Role Play To Prepare for Your Next Mediation

(This is the ninth is a series of posts on preparing for mediation.)

I’m going to come right out and say it. Consider role play prior to your next mediation.

Right away, I know I’m losing some of you. You’re thinking I have gone too far. For reasons unclear to me, lawyers are uncomfortable with role plays. (It wasn’t until I began taking mediation training that I saw their value.) I’m not talking about practicing an argument. I’m talking about an interactive process where you play one role and a colleague plays another. Stick with me for a moment. Role plays are recommended by noted negotiation experts Fisher and Shapiro in Beyond Reason, and Babcock and Laschever, in Ask For It.

As lawyers, we prepare for oral argument of motions, opening statements and closing arguments by practicing out loud. (Our dogs have gotten used to my perorations. I like practicing in front of them; there’s nothing like positive feedback! Of course, I sprinkle my remarks, with “Go,” “Car,” and “Treat.”) If we’re secure enough in our grasp of the material and speaking ability, we might even ask colleagues to listen and comment upon our ideas and persuasiveness. We do this routinely for trial. With better than 98% of cases NOT going to trial, maybe we should think about preparing for mediation in the same way.

For your next mediation, grab a colleague or two and ask them to play the part of opposing counsel. Fill them in on the facts and then practice your arguments. Seek feedback on what worked and what didn’t. Then, and this is crucial: ask them to give you the other side’s best arguments. Actively listen to them first, without judging or forming counter arguments in your head. Too many of us, when negotiating, think that the other side’s problem is their problem. Not so, say negotiation geniuses Deepak Malhotra and Max H. Bazerman in Negotiation Genius. The other side’s problem is YOUR problem, because it keeps you from settling the case. If you listen for the other side’s problems, you can think of creative ways to solve them. Your colleague can be helpful in brainstorming alternatives. If you walk into the mediation armed with ways to solve the other side’s problems, you are well on your way to resolving the case.

If this has converted your thinking about role plays, live dangerously and take the next step. If you really want to understand how the other side thinks, take on their role and ask your colleague to take yours. Try on their view, as Fisher and Ury suggest in Getting To Yes. If you begin to get their rationale and the emotions behind them, you can more effectively brainstorm the steps to resolution.

Having said all of this, don’t forget that one of the strategies you can use to your best advantage during mediation is listening. (See here and here for prior posts on listening.) Using the techniques of empathetic listening can have an enormous effect on the other side: having felt heard and respected, they are more likely to listen (and be persuaded) by you.

Q & A With Southern California Mediator Victoria Pynchon

I am pleased to publish an interview with commercial mediator Victoria Pynchon. Vickie mediates in Southern California through Settle It Now Dispute Resolution Services and Judicate West. Her blog: Settle It Now Negotiation Blog is widely read by lawyers, judges, CEO's and fellow mediators. If her blog is not in your reader, subscribe now!

We've been talking here about conceiving of and preparing visual aids to use at the mediation. Vickie had a great blog post earlier this year about the use of visual aids in mediations, so of course I turned to her for her advice.

Q: Why bother making visual aids for mediation?

A: At least half of the mediation process is about persuasion – that your narrative of the facts is more cohesive and convincing than the other side's view; your legal arguments have greater "punch"; and your client is more sympathetic than your opponent's. You aren't trying to persuade the mediator (though influencing the mediator is important). You're trying to persuade the other party who has been hearing its own narrative read back to it by its attorney for months, years, sometimes decades. The type of visual aid necessary to unsettle the other side; to make it question its world-view; to depress its expectation of victory, is one that by-passes the mind and goes straight to the emotions. There's a lot written about this by jury consultants. I'd advise anyone litigating a case worth in excess of half a million dollars to consult with those sources before the mediation and to prepare visual aids in conformance with that advice. And subscribe to trial attorney and jury consultant Anne Reed’s excellent jury blog Deliberations.

Why use visual aids to persuade at a mediation? Because it's one of the very few opportunities you have to actually reach the party (not the attorney) on the other side.

