Mediation Skills for Court Attorneys

Mediation Skills forCourt Attorneys NYS Unified Court System: Legal Update 2011 Presented by Lisa M. Courtney

To enhance the ability of court staff to promote meaningful communication and settlement Goal

Fear Stress Sweats Loss of control Hostile Anger Knots Normal responses to conflict Flush Adrenaline Nervous What happens to individuals in conflict?

Mediation is a consensual dispute resolution process in which a neutral third party helps disputing parties to communicate and negotiate • Mediators help parties identify issues, clarify perceptions and explore options for a mutually acceptable outcome What is Mediation?

Negotiation • Neutral Evaluation • Arbitration • Litigation How is mediation different?

Mediation v. Adjudication

Comparison of Typical Settlement Conference and Mediation

Preparing for and Beginning Mediation • Gathering Information • Identifying and Clarifying Issues, Interests, Feelings • Generating Movement • Closure Stages of Mediation

Where would you put the following participants in this conference room? • Neutral • Parties • Attorneys • Interpreter Door Table Seating Arrangements

Develop rapport and trust between yourself and parties • Educate parties about the goals and purposes of the process Opening Statement - Goals

Introduction • Explain your role and the process • Discuss guidelines • Courtesy (if necessary) • Note taking • Confidentiality • Caucus • Length of session • Order of speaking • Questions Opening Statement: Features

Find a partner - Introduce self • What do you do to begin the mediation? • How do you choose your words? What do you emphasize? • Your partner will summarize what you said for the large group when we reconvene Opening Statement: Exercise

Key words: listen, understand, comfortable, confidential, freely, informal, solution • “Priming” the parties to be more cooperative, to listen, to speak freely, and to understand. Opening Statement

Open-Ended Questions • Encourage free flow of information • Narrow Questions • Continue free, yet tailored, flow of information • Closed Questions • Discourage free flow of information • Leading Questions • Discourage free flow, encourage directed flow Gathering Information

Mediators listen for. . . positions, interests, and issues

Positions: What people say they want; a unilateral and sometimes inflexible proposal of one party expressing an acceptable outcome of an issue in dispute. • Interests: Why people want what they want; The underlying desires and concerns which motivate people (Fisher and Ury’sGetting to Yes, p.41) • Issues: Topic for discussion Understanding Positions, Interests and Issues

“He must return the disks he took! Those disks contain our customer lists and when he stole the disks he violated our non-compete clause!” Example

Separate Positions from Interests (reframe) and Identify Issues • Example: “Preserve customer lists, honor agreement” What is the Interest?

Separate Positions from Interests (reframe) and Identify Issues • Example: “The disks” • Identify issues in neutral language to invite “interest-based discussion” rather than “adversarial positional bargaining” What is the Issue?

Separate Positions from Interests (reframe) and Identify Issues • Example: “She can’t stop me from seeing my kids, I demand Custody!” • Try to get behind the stated position (demand) to the . . .

Separate Positions from Interests and Identify Issues • Example:“You want to spend time with your children”

Separate Positions from Interests (reframe) and Identify Issues • Example: “Parenting Time” Summarize and Re-Frame

Separate Positions from Interests and Identify Issues • Example: “I’ve made numerous requests to fix the leak and they’ve done nothing. I haven’t been able to use my shower safely in a month. I’m entitled to an abatement and I’m not paying him a dime”

Separate Positions from Interestsand Identify Issues • Example: To use the shower, safely

Separate Positions from Interests (reframe) and Identify Issues • Example: “The shower, the rent” What are the issues?

“Merely changing the presentation of the problem can dramatically alter how the brain processes the information.” See Jonah Lehrer – The Frontal Cortex http://www.wired.com/wiredscience/frontal-cortex Re-Framing (Neutral Language)

What do I summarize? • Issues, Interests, Feelings • Benefits of Summarizing • Lets parties know you are listening • Tests your own understanding • Helps other party hear what was said • Reminds parties of progress made • Highlights areas of agreement and disagreement • Can prepare parties to move forward Summarizing

Makes conflict appear manageable • Serves as roadmap with priorities • Can serve as a break from discussing substance • Enables flexibility during negotiations • May help parties identify trade-offs Identifying Issues/Developing the Agenda

A party’s BATNA is the standard against which any proposed agreement should be measured • Alternative to a bottom line (which inhibits creativity/often arbitrary) BATNA – Best Alternative to a Negotiated Agreement from Getting to Yes, Fisher, Ury and Patton, Penguin Books, 1991

Tips for Listening Responsively* • Say back to the speaker what s/he said • Include emotion as well as content • Incorporate speaker’s own words • Match speaker’s pace and tone • Stay “close” to the speaker, without trying to move them in any direction • Responsive listening is most effective right after speaker finishes talking *Based on material developed by the Institute for the Study of Conflict Transformation. www.tranformativemediation.org Responsive Listening

Closure • Oral/Written Agreement or Stipulation • Enforcement / Compliance • Explore Other Options Ending the Mediation

Self-Determination • Impartiality • Conflicts of Interest • Competence • Quality of Process Mediation: Core Values

Community Dispute Resolution Centers (CDRCs) • Part 146: Guidelines for Mediators on Court Rosters • Standards of Conduct for Mediators • Visit www.nycourts.gov/adr Resources

Mediation Skills for Court Attorneys