MEDIATION STRATEGIES FOR THE ADVOCATE

JOHN W. KELLY, JR. ATTORNEY AND MEDIATOR ADJUNCT PROFESSOR UNIVERSITY OF

HOUSTON LAW CENTER

THIS IS MEDIATIONNOT MEDITATION

OR IS THERE A DIFFERENCE?

MEDIATION

A FACILITIATED DISPUTE RESOLUTION PROCESS LED BY A TRAINED PROFESSIONAL MEDIATOR.

IT INVOLVES MUTUAL AND MULTIPLE INVOLVEMENT, RESULTING IN A JOINT RESOLUTION.

MEDITATION

A BROAD RANGE OF PRACTICES DESIGNED TO PROMOTE RELAXATION, BUILD INTERNAL ENERGY, OR LIFE FORCE AND DEVELOP COMPASSION, LOVE, PATIENCE, GENEROSITY AND FORGIVENESS. IT IS SELF-MOTIVATED, AND INVOLVES SINGLE-POINTED CONCENTRATION OR SINGLE-POINTED ANALYSIS.

WHERE DO THESE TWO DISCIPLINES UNITE

RESOLUTION RELAXATION INTERNAL ENERGY COMPASSION PATIENCE GENEROSITY FORGIVENESS JOINT CONSENTRATION OR ANALYSIS

PURPOSE OF MEDIATION FOR THE ADVOCATE

OBTAIN ADVERSARY’S EVALUATION OF CASE PRIOR TO TRIAL

OPPORTUNITY TO OBSERVE AND SPEAK DIRECTLY TO OPPOSING PARTY

USE PROFESSIONAL FACILITATOR TO SETTLE CASE, I.E., MAKE HIM/HER YOUR SPOKESPERSON IN THE OTHER ROOM

WHY MEDIATE

QUICK RESOLUTION SAVES TIME AND MONEY FOR THE CLIENT REMOVES THE RISK OF UNKNOWN TRIAL KEEPS DECISION-MAKING IN THE HANDS OF

THE PARTIES RATHER THAN THIRD PARTIES ALLOWS THE PARTIES TO CONTROL THEIR

OWN DESTINY

WHEN TO MEDIATE PLAINTIFF’S ATTORNEYS MEDIATE EARLY TO:

*INCREASE CHANCE OF RECOVERY OF MONEY SOON WITHOUT ADDITIONAL ATTORNEY HOURS

* AVOID DISCLOSURE OF UNFAVORABLE FACTS

WHEN TO MEDIATE

FOR DEFENDANTS, LATER SO DEFENSE ATTORNEY CAN EARN ATTORNEY FEES

LATER INORDER TO DISCOVER WEAKNESSES OF PLAINTIFF’S POSITION

EARLY MEDIATION WILL AVOID DISCLOSURE OF DEFENDANT’S DANGEROUS FACTS

PARTICIPANTS

MEDIATOR YOU YOUR CLIENT (or DECISION MAKER) OPPOSING PARTY (or DECISION MAKER) OPPOSING PARTY’S ATTORNEY

WHEN A PARTY IS NOT AVAILABLE

YOU CAN’T DANCE (SETTLE) WITHOUT A DANCE PARTNER

SKYPEMORE EFFECTIVE THAN TELEPHONE

TELEPHONELEAST EFFECTIVECAN’T SEE THE PARTICIPANTSOME COMMUNICATION IS INTERRUPTED

FAMILY MEDIATION

THERE NEEDS TO BE A TIME TO VENT PARTIES MAY HAVE NOT SEEN OR

COMMUNICATED FOR A LONG TIME PARTIES WANT TO VENT THEIR HURT VENTING NEEDS TO BE KEPT TO A MINIMUM THEN THEY NEED TO GET DOWN TO