For the other half of the mediation process -- locating and leveraging your opponent's interests in an attempt to address them with imaginative settlement proposals -- visual aids are not going to be very helpful.

Q: If lawyers use visual aids at a mediation, aren’t they giving away an argument they could surprise the other side with at trial?

A: There are two answers to this. The first one is obvious. You have a 5 to 10% chance of going to trial and a 90-95% chance of settling. I don't believe in saving anything for trial because I don't think I'll get there. The second answer is not so obvious. You don't need to save anything because if you spend it all today, you'll be blown away by what you pick up tomorrow. I learned this as a writer. When I began writing creatively again, I hoarded my precious prose, fearing that I'd never write anything that good again. What I found is that spending 100% of my prose got rid of a lot of . . . well . . . #$%@ . . . . and what I created the day after existed at a higher, more sophisticated level than anything that had come before. The same is true of legal practice. It's not, after all, the bare "facts" that determine whether you will win or lose, but what you make of those facts – how you “write” a persuasive narrative that is important. Don't save anything. Ever.

Q: What if a lawyer wants a caucus-only mediation; how will visual aids assist in that process?

A: As a mediator in full-time practice for four years, I tell attorneys that I need visual aids even if the other side doesn’t see them. I settled one case when plaintiff's attorney drew a simple pie chart for me that illuminated everything suddenly. “Have you shown it to the other side?” I asked. "I just made it up right now," he said (cf. save nothing; you'll make up something better later). "May I show it to the other side?" "Yes of course." It settled the case. We mediators do carry arguments, points of view, opinions, etc to the other side. Your opponent really doesn't want to be surprised at trial any more than you do. Give one another the opportunity to know everything so that no one has to hang their head in shame on day 2 of the jury trial, remembering that even if you’re the one who seems to be winning, there’s always the appeal, the re-trial, the re-appeal and the effort to collect the judgment. Breathe in, you win, breathe out, you lose, breathe in . . . out . . . in . . . out.

Q: Should lawyers incorporate color photographs or graphics in their mediation briefs?

A: Color? Only when it's useful in illustrating a point. I made color-coded charts of insurance coverage layers when I was handling environmental coverage disputes. I took those charts to every oral argument so that the Judge spent the entire hearing looking at my view of the world. I'm convinced to this day that those charts won me the case on summary judgment. I color-coded the charts because it was the most vivid way to illustrate the points I had to make. I understand from jury consultants that you can also influence people with color – this is a Madison Avenue truism but that’s going a little too far unless you’re litigating something worth a few hundred million dollars.

Here’s the bottom line. I need you to help me help you. As a mediator, I've got a few hours to understand a case you've been working on for years. Give me charts, graphs, time-lines, party-relationships, difficulties with your clients, color, drama, surprises, action – anything that will help me get your case so I can help the other side weigh the likelihood of failure. After I get it, I become very useful in helping to create creative impasse-breakers. If I'm still trying to get it by hour three, there’s something wrong and usually I will ask you at that point – “I’m not serving you in the way you want to be served; please help me figure out how I can be of better use to you.” And if your mediator doesn’t ask you that question, be sure to tell the mediator right then and there that he/she isn’t getting it.

You can read Vickie's post on visual aids at mediation here.

Three Months and Counting...!

I’m taking international graphic artist David Airey’s advice and celebrating the small moments. (Veteran mediator and blogger Tammy Lenski of Mediator Tech and Conflict Zen put me in touch with David. You can see some of his artwork here.)

Three months and countless cups of tea later, Civil Negotiation and Mediation is up and running. Many thanks to my new friends in the blogosphere for your warm welcome. Thanks, too, to all of my commenters for stopping by and joining the conversation.

Visual Aids: Show, Don't Tell

(This is the eighth in a series of posts about preparing for mediation.)

A war story.

