Free Online Mediation CLE/CME 3/18

Join us March 18th at 1:00 pm EST for Mediator’s Notebook = Attorney’s Toolbox, a free CLE/CME Webinar with 1.5 credits of CLE from The Florida Bar, but that's not all you'll gain by attending. Whether you are representing plaintiffs or defendants, you'll gain valuable insights on helping your mediator to put everyone's focus on the path to reasonable resolution. Attorneys can often help a mediator to assess what barriers to settlement may exist. We will address what pre-mediation preparation to consider. Additionally, we will cover laying the groundwork for ongoing discussions through messaging. It is often said a case is not worth a penny more than someone is willing to pay or a penny less than someone is willing to accept. We'll discuss how those most patient at mediation have the most to gain. More information and registration details here-- https://bit.ly/3toGkd3

"You can't turn a no into a yes without a maybe."

President Frank Underwood on Netflix's new season of House of Cards uses this phrase when negotiating with his Russian counterpart. It reminded me of Roger Fisher and William Ury's classic book, Getting to Yes. Commonly, parties bargain over positions, their thesis goes, tending to lock themselves into those positions. The more one clarifies a position and defends it against attack, the more committed they become to it. Agreement becomes less likely as more attention is paid to positions, their argument goes, and less attention is devoted to meeting the underlying concerns of the parties. The problem with negotiating to the "yes" lies not in conflicting positions, but in the conflict between each side’s needs, desires, concerns, and fears, they say. In contrast to positional bargaining, they maintain principled negotiation methods of focusing on basic interests, mutually satisfying options and fair standards more typically result in a "yes" agreement. This method, they assert, permits reaching gradual consensus on a joint decision efficiently without all the transactional costs of digging into positions-- only to give have to dig out of them. Further, people often come into a negotiation realizing that the stakes are high and feeling threatened. Fisher & Ury state emotions may quickly bring about a "no" ending in an impasse. Therefore, they assert separating the people from the problem allows dealing directly and empathetically with the other side as human beings, making possible an amicable agreement. Importantly, they identify the skill of inventing options as one of the most useful assets a negotiator can have. They say when looking behind opposed positions for the motivating interests, one can often find an alternative position which meets not only its own interests but theirs as well. Perhaps this is where the "maybe" is achieved on the road to settlement?

Bracket Madness

As it's the season of NCAA basketball brackets, I thought I'd take a moment during March Madness and explore bracketing-- in mediation, that is. Bracketing can be a useful tool in breaking through a stale negotiation. Mediation usually begins with offers intended to send messages to each side, but which are frequently unrealistic in a given dispute. Offers in the early rounds typically remain outside the range of numbers likely to lead to ultimate resolution. Parties can then fall into a pattern of mirroring small incremental movements, until the dance stalls in frustration. While not appropriate for every session, Mediators may effectively pull brackets from their toolbox at this juncture. Because bracketed numbers re-frame the bargaining, parties begin to see the negotiation anew. Settlement becomes a Cinderella team in the tourney. During this process, even exploring potential agreement encourages the parties that the other side still intends to make a good faith effort to strike a deal. Resolution can sometimes remain out of reach until the parties find their way to bargaining bracketed by what each perceives as reasonable numbers. Plaintiffs and defendants might similarly argue just how far each has moved from its initial, often pie in the sky position. However, movement toward a number that is realistic has a better chance to settle the matter. Mediators try to keep conversations with the parties and their counsel going, pushing nuances and nuggets of the case, while identifying underlying interests. As a result, information about the respective risks then drives a numerical range within which settlement can most likely occur. Though parties may propose this strategy, it is better if the mediator introduces the concept of bracketing as a neutral and then caucuses to a conditional range, eventually finding common ground. With a win-win, you get a result superior to 63 of the teams in the tournament!