BUSINESS

WHAT TO EXPECT AT THE MEDIATION

I REQUIRE A GENERAL SESSION OTHERWISE, IT IS DOOMED TO FAILURE I NEED TO COMMUNICATE TO EACH PARTY AT

THE SAME TIME WHAT THE GOALS AND PROCEEDURES WILL BE

EACH PARTY NEEDS TO COMMUNICATE TO EACH OTHER, THROUGH ATTORNEYS OR THE PARTIES, THEIR POSITIONS

WHAT TO EXPECT AT THE MEDIATION

BE PATIENT* GOOD SETTLEMENTS TAKE TIME

* CANCEL ALL APPOINTMENTS FOR THE DAY

* ELIMINATE ALL DISTRACTIONS * DON’T TAKE OR MAKE CALLS WHILE I AM WITH YOU

PERCEPTIONS

STUDY OF HUMAN NATURE PEOPLE WATCHING IDENTIFYING THE DECISION MAKER INQUIRE OF THE MEDIATOR WHAT IS GOING

ON IN THE OPPOSING PARTY’S CAUCUS ROOM

MEDIATION TECHNIQUES

IDENTIFY AND SEPARATE REAL ISSUES FROM IRRELEVANT ISSUES

IDENTIFY WHAT IS IMPORTANT TO THE OPPOSING PARTY

MEDIATION TECHNIQUES

DO NOT MAKE UNREASONABLE OPENING DEMANDS OR OFFERS*YOU LOSE CREDIBILITY

DO NOT GIVE SOMETHING UP WITHOUT GETTING SOMETHING IN RETUREN*NEVER BID AGAINST YOURSELF

MEDIATION TECHNIQUES

IDENTIFY OPPOSING PARTY’S STRENGTHS AND WEAKNESSES

IDENTIFY YOUR STRENGTHS AND WEAKNESSES

MEDIATION TECHNIQUES

FEED THE MEDIATOR INFORMATION MAKE THE MEDIATOR THE EXTENTION OF

YOU AND YOUR CLIENT CONTROL THE OFFERS AND DEMANDS

* DOSES OF REALITY

MEDIATION TECHNIQUES

KNOW WHEN TO HOLD THEM KNOW WHEN TO FOLD THEM

MEDIATION TECHNIQUES

DON’T DRAW LINES IN THE SAND UNLESS YOU MEAN IT* FRUSTRATES FURTHER NEGOTIATION* DAMAGES YOUR CREDIBILITY IF YOU DIDN’T MEAN IT

MEDIATION TECHNIQUES

INCLUDE LOGIC AND REASONING WITH YOUR OFFERS

INSIST UPON LOGIC AND REASONING FROM THE OPPOSING PARTY TO SUPPORT COUNTER OFFERS

MEDIATION TECHNIQUES

PROCESS CONTINUES BEYOND THE DAY OF MEDIATION

YOU CAN CONTINUE TO USE THE MEDIATOR AFTER THE SCHEDULED MEDIATION

COOLING OFF PERIOD MAY HELP THE OPPOSING PARTY APPRECIATE VALUE OF YOUR OFFER

BEST PRACTICESMEDIATION ADVOCACY

BE PROMPT BE PREPARED BE INNOVATIVE BE PROFESSIONAL BE LOGICAL BE PRACTICAL BE ARMED WITH INFORMATION

BE PROMPT

IT IS UNPROFESSIONAL TO BE LATE IT IS DISRESPECTFULL TO MEDIATOR AND

PARTIES IT HINDERS RESOLUTION OF DISPUTE IN THE

LIMITED TIME AVAILABLE

BE PREPARED

PREPARE AS IF YOU ARE GOING TO TRIAL THE BETTER PREPARED LAWYER HAS A

HUGE ADVANTAGE IN THE NEGOTIATION PROCESS

BRING THE LAW AND DOCUMENTATION

BE INNOVATIVE

THINK OUTSIDE THE BOX CONSIDER SOLUTIONS OTHER THAN MONEY IDENTIFY WHAT YOUR CLIENT REALLY

WANTS IDENTIFY WHAT OPPOSING PARTY REALLY

WANTS

BE PROFESSIONAL

DON’T BE A SHOWMAN/WOMAN DON’T ENGAGE IN A TEMPER TANTRUM DON’T GET EMOTIONAL BE THOROUGH UPON THE LAW AND UPON

THE FACTS

BE LOGICAL

OFFERS ARE PERSUASIVE IF THEY ARE SUPPORTED BY LOGIC AND REASONING

EVERY OFFER SHOULD BE ACCOMPANIED BY ADDITIONAL FAVORABLE LAW OR FACTS

BE PRACTICAL

DON’T GET HUNG UP ON PRINCIPAL

BE ARMED WITH INFORMATION

BRING CASE LAW BRING DOCUMENTATION BRING JURY VERDICT REPORTS BRING PICTURES BRING DRAWINGS

BATNA

BEST ALTERNATIVE TO NEGOTIATED AGREEMENT

BE SURE THAT YOU AND YOUR CLIENT HAVE LOOKED AT THE ALTERNATIVES

THIS ANALYSIS NEEDS TO BE DONE BEFORE THE MEDIATION

THANK YOU

CONTACT INFORMATION JOHN KELLY 713-775-3003 johnkelly@experiencedhoustonmediator.co

m www.experiencedhoustonmediator.com