Stinson Mediation, L.L.C.
5725 Corporate Way, Suite 209
West Palm Beach, FL 33407
Certified Circuit Civil Mediator
[email protected] StinsonADR.com
Table of Contents
- Stinson, Mediation Strategies, Tactics, Theories, Ideas, Games, etc. presentation
- Intentional Excellence—Mastery of the Mediation Process (Vanderbilt)
- Picker, Mediation Practice Guide.
- Little, Making Money Talk.
- Mel Rubin Circuit Civil Mediation Training.
- Cooley,Creative Problem Solver’s Handbook for Negotiators and Mediators, Vols. One and Two.
The following is simply a compendium of ideas obtained from various mediation seminars and mediation books that may be useful to other mediators or mediation attorneys. There is also a bibliography at the end.
Mediation Strategies, Tactics, Theories, Ideas, Games.
Where do you fall as a Mediator and ethically how far can you move to the bottom of the chart, when can or should you ever move to the bottom of the chart, and what do you need to do, to go there, if at all.
A facilitative style of mediation is probably what you learned during initial training. You use open ended questions, without providing your own in-put. You identify & explore interests, concerns, motivations, goals and common grounds. You ask question as to weaknesses and strength on each side, evidentiary problems on each side, legal concerns, etc. You, as a mediator, give no in-put and provide no opinions of your own.
An evaluative style of mediation is where the mediator, based on his/her own experience and, only with the permission of one or more parties, usually in private caucus, offers his/her own opinions on strengths or weakness and probably outcome of the case. This is done only towards the end of the mediation, and only with sensitivity and the permission of the parties. There are obvious pitfalls, and you do not want to step over line.
The narrow approach is where the mediator focuses on the legal positions espoused by parties and simple risk-analysis.
The broad approach is where the mediator also looks at underlying interests, (generally used in a commercial dispute.)
The mediator is ascertaining people’s interests versus people’s wants and people’s needs. (Distinguish interests from needs—what going to do with the money.)
A mediator must determine client’s needs versus counsel’s needs. These may not always be the same. The mediator must be very diplomatic in trying to ascertain these needs, so as not to poison relationship between attorney and client, and particularly between the attorney and mediator.
When parties/attorneys are discussing their respective positions, mediator needs to go below the line to try and determine their underlying interests. It is as important to listen as much to what client and attorney are not telling you, as what they are telling you.
At an appropriate point, later in the mediation, the mediator must ask the client and attorney what they believe their BATNA, WATNA and MLATNA will be during trial to get them to focus on likely outcomes at trial.
BATNA: Best Alternative to a Negotiated Agreement.
WATNA: Worst Alternative to a Negotiated Agreement.
MLATNA: Most Likely Alternative to a Negotiated Agreement. Steven A. Stinson, A.R.C. Mediation Seminar, November 10, 2007.
Teresa Wakeen, J.D., a nationally known mediator and mediator trainer, noted the following during an October 12, 2007 Fifth Annual Advanced Mediation Workshop at Vanderbilt University Law School titled: “Intentional Excellence: Mastery of the Mediation Process:”
She stated that there are five methods of integrative negotiations:
- Expanding the Pie is a method of finding some way to increase available resources
- Nonspecific Compensation means that one party gets what he/she wants, while the other party is repaid with different compensation.
- Logrolling is a technique whereby each party concedes on low priority issues in exchange for concession on higher priority issues.
- Cost cutting is a method whereby one party gets what he/she wants; the other party’s costs are reduced or eliminated.
- Bridging means that neither party achieves their initial demand, but a new option is created that satisfies the most important interest underlying their demands.
Bennett G. Picker, Esq. provides the following useful lists in his book, Mediation Practice Guide, A Handbook for Resolving Business Disputes, 2nd Ed., Chicago, A.B.A., 2003:
Checklist of Some Questions Attorneys Can Ask Parties in Preparing for Mediation:
- “What was the sequence of events-facts?
- What business interests are involved in this dispute?
- How do you feel about the dispute?
- How to you believe the other side feels about the dispute?