Fairly Illegal

So I finally watched some of season two of television's hot mediator show, Fairly Legal, on USA. Last year, the show debuted with a coffee shop hold-up mediation on the fly which was cute and effective, much like its snarky mediator, Kate Reed. I actually posted a few of California's ethical rules on the Facebook fan page last year (hoping writers or producers would notice) when things went a little far afield, which is most of the time. From the get-go this year, Kate inserts herself into a case tampering with a juror, threatening a witness and playing advocate, investigator and counselor at law. Oh well, just another day at the fictional law office. Though the acting is decent and the truth seeking protagonist fun and unpredictable, the mediation has become a backdrop to a dram-com. Now that Kate's boat is blown up, she's living in the law firm that fired her and her rocky marriage to the would-be DA appears finally over. The disputes she resolves remain eclectic as ever. Her partners continue to push the boundaries, like pushing conflicts of interest to the curb for the almighty dollar. So why do lawyers' reputations continue to suffer in the eyes of the public?? At least there is some light shed on the benefit of moving on with life by settling in favor of protracted litigation. http://www.usanetwork.com/series/fairlylegal/index.html

Baseball Mediation: Cuomo as Mets-Madoff Mediator

While his son, Andrew, celebrates obtaining a NY budget with time to spare, Mario Cuomo is coming off a victory of sorts of his own-- having successfully mediated the controversy with the Madoff trustee in time for baseball season. Originally appointed as mediator in the bankruptcy case seeking more than a billion dollars from the franchise, Cuomo got the Mets owners to pay $162 million in fictitious profits, which could be offset by their claims as victims of the massive fraud. Judge Rakoff acknowledged Cuomo's role in mediating the settlement before trial and attorneys involved said it couldn't have been done without Cuomo's help. Cuomo, now 79, still serves as of counsel for a major law firm and is listed on a register of mediators for the federal court. The former politician said he brings the negotiating skills he honed as NY governor to the task. "A mediator makes sure the process is going forward," Cuomo said. "He meets. He cajoles. He argues." See articles on the case Picard v. Katz et al., U.S. District Court, SDNY, No. 11-03605 http://es.pn/H5e2Ks and http://bit.ly/H8Z7b9

ENE - Early Neutral Evaluation

Perhaps because of the still struggling economy or the realization during the recession that the cost of litigation is not trivial, Early Neutral Evaluation (ENE) as a form of ADR has returned. This process, popular out West, is an offshoot of mediation that puts the neutral in the role enhancing direct communication between the parties about their claims and supporting evidence. ENE can provide an assessment of the merits of the case by a neutral expert in an early "reality check" for clients and lawyers. This helps to identify and clarify the central issues in dispute, assist with discovery (including E-discovery) and can streamline case management planning. A confidential exchange of factual information can help facilitate settlement discussions, once requested by the parties. A neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel. Following presentations, the evaluator identifies areas of agreement, clarifies and focuses the issues and encourages the parties to enter into any stipulation or agreement that is feasible, including settlement. The neutral case evaluator has no power to impose settlement and may not force a party to accept any proposed terms. The parties' formal discovery, disclosure and motion practice rights are fully preserved. The confidential evaluation is non-binding and is not shared with the trial court. If no settlement is reached, the case remains in litigation, but hopefully with the litigants better informed as to the risks, work still necessary and the monetary aspects of continuing on a track toward trial. A new publication from the ABA this year on ENE outlines the process - http://bit.ly/y49Y1u

$25B Settlement on Foreclosure Abuses

Today, federal officials announced a $25 billion settlement with the five largest mortgage lenders over foreclosure abuses. The deal requires the banks to reduce some loans, send out small checks to foreclosed folks, and refinance mortgages for underwater borrowers. Its being billed as the largest settlement involving a single industry since big tobacco in the late '90s. Under the agreement, which was reportedly negotiated for 16 months, B of A, Chase, Wells Fargo, Citigroup, and Ally will reduce loans for nearly a million households. They will also send checks for two grand to about 750,000 Americans who were improperly foreclosed upon. All but one state agreed to the deal-- Oklahoma, whose AG opposed the deal. Lenders that violate the deal could face $1 million penalties per violation and up to $5 million for repeat violators. Interestingly, homeowners can still sue lenders in civil court on their own, and federal and state authorities can pursue criminal charges. The settlement only applies to privately held mortgages issued from 2008 through 2011. Loans owned by Fannie Mae or Freddie Mac are not impacted by this settlement. See news item from Fox here-- http://fxn.ws/yN8oVo and website for the public here-- http://www.nationalmortgagesettlement.com/

D.C. Mediation ?

This article comes a little late in the summer of discontent in Washington. Harvard Lecturer David Hoffman's term for the malaise affecting Congress is "PTID" or Post Traumatic Impasse Disorder.

He cites to an example of two siblings fighting over an orange in Fisher & Ury's classic negotiation book, Getting to Yes. Their mother solves the problem by cutting the orange in two-- but one of them wanted only the rind to bake a cake; the other wanted only the pulp to make juice. Both could have had the functional equivalent of the whole orange if they had communicated about their interests.