Years ago I tried a case in which I represented a lawyer being sued for malpractice. It was complicated because it was a case within a case within a case. The original underlying case was a legal malpractice case against the plaintiff’s divorce lawyer because she was unhappy with the result of the divorce. It involved the breaking up and distribution of assets from subchapter S corporations, etc. In the subsequent underlying case, my client had represented the plaintiff in a legal malpractice case against her divorce lawyers. He had prepared the case up to trial, and then the plaintiff became disenchanted with his services and switched counsel on the eve of trial. Her new counsel tried the case and the plaintiff was unhappy with that result. The case was messy and complex.

Because the two underlying cases had been prepared for trial and/or tried, both cases had tons of documents, depositions, forensic financial reports, etc. The second case had trial transcripts. Then, in the case I tried, there was another layer of discovery and more depositions and expert reports.

While preparing for plaintiff’s expert’s cross-examination, I noticed that he had only billed 20 hours for review of the file. By contrast, our expert had spent more than three times as much time. I decided to show, not tell, the jury what this looked like. I put all the depositions, trial transcripts, documents and expert reports in banker’s boxes and brought them to court.

During cross at trial, I pulled out each deposition, document, etc., and asked the plaintiff’s expert if he had reviewed it in preparing for his testimony. It was one of those questions where I couldn’t lose. If he said yes, it would be clear by the time I got to the end that he was being untruthful, because he had only spent 20 hours and there were mountains of documents. If he said no, the jury would see that he had not reviewed all of the evidence in the case and therefore his opinion would not be trustworthy.

Here’s the best part. After I asked him about each item, I placed it on the floor in front of the witness box, in two piles: reviewed and un-reviewed. This courtroom had a narrow well, so there was not much room between counsel table and witness box. By the time I picked up the third banker’s box to cross examine him about, the judge stood up and leaned over the bench so he could see how large the piles were! (If that doesn’t give you a rush as a trial lawyer, you should seek other employment.) Here’s the jury seeing the judge following my cross-examination so closely that he’s curious enough to stand up to see the size of the piles so he could judge the credibility of the witness.

I could have just asked a summary question about what the plaintiff’s expert had reviewed. Instead, I made my point graphically and the jury got it.
So here’s my question. If more than 98% of all cases do not go to trial, why don’t lawyers spend more time thinking strategically about showing, not telling, at mediation?

For your next mediation, consider using foam boards, power point slides or video graphics for the joint session. Also consider bringing “distributables,” items that you can hand out to the other side and the mediator. Visual aids can illustrate your arguments or enhance your negotiation strategy. Sometimes they can tell a story better than you can.

Zone of Possible Agreement

(This is the seventh in a series of posts on preparing for mediation.)

Business school professors seem to have coined the term “Zone of Possible Agreement” or “ZOPA” to mean the intersection of the ranges within which each side believes a settlement is possible.

In practice, this is commonly called “the ballpark” as in, “Are we even in the same ballpark?”

And also, “the zip code” as in, “Are we living in the same zip code?”

Whatever you call it, figuring out where it is prior to mediation can help you plan your negotiation strategy.

You’ve already decided on your BATNA. This should lead you to develop a reservation value, or your bottom line, the point at which you will walk away from the table.

Next, suss out what the other side’s BATNA is. Try to be objective about this. Put yourself in their shoes. What are their upsides and downsides to settling? Where do you predict they are coming from? This requires investigation into their client’s underlying needs and interests, the other lawyers’ underlying needs and interests, prior settlements, the possibility that the settlement will affect current or future similar cases, industry settlement ranges, a review of settlements in similar cases, the strengths and weaknesses of their case, etc.

From their BATNA, you can estimate their reservation value, the point at which they will walk away from the table.

When you’ve evaluated your reservation value and their reservation value, you can make an educated guess about the expected ZOPA. Let’s say you represent the plaintiff and you’ve evaluated your case such that the amount of money you are willing to leave on the table is $300,000. If you’ve evaluated the defendants’ reservation value at $400,000, you can devise a strategy to claim as much of the intersecting $100,000 as possible. If you haven’t thought about their reservation value, you might not expect the ZOPA to be as large and you could leave money unclaimed.