- What do you want/need?
- What is most important want/need?
- What is least important want/need?
- What do you believe are the strengths and weaknesses of your case?
- What are the strengths and weaknesses of your opponent’s case?
- What alternatives would you consider if agreement cannot be reached?
- What is the most attractive alternative?
- What is the least attractive alternative?
- How would you prioritize the alternatives?
- What are the bottom line monetary recovery needs?
- What are your non-monetary needs?
- What are your settlement expectations?
- What compromises will you consider to reach a negotiated settlement?
- What are you unwilling to compromise under any circumstances?
- What do you believe are the opposing party’s interests, goals and objectives in the dispute?
- Can you prioritize the opposing party’s interests?
- What is the opposing party’s interest in a negotiated settlement?
- Are you interested in privacy or do you prefer a public forum?
- Are you interested in a speedy resolution?
- Do you have an interest in preserving a continuing relationship with the opposing party which is not the subject of this dispute?
- What are barriers to a settlement?
- Do you believe that emotions or hostilities will be a barrier to settlement?
- Who are the decision makers for the other side?
- How would you describe the personalities of the other side’s decision makers?
- Are there any other potential parties with an interest, who, if notified, would increase the likelihood of serious negotiations taking place?
- What particular concerns do you have about mediating this dispute?” Picker, supra, pp. 84-87.
Skilled Mediator can enhance the process of communication during
mediation by doing the following:
- “Provide focus
- Manage the agenda
- Clarify misunderstandings
- Reduce tension
- Frame issues
- Explore new areas of discussion
- Help parties make realistic assessments
- Set the pace of negotiations
- Coach the parties on moves in negotiations
- Make suggestions for mutually acceptable solutions
- Ensure fairness in the process.” Picker, supra, p. 4.
Ways of Identifying and Overcoming Barriers to Resolution:
- “Selective perception in making evaluations
- Wrong baselines
- Reactive devaluation
- Failure to communicate
- Gaps in information
- Insufficient focus upon underlying interests
- Inability to align client’s interests
- Disconnects between attorney and client
- Anger and embarrassment
- Behavior and tactics of parties & counsel
- Poor negotiating skills
- Inappropriate reliance on experts
- Preoccupation with winning
- Inability to break impasse
- Process barriers.” Picker, supra, pp. 49-50.
Mediator Should Analyze the Interests of all Parties:
- “What are the goals and objective of the client? What does the Client really need?
- What are the goals and objective of all other parties? What do they reall need?
- Do the underlying interests present any specific reason why mediation may be particularly attractive?
- Is there any need or potential to preserve a relationship?
- Does any party have a particular need for confidentiality?
- Does the existence of the dispute create a morale problem for any party?
- Does the pending dispute create an impediment to a party’s strategic plans?
- What impact will a settlement have on a company’s bottom line? On the reported earnings? On a division budget?
- What issues are most important to each party? Least important?” Picker, supra, p. 71.
J. Anderson Little, Esq., in his book, Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes, Chicago, A.B.A., 2007, which is a book focused on insurance claims and other monetary claims, notes the following:
2. Making a Place for Traditional Bargaining among the Models of the Mediation Process.
- “Facilitate the flow of information. Lawyers often do not understand how important it is to provide information to the other side prior to the mediation session. Mediators can help the parties prepare for negotiations by inquiring about their informational needs and helping them sway information prior to the mediation session. Because lawyers believe that information is power, they are reluctant to disclose information they believe their opponents do not have. Mediators can help the parties make thoughtful, rather than reflexive, decisions about the exchange of information that may occur during the session itself.
- Facilitate case analysis by the use of well-framed questions. One of the most important things a mediator can do during the mediation of civil litigation is to help each team assess the value of their case and achieve a common understanding of that value among team members. Case analysis consists of determining:
- What one gets if the wins the case (damages.)
- The chances of succeeding at trial (liability.)
- The costs (monetary, non-monetary, and loss of opportunity) of conducting litigation, and
- The likelihood of collecting a judgment (collections.)
