction to council or to parties.

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Of course, if you are having a caucus with a lawyer or one of the councils, you can be

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direct in terms of talking about if this doesn't settle.

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It may be very difficult and trial to get these same results or to even have an offer

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similar.

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It is okay to mention those types of things, but we just want to be careful of not being

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overly assertive and influencing the parties one way or another.

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That's really important.

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I think this is one of the hardest things for new mediators to really comprehend.

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I also believe that in cases I've seen that don't settle a lot of times parties, they

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may feel like the mediator is biased or showing bias to one side or the other.

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You really want to try to avoid that.

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I have some helpful tips of how to do that, which I'll share later.

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I just wanted to talk about that.

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You probably are the more assertive type.

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It could be helpful to take more of a less adversarial role as a mediator.

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The next thing I want to discuss is types of nonverbal communication.

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This is easier to detect if you are doing an in-person mediation, although it is possible

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to detect doing online as well because people do different things.

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They turn off their camera.

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They mute themselves.

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You can very clearly see if someone is not paying attention or they're focused on something

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else.

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Perhaps actually in an online mediation, you have more of a full scope at one time versus

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in person where you're going from room to room.

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Nonetheless, these are helpful indicators to go with what I just discussed, which were

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more verbal communication styles and let's just jump right in.

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Epistemics is basically how it sounds.

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The proximity of individuals with one another may hopefully you will speak to the parties

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before and you may get some of these indicators.

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Perhaps the attorneys may share some of this with you or you will experience this during

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the day of mediation, but it really shows the relational bond between two individuals.

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For example, it's you are mediating a labor dispute and perhaps you have an employee,

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an employer that are both there at the day of mediation.

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You may notice certain nonverbal things where perhaps the parties turn their back to each

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other.

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They don't want to be in a shared space.

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They may not greet each other.

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They may not shake hands.

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Certain things like that, which will be a clear indicator that there is an extreme amount

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of tension.

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If you do see this happen, which I will go into more later, but you will want to utilize

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your discretion in terms of having perhaps monitored bathroom breaks, monitored mail

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breaks and various things that you can do if you do see that there is tension between

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the parties.

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With that being said, we also do experience sometimes where there is a gap between a client

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and their attorney, which happens more than you may expect.

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Sometimes we do separate the attorney from the client and we don't have the client participate

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for a majority of the sessions while we're trying to work with the attorneys to really

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focus on the legal issues, figure out policy limits and all of those things, and then bringing

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the client in later.

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It's really important to evaluate these things.

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If you are in the awkward situation of dealing with a client and their attorney that maybe

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are not seeing eye to eye, there's different things that you can do to suggest to the council

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and to the clients to try to remedy that relationship.

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Sometimes there's other things that have happened during the litigation process, or perhaps

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if there's offers being made, the client may be upset with their attorney at some point

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and they feel like they're not advocating enough for them.

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These communication breakdowns do happen.

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As the mediator, you just want to be aware and try your best to dispel of these type

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of nonverbal indicators.

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The next one is kinesics.

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This is hand and body signals, which are used to express feelings and thoughts.

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This one I think we're very familiar with.

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How people are, if they're shaking hands, if they're using their hands and body language

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as a means to explain, those are all indicators that people are interested in the conversation.

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They're interested in effectively communicating, and they're also interested in making sure

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that the people or the audience they're speaking to are able to comprehend and understand what

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they're saying.

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These are all really good indicators.

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It's also, it can be used to show passion.

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We do want to look at these things as well.

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Sometimes if there's a lack of body language or someone is not as involved, maybe they're

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sitting with their arms crossed or stuff like that, then that could also be an indicator

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that maybe they're displeased with how things are going, or there's something that they

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maybe want to talk to you about in a separate or private room.

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These are really good indicators of how people are feeling that you can notice throughout

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the session.

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This one, chronemics, this has to do with punctuality and timing.

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We've all experienced that you have people that arrived to mediation an hour or 30 minutes

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before and they're early and they're ready to go.

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We've experienced people that are late, maybe just a few minutes or perhaps longer than

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that, we experienced things that happened, delays, all of these things, we experienced

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rescheduling of mediation.

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I think this is something that can be taken lightly because things do happen.

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We live in a busy world.

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Not always is punctuality a factor of whether or not a person is interested or an indicator

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of settlement.

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However, you do want to pay attention if people are continuously tardy or that sort of thing

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and really tried to make sure that your mediation can be more productive.

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This is something that you do want to keep in mind.

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Lastly haptics, this is the use of physical touch to show or just the use of physical

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touch.

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Some cultures, as we saw in the video, they're very friendly.

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They may hug.

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They may shake hands.

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All of these different things to show where they're coming from.

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I think that this can be a good indicator.

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Not all the mediation that you will do, you'll have parties that absolutely cannot see in

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each other.

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You will have situations where people will be greeting each other.

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They maybe haven't seen each other.

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It's good to look at these nonverbal signals and communications to see some of the underlining

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things that are happening.

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Aside from the communication styles that we have discussed, there are also diversity concerns

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that you want to be aware of.

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All of the people that you work with will all be different, coming from different backgrounds.

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It's important that we utilize the opportunity to have pre-mediation discussions and introductions

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as a way to really understand where parties and where people are coming from.

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These are just some of the different factors of diversity that come into play in mediation.

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There are a lot more.

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I'm sorry if not everything is included.

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I think that these factors are really important to consider.

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Gender is something that is very important.

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How men are treated, how women are treated is very different and how we categorize each

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gender based off of expectation and all of those things.

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It's really important that we're sensitive of these factors.

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As a mediator, you are either male or female.

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You have a position that you're coming from.

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However, once again, we have to be totally neutral.

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Although I am a woman, I cannot side with a case just because maybe a woman is the plaintiff

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and something has happened.

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I have to keep my neutrality and still remain a neutral party.

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That is something that I do want to say.

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With that same regard, race and ethnicity is another thing that you will deal with different

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people from different backgrounds.

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It's really important to be aware of the different cultural aspects of different races and ethnicities

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and as well as certain things that may affect these different types of ethnicities and races.

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Different targets, they may have different security issues or different biases from

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either perspective.

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If you are in a mediation and you're dealing with any of these categories, you really want

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to make sure that you once again neutralize the audience, everyone that you're dealing

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with and so we can be really sensitive and aware of this.

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Another one that has come up a lot is sexual orientation.

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I think that as a society, you need to be more informed and aware of how we are dealing

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with other people.

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I think that at this point in time, it's really helpful as the mediator to set the stage,

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how you identify yourself can help to allow other people to express how they identify

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themselves.

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You can introduce yourself and then also ask the parties how they would like to be identified.

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This is really important, especially because we are dealing with people that we may not

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have worked with before or may not know.

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Just simply asking them, hi, what would you like to be called?

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How would you like me to address you?

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This can really eliminate any communication issues or unintended miscommunication that

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may occur.

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This is really great.

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When you are addressing the parties during an opening statement, you can go ahead and

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then introduce the individuals as they have described that they would like to be identified

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as.

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Additionally, age is also a huge factor.

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You may be any given age yourself as a mediator and you may be working with clients that are

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younger or older than you or perhaps the same age.

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It's really important to consider the differences that different age groups deal with and the

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sensitivities of age as an issue and as a consideration.

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00:30:12,520 --> 00:30:18,960
I know that if you're a person like me who's on a very young person, it's really important

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to consider the issues that people as they get older, they face and some of the challenges

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that they are dealing with.

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It's really important to be sensitive to age as well as if you are not representing but

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working on a mediation with minors or youth.

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It's really important to consider what applies to them, the applicable laws.

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It is different for different age groups.

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It's really important to consider those things and as you're preparing for mediation to look

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00:30:50,280 --> 00:30:55,960
at the people that you are going to be working with and to see what different categories

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00:30:55,960 --> 00:31:01,040
they fit in and how different things may apply to them.

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00:31:01,040 --> 00:31:03,840
Next is religion and culture.

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This really plays a big part in the context and the background and needs of clients.

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It's important to try to address these not concerns but these categories to see if religion

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does play a part in either the dispute itself or in the mediation.

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Some cultures, they may pray at certain times and you want to be aware of this so you can

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00:31:29,520 --> 00:31:33,360
give ample breaks and be courteous of this as well.

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00:31:33,360 --> 00:31:39,200
Additionally, as we saw in the previous video, different cultures communicate differently.

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00:31:39,200 --> 00:31:45,480
We also want to be aware of this and as the mediator, like I said, to try to create an

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00:31:45,480 --> 00:31:50,880
environment where it can be safe for everyone and everyone still secure.

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00:31:50,880 --> 00:31:54,960
On that same token, there may be dietary restrictions as well.

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00:31:54,960 --> 00:31:59,960
These are things that you want to address during a pre-mediation call to figure out

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00:31:59,960 --> 00:32:07,120
what these restrictions may be and that way you can be prepared for the day of mediation.

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00:32:07,120 --> 00:32:10,400
Another topic is disability.

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00:32:10,400 --> 00:32:13,800
You may be working with clients that do have a disability.

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00:32:13,800 --> 00:32:17,520
It could be physical, mental, or anything in between.

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00:32:17,520 --> 00:32:22,880
It's really important to be aware of this and try to accommodate anyone that may have

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00:32:22,880 --> 00:32:24,360
a disability.

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00:32:24,360 --> 00:32:27,440
Now a lot of mediations are done online.

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00:32:27,440 --> 00:32:34,640
However, if it is in person, just making sure that the person is able to access the space

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00:32:34,640 --> 00:32:39,840
adequately and if you do need to make additional arrangements, you are aware of that and you

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00:32:39,840 --> 00:32:42,080
can make sure this can happen.

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00:32:42,080 --> 00:32:48,360
Additionally, you can also utilize a hybrid mediation where someone might be in person,

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00:32:48,360 --> 00:32:52,000
someone may be online, and all of those things.

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00:32:52,000 --> 00:32:58,920
Additionally, you can also decide when to bring parties into a mediation session.

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So even if mediation starts at 10 a.m., but there's a client that may be under distress

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or has a disability, perhaps you can bring them in later into the session when it is

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00:33:10,640 --> 00:33:12,320
a good time to speak with them.

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00:33:12,320 --> 00:33:18,200
If you're going to be speaking with another party, it's no need to make them sit and wait

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00:33:18,200 --> 00:33:20,800
if they're really not able to do so.

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All of these factors really should be considered before mediation and during mediation.

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00:33:27,080 --> 00:33:32,720
As I mentioned, I think the reason why this is such an important aspect is because the

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parties coming to you are already in a dispute.

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00:33:36,080 --> 00:33:41,040
The dispute could involve various different things, but this is especially important for

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00:33:41,040 --> 00:33:48,600
disputes involving discrimination, harassment, termination, displacement, and relocation.

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00:33:48,600 --> 00:33:54,480
This is true because some of these issues may be the direct reason why the dispute is

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00:33:54,480 --> 00:33:58,520
happening and why the parties are coming to mediation.

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00:33:58,520 --> 00:34:04,320
That being said, it's really important to spend time with the parties to understand

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00:34:04,320 --> 00:34:10,720
what their main concerns are, how they felt that they were either wronged or they were

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00:34:10,720 --> 00:34:14,440
accused of doing something that they did not do.

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00:34:14,440 --> 00:34:21,280
It's really important to take the time early on in the mediation to go over these sensitivities

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00:34:21,280 --> 00:34:27,400
because again, if they're not addressed and there's offers later made that are involving

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00:34:27,400 --> 00:34:31,120
money, the exchange of money, that's great.

437
00:34:31,120 --> 00:34:37,280
But if there's unresolved conflicts related to these various categories, it's not going

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to settle.

