On April 7-9 I attended the 18th Annual American Bar Association Section of Dispute Resolution Conference in New York. The conference offered approximately 80 sessions, which ran concurrently. There were about 650 registrants. Ten were Canadian.
This was a very rewarding and worthwhile conference because there are no conferences in Canada offering such an in-depth and concentrated focus on ADR.
It is my pleasure to report on the following sessions:
1. Dr. Johnston Barkat, Assistant Secretary General heading the United Nations Ombudsman and Mediation Services, presented the April 7 plenary session. He proved through several examples how mediation skills have been very effective in working at the UN.
2. Reflective Practice: Radiate Excellence and Stand Out in the Crowd presented by Anna Rappaport, Excelleration, LLC (Annandale, VA) and Nicola Hartfield, Hartfield Dispute Resolution Napier, Hawkes Bay, New Zealand.
Nicola Hartfield suggested that to be an effective mediator, one should reflect on one’s honesty, openness, humility, vulnerability, quietness and trust. Keeping in mind that all mediators are human, Peter Adler’s text, In Bringing Peace into the Room, was recommended.
This session provided useful information to help the mediator become more effective in “righting the ship” when the mediation goes off-track. For example, when anger occurs during mediation, we are reminded that anger can cause distorted, unrealistic confidence in the correctness of a decision resolving a matter. Applying the principle “the quieter we are the more we will hear” can focus the mediator when dealing with an angry participant at the mediation.
3. New Developments in Transforming Litigation Techniques into Successful Mediations and Other ADR Practices. Antoinette R. Raheem has prepared the following Checklist for Pre-mediation Preparation, which I am using with her permission:
Know your client
- Make sure you understand your client’s needs and interests, not just their positions, and that you discuss the other party’s likely interests with your client in advance.
- Prioritize your client’s goals with them – what is essential? Important? Desired? Likewise make intelligent estimations of the other side’s goals and priorities.
Educate your client about the mediation process
- Explain the purpose of mediation, i.e., that it is a time for all parties and attorneys to work together to explore ways to meet all parties’ interests.
- Explain the mediation logistics: Tell your client as much as you know about where the mediation will be, how it will likely work and how long it may take. In short, eliminate the fear of the unknown so that your client will be more comfortable with the mediation.
- Explain your role in mediation: Help your client to understand that in mediation, your role as an attorney will change. You are involved as an advisor and advocate, but not an adversary. Advise the client that you are there to work with the other side to seek a mutually beneficial resolution, so they do not take your collaboration as selling out.
- Explain the benefits of mediation, that this is the clients’ chance to decide – thus control – their own future; that it can save the time, money and stress; that it most often results in win-win; that it is confidential and allows for creativity and flexibility. A client who understands the benefits of the mediation process is much more likely to take advantage of all the process can do for them.
Help your client prepare for his/her role
- Get your client emotionally ready to mediate, i.e., help them think conflict resolution, not conflict exacerbation or conflict avoidance.
- Decide if your client wants (or needs) to make an opening statement and if so, help your client to make an honest and appealing one. This is not the time to dictate to your client what to say, but a time to help them simply find their own voice in a way that is best geared toward resolution of the issues.
- Discuss all pertinent information and realities with your client. It is very likely that the mediation will bring to light the weaknesses in your case. You do not want your client to question why she or he is hearing about weaknesses for the first time from a strangers.
- Explain the rules of good communication in mediation, i.e., all should use considerate and respectful communications, listening to find common ground for resolution, not to find holes to punch in the other side’s argument.
- Make sure your client devotes sufficient time for the mediation. There is nothing worse than being close to an agreement then losing it because someone has to leave.
- Make sure your client comes to mediation with an open, creative and flexible mind. Help them to begin now to think of options that may be used to forge a win-win.
Olga Lucia Fuentes Skinner, Special Counsel, New York
Some states have mandatory mediation with sanctions for bargaining in bad faith. Bad-faith sanctions have not been that effective as bad-faith negotiations are difficult to prove, especially when mediations are always confidential.
Some law schools are teaching students a skill set in developing a negotiation plan and teaching students how to identify the interests of all sides in a mediation.
4. First Demands and First Officers: Striving for a Solid Start – presented by Lee Jacobson, Jacobson Hansen and McQuillan, Attorneys at Law, APC, Fresno, CA; Elaine Gordon, Gordon ADR, Westbrook, CT; Jan Schau, Schau Mediation, Los Angeles, CA; Eugene Muscovitch, Judicate West, Los Angeles, CA.