- Facilitate movement. Problems of movement from position to position in traditional bargaining are so prevalent, important, and understudied that the next several chapters will be devoted to them. Mediators can assist the parties in making proposals and counterproposals by helping them create thoughtful, rather than reflexive, proposals and by helping them develop a plan for their movement from position to position.” Little, supra, at pp. 59-60.
- Facilitating Movement: Understanding the Problems of Movement in Traditional Bargaining.
- “Recognize the signs of impending disaster in traditional bargaining: low- or high-ball proposals, walking away from the table, or putting the other side in a position of bidding against themselves.
- Understand that monetary proposals are a form of communications.
- Understand that the subject of the parties’ communication is the range in which settlement can take place. Since this information is private information, the parties will talk about their ranges indirectly through monetary proposals.
- Because they communicate indirectly, the parties miscommunicate and inadvertently mislead each other as to their intentions.
- The parties will be discouraged or encouraged to move by their perception of the other side’s proposal. The perception of movement from one side breeds movement from the other.
- Many cases will settle if the real gap between the parties is known. That gap is the one between the parties’ best numbers.
- The parties will be reluctant to continue movement if they believe that, by moving to their best numbers, the case will not settle.
- The parties react to the other side’s proposals because they have no plan for moving from position to position throughout the negotiations. Little, supra, at pp. 62-63.
Stinson Mediation Notes from July/August 2006 University of
South Florida training.
- Bracketing-but not too early. Need for good notes and high—lows.
- Chinese Menu: (A) Bracket (B) Real #’s.
- Partial Settlements.
- Maybe agree upon a high—low at trial.
- Settle only some of the issues. (Liability-Damages or specific identified issues.)
- Silver Bullet. Both parties provide a drop dead number. If over-lap or within 10-20% keep going.
- Alternative Silver Bullet. Mediator writes out a number, if both sides agree, it is settled.
- May only settle discovery issues.
- Postpone or delay—May not be ripe. Push back 60-90 days.
- Change of Physical Environment.
- Caucus 2 attorneys alone.
- Analyze case alone—sincerity of Mediator.
- Get Parties talking about anything. Barrage of Questions.
John W. Cooley, Esq., Creative Problem Solver’s Handbook, For Negotiators and Mediators, Vols. 1. & 2, Chicago, A.B.A., 2005. Vol. 1: A Guide for Practitioners, Academics and Students of Creative Problem Solving; Vol. 2, A Portable Primer for Practitioners.
“Thinking modes of Participants and Attorneys (& even Mediators):
Vertical or convergent thinking (Dominant left brain).Bringing things together and synthesizing of information & knowledge to arrive at a single solution to a problem.
Lateral or divergent (Dominant right brain). Provocative and generative thinking. Brainstorming and expanding ideas and solutions.
Important to identify which type of person dealing with because approach to Mediation will be different.
Vertical Thinking: Lateral Thinking:
Sequential Can make jumps.
Correct at every step. Need not be correct at every
Uses negatives to block pathways. There is no negative.
Excludes what is irrelevant. Welcomes the irrelevant.
Categories & labels may not change. Categories & labels may change.
Follows most likely path. Explores least likely path.
Seeks the right answer. Seeks restructuring of patterns.
There must be a right answer. There may be no answer at all.
Cooley cites, Dr. Edward DeBono, Lateral Thinking: Creativity Step by Step, as describing the following strategies for lateral thinkers:
Generation of Alternatives
Left brain function Right brain function
Serial processing Parallel processing
Language Pattern recognition” Cooley, supra, Vol. 1, pp. 7-11.
Flow chart for creative problem solving:
1. “Situational Analysis -} 2. Problem Analysis –} 3.Information Gathering -} 4. General Approaches -} 5. Action Plan -} 6. Evaluation (Need to Re-evaluate and start over at some point.)
What is happening right now?
What is wrong with the client/lawyer’s current situation?
What are the symptoms?
What is the client’s/lawyer’s preferred situation?
What is the Client’s problem?
Do we need anyone else’s help in identifying the problem?