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00:34:38,440 --> 00:34:45,080
So you really want to make sure that you are considering these dynamics because most often

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00:34:45,080 --> 00:34:52,600
in mediation, the parties may get to a settlement or an agreement financially, but there also

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00:34:52,600 --> 00:34:58,880
may need to be some additional amendments, for example, apologies to happen or other

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00:34:58,880 --> 00:35:05,200
things of that nature when there's been a very high emotional farm or dispute that is

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00:35:05,200 --> 00:35:06,720
taking place.

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And if the intention is to remedy a relationship that's going to continue, you especially want

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00:35:12,800 --> 00:35:15,920
to make sure that these issues are addressed.

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00:35:15,920 --> 00:35:22,960
A lot of times it is miscommunication, which is the whole topic of my presentation, but

447
00:35:22,960 --> 00:35:27,360
a lot of these disputes may result over a miscommunication.

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00:35:27,360 --> 00:35:33,920
So as a mediator, we want to really hone in on this and give people a chance to have an

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00:35:33,920 --> 00:35:39,840
opportunity to express themselves if something did take place that they did not mean or perhaps

450
00:35:39,840 --> 00:35:43,640
understand under these different diversity factors.

451
00:35:43,640 --> 00:35:48,600
This is a great time to explore this, to talk about this and to give parties the chance

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00:35:48,600 --> 00:35:51,440
to rectify on these issues.

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I'm going to share a video now, which I think is truly amazing, just expressing the different

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cultural communication differences, diversity factors and all of the things that I have

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00:36:03,120 --> 00:36:05,160
just discussed.

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In high context cultures, yes may mean yes may mean no and yes may mean maybe, depending

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00:36:14,640 --> 00:36:17,440
on how the yes is messaged.

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00:36:17,440 --> 00:36:22,320
So it's not just the words, it's actually the facial expression, the tonality of the

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00:36:22,320 --> 00:36:24,600
voice and the body language.

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00:36:24,600 --> 00:36:29,120
Whereas in low context cultures, yes means yes and no means no.

461
00:36:29,120 --> 00:36:32,800
I mean what I say and I say what I mean.

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Direct.

463
00:36:34,300 --> 00:36:36,720
Think of some of the issues that comes up.

464
00:36:36,720 --> 00:36:40,880
I loved Dave Ulrich's definition of listening.

465
00:36:40,880 --> 00:36:46,240
Listening is not about have you heard me but have you understood what I meant?

466
00:36:46,240 --> 00:36:47,240
I love that definition.

467
00:36:47,240 --> 00:36:50,120
I thought that's really good.

468
00:36:50,120 --> 00:36:51,720
And here's the issue.

469
00:36:51,720 --> 00:36:59,320
If you come primarily from a low context culture, even when someone says no and they say no

470
00:36:59,320 --> 00:37:04,600
without using the word no, you don't actually hear it.

471
00:37:04,600 --> 00:37:05,760
You don't hear it.

472
00:37:05,760 --> 00:37:08,160
So then the issue becomes why didn't they just say no?

473
00:37:08,160 --> 00:37:11,440
If they couldn't perform or couldn't get that done on time, why didn't they say no?

474
00:37:11,440 --> 00:37:14,880
They probably did but you just didn't hear it.

475
00:37:14,880 --> 00:37:19,960
As I was with a meeting with a client some time ago, we were with a Korean organization

476
00:37:19,960 --> 00:37:23,400
and he came out of the presentation saying, I think that presentation went really well.

477
00:37:23,400 --> 00:37:25,200
I said, I don't think it went really well.

478
00:37:25,200 --> 00:37:26,320
So why not?

479
00:37:26,320 --> 00:37:28,720
Because they said they were really interested, they would give it good consideration.

480
00:37:28,720 --> 00:37:31,760
I said, no, that doesn't mean that they're going to give, think about it.

481
00:37:31,760 --> 00:37:34,680
Because when they said that, they took the deep breath in.

482
00:37:34,680 --> 00:37:38,400
So it's just paying attention to the cues.

483
00:37:38,400 --> 00:37:42,760
So when we listen to people who come from high context cultures, they seem to be beating

484
00:37:42,760 --> 00:37:45,400
around the bush.

485
00:37:45,400 --> 00:37:47,040
And we don't hear what they're saying.

486
00:37:47,040 --> 00:37:50,760
Whereas when we're coming from low context cultures, how it comes across the high context

487
00:37:50,760 --> 00:37:54,760
is in fact sometimes we come across as being very rude and very direct.

488
00:37:54,760 --> 00:37:58,560
They say, don't you have any heart?

489
00:37:58,560 --> 00:38:00,120
And you say it in a different way.

490
00:38:00,120 --> 00:38:03,840
So once again, different styles of communication.

491
00:38:03,840 --> 00:38:04,920
And think about that here.

492
00:38:04,920 --> 00:38:07,800
And once again, the thing to remember is that culture is very subjective.

493
00:38:07,800 --> 00:38:13,680
In Australia, we consider ourselves to be quite open and quite straight.

494
00:38:13,680 --> 00:38:16,880
We take pride in the fact that we call it as it is.

495
00:38:16,880 --> 00:38:20,160
I had a client recently who said to me, Tom, I thought we were direct.

496
00:38:20,160 --> 00:38:23,160
I had a project manager who came from the United States.

497
00:38:23,160 --> 00:38:27,960
And at our first meeting, she had my whole team in tears.

498
00:38:27,960 --> 00:38:32,400
She said, I now know what direct is.

499
00:38:32,400 --> 00:38:36,000
Because compared to her, we were really soft.

500
00:38:36,000 --> 00:38:41,080
However, we compared to the Indonesians, we are direct.

501
00:38:41,080 --> 00:38:42,080
They were indirect.

502
00:38:42,080 --> 00:38:44,040
So culture is always subjective.

503
00:38:44,040 --> 00:38:47,240
It's relative to your point of reference.

504
00:38:47,240 --> 00:38:48,240
Okay.

505
00:38:48,240 --> 00:38:55,280
I really like this video because I think it's a good indicator of just understanding that

506
00:38:55,280 --> 00:39:00,840
how you perceive something may be very different from how the next person perceives it.

507
00:39:00,840 --> 00:39:04,680
So as he was saying from his culture, he's Australian.

508
00:39:04,680 --> 00:39:09,040
He believes that they're very direct people and they say what they mean.

509
00:39:09,040 --> 00:39:13,200
And having an interaction with someone from the United States, they realize that they

510
00:39:13,200 --> 00:39:17,320
are not as direct as someone from the US.

511
00:39:17,320 --> 00:39:23,680
That just really is an example to show that all year intentionally expressing yourself

512
00:39:23,680 --> 00:39:27,320
may be different from how it comes across to the parties.

513
00:39:27,320 --> 00:39:34,160
You will be able to really understand this by utilizing pre-mediation phone calls and

514
00:39:34,160 --> 00:39:40,200
also reading mediation briefs because you will understand where someone is coming from.

515
00:39:40,200 --> 00:39:46,080
And during the day of mediation, you can neutralize the parties and understand more where everyone

516
00:39:46,080 --> 00:39:48,520
is coming from.

517
00:39:48,520 --> 00:39:54,880
So next I'm going to really get into the stages of mediation now that we're more familiar

518
00:39:54,880 --> 00:39:57,640
with the communication styles.

519
00:39:57,640 --> 00:40:03,280
When you get an inquiry and when you're in the confirmation stage, you want to first

520
00:40:03,280 --> 00:40:08,880
communicate a thank you and your gratitude towards the parties as they do not have to

521
00:40:08,880 --> 00:40:11,280
choose you as a mediator.

522
00:40:11,280 --> 00:40:16,680
And you just want to just express that you're delighted and interested to work with them

523
00:40:16,680 --> 00:40:21,000
and that you're passionate about the work that you do and resolving disputes.

524
00:40:21,000 --> 00:40:23,360
So that's the first thing.

525
00:40:23,360 --> 00:40:28,280
The second thing that I recommend is to show the human connection.

526
00:40:28,280 --> 00:40:33,520
Of course, you could immediately go into your qualifications, your experience, all of these

527
00:40:33,520 --> 00:40:38,520
things, which is great, but more than likely they already know that because they found

528
00:40:38,520 --> 00:40:43,040
you and they are now asking you or inquiring for you to mediate.

529
00:40:43,040 --> 00:40:45,840
So they may already know those credentials.

530
00:40:45,840 --> 00:40:51,720
What they don't know is who you are as an individual, your personality, things that you like, your

531
00:40:51,720 --> 00:40:53,960
interests and your passion.

532
00:40:53,960 --> 00:40:58,760
This really separates you and makes you unique as an individual.

533
00:40:58,760 --> 00:41:04,840
When people are involved in cases, they are in the trenches of all of these legal issues,

534
00:41:04,840 --> 00:41:09,320
dealing with their clients, dealing with the other side.

535
00:41:09,320 --> 00:41:13,040
And we tend to lose the human connection aspect.

536
00:41:13,040 --> 00:41:21,160
We as lawyers, we are trying to advocate and we really are focused on the client as a representing

537
00:41:21,160 --> 00:41:23,280
attorney or as a litigator.

538
00:41:23,280 --> 00:41:29,080
So sometimes you lose that human connection and we want to bring that back in because

539
00:41:29,080 --> 00:41:35,560
mediation is really about that human aspect and that human component that cannot always

540
00:41:35,560 --> 00:41:40,160
be fully expressed during a trial or in a litigation proceeding.

541
00:41:40,160 --> 00:41:46,560
So it's really important to be clear that mediation is a chance for people to have that

542
00:41:46,560 --> 00:41:53,680
human connection amongst each other and can really be the turning point in moving a high

543
00:41:53,680 --> 00:41:57,200
conflict dispute to a settlement.

544
00:41:57,200 --> 00:42:01,880
So any way that you can connect with the clients, you should do that.

545
00:42:01,880 --> 00:42:06,560
You may already know information about them that can help you to connect.

546
00:42:06,560 --> 00:42:14,640
So if you know that someone really enjoys sports or perhaps you can make a connection

547
00:42:14,640 --> 00:42:20,560
and talk about sports that you played or that you enjoy watching, this is just an example.

548
00:42:20,560 --> 00:42:22,800
You may not know anything about the party.

549
00:42:22,800 --> 00:42:28,840
So in that case, it's great to just talk about who you are, things that you enjoy, all of

550
00:42:28,840 --> 00:42:29,840
those things.

551
00:42:29,840 --> 00:42:36,000
And it really helps to once again, neutralize things for people to understand that your

552
00:42:36,000 --> 00:42:42,120
human, you're trying to help this and you're not taking an adversarial role.

553
00:42:42,120 --> 00:42:46,080
After that, you can then go ahead and discuss your professional credentials.

554
00:42:46,080 --> 00:42:52,040
Obviously, this is important to do and to go over why you're qualified and why you

555
00:42:52,040 --> 00:42:55,120
can handle this and resolve the dispute.

556
00:42:55,120 --> 00:43:00,720
You do want to also mention this when you're having an inquiring conversation.

557
00:43:00,720 --> 00:43:05,160
The next thing that you'll want to do is go over questions and concern.

558
00:43:05,160 --> 00:43:10,920
You always want to give the parties a chance to ask you any questions or to express concerns

559
00:43:10,920 --> 00:43:12,240
to you.

560
00:43:12,240 --> 00:43:18,920
This could be a pre-premediation call, but oftentimes parties that are reaching out to

561
00:43:18,920 --> 00:43:23,800
you, they will give you additional information that you can take notes on and can be helpful

562
00:43:23,800 --> 00:43:28,760
later on when you're reviewing briefs or having those pre-mediation phone calls.

563
00:43:28,760 --> 00:43:35,360
You always want to give clients a chance to express additional information or ask questions

564
00:43:35,360 --> 00:43:38,200
that you did not previously cover.