Q & A on Empathetic Listening with Mediator Dana Curtis

It is with great pleasure that I present part of an interview I had with master mediator Dana Curtis. Dana is known nationwide as a skillful and empathetic mediator. She practices in the San Francisco Bay Area. To complement my earlier post about listening to clients (here), I asked Dana about empathy.

Q: What is empathetic listening and why is it an important part of attorney-client communications?

A: The way I think about it, empathy is the demonstration of what we understand another’s experience to be – both the situation she is experiencing and her response to it, what she feels as a result and what the situation means to her. Empathy involves our effort to understand and our effort to communicate what we understand.

Empathy helps us to realize, in the moment, when we are misunderstanding another and gives us the opportunity to come to understanding, so we are working with accurate information and not operating under faulty assumptions.

Q: What is a technique that you use to make sure that you are truly hearing someone?

A: I begin with a mindset of intense curiosity - especially if I think, “I’ve heard this before” - and a conscious intention to understand the person I am about to listen to. I find that articulating my intention to myself helps me focus. I then have the support of the “walking stick” of my intention if my attention begins to “wobble.” When I find myself forming negative judgments, jumping to solutions or thinking about irrelevant details instead of listening, my intention can bring me back to the present moment and the task of trying to understand the other person.

Q: Does the relentless search for the facts make it more difficult for lawyers to ask questions about emotion and intention?

A: In my experience, lawyers are more comfortable in the realm of facts and less comfortable dealing with emotions, especially in high conflict cases. They see emotions as obstacles to settling a case, rather than as containing important information about what matters to their clients or the other parties. Unfortunately, in avoiding conversations with their clients that incorporate the clients’ emotions, they may fail to understand their clients’ needs and interests and they may miss the opportunity to coach their clients about how to bring emotions into the mediation in a skillful way.

Q: Have you elicited information from clients at mediation only to discover that their lawyers had never heard that information before?

A: Yes, more than a few times lawyers have been surprised by clients’ responses to my questions. In most of those instances, the clients likely would have brought this information forward in a pre-mediation session with their lawyers, had the lawyers taken the time and focused on the clients in the same way we have done at the mediation. Lawyers will have interviewed their clients about factual information, but they may not have interviewed and counseled their clients about needs, interests or concerns.

Mediation presents the opportunity to take time out from the adversarial process to talk about anything that matters to clients – their needs, aspirations, concerns and their feelings about the dispute or the other party. Any mediator worth her salt will be interested in learning more about how the parties are looking at the situation and be skillful at asking questions and then listening to the answers.

Welcome to the Blogosphere, John Lassey!

Here's a cyber toast to John Lassey, a Manchester, New Hampshire lawyer and mediator, who has launched "Mediation Stuff," a blog on civil litigation mediation. John is a partner at Wadleigh, Starr & Peters.

I've enjoyed John's posts to date and I've added his blog to my RSS reader. Looks like we'll be writing about similar interests, so if you're kind enough to be reading me, you'll want to check out John, too.

I discovered John's blog through the incomparable Diane Levin's World Directory of ADR Blogs. Thanks, Diane, for the wonderful service you provide.

Of BATNA's and WATNA's

(This is the sixth in a series of posts on preparing for mediation.)

Fisher and Ury, both Harvard Law School professors, broke new ground in 1981 when they published Getting to Yes. They also added two new words to the negotiation lexicon: BATNA (Best Alternative to a Negotiated Agreement) and WATNA (Worst Alternative to a Negotiated Agreement). Preparing for mediation in a systematic way includes evaluating both of these alternatives. As a lawyer preparing for mediation, trial has sometimes been my BATNA and sometimes my WATNA! (Hence, the picture above; not to mention that bats and wats seemed contrived alternatives.)

When you are evaluating your case for mediation, think about what will happen if the case does not settle at the mediation. What’s your best alternative to settlement? It might be trial (e.g., if your client is standing on principle), but it might also be a narrowing of issues, an agreement for a limited amount of discovery before returning to the negotiating table, or the hearing on a summary judgment motion.