Whom/what does the problem affect?
Who/what is responsible for the problem?
Is it part of a larger problem? If so, what should we address first?
Could it have been prevented?
What are the client’s/lawyer’s objectives?
What are the client’s/lawyer’s underlying interests?
What else do we need to know (Facts? Feelings? Legal issues? )
Who/what can help us?
Are we the appropriate person/entity to fix the problem?
How could this problem have been prevented?
What would the Client like us to do?
What approaches does the law allow us to do?
What other approaches might there be?
What are the costs and Benefits of each approach?
What new problems might each approach create?
Can any potential new problems be prevented?
Which approaches might be most effective?
What values and objectives does each approach reflect?
What is out course of action to solve this problem?
Who should be involved?
Who is responsible for implementation?
How should decision be made?
What specific steps should we take now?
What effect will these steps have?
What steps should we take to prevent further problems?
Are we on the best path?
What new problems have been created?
Do we need to re-evaluate?”
Plug back in at one of the previous numbers and start over. Cooley, supra, Vol. 1, pp. 282-283.
I would recommend all of the books listed in the following bibliography for both mediators and mediation attorneys.
Cooley, John W., Creative Problem Solver’s Handbook for Negotiators and Mediators, Vol. 1, (A Guide for Practitioners, Academics, and Students of Creative Problem Solving) 2005 (ABA).
Cooley, John W., Creative Problems Solver’s Handbook for Negotiators and Mediators, Vol. 2 (A Portable Primer for Practitioners) 2005 (ABA).
Fisher, Roger & William Ury, Getting to Yes: Negotiating Agreement Without Giving In, 2nd Ed., 1991 (Penguin Books).
Donaldson, Michael C. & Mimi Donaldson, Negotiating for Dummies, 1996 (Wiley Publishing, Inc.).
Little, J. Anderson, Making Money Talk,: How to Mediate Insured Claims and Other Monetary Disputes, 2007 (ABA).
Picker, Bennett G., Mediation Practice Guide: a Handbook for Resolving Business Disputes, 2nd Ed., 2003 (ABA).
Shapiro, Ronald M. & Mark A Jankowski, with James Dale, The Power of Nice: How to Negotiate So Everyone Wins—Especially You, 1998 (John Wiley & Sons, Inc.)
Ury, William, Getting Past No: Negotiating Your Way from Confrontation to Cooperation, 1993, (Bantam Books, Inc.).
Articles, handouts and notes from Fifth Annual Advanced Mediation Workshop: “Intentional Excellence: Mastery of the Mediation Process, “presented at Vanderbilt University, October 12, 2007 and sponsored by the Tennessee Supreme Court Alternative Dispute Resolution Commission with Principal Speaker and Moderator, Teresa Wakeen of Wakeen & Associates Mediation Services.
Steven A. Stinson is a graduate of Vanderbilt University and Vanderbilt University School of Law (1972). He also earned an Ll.M. in Air & Space Law from McGill University, Montreal, Canada. He was admitted to the Indiana (now Inactive) and Florida Bars in 1972 and the Tennessee Bar in 1995. He has practiced in Florida more than 25 years and in Tennessee more than 5 years. He is a Certified Circuit Civil Mediator in Florida, as well as a Qualified Arbitrator in Florida. He is also a Trained Umpire He owns Stinson Mediation, LLC, as well as Stinson Insurance Consulting & Education, LLC.. He has the following insurance designations: C.P.C.U.(Chartered Property & Casualty Underwriter), C.L.U.(Chartered Life Underwriter), A.I.C. (Associate in Claims) and A.A.I.(Accredited Advisor in Insurance). Areas of practice include: Personal Injury & Wrongful Death, Governmental Liability & Police Misconduct, Insurance Litigation & Bad Faith Litigation, Construction Defects Litigation, Products Liability Litigation and Commercial Litigation. He has worked as an in-house attorney for People’s Trust Insurance Company and State Farm Mutual and as Senior Litigator, Risk Management, Litigation and Construction for the Palm Beach County School District