565
00:43:38,200 --> 00:43:43,360
Once the parties have confirmed and agreed to use you as mediators, you will be in the

566
00:43:43,360 --> 00:43:48,360
convening stage, which is getting the parties prepared for mediation.

567
00:43:48,360 --> 00:43:50,480
The first is setting the stage.

568
00:43:50,480 --> 00:43:53,320
This really goes back to the previous slide.

569
00:43:53,320 --> 00:43:57,600
Just sending them an email, the inquiring part could be by phone.

570
00:43:57,600 --> 00:44:02,440
Sometimes you get a phone call about your services or you make it an email inquiring.

571
00:44:02,440 --> 00:44:07,880
At that time, like I said, you want to introduce yourself, express who you are, why you're

572
00:44:07,880 --> 00:44:16,040
qualified, and also, of course, go over fees, information on online versus in-person mediation,

573
00:44:16,040 --> 00:44:20,920
all of those administrative things you want to address.

574
00:44:20,920 --> 00:44:24,440
You also want to set up a pre-mediation phone call.

575
00:44:24,440 --> 00:44:30,640
Now, not all mediators do this, but I 10 out of 10 recommend that you do pre-mediation

576
00:44:30,640 --> 00:44:31,640
calls.

577
00:44:31,640 --> 00:44:36,680
The reason for this is you will get so much additional information that will be extremely

578
00:44:36,680 --> 00:44:43,160
helpful that you will already be halfway to a settlement before you even begin mediation.

579
00:44:43,160 --> 00:44:50,080
This is a chance for you to speak to each party separately and to fath a verbal conversation

580
00:44:50,080 --> 00:44:55,880
outside of the mediation brief, which will be very legal, heavy, and substantive, heavy,

581
00:44:55,880 --> 00:44:57,720
which you do need.

582
00:44:57,720 --> 00:45:02,600
But oftentimes, these pre-mediation calls, they will fill in gaps that you will come

583
00:45:02,600 --> 00:45:05,000
across as you're reading briefs.

584
00:45:05,000 --> 00:45:10,040
In these pre-mediation calls, you will want to go over information regarding the day of

585
00:45:10,040 --> 00:45:16,720
mediation, but also discuss mediation briefs, MOUs, and any additional information that

586
00:45:16,720 --> 00:45:22,560
may be particular to your practice or your style or requirements as a mediator.

587
00:45:22,560 --> 00:45:29,640
It's really great because as a mediator, you can create an outline that works for you.

588
00:45:29,640 --> 00:45:34,280
Everyone that mediates does it differently, so you will figure out what works for you,

589
00:45:34,280 --> 00:45:40,720
but the pre-mediation call is the time to address this information.

590
00:45:40,720 --> 00:45:48,680
This is a convening checklist, and this can either be done via email or written communication,

591
00:45:48,680 --> 00:45:52,960
or it can be discussed during the pre-mediation call.

592
00:45:52,960 --> 00:45:58,000
A mediation brief is really important and should be absolutely recommended that you

593
00:45:58,000 --> 00:46:04,560
receive this from both parties or multiple parties if it's a multi-party dispute.

594
00:46:04,560 --> 00:46:10,240
This is pretty much them explaining what has happened, if they're on the plaintive side,

595
00:46:10,240 --> 00:46:15,800
discussing the damages and what they would like to receive out of the mediation on the

596
00:46:15,800 --> 00:46:16,920
defense side.

597
00:46:16,920 --> 00:46:21,480
They will also explain what has occurred, what they're willing to offer to remedy the

598
00:46:21,480 --> 00:46:22,480
situation.

599
00:46:22,480 --> 00:46:27,680
It's really great because if parties have chosen to go to mediation, then they have

600
00:46:27,680 --> 00:46:30,560
indicated that they do want to settle.

601
00:46:30,560 --> 00:46:36,160
If it's been ordered to mediation, which rarely happens, that's different, but more than likely

602
00:46:36,160 --> 00:46:41,280
the parties have agreed to going to mediation in hopes of trying to settle this.

603
00:46:41,280 --> 00:46:47,560
That being said, both sides will offer their damages and offer what they're willing to

604
00:46:47,560 --> 00:46:49,800
offer to remedy this.

605
00:46:49,800 --> 00:46:53,080
Mediation brief is the place where they will do this.

606
00:46:53,080 --> 00:46:55,960
You want to make sure that you give clear direction.

607
00:46:55,960 --> 00:46:59,120
A lot of attorneys have never done mediation.

608
00:46:59,120 --> 00:47:05,720
It's becoming extremely popular now, and I think only 1% of cases actually go to trial,

609
00:47:05,720 --> 00:47:08,920
which means everything is settled before.

610
00:47:08,920 --> 00:47:14,320
That being said, you still want to discuss what a mediation brief is, what you're expecting

611
00:47:14,320 --> 00:47:17,200
from the brief, and all of those good things.

612
00:47:17,200 --> 00:47:21,720
You also want to give a timeline or a deadline for the submission.

613
00:47:21,720 --> 00:47:27,680
The worst thing that can happen is to receive a mediation brief on the morning of mediation.

614
00:47:27,680 --> 00:47:31,840
Sometimes these briefs can be 20 to 30 to 50 pages.

615
00:47:31,840 --> 00:47:35,960
There's a lot of analysis and additional information.

616
00:47:35,960 --> 00:47:41,000
It's really impossible to review that completely on the day of mediation.

617
00:47:41,000 --> 00:47:46,440
You really want to request this by the latest one week before mediation.

618
00:47:46,440 --> 00:47:52,000
The reason is because there's things that you will want to do to prepare for the mediation,

619
00:47:52,000 --> 00:47:58,600
and the brief will be the way that you can really assess the situation.

620
00:47:58,600 --> 00:48:01,800
The other thing that I recommend is an MOU.

621
00:48:01,800 --> 00:48:07,480
This is not something that a lot of mediators that I know use, but it's something that I've

622
00:48:07,480 --> 00:48:12,880
always done, and it's something that I was taught by my mentor.

623
00:48:12,880 --> 00:48:18,360
I'm sure you're familiar with what an MOU is, but in the context of mediation, it really

624
00:48:18,360 --> 00:48:26,160
helps to set up a very easy streamlined settlement agreement once the parties are at that point.

625
00:48:26,160 --> 00:48:35,000
It also is just a great way to show that both parties are committed to settling.

626
00:48:35,000 --> 00:48:40,680
Of course, they are in a dispute, and most likely they're in a litigation process.

627
00:48:40,680 --> 00:48:42,600
They are fighting against each other.

628
00:48:42,600 --> 00:48:47,760
However, at this point in the litigation, like I said, if they've come to mediation

629
00:48:47,760 --> 00:48:53,040
and they are ready to come to the table and negotiate, that is a great thing.

630
00:48:53,040 --> 00:49:00,320
In an MOU, which basically expresses the parties' intentions to resolve, it can list out already

631
00:49:00,320 --> 00:49:06,960
certain things they're willing to either remedy or admit to or whatever the case may be.

632
00:49:06,960 --> 00:49:09,480
It'll be different for every dispute.

633
00:49:09,480 --> 00:49:16,720
However, it's really great if the parties do agree to create an MOU, which then can

634
00:49:16,720 --> 00:49:19,400
also be turned into a settlement agreement.

635
00:49:19,400 --> 00:49:25,240
You already have a lot of the language in there, and that way, during the day of mediation,

636
00:49:25,240 --> 00:49:30,640
parties can revise the MOU and turn it into a formal settlement agreement that can then

637
00:49:30,640 --> 00:49:32,440
be executed.

638
00:49:32,440 --> 00:49:34,640
Not everyone will agree to this.

639
00:49:34,640 --> 00:49:40,080
I don't think it's something that you should make mandatory, but I think that it's something

640
00:49:40,080 --> 00:49:42,600
that you should speak to parties about.

641
00:49:42,600 --> 00:49:49,600
It also helps them to mentally gear themselves up to how settlement will go, because like

642
00:49:49,600 --> 00:49:55,480
I said, some clients may have never been in a mediation and some attorneys may have not

643
00:49:55,480 --> 00:49:56,480
either.

644
00:49:56,480 --> 00:50:03,800
It just helps them to move them closer to the finish line, which is settlement and not

645
00:50:03,800 --> 00:50:07,280
just settlement, but a settlement agreement.

646
00:50:07,280 --> 00:50:13,960
If you have this, you can avoid spending a lot of time at the end to try to go over the

647
00:50:13,960 --> 00:50:14,960
agreement.

648
00:50:14,960 --> 00:50:21,920
I've seen in situations where the parties, they agree on a financial amount, they agree

649
00:50:21,920 --> 00:50:28,720
on other remedies, and then they start having an issue while drafting a settlement agreement.

650
00:50:28,720 --> 00:50:34,120
It becomes very technical, and you just really want to avoid that, because once you're at

651
00:50:34,120 --> 00:50:40,000
that point where offers are being exchanged, you want it to be as simple and smooth as

652
00:50:40,000 --> 00:50:42,000
possible.

653
00:50:42,000 --> 00:50:45,440
I really recommend asking them to do an MOU.

654
00:50:45,440 --> 00:50:51,360
With that being said, if they don't do an MOU, I would recommend asking the parties to

655
00:50:51,360 --> 00:50:53,800
share their mediation briefs.

656
00:50:53,800 --> 00:50:59,320
Some parties will absolutely say no, they don't want to do this, but a lot of times

657
00:50:59,320 --> 00:51:07,040
parties will agree to this, and the reason for this is because no one wants to be blindsided.

658
00:51:07,040 --> 00:51:11,960
Everyone appreciates having preparation and really knowing where the other side is coming

659
00:51:11,960 --> 00:51:12,960
from.

660
00:51:12,960 --> 00:51:18,960
I think that if parties agree to sharing their mediation briefs before mediation, it allows

661
00:51:18,960 --> 00:51:20,560
both sides to be prepared.

662
00:51:20,560 --> 00:51:27,760
It allows both sides to consider the other position and then even being more prepared.

663
00:51:27,760 --> 00:51:31,400
This, as people say, it's good to sleep on things.

664
00:51:31,400 --> 00:51:37,840
If parties have a chance to comprehend and take in the other party's position, they can

665
00:51:37,840 --> 00:51:43,600
have a more level-headed perspective during the day of mediation.

666
00:51:43,600 --> 00:51:47,280
This is just really great, so there is no surprises.

667
00:51:47,280 --> 00:51:53,240
People have a chance to consider these potential remedies or think of their own ways that they

668
00:51:53,240 --> 00:51:54,400
could remedy.

669
00:51:54,400 --> 00:52:01,640
Additionally, it gives time to consider policy limits, how much money can be spent, and if

670
00:52:01,640 --> 00:52:05,680
there's ways to other remedies that can happen.

671
00:52:05,680 --> 00:52:11,480
It's a really great option if people do agree to sharing the briefs.

672
00:52:11,480 --> 00:52:17,000
We went over pre-mediation calls, and of course you will want to do an agreement to

673
00:52:17,000 --> 00:52:20,920
mediate and a confining reality agreement.

674
00:52:20,920 --> 00:52:23,640
Sometimes these are a joint agreement.

675
00:52:23,640 --> 00:52:28,640
I've always separated mine, but it's up to you, but it's absolutely necessary to have

676
00:52:28,640 --> 00:52:30,440
both of them.

677
00:52:30,440 --> 00:52:36,000
I'm pretty sure you are familiar with just an agreement to work with another party or

678
00:52:36,000 --> 00:52:37,280
work with parties.

679
00:52:37,280 --> 00:52:43,840
The confidentiality agreement is very important because mediation is confidential.

680
00:52:43,840 --> 00:52:49,360
Everything that happens in a mediation session should be confidential.

681
00:52:49,360 --> 00:52:55,200
You want to make sure that you have all of the parties involved to sign this agreement.

