Mediation Tips for Trial Lawyers

From this The Illinois Trial Practice Weblog post:

"Powerpoint and video presentations...If you're going to make a detailed presentation, take care. On the other hand, photographs and chronologies often help a mediator quickly understand the facts.

Try to view the process 'as a joint problem requiring a solution' and not a 'competition to win or lose.'

Make sure you talk to your client about the objective of the mediation. The client should be at the mediation and should be given access to the mediator. Generally, you should let the client speak if the client wants to speak.

When you're negotiating, don't be a "one-trick pony." That's a lawyer who is always using the same negotiating tactic, mistaking it for something very dramatic: walking out, then returning and walking out again; or drawing a firm line in the sand and promising never to cross it, only to cross it and replace it with another non-negotiable line..."


Using Conflict Resolution Techniques in Project Management

"Conflict in project management is inevitable. The potential for conflict in information systems development projects is usually high because it involves individuals from different backgrounds and orientations working together to complete a complex task. The cause of conflict in team projects can be related to differences in values, attitudes, needs, expectations, perceptions, resources, and personalities. Proper skills in dealing with conflict can assist project managers and other organization members to handle and effectively resolve conflicts which can lead to a more productive organization as a whole."

So begins an excellent article by Amy Ohlendorf that continues by providing an overview of the project management process, an exposition on the causes and effects of conflict, particularly those that arise in the IT sector, a presentation of approaches to resolving conflicts, concluding:

"Conflict in project management is not necessarily unfavorable when properly managed. Several advantages have been identified such as increasing personal growth and morale, enhancing communication, and producing better project outcomes. However, conflict can be the decline of an organization if it is not effectively managed. The challenge for organizational leaders and project managers is to try to maintain the right balance and intensity of conflict in project management. By utilizing project management principles, understanding the dynamics of conflict, and learning approaches to conflict resolution, managers will be able to establish an environment in which creativity and innovation is encouraged and project goals are accomplished."


Please Explain - Strategic Questions

This module from a course on recognizing workplace discrimination identifies the types of strategic questions the answers to which can be analysed to determine what is happening and how intervention may assist in preventing disadvantage or damage occurring to individuals involved. The questions are also examples of powerful questions that mediators can use to assist the parties to a dispute negotiate a solution.

"1. Focus Questions
(Enable the issues and important facts to be identified...

2. Observation Questions
(What one sees and the information heard regarding the situation...

3. Analysis Questions
(Focus on the meaning given to events...

4. Feeling Questions
(Concerned with bodily sensations, emotions and health...

5. Visioning Questions
(Concerned with identifying ideals, dreams, values...

6. Change Questions
(Concerned with how to get from the present towards an ideal situation...

7. Considering the Alternatives
(Examine the options...creative thinking...

8. Considering the Consequences
(Explore the consequences of each alternative...

9. Considering the Obstacles
(Identifying likely obstacles...and how they could be dealt with...

10. Personal Inventory and Support
(Concerned with identifying one's interests, potential contribution...and the support needed for action...

11. Personal Action Questions
(Specifics of what to do, how and when..."


Negotiation Pitfalls and Tips

"We often look at negotiating as unpleasant, because it implies conflict, but negotiating need not be characterized by bad feelings, or angry behaviour. Understanding more about the negotiation process allows us to manage our negotiations with confidence increases the chance that the outcomes will be positive for both parties.

Barriers To Successful Negotiation

Viewing Negotiation As Confrontational...
Becoming Emotional...
Not Trying To Understand The Other Person...
Focusing On Personalities, Not Issues...
Blaming The Other Person...

Some Negotiation Tips

Solicit The Other's Perspective...
In a negotiating situation use questions to find out what the other person's concerns and needs might be. You might try: What do you need from me on this? What are your concerns about what I am suggesting / asking?
State Your Needs...
Prepare Options Beforehand...
Don't Argue
Negotiating is about finding solutions...Arguing is about trying to prove the other person wrong...
Consider Timing
There are good times to negotiate and bad times. Bad times include those situations where there is:

. a high degree of anger on either side
. preoccupation with something else
. a high level of stress
. tiredness on one side or the other
Time negotiations to avoid these times. If they arise during negotiations a time-out/rest period is in order, or perhaps rescheduling to a better time..."

Read more in this work911 article.


Why We Fear Confronting Conflict

Strategic conversationalist, Tammy Lenski offers these seven fears of self-promotion which she believes apply as well to our fears about confronting conflict:

The Unknown

Read more in 7 Fears of Confronting Conflict - Strategic Conversations


Strategic Negotiations

"With our negotiating skills, we protect our critical interests, make agreements that reduce conflict about expectations, encourage collective effort, and establish the foundations for long-lasting partnerships. Negotiation is not a war, nor is it a cause for antipathy. Properly principled, negotiation is a problem solving process in which initially opposing viewpoints can be brought into the fortunate circumstance of mutual gain-creating a bigger pie which then can be shared by all...

It is one thing to influence a group essentially in agreement; it is quite a different thing to influence a group with goals in conflict with those you want to pursue. This sounds formidable, but we do it all the time. We call it negotiation.


Negotiation is a process whereby two persons or groups strive to reach agreement on issues or courses of action where there is some degree of difference in interest, goals, values or beliefs. The job of the negotiator is to build credibility with the "other side," find some common ground (shared interests), learn the opposing position, and share information that will persuade the "other side" to agree to an outcome..."

The foregoing are takeaways from Strategic Negotiations, a chapter in a larger work on military Strategic Leadership, that is well worth reading for its clear explanation of bargaining models, Batnas, and other negotiation concepts.