Hoffman references diplomat L. Michael Hager's proposal to create a politically neutral service for legislative mediation, akin to the nonpartisan Congressional Budget Office. Precedent exists for such an agency in the Federal Mediation and Conciliation Service, whose success in mediating major labor conflicts, he says, suggests that its mandate could be expanded to handle legislative impasses.

Even Fed Chairman, Ben Bernanke, weighed in this weekend on the dysfunctional Congress from a conference in Jackson Hole saying,"“The country would be well served by a better process for making fiscal decisions.”


http://www.alaskadispatch.com/article/it-time-mediation-washington?page=full

Why do cases often settle late in the afternoon? Hmm...

Decision fatigue is common to many fields, but I would posit that it is particularly found in complex or lengthy mediation negotiations. Breaks for food and respite are usually built into the day and prevent coercion and false imprisonment claims from arising in the context of a court-ordered conference.

Though skeptics point out that our brain’s overall use of energy remains the same regardless of what a person is doing, there can be no doubt that we experience depleted energy affecting willpower during the process of mediation. Does this in fact prevent self-determination in reaching settlements? Must there be an end other than adjournment or terminating the session which provides an ethical safety valve while preventing buyer's remorse?

The New York Times Magazine article below addressing this phenomenon is worth a read in general, but seems to provide pertinent insight to alternative dispute resolvers on why folks might do what they do when the hour is late...

http://nyti.ms/qMR2Ml

"It ain't over till it's over"

The NFL lockout lawsuit spawned a claim by retirees which wasn't quite resolved in the bigger deal between the league owners and players.

During a case management conference, Judge Nelson quickly suggested talks with Magistrate Judge Arthur Boylan, who brokered the original agreement that ended the lockout but did not settle the retirees' still-pending lawsuit.

Judge-directed settlement talks have been a theme of the recent negotiations in this litigation. In motivating the claimants to settle, she hinted that the case would be difficult likening it to "pushing a rock up a hill."

However, rather than ordering mediation, she told the three sides to sit down with Boylan for informal talks. Subsequently, lawyers for all sides said the discussions produced no agreement or date for additional mediation.

Perhaps a formal order of referral to mediation would have made them take things more seriously? The next scheduled hearing is not until September 15th.


See more at: http://bit.ly/r49vZa

Impasse on Deficit/Debt Ceiling Talks - What will be the Silver Bullet?

Given the stakes in 2012, the public perception of the outcome of these negotiations is important to both sides as campaign season arrives. This battle has been called by seasoned pundits "political theatre" and many believe that the result is inevitable - a deal will proceed before default occurs.

The question is what will it look like and who will take credit for the victory? So far the old familiar positional bargaining has taken place with well worn excuses for not giving in to compromise which will be required of both sides in the end. A looming deadline of August 2 has been placed before the parties as a motivator, though some have questioned whether that is even a drop dead date.

Will there be an element of the negotiation that provides a silver bullet-like end to the stalemate and summons the political will of those involved to make a deal? At this point, The White House has exhausted its influence without imprimatur and it appears there is no real facilitator present to help the Congress reach a decision.

See latest headlines - http://www.nytimes.com/2011/07/18/us/politics/18debt.html?hp

More Judge-directed mediation; this time in NYC

Judge-directed negotiation, is seen by President Obama's administration as offering states a way to curb liability expenses that have sharply increased health care costs nationally. Getting judges involved earlier, more often and much more actively in pushing for settlements, is touted as the crucial ingredient.

In New York, an expanding program started under a federal grant bypasses years of court battles, limiting legal costs while providing injured patients with compensation that is likely to be less than a jury would award but can be paid out years earlier, without lengthy appeals.

This article reports that malpractice costs have been at the center of the debate about health care expenses (and tort reform) for decades, with some states enacting legislation to limit awards. But the lawsuits have been difficult for judges to control, partly because the cases can go on with little judicial involvement for years, pushing up legal expenses and solidifying positions. The judges in this program keep 'em talking...


http://www.nytimes.com/2011/06/13/nyregion/to-curb-malpractice-costs-judges-jump-in-early.html?adxnnl=1&adxnnlx=1308312429-RX2U6WWtghFOsKgCQwpHTg&pagewanted=all