682
00:52:55,200 --> 00:52:59,880
With that being said, also in the beginning of mediation, it's good during your opening

683
00:52:59,880 --> 00:53:07,400
statements to just reiterate that mediation is confidential just so everyone finds a reminder.

684
00:53:07,400 --> 00:53:13,640
I'm going to share a video about first impressions because this is going to be important in these

685
00:53:13,640 --> 00:53:19,640
pre-mediation phone calls as well in your opening statements on the day of mediation.

686
00:53:19,640 --> 00:53:20,640
Hey, Mom.

687
00:53:20,640 --> 00:53:22,640
Yeah, I'm pretty nervous with this interview.

688
00:53:22,640 --> 00:53:25,440
I spent all weekend knowing the microtonics.

689
00:53:25,440 --> 00:53:27,360
I'm ready to crush the interview.

690
00:53:27,360 --> 00:53:29,520
No, I don't know who I'm interviewing with.

691
00:53:29,520 --> 00:53:31,000
I just know her name is Tammy.

692
00:53:31,000 --> 00:53:32,280
She's a part of the front hood.

693
00:53:32,280 --> 00:53:33,280
I don't know much else.

694
00:53:33,280 --> 00:53:34,280
Sorry, I got to run.

695
00:53:34,280 --> 00:53:35,280
I'm walking to the Wii.

696
00:53:35,280 --> 00:53:36,280
Hi, Brett.

697
00:53:36,280 --> 00:53:37,280
Hey, Tammy.

698
00:53:37,280 --> 00:53:38,280
How's it going?

699
00:53:38,280 --> 00:53:39,280
Good.

700
00:53:39,280 --> 00:53:40,280
How are you doing?

701
00:53:40,280 --> 00:53:41,280
I'm doing good.

702
00:53:41,280 --> 00:53:43,720
It was a beautiful day in Palo Alto.

703
00:53:43,720 --> 00:53:44,720
Is the weather always this nice in November?

704
00:53:44,720 --> 00:53:45,720
Yeah, it is.

705
00:53:45,720 --> 00:53:46,720
Is it?

706
00:53:46,720 --> 00:53:47,720
Is this your first time here?

707
00:53:47,720 --> 00:53:50,440
Yeah, I'm from the Midwest and it's snowing already there.

708
00:53:50,440 --> 00:53:51,440
Got it.

709
00:53:51,440 --> 00:53:52,440
Welcome here.

710
00:53:52,440 --> 00:53:54,280
I'm looking at your resume.

711
00:53:54,280 --> 00:53:56,400
How many of you think this is going well so far?

712
00:53:56,400 --> 00:53:58,720
Show of hands.

713
00:53:58,720 --> 00:54:00,480
How many of you think it's too early today?

714
00:54:00,480 --> 00:54:02,360
Let's see what our participants think.

715
00:54:02,360 --> 00:54:04,640
Brett, how do you think it's been so far?

716
00:54:04,640 --> 00:54:08,040
Well, as most of you guys saw, I feel things are going pretty well.

717
00:54:08,040 --> 00:54:12,760
I complimented the weather, talked about the city, and now I'm ready to crush this energy.

718
00:54:12,760 --> 00:54:13,760
Interesting.

719
00:54:13,760 --> 00:54:14,760
By me.

720
00:54:14,760 --> 00:54:15,760
What's your opinion?

721
00:54:15,760 --> 00:54:16,920
I've had ten interviews today.

722
00:54:16,920 --> 00:54:19,360
I don't feel a special connection with this guy.

723
00:54:19,360 --> 00:54:21,160
He doesn't stand out.

724
00:54:21,160 --> 00:54:22,160
Wow.

725
00:54:22,160 --> 00:54:24,160
Did you just see?

726
00:54:24,160 --> 00:54:25,160
I think I can't even...

727
00:54:25,160 --> 00:54:29,000
In the first ten seconds itself, there are such different opinions of how it's gone among

728
00:54:29,000 --> 00:54:31,040
the two people.

729
00:54:31,040 --> 00:54:33,680
First impressions in an interview are critical.

730
00:54:33,680 --> 00:54:35,720
They say don't judge...

731
00:54:35,720 --> 00:54:42,640
Okay, so although this video is showing an interview, I think it's very helpful to just

732
00:54:42,640 --> 00:54:48,920
show that, again, perception is very different depending on where you're seated and who you

733
00:54:48,920 --> 00:54:49,920
are.

734
00:54:49,920 --> 00:54:56,240
In that example, the interviewee thought it was going great and the interviewer did not...

735
00:54:56,240 --> 00:54:59,440
She did not feel connected to the interviewees.

736
00:54:59,440 --> 00:55:05,560
I think the two biggest indicators of a successful conversation are going to be strength and

737
00:55:05,560 --> 00:55:09,200
confidence and then trust and safety.

738
00:55:09,200 --> 00:55:14,720
As the mediator, which I've said time and time again, you control the space of mediation

739
00:55:14,720 --> 00:55:18,400
and so you want to be confident in who you are.

740
00:55:18,400 --> 00:55:24,200
You want to be confident in the fact that you will be able to resolve and help the parties

741
00:55:24,200 --> 00:55:30,800
and that you want to show strength in being able to be a neutral perspective.

742
00:55:30,800 --> 00:55:32,320
That is really important.

743
00:55:32,320 --> 00:55:37,920
Secondly, you want to build trust and safety, which a lot of the things that we've discussed

744
00:55:37,920 --> 00:55:39,480
will really help to do that.

745
00:55:39,480 --> 00:55:45,080
We've discussed being aware of communication styles, being aware of different diversity

746
00:55:45,080 --> 00:55:46,960
indicators.

747
00:55:46,960 --> 00:55:52,160
All of those things will help to create a safe space as well as having those calls, reading

748
00:55:52,160 --> 00:55:57,440
those briefs, helping you to really understand the people that you are going to be working

749
00:55:57,440 --> 00:56:01,360
with and the disputes that you are going to be resolving.

750
00:56:01,360 --> 00:56:06,840
Another really big thing that I learned and my mentors shared with me, never communicate

751
00:56:06,840 --> 00:56:11,000
anything in writing unless you absolutely have to.

752
00:56:11,000 --> 00:56:16,920
When it comes to these mediations, it's really great if you can jump on a phone call or of

753
00:56:16,920 --> 00:56:23,720
course during mediation, you'll be having verbal communication, emails and written communication.

754
00:56:23,720 --> 00:56:27,600
It's very hard to tell the context in time.

755
00:56:27,600 --> 00:56:34,600
As the mediator, you never want to show favoritism or anything like that or cross any of the

756
00:56:34,600 --> 00:56:37,080
lines in terms of being a neutral party.

757
00:56:37,080 --> 00:56:38,440
Just have a piece of advice.

758
00:56:38,440 --> 00:56:40,920
Try to limit those email communications.

759
00:56:40,920 --> 00:56:46,640
If you do have an office that you're working with or that manages or administers your cases,

760
00:56:46,640 --> 00:56:52,360
let them do all of the conversation regarding fees, all of those things and really try to

761
00:56:52,360 --> 00:56:58,560
limit yourself to discussing the dispute itself and additional information that could be helpful

762
00:56:58,560 --> 00:56:59,840
for settlement.

763
00:56:59,840 --> 00:57:05,520
You don't really want to get into a lot of details via email unless it's pretty minimal

764
00:57:05,520 --> 00:57:10,160
things, but that's something that you definitely want to keep in mind.

765
00:57:10,160 --> 00:57:13,920
After you have received the briefs, you've had your pre-mediation calls.

766
00:57:13,920 --> 00:57:18,360
Now you are in the phase of preparing for the day of mediation.

767
00:57:18,360 --> 00:57:23,760
You're now at the point where you want to prepare to help the parties settle.

768
00:57:23,760 --> 00:57:26,600
You want to take notes while you're reading the briefs.

769
00:57:26,600 --> 00:57:31,600
You want to create thought patterns and you want to prepare a mediator summary.

770
00:57:31,600 --> 00:57:36,520
I will go over all of this stuff in the next slides.

771
00:57:36,520 --> 00:57:39,320
Mediator summary, this is my recommendation to you.

772
00:57:39,320 --> 00:57:44,400
It's not absolutely necessary, but it's what I've always done and how I was trained.

773
00:57:44,400 --> 00:57:49,360
The mediator summary is basically a summary of the briefs and the phone calls that you've

774
00:57:49,360 --> 00:57:52,360
had up to this point with the parties.

775
00:57:52,360 --> 00:57:57,680
You want to summarize the dispute itself, trying to neutralize the situation.

776
00:57:57,680 --> 00:58:02,800
You want to go over the plaintiff's perspective, what their demands are, as well as the defendant's

777
00:58:02,800 --> 00:58:05,960
perspective and what they're offering.

778
00:58:05,960 --> 00:58:09,200
Normally they will put an offer in the mediation brief.

779
00:58:09,200 --> 00:58:12,880
Sometimes they won't put an offer, but normally they will put a number.

780
00:58:12,880 --> 00:58:19,920
They may also put certain limitations that they have, so you can see that in your notes.

781
00:58:19,920 --> 00:58:25,000
One of the things that I think is really helpful is your analysis as a third party.

782
00:58:25,000 --> 00:58:31,600
After you're reading this, consider how you, your analysis of what has happened.

783
00:58:31,600 --> 00:58:37,920
It's not taking one side or the other, but it's just your analysis as a mediator of what

784
00:58:37,920 --> 00:58:40,960
you believe to place in the dispute.

785
00:58:40,960 --> 00:58:45,640
Then you will want to write what your strategy to settle would be.

786
00:58:45,640 --> 00:58:49,520
Every case is different, but as you're going through these briefs and you're looking at

787
00:58:49,520 --> 00:58:55,040
these stock patterns, you will see and notice conversations that you need to have.

788
00:58:55,040 --> 00:58:57,000
You will address timing.

789
00:58:57,000 --> 00:59:02,280
If the parties are not cordial and there's a lot of animosity, you will then consider

790
00:59:02,280 --> 00:59:08,040
a certain timing of when to bring the parties together, when to clock it separately.

791
00:59:08,040 --> 00:59:12,560
All of these things, which is really great to have in your notes, it's here, someone

792
00:59:12,560 --> 00:59:17,120
that is working on many mediations and doing them every day.

793
00:59:17,120 --> 00:59:19,680
You will forget certain things.

794
00:59:19,680 --> 00:59:26,200
It's really great to include your own strategies for mediation in this mediator summary that

795
00:59:26,200 --> 00:59:28,680
you can review on the day of mediation.

796
00:59:28,680 --> 00:59:32,080
Next, you want to create a mediators bracket.

797
00:59:32,080 --> 00:59:36,640
Not all mediators do this, but I think it's a secret sauce to do.

798
00:59:36,640 --> 00:59:40,840
This is based off the briefs that you're reading and what the parties have communicated

799
00:59:40,840 --> 00:59:42,480
to you.

800
00:59:42,480 --> 00:59:47,800
It's normally a range, a financial range of how you think the parties will settle the

801
00:59:47,800 --> 00:59:48,800
dispute.

802
00:59:48,800 --> 00:59:50,840
Lastly, the expected outcomes.

803
00:59:50,840 --> 00:59:56,440
It's very interesting because majority of the expected outcomes that I've written actually

804
00:59:56,440 --> 00:59:58,280
do end up settling that way.

805
00:59:58,280 --> 01:00:03,320
I don't know if we're mind readers or anything like that, but as a mediator, because you

806
01:00:03,320 --> 01:00:10,000
have a neutral perspective, you really can see things more objectively and less objectively,

807
01:00:10,000 --> 01:00:16,160
which I think can be a good indicator of the best way to resolve and best way to settle.

808
01:00:16,160 --> 01:00:18,680
I just talked about this, the mediators bracket.

809
01:00:18,680 --> 01:00:20,880
This is the settlement range.