Tips for lawyers:
- Clients are a key part of the negotiation plan
- Clients need to vent
- Avoid making ludicrous low or high offers
- Be proactive at the outset when making the first offer. Any offer, which is explained, helps the discussion.
- Don’t wait too long in making reasonable offers, otherwise parties start to become entrenched.
Tips for mediators
- Encourage empathetic listening
- Never embarrass a lawyer or a party
- Try to manage expectations of the parties, i.e., bottom-line numbers won’t work so both parties need to consider going past respective watersheds.
5. Don’t Name the Cow – An Antidote for the Biases of Advocates in Mediation – presented by Elayne Greenburg, St. John’s University School of Law, Queens, NY; C. Edward Dobbs, Parker, Hudson, Rainer and Dobbs, LLP, Atlanta, GA.
How mediators can effectively deal with the overly optimistic and confident advocate:
- Be transparent
- Slow down the pace of the mediation
- Explain how new information can change strategy
- Suggest the value of considering the retention of an expert
- Suggest a consultation with a senior advocate in the relevant area of the law
- Ask the advocate
- To consider the other side’s perspective
- How he/she might be wrong with his/her theory or approach
- What he/she might have done differently while moving forward
- Have a caucus with the advocate and client to share a dose of reality about how business is constantly evolving, culture is dynamic, victories are never 100 per cent and discuss financial costs.
6. The Science of Making Better Decisions
The second plenary session was held on April 8. The speaker was Francesca Gino of Harvard Business School. Many in the audience were interested in the concept of self-awareness of an inflated self and the challenges it brings in decision-making. Just by being aware of the signs of an inflated self can keep one from falling off the track.
When parties are faced with making a decision, encourage them to answer the question: What could I do in such a situation, rather than what should I do? The former question is better because it allows a consideration of all options that are less likely to be biased and more likely to result in a better solution.
Mediators are encouraged to have parties apply principal and systematic thinking and develop a plan of action which provides and counteracts forces which can sidetrack the decision-making process. Help the parties move away from infectious emotions such as anger and anxiety that can cause them to be derailed. In other words, encourage the parties to be architects of their decisions.
Transparency of mediators is encouraged. People generally feel good when getting information that they are not expecting. In other words, when you make yourself vulnerable, you become more trustworthy.
7. Elder and Adult Family Mediation Opportunities and Challenges – presented by Crystal Thorpe, Elder Decisions, a division of Agreement Resources, LLC, Norwod, MA
With an aging population, this area of mediation is growing. Issues such as housing, medical treatment, long-term care, financial planning, trusts and estates, grandparents’ visitation rights are some of the factors facing this section of the population. Role reversals often occur where children take on the parental role and parents take on the children’s role. This can be further challenging for the mediator as the number of blended families grows.
Before conducting an elder-and-adult-family mediation, it is recommended that mediators consult with geriatric managers and caregivers who deal with issues of aging.
Pre-mediation meetings with all individuals connected with the elder are necessary in determining whom best to attend and cover the cost of the mediation.
Consensus-building is important. Rather than categorizing proposals with a yest or no answer, use a ranking scale A (being supportive) to F (totally unacceptable). For those not willing to accept a proposal, invite the naysayer to come up with a better proposal. Recommended reading: Breaking Robert’s Rules by Lawrence E. Susskind and Jeffrey L. Cruikshank.
8. Developing Cultural Competence in Mediation – presented by Stephane Stobbe, Menno Simons College at University of Winnipeg, Winnipeg; Anupama Ahluwalia, Delhi
Tips:
- Understand the culture and work experiences prior to the mediation and avoid stereotyping
- Do research into a specific culture
- Michele Riley suggests the following questions to consider when researching a culture:
- Are parties from these cultures oriented toward hierarchical or an egalitarian power?
- Are the parties from these cultures comfortable with uncertainty? Some Asian cultures are not tolerant of uncertainty. They prefer more information to assist in their decision process
- Do the parties operate in a high- or low-context environment?
- Are the parties of these cultures mono chronic or poly chronic holistic?
- Are the parties from these cultures traditional or secular?
- Show respect to each culture and disregard your own culture, leaving your own culture outside the mediation door
- Focus on non-verbal cues such as body language
- Use caucusing to educate the parties regarding their differences
- Figure out what it is that is most important to each party.
9. The Art and Science of Mediation and Decision-Making
There was a brief overview of the function of the different parts of the brain.
Mediators:
- Be mindful that there is always tension between emotion and the decision-making process. The more the parties are aware of their biases, the better they can control them.
- Focus on relationship-building and direct communication between the parties. By doing so, a critical component of establishing a cooperative negotiation environment is formed.
Michael McHugh, Q.C., is a mediator based in Victoria.