What about your WATNA? It might be trial (e.g., if your case is a dog), but it might also be your clients’ loss of a relationship with the other side, a further waste of economic or psychological resources, or the hearing on a summary judgment motion.

If you are rigorous in your analysis, you will be a more savvy negotiator, because you will have identified ahead of time, not in the heat of battle, what your best and worst alternatives are to not settling.

Match the Mediator to the Case

Cases are different. Mediators are different.
It makes sense, then, to match the mediator to the case.

The three styles of mediation used most often in civil litigation mediation are directive, evaluative and facilitative. As a mediator, I have employed all three styles, sometimes in the same mediation! I personally prefer facilitative, as it’s been my experience that clients tend to feel the case has been fully resolved using this approach. More often than not, my approach is eclectic, shifting in emphasis as I come to understand the needs of the parties.

In the directive style, mediators are likely to tell you, the lawyer, what to do. Here’s an extreme example. A colleague reported his experience at a mediation in which he never personally proposed even one settlement offer! The mediator, whose style was to caucus the entire time with no joint session, shuttled back and forth between the sides. Every time he entered my colleague’s room, he would say, “OK, they’re at ‘x,’ you want to offer ‘y’.” My colleague acquiesced. This went on for several rounds over several hours. The case settled and my colleague seemed satisfied, but had I been the lawyer in that mediation, I would have felt like Brendan Sullivan at the Congressional hearing on Iran Contra. (“What am I, a potted plant? I'm here as a lawyer. That's my job.”)

In the evaluative style, mediators evaluate the case and put verdict and settlement values on it. Some will tell you the value. Some will opine on the percentage chances that the jury will decide for or against your client. They might also evaluate the success or failure of potential evidentiary issues which could arise at trial, as well as comment on the strengths and weaknesses of expert and lay witnesses.

In the facilitative style, mediators bring the clients into the process. (Lest we forget, it is their conflict.) The mediators will elicit or clarify your clients’ underlying needs and interests so that you and your clients can examine them and attempt to meet them. In mediations where an ongoing relationship is important to your clients, this approach is the most likely to result in true resolution. Because facilitative mediators welcome client participation, your clients will be more likely to “buy in” to the process and “own” the resolution, which in and of itself increases client satisfaction.

This is where understanding your clients and their needs and interests is helpful. Giving thought to the other side’s clients’ needs and interests is just as important. Would your clients, or the other side’s clients, be more likely to settle if they are told what to do (directive), or if they feel they have been part of the process and the solution (facilitative)? Do your clients need a reality check (evaluative)?

Provide your clients with your expertise. Recommend matching the mediator to the case

Preparing for Mediation -4: Drafting the Brief

In order to draft the mediation brief, you will necessarily:

1. Review the facts and the law
2. Gather the pertinent documents, and
3. Calculate damages.

I know the above sounds perfunctory, but I am chagrined to relate that as a mediator, I have conducted too many mediations where one side or the other didn’t have command of the facts or hadn’t researched the law adequately or had merely estimated damages. (Naturally this disappoints me as a lawyer. It makes us look bad.) As one of my commenters noted recently, lawyers wouldn’t think to go to trial unprepared. When 98% of your cases settle, it makes sense to come to mediation prepared.

In a case involving compensatory damages, review the actual bills themselves for expenses incurred as a result of the breach of contract, tort, etc., prior to the mediation. Plaintiffs’ attorneys would be wise to provide copies of all bills prior to the mediation, so that the defense has time to analyze them and request enough authority to settle the case. Defense attorneys would be wise to have done their own review so that the amount (or range) of compensatory damages can be agreed upon.

The brief should set forth, at a minimum, the parties and their counsel, the factual background, the applicable law, prior settlement negotiations (if any), perceived impediments to settlement, your client’s settlement posture, and relevant discovery deadlines, hearing dates and trial date. Attach pertinent documents to assist the mediator in understanding the case.