810
01:00:20,880 --> 01:00:24,560
It's normally a financial sliding scale.

811
01:00:24,560 --> 01:00:30,200
It could be what the defense, their limit is or what the plaintiff, their lease that

812
01:00:30,200 --> 01:00:32,160
they would accept.

813
01:00:32,160 --> 01:00:34,200
You won't always know those factors.

814
01:00:34,200 --> 01:00:36,320
You really use your best judgment.

815
01:00:36,320 --> 01:00:43,040
For me as an employment mediator, I know how most of these cases will settle and there's

816
01:00:43,040 --> 01:00:47,920
certain factors that can indicate that if you're doing a wage an hour, then obviously

817
01:00:47,920 --> 01:00:51,480
the rules on how damages are applied.

818
01:00:51,480 --> 01:00:54,120
It really just depends on what type of case you're doing.

819
01:00:54,120 --> 01:00:59,160
You may know more information and some disputes than others, but it's great to have a mediators

820
01:00:59,160 --> 01:01:04,280
bracket that way as you're going through the mediation, you can use your communication

821
01:01:04,280 --> 01:01:08,920
skills to try to get the parties within this range.

822
01:01:08,920 --> 01:01:12,600
Once you get them in that range, then you're in the sweet spot.

823
01:01:12,600 --> 01:01:13,600
It's really good.

824
01:01:13,600 --> 01:01:15,640
I'll go over momentarily.

825
01:01:15,640 --> 01:01:20,080
Once you're in that sweet spot, your communication will then change.

826
01:01:20,080 --> 01:01:28,080
How we start the mediation and how we're communicating in the beginning is going to shift later on

827
01:01:28,080 --> 01:01:34,640
in the mediation as we have to change our style as we're getting closer to settlement.

828
01:01:34,640 --> 01:01:36,760
Fact pattern, this is really great.

829
01:01:36,760 --> 01:01:40,320
Again, this is for your own confidential notes.

830
01:01:40,320 --> 01:01:45,280
It's not to be shared with the parties, but it's essentially things that you notice as

831
01:01:45,280 --> 01:01:47,200
you're reading through the brief.

832
01:01:47,200 --> 01:01:51,520
A lot of times you will see pattern on both sides.

833
01:01:51,520 --> 01:01:56,920
If you're doing a labor case, you may see a common pattern of discrimination that's

834
01:01:56,920 --> 01:01:57,920
cited.

835
01:01:57,920 --> 01:02:04,240
It may be stuff that's preceding the dispute at hand or maybe took place after or maybe

836
01:02:04,240 --> 01:02:10,520
had nothing to do with the dispute itself, but you may hear tones that this person experienced

837
01:02:10,520 --> 01:02:13,240
other forms of discrimination.

838
01:02:13,240 --> 01:02:19,560
That might be a pattern that you are writing down that can be then addressed during mediation

839
01:02:19,560 --> 01:02:21,960
because sometimes that's just it.

840
01:02:21,960 --> 01:02:28,600
Even if you're able to get parties to resolve the dispute at hand, there could be a larger

841
01:02:28,600 --> 01:02:34,880
issue that also needs to be addressed in order to truly remedy the situation because it's

842
01:02:34,880 --> 01:02:37,840
not always just about a financial settlement.

843
01:02:37,840 --> 01:02:43,400
With that being said, on the opposite side, you may notice that an employee had the history

844
01:02:43,400 --> 01:02:49,880
or pattern of being tardy or showing poor conduct or they may have been slipping on

845
01:02:49,880 --> 01:02:51,800
their performance.

846
01:02:51,800 --> 01:02:56,640
It's important to see these things because amongst the legal issues, there's going to

847
01:02:56,640 --> 01:03:04,320
also be patterns that don't really fall into a protected legal class or a legal issue,

848
01:03:04,320 --> 01:03:09,880
but there's still issues that need to be addressed and play a major role in settlement.

849
01:03:09,880 --> 01:03:16,520
Lastly, I'll just comment that this will help you to counter question opposing sides as these

850
01:03:16,520 --> 01:03:18,200
issues are coming up.

851
01:03:18,200 --> 01:03:24,960
It's a great way to indicate certain factors that parties may not be thinking about.

852
01:03:24,960 --> 01:03:32,040
They may have never considered the fact that the opposing party has felt this way or has

853
01:03:32,040 --> 01:03:37,480
been dealing with other issues that are related to the dispute and all these things.

854
01:03:37,480 --> 01:03:43,560
It's a great way to address some of the underlining factors and again, communicate these with

855
01:03:43,560 --> 01:03:46,840
the parties and we'll be closer to settling.

856
01:03:46,840 --> 01:03:51,920
For mediation, you will want to consider breakout rooms and separate rooms.

857
01:03:51,920 --> 01:03:58,440
If it's in person, separating the parties or if it's online, doing breakout rooms.

858
01:03:58,440 --> 01:04:03,800
If you are doing an in-person mediation and you have the space to do it, it's really great

859
01:04:03,800 --> 01:04:07,840
to separate the parties with an empty room in between.

860
01:04:07,840 --> 01:04:13,400
If you have six conference rooms and you have two parties, maybe place one party in room

861
01:04:13,400 --> 01:04:18,920
one and the other in room three or four and you can utilize one of the other rooms as

862
01:04:18,920 --> 01:04:23,120
a room to caucus or even do a smaller joint session.

863
01:04:23,120 --> 01:04:28,040
But sometimes walls are thin and you may be in a seated discussion and you just don't

864
01:04:28,040 --> 01:04:33,640
want one party to hear a private conversation that you're having or they're having with

865
01:04:33,640 --> 01:04:34,640
their client.

866
01:04:34,640 --> 01:04:41,080
We really want to keep mediation confidential and there are points in the mediation where

867
01:04:41,080 --> 01:04:46,400
a caucus needs to happen and where information needs to be private.

868
01:04:46,400 --> 01:04:52,080
So if you can try to separate the rooms that way, if it's in person, that's a really great

869
01:04:52,080 --> 01:04:53,160
idea.

870
01:04:53,160 --> 01:04:58,200
Of course, you may not have the space to do it, so you may have to be a little bit creative.

871
01:04:58,200 --> 01:05:03,040
If you're having an online mediation, of course, you will create breakout rooms in the beginning

872
01:05:03,040 --> 01:05:09,280
of the mediation and I recommend always giving yourself a couple extra rooms so you can have

873
01:05:09,280 --> 01:05:13,640
a sidebar conversation with whoever you may need to.

874
01:05:13,640 --> 01:05:18,920
As a mediator, again, you're using your discretion in terms of how to effectively communicate

875
01:05:18,920 --> 01:05:20,520
with all the parties.

876
01:05:20,520 --> 01:05:24,600
So give yourself some extra rooms and that's always great.

877
01:05:24,600 --> 01:05:30,080
And two, if there's co-counsel, not all co-counsels will want to be in the same room.

878
01:05:30,080 --> 01:05:35,280
They may have different clients they represent or different interests, so they may want to

879
01:05:35,280 --> 01:05:36,280
be separate.

880
01:05:36,280 --> 01:05:40,760
So I just always know what you're dealing with the parties involved and have your game

881
01:05:40,760 --> 01:05:43,720
plan for the day of mediation.

882
01:05:43,720 --> 01:05:48,800
Things that you want to communicate if you are having an in-person mediation, you want

883
01:05:48,800 --> 01:05:54,840
to communicate the address, parking information, especially directions and the cost.

884
01:05:54,840 --> 01:05:58,680
You also want to express food and meal information.

885
01:05:58,680 --> 01:06:03,920
If you order food for your clients or have catering, you want to ask for if there's any

886
01:06:03,920 --> 01:06:06,680
allergies or special requests.

887
01:06:06,680 --> 01:06:11,560
This is really important and will help you out to avoid any unintended issues on the

888
01:06:11,560 --> 01:06:12,560
day of mediation.

889
01:06:12,560 --> 01:06:17,840
Lastly, it's really important to provide a telephone number to the physical office that

890
01:06:17,840 --> 01:06:24,160
you will be at or the office manager if you have one or your cell phone number.

891
01:06:24,160 --> 01:06:27,840
Basically just a contact number because people will get lost.

892
01:06:27,840 --> 01:06:29,160
They will have questions.

893
01:06:29,160 --> 01:06:35,240
So you want to make sure that you're easily accessible on the day of mediation.

894
01:06:35,240 --> 01:06:39,680
If you're doing an online mediation, you of course want to provide the Zoom link with

895
01:06:39,680 --> 01:06:41,880
the meeting ID and password.

896
01:06:41,880 --> 01:06:46,320
The way that I typically do this is I will send it out initially, but also the night

897
01:06:46,320 --> 01:06:49,920
before mediation, I will resend this link.

898
01:06:49,920 --> 01:06:55,480
This is because a lot of people are very busy and they may lose the email or it may be from

899
01:06:55,480 --> 01:07:02,160
a week before and it just makes it very nice if you can just communicate or re-communicate

900
01:07:02,160 --> 01:07:06,600
the link the night before and it can be readily available.

901
01:07:06,600 --> 01:07:12,640
And in that email, you should also include your cell phone number so that people can

902
01:07:12,640 --> 01:07:18,720
text you or call you during mediation if they need to step out or something comes up or

903
01:07:18,720 --> 01:07:21,640
they want to do a private caucus.

904
01:07:21,640 --> 01:07:26,720
You may have the chat function enabled, I typically disable the chat function.

905
01:07:26,720 --> 01:07:30,800
The only way that parties would really be able to communicate in real time would be

906
01:07:30,800 --> 01:07:36,160
to provide my cell phone number and it just makes it a little bit easier, especially if

907
01:07:36,160 --> 01:07:40,720
tech issues come up or any concerns of that nature.

908
01:07:40,720 --> 01:07:46,120
So opening statements, we have touched on some of these things already, but I just want

909
01:07:46,120 --> 01:07:52,320
to reiterate that it is recommended to bring everyone into the main session and greet all

910
01:07:52,320 --> 01:07:54,640
the parties at the same time.

911
01:07:54,640 --> 01:07:59,040
Every mediator does this differently, but I think it's very effective to do an opening

912
01:07:59,040 --> 01:08:04,360
statement with everyone there and to introduce yourself, introduce the parties.

913
01:08:04,360 --> 01:08:09,880
They may already know each other, but it's just a good rule of thumb to go over introductions

914
01:08:09,880 --> 01:08:15,120
and it really does set the stage for the day of mediation and perhaps there's been other

915
01:08:15,120 --> 01:08:20,600
points of communication in the litigation where parties have not been friendly or there's

916
01:08:20,600 --> 01:08:22,280
been some issues.

917
01:08:22,280 --> 01:08:28,520
So this allows you as the mediator once again to control the environment and to use your

918
01:08:28,520 --> 01:08:36,680
communication style to also influence the other people in the mediation to be good sports,

919
01:08:36,680 --> 01:08:41,360
good participants and to show to be cordial amongst each other.

920
01:08:41,360 --> 01:08:46,640
It's also a good time to communicate or disguise the schedule for the day.

921
01:08:46,640 --> 01:08:51,320
If you have, you're going to speak with plaintiffs first, you can go ahead and let them know

922
01:08:51,320 --> 01:08:55,560
I'm going to speak with this council first and then I'll come over to the defense and

923
01:08:55,560 --> 01:08:57,120
speak with you all.

924
01:08:57,120 --> 01:09:03,480
It's good to do this, especially if you are doing an online mediation where people may

925
01:09:03,480 --> 01:09:07,680
be waiting in a breakout room for even 30 minutes to an hour.

926
01:09:07,680 --> 01:09:12,400
You want to make sure that everyone's on the same page and this avoids people feeling that

927
01:09:12,400 --> 01:09:14,920
there's any bias or favoritism.

