Wait Wait, Don’t G ive U p How to Break through “No Agreement”

1. Wait Wait, Don’t Give Up How to Break through “No Agreement” Tips and Techniques as well as some Counterintuitive Techniques

2. Advisory Opinion MEAC 2010-006 • Rule 10.220 states that one of the roles of a mediator is to “assist in the identification of issues and exploration of alternatives.” • Rule 10.370 (c) states, in part, that “a mediator shall not offera personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue.”

3. Question One: • Does Rule 10.220 give the mediator the ability to suggest with specificity possible settlement alternatives or is the offering of suggesting settlement alternatives a violation of Rule 10.370(c)? • (settlement alternatives were not raised by either party, but were solely those raised by the mediator.)

4. Question Two: • Would your response depend on whether the suggestions were made by the mediator during caucus? • Answer to Question Two: The answer to question one above does depend on whether the mediator was in caucus with the parties.

5. Answer to Question One: • A mediator may discuss and “explore settlement alternatives” with the parties as long as the activities by which the mediator does so is consistent with the Rules for Certified and Court-Appointed Mediators.

6. MEAC Opinion 2010-006 • Opinion • Answer to Question One: A mediator may discuss and “explore settlement alternatives” with the parties for their consideration in accordance with the role of the mediator as defined in Rule 10.220 as long as the activities by which the mediator does so is consistent with Rules 10.310 (Self-Determination) and 10.330 (Impartially) and does not violate Rule 10.370 (Advice, Opinions or Information).

7. The mediator must assess the interaction of the parties, their demeanor during the mediation and whether making such “suggestions” would be inferred as intimidation or coercion by the parties. The Committee recommends using the tool of “open ended questioning” may be preferable to making specific suggestions.

8. The MEAC considered that the word “suggestion” may be interpreted or defined by mediators differently and therefore, the MEAC believes that it’s prudent to offer examples of appropriate and inappropriate ethical conduct below.

9. Examples: A mediator may ask a party the question “Have you considered the possibility of [specific settlement alternative] as meeting the needs and objectives that you are seeking?” Asking a party a question which prompts them to consider a specific settlement alternative “suggestion” in this manner is appropriate and consistent with concepts of impartiality, party self-determination, and the appropriate role of the mediator.

10. The answer does depend on whether the mediator was in caucus with the parties. • A mediator must exercise greater caution in joint session when making suggestions for resolution alternatives not to appear partial to one party or the other. Asking such questions in joint session can potentially lead to a perception of partiality of the mediator. • The more cautious approach would be to explore settlement options in caucus unless the parties or their attorneys are making the suggestions themselves in joint session.

11. A mediator who makes an affirmative statement to a party such as, “You should consider [specific settlement alternative] as the best alternative presented here today”would be engaging in inappropriate conduct as the specific settlement alternative “suggestion” in this example is a statement intended to “direct a resolution of any issue” which is prohibited under Rule 10.370(c), Personal or Professional Opinion, and inconsistent with the concepts of impartiality and party self-determination

12. Basics: • Opening Statements clarify any misgivings • Confidentiality • Neutral and unbiased facilitator • Self Determination • Caucus/ use it if you need it

13. Tips and Techniques forgetting past the point of “no agreement”

14. Blocks to settlement • Emotions • “I’m right” non-compromiser • Fear of making a mistake • Over bearing party – when two attend for same side of issue • Attorney speaking – little party interaction • Concerns have not been explored • Lack of rapport with mediator

15. Exercise #1 • Please list one (1) or two (2) technique you use or find helpful to break through “no agreement” in County Mediations. • Please jot down what you see as the most difficult “point” of a mediation.

16. Tips and Techniques • Use Humor and Ice Breakers • Stress, Control is with the Parties-Self-determination • Focus on issue - role reversal (in caucus) • Change the dynamics – caucus or un-caucus • Get the parties to give the worst and best outcomes as they see them

17. Give the parties time to unload • Shock with “we can be hear all day it your time” • Ask what are you looking for? • Restate that a solution will mean not coming back to court for trial which is money – effort and time. • (be careful with this one) what do you expect if you get a judgment at trail • Have you thought about the emotion cost of a trial

18. Trial can be like a fishing license – you pay of the license, but you may not catch fish. • A mutual solution is better than rolling the dice • What have you got to lose today? • De-escalate with a personal story • Would both of you like to submit your final number and I’ll let you know if you are close? • Take a short Break give everyone a chance to digest and think about issue

19. What’s at stake if you lose? Have you thought about your next step? • Remind the parties how much progress they have made “you have worked so hard to get this far”. • Would you feel better if the case were settled today? • Emphasize that now is the time that they can determine how this settles, it will be up to someone else if they give up now.

20. Counterintuitive Technique Instead of battening down the hatches when the going gets tough, smart mediators inspire the parties to find better ways of achieving their objectives. Encourage freedom in the form of self-determination, innovation and creativity to find new opportunities for settlement. Risky, inspirational, courageous – yes, at times – but the results can be astonishing. Explore the unexpected alternative!!!!!

21. Exercise #2 • What are some questions you might ask that would be counterintuitive? • You only need one or two!