Establishing an Effective Ombuds Office

This paper from Mediate.com examines "the considerations that go into establishing an Ombuds Office within an organization, what constitutes the usual requirements to allow the Office to perform its functions effectively and some strategic considerations about how to implement such a plan. The paper identifies a number of pitfalls that may be encountered along the way and concludes with some suggestions of what an Ombuds Office can and cannot reasonably be expected to accomplish." A few highlights from a comprehensive article include:

"Requirements for a Feasible Ombuds Office

...For an ombuds Office to work it will need to be part of a conflict resolving system. The organization must decide what it values in that system and know what it wishes to accomplish with it...

An ombudsperson needs, as much as is possible, to have an arms length relationship with the organization he or she serves...

Due Process:
...This includes such fundamentals as: providing both sides to a dispute a full and fair opportunity to be heard; ensuring that no one in the organization is sitting in an adjudicative capacity over a matter where he or she has a direct interest; providing an opportunity to fully respond to the case made by the "other side"; providing reasonable notice of any investigation or hearing to individuals affected by the controversy and allowing a fair length of time for parties to prepare and make submissions; wherever possible providing reasons for decisions that affect people

The organization must make resources available such that the ombudsperson can perform their responsibilities in a diligent and timely manner..."


Guides to Negotiating Explained

If you want to be a better negotiator, you can buy 24 books, take 12 courses, and attend 7 seminars -- or, you can read this Inc.com article that summarizes the major texts offering negotiation tips and tricks, stating:

"Volumes specifically devoted to negotiating form a growing subset of the sprawling advice category, with literally dozens of examples ranging from the memoirs of celebrated negotiators to academic explorations thick with charts and graphs... The sheer number of offerings suggests a remarkable variety of approaches to the subject: Can there really be that much to say about negotiating? Well, no. Even the most ferocious and the most laid-back authors actually share a good deal more common ground than either would care to admit. But each is useful in its way, and you'll find many of the handiest insights below."


Get a Head Start in Negotiations

"If you want to start negotiations in a winning position, then you need to prepare...

1. Check Whether You're In A Negotiating Situation. A negotiating situation exists when you are in any communication or problem-solving situation with others that can work out to your advantage...
2. Clarify Your Aims...
3. Gather Information...throughout a negotiation you should do tons of listening, clarifying and checking...
4. Negotiate With Your Own Side...Part of your preparation for negotiations has to be spent getting the best mandate from your constituents...
5. Get A BATNA...
6. Prepare The Setting...
7. Prepare Yourself Mentally..."

From this businessknowhow.com article.


Negotiations and Resolving Conflicts:

"Every desire that demands satisfaction and every need to be met-is at least potentially an occasion for negotiation; whenever people exchange ideas with the intention of changing relationships, whenever they confer for agreement, they are negotiating."

So begins this resource page from Professor Wertheim of Northeastern University that provides a comprehensive overview of many valuable concepts including the following:

“The Five Modes of Responding to Conflict [including]…the two most problematic types: Collaborative (integrative) and Competitive (Distributive)…

Rational vs. the Emotional Components of Negotiation

All negotiations involve two levels: a rational decision making (substantive) process and a psychological (emotional) process. The outcome of a negotiation is as likely to be a result of both. Most of us understand the need to grasp the substantive or rational aspects of negotiation. For many of us it is the psychological aspects that are more difficult….

Integrative or Win-Win Bargaining:
Keys to Integrative Bargaining

Orient yourself towards a win-win approach: your attitude going into negotiation plays a huge role in the outcome
Plan and have a concrete strategy...be clear on what is important to you and why it is important
Know your BATNA (Best Alternative to a Negotiated Alternative)
Separate people from the problem
Focus on interests, not positions; consider the other party's situation:
Create Options for Mutual Gain:
Generate a variety of possibilities before deciding what to do
Aim for an outcome based on some objective standard
Pay a lot of attention to the flow of negotiation;
Take the Intangibles into account; communicate carefully
Use Active Listening Skills; rephrase, ask questions and then ask some more…”


Interest-Based Mediation & Problem Solving

"What is Interest-Based mediation?

In interest-based mediation an impartial and independent negotiator facilitates a discussion between disputing parties. The professionally trained mediator assists parties to explore matters at issue between them and to identify what is most important to them; their needs, expectations, desires, concerns, hopes and fears. Once these interests have been identified, parties explore options for settlement and if they wish, create an agreement that addresses as many of their interests as possible.

Such a mediation is normally completed in four stages, including an introduction, the identification of issues the parties wish to resolve, an exploration of the facts and interests, and a solutions stage in which the parties create an agreement. The agreement is tested to ensure it meets the parties' interests, is in accord with objective criteria, and is realistic and workable.

What Are The Advantages Of Mediation?

Mediation is a fast and cost effective way to resolve a dispute. It offers parties:

A chance to be heard...
A chance to develop new ways of thinking about a problem...
A chance to work collaboratively...
A chance for the parties to develop their own solutions. The mediator controls the process of the discussion and the parties control the result..."

From this webpage of the Mediation Library of North Carolina State University. The site also contains a detailed paper on interest-based problem solving "that provides a structured process by which participants work to solve problems while simultaneously fulfilling their own needs and attempting to satisfy the needs of others."


Tutorial on Negotiation

This Negotiation Tutorial from Professor Ross of the University of Wisconsin - Lacrosse provides information that may help you become a more effective negotiator. By "effective" Dr. Ross means "someone who (a) achieves highly satisfactory outcomes, (b) helps the other side achieve what appear to be satisfactory outcomes, while (c) maintaining the relationship between the two sides."

The tutorial into the following topics:

Concession Curves
Persuasion Techniques
Integrative Bargaining

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