928
01:09:14,920 --> 01:09:19,440
And lastly, provide your cell phone number again till people have it handy.

929
01:09:19,440 --> 01:09:24,480
Even if you provided it the day before or another time, people lose that information,

930
01:09:24,480 --> 01:09:25,640
they leave emails.

931
01:09:25,640 --> 01:09:28,520
So it's great to just provide your cell phone number.

932
01:09:28,520 --> 01:09:31,640
It can write it down during that time.

933
01:09:31,640 --> 01:09:36,280
So I did mention this earlier, but I want to touch back on this.

934
01:09:36,280 --> 01:09:40,400
So depending on the nature of the dispute, this will not be necessary for probably a

935
01:09:40,400 --> 01:09:42,240
lot of the disputes you're doing.

936
01:09:42,240 --> 01:09:47,680
I think it just depends on the type of case, but you may need to monitor breaks.

937
01:09:47,680 --> 01:09:53,680
So this would include bathroom breaks, meal breaks, or any other break of that nature.

938
01:09:53,680 --> 01:10:01,160
And this is because there are situations where opposing parties do not want to have any physical

939
01:10:01,160 --> 01:10:03,840
or visual contact with each other.

940
01:10:03,840 --> 01:10:10,360
On the plaintive side, if they've been harmed by the defendant, it may be very bad for them

941
01:10:10,360 --> 01:10:12,240
to have any type of confrontation.

942
01:10:12,240 --> 01:10:16,880
And they may not want to see their face, hear their voice, anything of that nature.

943
01:10:16,880 --> 01:10:22,640
It's really important to be respectful of this and it's possible to place that person

944
01:10:22,640 --> 01:10:28,960
in a room that is very far away from the opposing side, as well as escort them to the bathroom

945
01:10:28,960 --> 01:10:35,080
if it's a shared space to escort them to the bathroom or to also coordinate meals.

946
01:10:35,080 --> 01:10:41,280
So if you are ordering catering to designate certain times for the parties to go and grab

947
01:10:41,280 --> 01:10:46,560
their food, that way you're not just having lunchtime and it's a free for all and everyone's

948
01:10:46,560 --> 01:10:48,320
meeting in the kitchen.

949
01:10:48,320 --> 01:10:55,360
You really want to try to limit those additional conversations if there is an environment that's

950
01:10:55,360 --> 01:10:57,200
not good for that.

951
01:10:57,200 --> 01:11:03,480
I've also done several mediations where the opposing counsels, they'll talk in the hallway,

952
01:11:03,480 --> 01:11:06,640
they'll talk over meals and it's a great situation.

953
01:11:06,640 --> 01:11:13,520
They're totally cordial and obviously in that situation, you don't have to worry about this.

954
01:11:13,520 --> 01:11:19,320
But in other high conflict situations, you can really help the parties out by just giving

955
01:11:19,320 --> 01:11:25,000
them some protection and monitoring the environment during the day of mediation.

956
01:11:25,000 --> 01:11:29,560
The next thing that I want to briefly talk about is different listening styles.

957
01:11:29,560 --> 01:11:35,400
This is important for you as the mediator and how you're able to receive information.

958
01:11:35,400 --> 01:11:41,920
So connective listening is basically someone that is listening in hopes of gaining information

959
01:11:41,920 --> 01:11:43,720
that could be valuable.

960
01:11:43,720 --> 01:11:49,120
So in this case, as you're listening, you are looking for information that can be used

961
01:11:49,120 --> 01:11:50,440
to settle.

962
01:11:50,440 --> 01:11:55,080
As you're talking to parties separately or jointly, there will be cues that will let

963
01:11:55,080 --> 01:12:00,400
you know where people are with things, where they're standing and how they're feeling,

964
01:12:00,400 --> 01:12:05,520
which you can use to then move things a little bit forward in the mediation process.

965
01:12:05,520 --> 01:12:10,920
So this is a great type of listening skill to utilize.

966
01:12:10,920 --> 01:12:17,640
The next is reflective listening, which is normally seen as being empathetic and compassionate.

967
01:12:17,640 --> 01:12:23,680
We always want to show this in our mediations, but we don't want to over insert ourselves

968
01:12:23,680 --> 01:12:25,640
with words or guidance.

969
01:12:25,640 --> 01:12:30,040
So we really want to listen more than we are speaking.

970
01:12:30,040 --> 01:12:36,600
I always say that mediation is people's opportunity to speak when they otherwise may not have

971
01:12:36,600 --> 01:12:37,920
the chance.

972
01:12:37,920 --> 01:12:39,360
And it's not a child.

973
01:12:39,360 --> 01:12:46,500
So it is confidential and things are a little bit less, not serious, but they're less binding.

974
01:12:46,500 --> 01:12:52,200
So I think that it's important to realize when it's time to do reflective listening,

975
01:12:52,200 --> 01:12:56,560
you may have a moment with a client where they are simply venting.

976
01:12:56,560 --> 01:13:03,240
That information probably will not be used later or to be for the other party, but it's

977
01:13:03,240 --> 01:13:09,320
more for the individual themselves to express how they're feeling and for you to just be

978
01:13:09,320 --> 01:13:11,440
a great listener.

979
01:13:11,440 --> 01:13:17,000
The next is conceptual listening, which are comprehensive listening, which is essentially

980
01:13:17,000 --> 01:13:24,480
you listening, taking notes, using your analysis to make conclusions or to have draw conclusions.

981
01:13:24,480 --> 01:13:29,640
This is what you will also be doing when you are going over mediation briefs and during

982
01:13:29,640 --> 01:13:31,160
parts of the mediation.

983
01:13:31,160 --> 01:13:34,760
You will also be obviously using this, taking notes.

984
01:13:34,760 --> 01:13:39,800
If you're looking at documentation and stuff like that, you will be making your analysis

985
01:13:39,800 --> 01:13:43,160
based off of what you're hearing and the evidence provided.

986
01:13:43,160 --> 01:13:49,080
Lastly is analytical listening, which is great to have, although you just want to make sure

987
01:13:49,080 --> 01:13:55,720
that again, you're not in an adversarial position where you're taking a stance one way or another.

988
01:13:55,720 --> 01:14:01,640
But analytical listening is like I said, using those fact patterns and confirming facts based

989
01:14:01,640 --> 01:14:04,400
off of what is being communicated.

990
01:14:04,400 --> 01:14:09,760
So this is something that you will utilize and really for the benefit of once again,

991
01:14:09,760 --> 01:14:12,960
trying to move parties closer to settlement.

992
01:14:12,960 --> 01:14:18,280
I did go over this, but I just want to show now where we're at as well in the training

993
01:14:18,280 --> 01:14:19,640
as an mediation.

994
01:14:19,640 --> 01:14:22,640
So the first step is the inform and listen.

995
01:14:22,640 --> 01:14:24,760
This is inquiry and convening.

996
01:14:24,760 --> 01:14:32,320
The next is actually being in mediation and facilitating negotiations and mutual discussion,

997
01:14:32,320 --> 01:14:34,720
which we have gone over.

998
01:14:34,720 --> 01:14:37,200
And lastly will be the settlement phase.

999
01:14:37,200 --> 01:14:42,680
And this is when you are at a point where you believe the parties are now ready to negotiate

1000
01:14:42,680 --> 01:14:44,440
a settlement agreement.

1001
01:14:44,440 --> 01:14:49,240
So as you're going through mediation, you want to make sure, as I mentioned that all

1002
01:14:49,240 --> 01:14:53,400
the parties feel that you are spending equal and adequate time with them.

1003
01:14:53,400 --> 01:14:58,360
So while meeting with one party, you could potentially give the other party an assignment

1004
01:14:58,360 --> 01:15:04,200
or ask them a question or a series of questions that they can work on while you're poccasin

1005
01:15:04,200 --> 01:15:05,900
with the other party.

1006
01:15:05,900 --> 01:15:11,520
This is great because it allows for a nice timeline of mediation and a nice flow.

1007
01:15:11,520 --> 01:15:17,440
It also eliminates wasting time and going back and forth when parties can be working

1008
01:15:17,440 --> 01:15:20,480
in the midst of you poccasin with the other party.

1009
01:15:20,480 --> 01:15:25,880
And hopefully it'll be a nice flow where you can go back and forth and bounce ideas off

1010
01:15:25,880 --> 01:15:28,280
of talking to each party.

1011
01:15:28,280 --> 01:15:33,120
And again, your goal is to try to get as close as you can to that mediators bracket.

1012
01:15:33,120 --> 01:15:38,360
And as you're going through, just get closer and closer and towards the end be in that

1013
01:15:38,360 --> 01:15:41,040
sweet spot that I mentioned.

1014
01:15:41,040 --> 01:15:45,920
So poccas, I'm sure you're familiar with this term, but in case you're not, this is

1015
01:15:45,920 --> 01:15:49,120
the opportunity to have a private conversation.

1016
01:15:49,120 --> 01:15:51,040
It may be with just an attorney.

1017
01:15:51,040 --> 01:15:53,960
It may be with an attorney and their client.

1018
01:15:53,960 --> 01:15:59,360
Sometimes it'll be a joint poccas where you have both councils there, but not the clients

1019
01:15:59,360 --> 01:16:00,520
present.

1020
01:16:00,520 --> 01:16:06,760
And this is really great to just get information that should not be disclosed in a joint session.

1021
01:16:06,760 --> 01:16:11,160
There are certain things that will happen in a poccas that you will never share with

1022
01:16:11,160 --> 01:16:16,340
the other party, but it is helpful for you to know so that you can know where parties

1023
01:16:16,340 --> 01:16:17,400
are coming from.

1024
01:16:17,400 --> 01:16:20,720
So I use poccas all the time.

1025
01:16:20,720 --> 01:16:24,240
It's just great to utilize this.

1026
01:16:24,240 --> 01:16:29,520
Joint session, I think this is typically what everyone thinks of as mediation that everyone

1027
01:16:29,520 --> 01:16:33,240
is just in one room and you're just going back and forth.

1028
01:16:33,240 --> 01:16:34,840
That's normally not how it works.

1029
01:16:34,840 --> 01:16:39,640
You will do a lot of poccas sessions and you will have a few joint sessions.

1030
01:16:39,640 --> 01:16:45,800
This will either be with the councils themselves, as I mentioned, or later on when you're at

1031
01:16:45,800 --> 01:16:51,840
the point where a settlement is taking place and offers are being made at this point.

1032
01:16:51,840 --> 01:16:55,040
Maybe another time to have a joint session.

1033
01:16:55,040 --> 01:16:59,880
And then lastly, at the end, once offers have been accepted and parties are just going over

1034
01:16:59,880 --> 01:17:05,040
the settlement agreement, and certain logistics is another time that you would do a joint

1035
01:17:05,040 --> 01:17:10,720
session as well as in the beginning of the mediation during introductions.

1036
01:17:10,720 --> 01:17:15,480
So I just want to say a few things that you should never say as a mediator.

1037
01:17:15,480 --> 01:17:18,800
Number one, never announce a defendants policy limit.

1038
01:17:18,800 --> 01:17:20,740
That's an absolute no.

1039
01:17:20,740 --> 01:17:26,520
Even if you are aware of this, you never want to disclose this to the other party.

1040
01:17:26,520 --> 01:17:31,680
It will just be a horrible turnout and you really want to maintain a certain level of

1041
01:17:31,680 --> 01:17:32,680
privacy.

1042
01:17:32,680 --> 01:17:38,160
You also never want to insult or critique one party in front of the other.

1043
01:17:38,160 --> 01:17:43,800
If you do have to say or need to say important information to a party, you want to utilize

1044
01:17:43,800 --> 01:17:47,600
a pocus and express those thoughts in that place.

1045
01:17:47,600 --> 01:17:52,080
And lastly, you do not want to ever say this is never going to settle.