Consider that opposing counsel may send a copy of your mediation brief to his client. This creates an opportunity for you to speak directly to the other party. Take advantage of it! You wouldn’t talk to a jury in legalese. Tamp down the legalese and opt for a more conversational tone. Attach documents that you want the other party to actually see.

There are several schools of thought as to whether or not mediation briefs should be confidential. Check with your mediator. I prefer that briefs not be confidential, but if a party is convinced that it needs to convey information to me prior to the mediation that it does not wish the other side to see, I recommend a non-confidential brief with a short supplemental confidential addendum.

Congratulations to Harvard Law School Negotiators!

Last week a team of three Harvard Law School students won first place in an international negotiation contest in Leipzig, Germany. The Negotiation Challenge is an arduous competition of 5 role play negotiations over the course of two days. Congratulations to René Pfromm, Jessica Price and Stefan Neata! Articles about the team are here and here.

Preparing for Mediation -3: Listening to Your Clients

We, as lawyers, tend to be better at message delivery than we are at listening.

Let me make a clear distinction between hearing and listening. Hearing is automatic. Listening requires effort.

Ken Cloke made the distinction recently between “listening at” and “listening with.” If you listen “with” your clients, that is, be fully present (thus the photo) when they speak, you’re more apt to discover what is important to them. (I realize the “present” photo is a little cheesy, but my other choice was an ear, which could connote hearing instead of listening, and then the whole point would be lost.) I think the key to listening is being present.

The ABA suggests that we ask our clients: What is really important to you about this case and why? As a lawyer, I’ve made a lot of assumptions about what my clients have wanted. If I had adopted a more curious attitude and asked more open-ended questions, as opposed to thinking I got it without checking with them to make sure I got it, I likely would have discovered there was more to the case, in my client’s view, than the monetary value.

Here are some suggestions for empathetic listening:

• Suspend your own thoughts and feelings
• Give your full attention and be present
• Don’t judge
• Check to make sure you understand

The California State Bar issued Guidelines on Civility and Professionalism last summer. (I posted about them here.) One of the guidelines for dispute resolution is:

“An attorney should consider whether alternative dispute resolution would adequately serve a client’s interest and dispose of the controversy expeditiously and economically.”

The point is that the case is the clients’. If you listen carefully and ask open-ended questions, you may find that what they want is not what you assumed they wanted. And it is likely that at mediation you will serve your clients better, because you will work to create value to address all of their concerns and interests.

Bloggers in Seattle

It was great to see so many bloggers and would-be bloggers at the ABA Dispute Resolution conference in Seattle! I had pre-conference aspirations of live blogging my way through the conference, but there was too much to do, see, and hear, and too many people to meet and greet. So here are more notes from Seattle from the transom.

I met Rich Webb, a mediator-lawyer in New Jersey, who blogs at Healthcare Neutral ADR Blog. Up ‘til now, we’ve had only e-conversations. Rich is fun to talk with in person! We had a chance to compare notes about the joys and challenges of blogging.

I spent some time talking with Vickie Pynchon, a mediator-lawyer in Southern California, who blogs at Settle It Now Negotiation Blog. Vickie is always inspiring!

Linda Babcock, one of the plenary speakers, is a negotiation professor at Carnegie-Mellon University. She has just launched a blog in connection with her new book, Ask For It. The blog is called Ask For It: Linda’s Blog.

All of these blogs have thoughtful, useful content.

I also spoke with a few mediators who were interested in blogging. I will maintain their anonymity until their blogs are up and running.

Notes from Seattle

Kudos to Ruth Glick, Nancy Highness and Nancy Nelson, the program co-chairs of the ABA Section on Dispute Resolution's annual conference, for the marvelous program they put on in Seattle. There were just too many interesting seminars. Choosing which to attend proved difficult. I'm sure I'll be writing posts on this conference over the next few weeks as I digest all I learned.

