MEDIATION STRATEGIES FOR THE ADVOCATE

1. MEDIATION STRATEGIES FOR THE ADVOCATE • JOHN W. KELLY, JR. • ATTORNEY AND MEDIATOR • ADJUNCT PROFESSOR UNIVERSITY OF HOUSTON LAW CENTER

3. THIS IS MEDIATIONNOT MEDITATION OR IS THERE A DIFFERENCE?

4. MEDIATION • A FACILITIATED DISPUTE RESOLUTION PROCESS LED BY A TRAINED PROFESSIONAL MEDIATOR. • IT INVOLVES MUTUAL AND MULTIPLE INVOLVEMENT, RESULTING IN A JOINT RESOLUTION.

5. 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.

6. WHERE DO THESE TWO DISCIPLINES UNITE • RESOLUTION • RELAXATION • INTERNAL ENERGY • COMPASSION • PATIENCE • GENEROSITY • FORGIVENESS • JOINT CONSENTRATION OR ANALYSIS

7. 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

8. 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

9. 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

10. 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

11. PARTICIPANTS • MEDIATOR • YOU • YOUR CLIENT (or DECISION MAKER) • OPPOSING PARTY (or DECISION MAKER) • OPPOSING PARTY’S ATTORNEY

12. 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

13. 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

14. 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

15. 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

16. 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

17. MEDIATION TECHNIQUES • IDENTIFY AND SEPARATE REAL ISSUES FROM IRRELEVANT ISSUES • IDENTIFY WHAT IS IMPORTANT TO THE OPPOSING PARTY

18. 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

19. MEDIATION TECHNIQUES • IDENTIFY OPPOSING PARTY’S STRENGTHS AND WEAKNESSES • IDENTIFY YOUR STRENGTHS AND WEAKNESSES

20. MEDIATION TECHNIQUES • FEED THE MEDIATOR INFORMATION • MAKE THE MEDIATOR THE EXTENTION OF YOU AND YOUR CLIENT • CONTROL THE OFFERS AND DEMANDS* DOSES OF REALITY

21. MEDIATION TECHNIQUES • KNOW WHEN TO HOLD THEM • KNOW WHEN TO FOLD THEM

22. 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

23. MEDIATION TECHNIQUES • INCLUDE LOGIC AND REASONING WITH YOUR OFFERS • INSIST UPON LOGIC AND REASONING FROM THE OPPOSING PARTY TO SUPPORT COUNTER OFFERS

24. 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

25. BEST PRACTICESMEDIATION ADVOCACY • BE PROMPT • BE PREPARED • BE INNOVATIVE • BE PROFESSIONAL • BE LOGICAL • BE PRACTICAL • BE ARMED WITH INFORMATION

26. 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

27. 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

28. BE INNOVATIVE • THINK OUTSIDE THE BOX • CONSIDER SOLUTIONS OTHER THAN MONEY • IDENTIFY WHAT YOUR CLIENT REALLY WANTS • IDENTIFY WHAT OPPOSING PARTY REALLY WANTS

29. 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

30. BE LOGICAL • OFFERS ARE PERSUASIVE IF THEY ARE SUPPORTED BY LOGIC AND REASONING • EVERY OFFER SHOULD BE ACCOMPANIED BY ADDITIONAL FAVORABLE LAW OR FACTS

31. BE PRACTICAL • DON’T GET HUNG UP ON PRINCIPAL

32. BE ARMED WITH INFORMATION • BRING CASE LAW • BRING DOCUMENTATION • BRING JURY VERDICT REPORTS • BRING PICTURES • BRING DRAWINGS

33. 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

34. THANK YOU • CONTACT INFORMATION • JOHN KELLY • 713-775-3003 • johnkelly@experiencedhoustonmediator.com • www.experiencedhoustonmediator.com