1046
01:17:52,080 --> 01:17:56,960
You do not want to show pessimism as the mediator, the parties are trusting you.

1047
01:17:56,960 --> 01:18:01,240
They themselves have been unable to resolve this on their own.

1048
01:18:01,240 --> 01:18:05,060
And so now they've come to you to help them save the day.

1049
01:18:05,060 --> 01:18:11,360
So you never want to show any signs of pessimism or anything like that.

1050
01:18:11,360 --> 01:18:13,280
You want to stay positive.

1051
01:18:13,280 --> 01:18:18,200
And you want to stay enthusiastic about the opportunity to settle.

1052
01:18:18,200 --> 01:18:24,200
So there's some questions that I drafted here that will help you get closer to settlement.

1053
01:18:24,200 --> 01:18:29,160
And you will know when you're at that point in the mediation where you feel that clients

1054
01:18:29,160 --> 01:18:32,560
are now ready to have those conversations.

1055
01:18:32,560 --> 01:18:36,640
So some of the questions you may ask are, have you considered the outcome if you do

1056
01:18:36,640 --> 01:18:41,680
not make a substantial offer to plaintiff and the ramifications of not settling before

1057
01:18:41,680 --> 01:18:42,760
trial?

1058
01:18:42,760 --> 01:18:47,400
On the flip side, you can also talk to the plaintiff and say, have you considered that

1059
01:18:47,400 --> 01:18:53,600
if you go to trial, you will most likely not get an offer close or the same amount that's

1060
01:18:53,600 --> 01:18:55,400
being offered today.

1061
01:18:55,400 --> 01:19:01,320
So those are both questions to bring reality into the fact that whatever offers are on

1062
01:19:01,320 --> 01:19:06,760
the table during mediation will be very different than if it goes to trial.

1063
01:19:06,760 --> 01:19:11,360
Another question you may ask is, are you willing to face the public aspects if this does not

1064
01:19:11,360 --> 01:19:12,360
settle?

1065
01:19:12,360 --> 01:19:17,680
And you know what kind of case this may be a bigger factor, but either parties are concerned

1066
01:19:17,680 --> 01:19:18,680
about confidentiality.

1067
01:19:18,680 --> 01:19:24,120
If it doesn't settle and a trial happens, then it will become a public concern.

1068
01:19:24,120 --> 01:19:29,600
And if, for example, if this is a labor and employment dispute, regardless of the outcome,

1069
01:19:29,600 --> 01:19:35,320
it could be if a plaintiff wins and it's something with their previous employer, it may affect

1070
01:19:35,320 --> 01:19:38,080
them from getting another job in that field.

1071
01:19:38,080 --> 01:19:44,120
If the defense loses, it may show distaste towards their company and may affect their

1072
01:19:44,120 --> 01:19:45,120
performance.

1073
01:19:45,120 --> 01:19:52,360
So there's all of these things that you want to bring to people's attention without inserting

1074
01:19:52,360 --> 01:19:57,200
your opinion, but doing it in a way of asking questions.

1075
01:19:57,200 --> 01:20:03,720
This is a great strategy, like I said, to not show favoritism, but to get people to really

1076
01:20:03,720 --> 01:20:06,640
think about what's going on.

1077
01:20:06,640 --> 01:20:11,240
So again, yes, if this does not settle, would there be challenges in the future for future

1078
01:20:11,240 --> 01:20:13,040
engagements?

1079
01:20:13,040 --> 01:20:19,280
And another question, which may seem so simple, but to just re-bring it back to the question

1080
01:20:19,280 --> 01:20:25,640
of if the parties are interested in a positive outcome, if it's for themselves or their client,

1081
01:20:25,640 --> 01:20:31,280
sometimes you have to reel back in attorneys because again, they're trying to get a winning

1082
01:20:31,280 --> 01:20:37,640
result, which to them may be them winning the other party losing, but in mediation, we really

1083
01:20:37,640 --> 01:20:40,160
try to go with a win approach.

1084
01:20:40,160 --> 01:20:43,720
So it's just good to bring that back to the table.

1085
01:20:43,720 --> 01:20:48,280
Sometimes during the mediation, parties may lose sight of why they're actually there.

1086
01:20:48,280 --> 01:20:52,360
So these are all questions that can help you get closer to settlement.

1087
01:20:52,360 --> 01:20:57,640
As I mentioned, if it is halfway into the mediation and you are not close to settlement,

1088
01:20:57,640 --> 01:21:02,680
you do want to change your communication a bit and to go over some of the things that

1089
01:21:02,680 --> 01:21:07,400
I just mentioned, ask some of those questions and all of those things.

1090
01:21:07,400 --> 01:21:12,520
And hopefully by this point, you've addressed the financial and emotional burdens and you

1091
01:21:12,520 --> 01:21:15,400
can move more into negotiation.

1092
01:21:15,400 --> 01:21:18,560
So factual evidence first, emotional distress.

1093
01:21:18,560 --> 01:21:24,240
As I mentioned, the legal issues are the legal issues and the law is the law, but the emotional

1094
01:21:24,240 --> 01:21:29,160
implications and factors of disputes are a very different thing.

1095
01:21:29,160 --> 01:21:34,480
And you really want to be aware of this and really need to mediate these issues just as

1096
01:21:34,480 --> 01:21:37,120
you would the factual evidence.

1097
01:21:37,120 --> 01:21:42,680
Even if it's he say, she say, and you don't know what actually took place at a given time,

1098
01:21:42,680 --> 01:21:48,680
you still need to address how people were emotionally infected by this because continue

1099
01:21:48,680 --> 01:21:54,120
to mention mediation is a chance and maybe one of the only chances that people have

1100
01:21:54,120 --> 01:22:00,600
to resolve these emotional conflicts during legal proceedings, there's not a lot of space

1101
01:22:00,600 --> 01:22:01,600
for that.

1102
01:22:01,600 --> 01:22:06,240
Of course, you can ask for emotional distress and all of these things, but to really have

1103
01:22:06,240 --> 01:22:12,720
a chance to display that, there's really not to verbally display that clients may not have

1104
01:22:12,720 --> 01:22:13,720
another chance.

1105
01:22:13,720 --> 01:22:19,560
If you can try to get this handled earlier in mediation and leave the second half to

1106
01:22:19,560 --> 01:22:23,360
negotiation, that would be a great strategy.

1107
01:22:23,360 --> 01:22:30,080
So this is just another example of how you can try to move the conversation along and

1108
01:22:30,080 --> 01:22:33,640
get the parties to move closer to settlement.

1109
01:22:33,640 --> 01:22:39,920
You probably have already identified or parties are identified what their priorities are and

1110
01:22:39,920 --> 01:22:41,560
what's really important.

1111
01:22:41,560 --> 01:22:47,320
So at this time, you may have discussions with them and try to get them to meet in the

1112
01:22:47,320 --> 01:22:51,160
middle or different things of that nature.

1113
01:22:51,160 --> 01:22:57,400
Okay, at the point when the parties are ready to negotiate, if they haven't already started

1114
01:22:57,400 --> 01:23:03,360
negotiation, we want to have a separate caucus, like I said, and have a similar discussion

1115
01:23:03,360 --> 01:23:07,920
where you're asking some of the questions that I just went over and really planning

1116
01:23:07,920 --> 01:23:14,200
the statements so that parties are changing their gear from expression about what happened

1117
01:23:14,200 --> 01:23:18,320
and moving more into how do we resolve, how do we remedy?

1118
01:23:18,320 --> 01:23:23,480
Of course, as I mentioned, the beginning is really utilized for people to have their day

1119
01:23:23,480 --> 01:23:30,240
in court, even though it's their day in mediation, really to express themselves, talk about what

1120
01:23:30,240 --> 01:23:37,080
happened during the dispute and go over some of those factual evidences or those logistics.

1121
01:23:37,080 --> 01:23:41,080
But then you want to move the parties into negotiation.

1122
01:23:41,080 --> 01:23:47,440
So it's great if you, like I said, have separate caucus, but have a similar discussion.

1123
01:23:47,440 --> 01:23:49,800
So priorities leading to offers.

1124
01:23:49,800 --> 01:23:56,040
So basically at this time, you will be asking the parties to really prioritize how they

1125
01:23:56,040 --> 01:24:01,440
intend to resolve the issue and really get down to those key issues.

1126
01:24:01,440 --> 01:24:06,480
There may be a lot of things that have been in discussion, but at this time, you really

1127
01:24:06,480 --> 01:24:13,040
need to try to guide them to focus on the specific points of resolutions.

1128
01:24:13,040 --> 01:24:19,640
I use labor and employment a lot, but if the settlement, if there is a potential for reinstatement

1129
01:24:19,640 --> 01:24:27,000
of a job or something of that nature, and that is a priority for the plaintiff, then

1130
01:24:27,000 --> 01:24:28,960
that's something that should be addressed.

1131
01:24:28,960 --> 01:24:35,560
Because again, it could be presumed that the financial settlement is the main concerns,

1132
01:24:35,560 --> 01:24:38,120
but it's not always the main concern.

1133
01:24:38,120 --> 01:24:43,000
There's also other concerns and priorities that parties have, as well as on the defense

1134
01:24:43,000 --> 01:24:48,600
side, if they do agree to a certain offer to offer the client, they then want to make

1135
01:24:48,600 --> 01:24:55,440
sure that they are released from other litigation or other related disputes that may be with

1136
01:24:55,440 --> 01:24:56,440
the plaintiff.

1137
01:24:56,440 --> 01:24:59,560
So there's various things that are important.

1138
01:24:59,560 --> 01:25:02,800
Also confidentiality could be a huge factor.

1139
01:25:02,800 --> 01:25:09,760
So you want to be able to help the parties to truly narrow down what their best settlement

1140
01:25:09,760 --> 01:25:11,600
would look like.

1141
01:25:11,600 --> 01:25:17,720
So offers, so you will want to ask the defense to make an offer that you can present to the

1142
01:25:17,720 --> 01:25:18,720
plaintiff.

1143
01:25:18,720 --> 01:25:21,320
And here you want to use your discretion.

1144
01:25:21,320 --> 01:25:26,640
If the defense is giving a very low ball answer, which I mean offer, which may be offensive

1145
01:25:26,640 --> 01:25:30,680
to the plaintiff, you're going to use your discretion and you're going to have a conversation

1146
01:25:30,680 --> 01:25:35,760
with them and let them know based off of this and based off what the plaintiff has explained.

1147
01:25:35,760 --> 01:25:40,840
You don't feel like they have fully evaluated the concerns, all of that.

1148
01:25:40,840 --> 01:25:47,440
And you want to try to get the defense to make an offer that is presentable to the plaintiff.

1149
01:25:47,440 --> 01:25:52,680
Now of course, in the first offering stages, the offer may be very different, but if you

1150
01:25:52,680 --> 01:25:57,720
can try to get it in a presentable form, that's that it's not always going to be perfect.

1151
01:25:57,720 --> 01:26:03,440
Of course, you could still express the offer to the plaintiff and they could still be very

1152
01:26:03,440 --> 01:26:06,480
upset with the offer.

1153
01:26:06,480 --> 01:26:13,080
But if you can try to use your discretion based off of what from both parties, that is a great

1154
01:26:13,080 --> 01:26:15,160
idea to do.

1155
01:26:15,160 --> 01:26:20,000
Sometimes the parties will go back and forth on offers and it may start, for example, at

1156
01:26:20,000 --> 01:26:25,280
500,000 an offer and then the plaintiff may say they want a little bit more, it may go

1157
01:26:25,280 --> 01:26:31,000
to 600,000 and you may be going back and forth with the parties to negotiate these offers,

1158
01:26:31,000 --> 01:26:33,120
which is very normal.

1159
01:26:33,120 --> 01:26:39,560
And if you get to a point where you're at a standstill and no one is budging, this is

1160
01:26:39,560 --> 01:26:42,720
a good time to reinstate some of the questions.