Many of the presenters have published books or have books about to come out.
Here's a short list:

Ken Cloke, (to be published this Spring)
Conflict Revolution - Mediating Evil, War, Injustice and Terrorism: How Mediators Can Save the Planet

Rene-Marc Mangin,
Minds in Motion

J. Anderson Little,
Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes

Daniel Bowling and David Hoffman,
Bringing Peace Into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution

Linda C. Babcock and Sara Laschever,
Ask for It: How Women Can Use the Power of Negotiation to Get What They Really Want

Congratulations to Quinnipiac University School of Law's Mediation Team!

The mediation team of Bradley Hoffman and Adam Rightmer from Quinnipiac University School of Law scored first place in the American Bar Association’s Section on Dispute Resolution’s 2008 Representation in Mediation Competition. The winning team was announced today at the Dispute Resolution Section’s award luncheon during its annual conference. Ohio State Law School’s team of Amy Tulk and Tom Oakley was the runner-up.

Ninety-five teams from 49 law schools entered the competition. Ten teams were invited to compete at the National Competition over two days in Seattle. They were:

1. Arizona State University, Sandra Day O'Connor College of Law
2. American University, Washington College of Law
3. North Carolina Central University School of Law
4. Loyola University-New Orleans College of Law
5. Hamline University School of Law
6. Quinnipiac University School of Law
7. Stetson University College of Law
8. University of California-Berkeley, School of Law-Boalt Hall
9. Yeshiva University, Benjamin N. Cardozo School of Law
10.The Ohio State University, Moritz College of Law

Brad Hoffman, a second year student, was attracted to Quinnipiac because it offers a concentration in ADR. Law Professor Jennifer G. Brown was also a draw because of her nationally recognized work in the ADR field and as the Director of Quinnipiac's Center on Dispute Resolution. Brad graduated from the University of Texas and, among other pursuits, taught English in Prague and Japan before law school. He plans to work as a conflict resolution professional upon graduation from law school.

Adam Rightmer is also a second year student. He graduated with a B.S. in Biology from Fordham University. He worked for several years before attending Quinnipiac. He currently is a law clerk at Cella, Flanagan & Weber, P.C., in North Haven, CT. Adam is considering multiple career options, including environmental law.

Congratulations to Adam and Brad, Quinnipiac, Ohio State and all of the mediation teams!

Some of my colleagues volunteered to be judges for the competition. We “older” lawyers have a lot to learn from the point system used to score the teams. It included points for teamwork, problem solving, relationship building, information gathering and generating creative options.

Additional points were given for:

--encouraging clients to speak during the mediation
--establishing a problem-solving relationship with the other side, if possible
--recognizing the other side’s interests and trying to satisfy them when possible, given their client’s interests
--taking initiative to convert the other team into problem-solvers
--generating a range of legal and non-legal options to meet client’s interests, as well as interests of other side
--evaluating and selecting options based on interests as well as objective criteria
--actively encouraging development of creative ideas.

I’m delighted to see that law schools are teaching these skills to students and the ABA is rewarding their use.

Wheels Up

I’m en route to Seattle for the ABA Section on Dispute Resolution’s Annual Conference. We have some great presenters this year! I will be interrupting my preparing-for-mediation series to bring you some of the highlights of the conference.

Pre-Mediation Checklist

Here’s a pre-mediation checklist. This checklist is based on the premise that since you know that more than 98% of cases do NOT go to trial, you’ll set aside the time to maximize your ability to both claim and create the most value for your clients at mediation. Many of these items will seem like second nature to you, but cut me a little slack, and I’ll see if I can provide some value to you.

1. Listen to your client
2. Review facts and law
3. Gather documents
4. Calculate damages
5. Draft mediation brief
6. Match the mediator to the case
7. Evaluate your BATNA and their BATNA
8. Appraise the Zone of Possible Agreement
9. Prepare visual aids and distributables
10. Role play
11. Create value (with strategies to make the pie larger)
12. Exploit your differences
13. Strategize for the Joint Session
14. Prepare your client
15. Script your moves
16. Line up your negotiation strategies
17. Anticipate their negotiation strategies
18. Assess the best “process” for success
19. Adjust your attitude
20. Check in with the other side or the mediator or both

Over the next few weeks, I’ll be discussing these issues in more depth.