For any mediator or practitioner, whether novice or seasoned, I would recommend reading Getting to Yes: Negotiating Agreement Without Giving In (Second Ed.), by Roger Fisher, William L. Ury and Bruce Patton.  I was first introduced to this book while taking a negotiation course in law school.  This book presents a step-by-step guide on the art of negotiation and how to get to a win-win solution for all parties involved; a skill and tool that is useful in daily activities, the boardroom, around the conference table and in the courtroom.  It is very readable and practical.  While Getting to Yes is likely an obvious choice-read for practitioners, the principles outlined are key for the mediator as well.  Knowing how to guide parties from adversarial to problem-solving is pertinent to every mediation.  The Getting to Yes method approaches any dispute or problem by encouraging parties to forego bargaining over positions to produce a wise agreement (if possible), an efficient negotiation and an improved (or at least not a damaged) relationship between the parties.  The method includes the following guiding principles:

  • Separating the people from the problem;
  • Focusing on interests, not positions;
  • Inventing options for mutual gain; and
  • Insisting on using objective criteria.

Truly a must read.

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Mediator Tip #1

Be clear to communicate your method or approach to the parties (whether it be one method or a combination of methods and approaches) before the mediation begins, encourage the parties to agree on the approach and understand what methods work best for specialized issues, matters and areas.  It may be helpful to include options for the parties’ choice of a method on your initial forms and/or to request the parties’ choice in their mediation statements.  Also be prepared to re-evaluate the chosen method with the parties given any changed dynamics during the mediation process.  See also Evaluative, Facilitative, Transformative, Narrative and Bankruptcy, Oh My! (posted 10/9/12).

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Mediator Tip #2

Attention all mediators.  Although our job is to stay neutral, our previous experiences may sometimes cloud that neutrality.  Prior experiences have their place in assisting mediators with background knowledge and understanding of the case at hand.  Our backgrounds also lend themselves to the process.  Moreover, it may be helpful in some situations to understand the substantive area of law to guide the parties to their agreed upon settlement terms.  For example, knowledge of the Chapter 11 process is important, especially in the initial phases of a case where parties are typically seeking to set the parameters for use of cash collateral, establish terms for key vendors and settle contractual disputes.  A mediator, however, must cautiously toe the line between informing and facilitating the process and setting forth a legal position.  Here is a great checklist for remaining neutral and what mediators should avoid:

1. Strong arming the parties into not leaving when they want to or when they want to
suspend the mediation to consult others;
2. Strong arming the parties into not leaving when they are feeling indisposed;
3. Strong arming the parties into working late into the night;
4. Strong arming the parties into writing an agreement on the spot;
5. The mediator writing the settlement agreement draft;
6. The mediator talking about the cost of litigation;
7. Mediator discussions/warnings/threats about additional legal action that would
result;
8. Mediator discussions of other consequences of failure to settle;
9. Mediator evaluations and discussions of likelihood of success in the dispute; and
10. Mediator giving legal advice.

Source:

The foregoing checklist is excerpted from Edna Sussman, User Preferences and Mediator Practices: Can They Be Reconciled Within the Parameters Set by Ethical Considerations, http://sussmanadr.com/docs/Mediation_preferences_112208.pdf.

 

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Mediator Tip #3

Don’t give up on a case too early.

If the parties have not reached an agreement, stick with them after the mediation session ends.  Offer to follow-up and seek updates from the parties regarding any new information discovered and exchanged, and any changes in the parties’ positions.  Follow-up on prior matters you have mediated at least one hour every day.  This could lead to a secondary mediation.

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