1161
01:26:42,720 --> 01:26:48,680
If you haven't already asked those questions or to bring them up again, because I do feel

1162
01:26:48,680 --> 01:26:55,240
that once people realize the reality of the situation of going to trial and if you can

1163
01:26:55,240 --> 01:27:01,640
effectively communicate that, they really do take a second thought and try to be more

1164
01:27:01,640 --> 01:27:04,680
susceptible to a negotiation.

1165
01:27:04,680 --> 01:27:08,800
Just a note here, just be careful of how you're sharing these offers amongst the parties

1166
01:27:08,800 --> 01:27:11,160
and try not to offend or upset anyone.

1167
01:27:11,160 --> 01:27:16,280
But of course, people will get upset, they're in a dispute, so do not be alarmed if this

1168
01:27:16,280 --> 01:27:20,880
happens or it doesn't go as you initially planned.

1169
01:27:20,880 --> 01:27:22,400
That's how it goes sometimes.

1170
01:27:22,400 --> 01:27:27,520
Just stand your ground and like I said, if you're in that sweet spot where you're in

1171
01:27:27,520 --> 01:27:31,160
the mediator's bracket, then you're in a really good place.

1172
01:27:31,160 --> 01:27:36,640
So hopefully you get to a place where the parties have now accepted or they're talking

1173
01:27:36,640 --> 01:27:40,480
about accepting the offer and now they've accepted.

1174
01:27:40,480 --> 01:27:44,520
You want to, again, make this nudge.

1175
01:27:44,520 --> 01:27:48,160
They're still, they're almost there, but they haven't fully agreed.

1176
01:27:48,160 --> 01:27:53,000
You just want to really use your discretion and try to push them into settling.

1177
01:27:53,000 --> 01:27:58,720
Sometimes parties will say they need to think about it or stuff like that and you really

1178
01:27:58,720 --> 01:28:04,520
want to encourage them to sign a settlement agreement on the day of mediation.

1179
01:28:04,520 --> 01:28:09,720
If it's not possible, of course, there's so many situations where it will settle after

1180
01:28:09,720 --> 01:28:15,680
mediation and I'll go into that in a moment, but the best thing you can offer them is to

1181
01:28:15,680 --> 01:28:20,280
try to have them sign a settlement agreement during mediation.

1182
01:28:20,280 --> 01:28:25,480
As a mediator, it's not your job to draft a settlement agreement, but it wants to help

1183
01:28:25,480 --> 01:28:30,640
the parties organize themselves to have the settlement agreement created.

1184
01:28:30,640 --> 01:28:35,640
So depending on the nature of the situation, you want to facilitate that and get them to

1185
01:28:35,640 --> 01:28:37,240
start working on it.

1186
01:28:37,240 --> 01:28:42,720
If you're, if it's an in-person, you can help the party by printing out the first draft

1187
01:28:42,720 --> 01:28:45,960
and distributing it so both parties can look at it.

1188
01:28:45,960 --> 01:28:50,880
So those are things you can definitely help to make it a little bit smoother or easier,

1189
01:28:50,880 --> 01:28:56,000
but again, it's not your job to create that settlement agreement or to edit and revise

1190
01:28:56,000 --> 01:28:57,000
it.

1191
01:28:57,000 --> 01:28:58,560
That's on the onus of the parties.

1192
01:28:58,560 --> 01:29:04,280
Hopefully they have counsel who may have already had a version created through an MOU or a

1193
01:29:04,280 --> 01:29:06,320
potential settlement agreement.

1194
01:29:06,320 --> 01:29:11,960
So this should really be where the last of the time is used and again, be available for

1195
01:29:11,960 --> 01:29:17,280
feedback and you do want to review the settlement agreement just to ensure that what has been

1196
01:29:17,280 --> 01:29:22,600
rivally expressed is the same thing written, but again, it's going to be on the onus of

1197
01:29:22,600 --> 01:29:26,600
the parties to make sure that this is drafted correctly.

1198
01:29:26,600 --> 01:29:32,600
So in the event that the case is not settled during the day of mediation, it's imperative

1199
01:29:32,600 --> 01:29:36,520
to follow up with the parties and let them know that you will be doing.

1200
01:29:36,520 --> 01:29:42,320
If you're in a situation where the parties are really close, but they just need more time,

1201
01:29:42,320 --> 01:29:47,520
maybe they need settlement authority, or maybe they just need to consider other things or

1202
01:29:47,520 --> 01:29:53,040
there needs to be additional information, then you can create a mediator's proposal.

1203
01:29:53,040 --> 01:29:59,120
And how this works is it will include the terms and offers that the parties have tentatively

1204
01:29:59,120 --> 01:30:04,800
agreed upon and you will ask them that you will give them a deadline of when to respond

1205
01:30:04,800 --> 01:30:09,400
back to you with specific verbiage saying, I accept this proposal.

1206
01:30:09,400 --> 01:30:11,560
I do not accept this proposal.

1207
01:30:11,560 --> 01:30:16,520
And like I said, the time deadline is very important because you want to be there on

1208
01:30:16,520 --> 01:30:17,520
both parties.

1209
01:30:17,520 --> 01:30:20,280
You don't want to give one party more time than the other.

1210
01:30:20,280 --> 01:30:25,600
And then you will let them know that at that point in time, once you've received the responses,

1211
01:30:25,600 --> 01:30:30,440
you will then let the parties know whether or not it's been accepted or denied.

1212
01:30:30,440 --> 01:30:36,120
Maybe you give them one week to respond to you and that's pretty standard.

1213
01:30:36,120 --> 01:30:41,640
This is very helpful because like I said, even if you think that it's not going to settle

1214
01:30:41,640 --> 01:30:46,720
and maybe things went really bad at the end and that you lost a little bit of hope, oftentimes

1215
01:30:46,720 --> 01:30:52,040
people do come to their senses after the fact and they realize that they're not going to

1216
01:30:52,040 --> 01:30:55,400
get the same type of settlement if they go to trials.

1217
01:30:55,400 --> 01:30:59,440
A lot of them do turn around and they'll come back and they'll accept it or they may

1218
01:30:59,440 --> 01:31:07,120
reach out and do some minimal negotiations with the mediators proposal.

1219
01:31:07,120 --> 01:31:13,000
But I honestly haven't seen where you're doing a ton of negotiation when you're in this mediators

1220
01:31:13,000 --> 01:31:14,200
proposal phase.

1221
01:31:14,200 --> 01:31:20,000
So it's a really great strategy and a lot of cases if they don't settle the day, they

1222
01:31:20,000 --> 01:31:22,920
will settle through a mediators proposal.

1223
01:31:22,920 --> 01:31:29,160
If both parties accept the mediators proposal, you want to give them 48 hours to sign and

1224
01:31:29,160 --> 01:31:31,400
prepare a settlement agreement.

1225
01:31:31,400 --> 01:31:36,360
It's really important again, the timing because you don't want people to change their minds,

1226
01:31:36,360 --> 01:31:39,120
forget or anything of that nature.

1227
01:31:39,120 --> 01:31:42,960
You want to lock this settlement agreement as soon as possible.

1228
01:31:42,960 --> 01:31:47,680
So if they both accept the proposal, you want to give them 48 hours to sign the proposal

1229
01:31:47,680 --> 01:31:50,120
and then to prepare an agreement.

1230
01:31:50,120 --> 01:31:57,640
So worst case scenario, if the proposal is not accepted, then your next step is to follow

1231
01:31:57,640 --> 01:32:03,000
up with the parties, express to them that you're available to do a second session if

1232
01:32:03,000 --> 01:32:04,000
they're ready.

1233
01:32:04,000 --> 01:32:08,520
If you have additional information, for example, if it's a PI case and there needs to be an

1234
01:32:08,520 --> 01:32:14,360
IME done or something like that, you can basically say, I know there's other things that need

1235
01:32:14,360 --> 01:32:19,800
to be done before the parties are ready to discuss again, to negotiate.

1236
01:32:19,800 --> 01:32:22,920
I would be happy to do a second session when you're ready.

1237
01:32:22,920 --> 01:32:24,200
Just let me know.

1238
01:32:24,200 --> 01:32:27,320
Those types of conversations are really great to have.

1239
01:32:27,320 --> 01:32:32,160
So it's good not to be discouraged with yourself, but just try your best to follow up and send

1240
01:32:32,160 --> 01:32:37,920
a reminder for yourself to check in two to three weeks after mediation because things

1241
01:32:37,920 --> 01:32:43,640
do change and you just want to stay abreast and try to settle all your cases that you

1242
01:32:43,640 --> 01:32:46,520
mediate, even if it's not the day of mediation.

1243
01:32:46,520 --> 01:32:51,840
And this will help the dispute itself and also help your business as a mediator.

1244
01:32:51,840 --> 01:32:55,560
So the last thing, as I just mentioned, is keep in contact.

1245
01:32:55,560 --> 01:33:00,480
If they settle, great, keep in contact and let them know you're available if any other

1246
01:33:00,480 --> 01:33:03,000
disputes arise or for other matters.

1247
01:33:03,000 --> 01:33:08,080
And again, if it didn't settle, just think them for the opportunity and let them know

1248
01:33:08,080 --> 01:33:10,400
that you're available.

1249
01:33:10,400 --> 01:33:15,760
Also it's good to let people know that not every mediation will settle in the first

1250
01:33:15,760 --> 01:33:16,760
session.

1251
01:33:16,760 --> 01:33:17,880
That's very normal.

1252
01:33:17,880 --> 01:33:20,000
Some disputes take multiple sessions.

1253
01:33:20,000 --> 01:33:25,360
Try to also let them know for them as parties to not be discouraged as well and that you're

1254
01:33:25,360 --> 01:33:29,520
willing to give it another session if they would like to do so.

1255
01:33:29,520 --> 01:33:34,880
In a nutshell, all the things that we have gone over from beginning to end really in

1256
01:33:34,880 --> 01:33:39,480
regards to communication will truly impact the result of settlement.

1257
01:33:39,480 --> 01:33:46,480
I mentioned from the inquiring stage, understanding the clients, understanding the parties, understanding

1258
01:33:46,480 --> 01:33:51,440
the communication styles, cultural and diversity indicators.

1259
01:33:51,440 --> 01:33:57,200
That's going to be really important in your communication, also providing clear and concise

1260
01:33:57,200 --> 01:34:02,760
direction on what the parties should expect prior, during and after mediation will also

1261
01:34:02,760 --> 01:34:05,680
help you to get closer to settlement.

1262
01:34:05,680 --> 01:34:11,800
And as I mentioned earlier, requiring mediation briefs to be sent to you and also the option

1263
01:34:11,800 --> 01:34:18,320
of sharing them as well as an MOU will exponentially speed up the road's resolution.

1264
01:34:18,320 --> 01:34:23,120
I have seen this really do wonder, so I really recommend this.

1265
01:34:23,120 --> 01:34:28,880
And lastly, if a settlement agreement is not signed or executed during mediation, a mediators

1266
01:34:28,880 --> 01:34:31,080
proposal often does the trick.

1267
01:34:31,080 --> 01:34:33,600
So I would definitely recommend that.

1268
01:34:33,600 --> 01:34:39,680
And again, how you communicate if something doesn't settle is also going to be important.

1269
01:34:39,680 --> 01:34:41,440
Again, never show pessimism.

1270
01:34:41,440 --> 01:34:46,440
Always encourage the parties that there's still an opportunity to negotiate, to resolve

1271
01:34:46,440 --> 01:34:52,560
and to settle, and always reiterate that trial is probably not the best outcome.

1272
01:34:52,560 --> 01:34:55,440
You may be eligible for CLE credit in your state.

1273
01:34:55,440 --> 01:35:17,400
Visit bhba.org slash podcasts for more information.