This workbook is designed for basic mediation training. Authors Scott Hughes, Mark Bennett, and Michele Hermann take NITA’s performance-based training for trial lawyers and adapt it to training for mediators. The Art of Mediation includes details that are often overlooked such as optimal seating arrangements during meetings. The excerpt and graphic below take a look at that section of this book.
Some mediators prefer to work around tables, others do not like to use them unless absolutely necessary because they form a barrier between people. If the mediation requires reference to objects or documents, it may be inconvenient to work without a table. For more relational mediations, tables can be physical and psychological components that keep people apart or help people feel more secure.
Chairs should be positioned so that everyone can see and hear other participants easily. We prefer to keep a distance between the chairs of the parties, which prevents them from leaning and touching or gesturing at the other party in threatening or offensive ways. We also want the chairs of the parties to be at an angle to each other so they can easily make eye contact but are not in a confrontational face-to-face physical position.
In large group sessions, semicircular seating arrangements facing a wall on which flip chart pages are posted are often helpful. When observers are present but not participating at the table, a “fish bowl” offers a logical and effective format, putting the participants in the center and the observers around them.
re-posted with permission from author Joe Markowitz and his blog, Mediation’s Place
At a program I participated in this week (my part is summarized in the two posts below on choosing a mediator) co-sponsored by the Santa Monica Bar Association, one of the panelists, mediator Mark Fingerman, gave an informative presentation on mediation ethics. The problem of ensuring that mediations are conducted in a fair and ethical manner is complicated by strict protections for mediation confidentiality that exist in California. While confidentiality is generally agreed to be necessary to the process, prohibitions against introducing evidence of misconduct alleged to have occurred during mediations can potentially give free rein to attorneys—and mediators—to pressure or deceive parties into agreeing to settlements to which they might not have agreed otherwise. In fact, mediation seems in some ways designed to encourage parties to let down their guard and trust one another, and that trust may not always be justified.
Fingerman noted that other than the intrinsic satisfactions derived from acting as a moral and ethical person, there do not seem to be many effective tools available to prevent fraudulent conduct that may induce parties to enter into a settlement agreement. He did, however, suggest one possible safeguard, a common technique used in corporate deal-making, which is to include in the settlement agreement a recitation of any important representations upon which the parties relied, and warranties by the parties making the representations. Such statements in a written settlement agreement are not shielded by mediation confidentiality. So if any of those representations can later be shown false, the aggrieved party at least has the opportunity to set the agreement aside.
Can we design other effective safeguards to prevent coercion and fraud from tainting settlement agreements arrived at through mediation without unduly threatening confidentiality? Somehow, parties have to be given adequate time and space to make sure they are not making agreements they will regret in the morning. But it is often only after a long, grueling day that has made all the participants tired and confused that the parties’ own counsel, and frequently the mediator, urge them to make the final concessions necessary to get a deal done. Under such conditions, they may not have the time or capacity to think through their decisions, and they may be swayed by false information. But if we were to build in a cooling-off period, or allow parties to rescind their agreements within a number of days, we would have to accept the fact that a lot of settlements would come unraveled, and in most cases that would not benefit the parties.
Does this mean that mediation is an inherently flawed process, as opposed to the traditional justice system, with its many rules and procedures designed to prevent fraud and coercion? Perhaps, but the traditional justice system doesn’t always do such a great job of preventing or policing fraud either. Let’s start with the fact that there is an awful lot of fraud out in the real world. It doesn’t just exist in the conference rooms where settlement discussions are held. Victims of fraud—probably the number one crime in the world in terms of both economic impact and occurrence—are often told when they call the police or the district attorney that the department doesn’t have the resources to pursue this crime and that fraud victims should handle it as a civil matter. But if they resort to the civil justice system, victims of fraud find that the courts set a high bar for pleading and proving fraud, that judges and juries tend to blame the victims of fraud for their losses, and that they are often reluctant to compensate them. I have frequently had to remind victims of fraud just how difficult it is to prove those claims and obtain adequate compensation.
Not only is it difficult to prove fraud in court, court opens up opportunities to commit even more fraud. It should not shock anyone to learn that witnesses sometimes lie under oath. Whenever a jury has to choose between two diametrically opposed stories, it’s likely that one side or the other is lying. But the legal system rarely prosecutes such perjury. And sometimes the trier of fact accepts the wrong story.
Remedies for fraud and coercion are difficult to obtain in mediation as well as in the traditional justice system. Sometimes fraud will occur in mediation just as it sometimes occurs in court. The most effective protections against fraud may still reside in being cautious to accept anything anyone tells you at purely face value, while trusting at least to some extent in the innate desires of most of us to try to do the right thing most of the time.
Joe Markowitz is a mediator and trial lawyer with an office in downtown Los Angeles. He has more than 30 years of experience representing clients in intellectual property, employment, and other commercial disputes, and about 20 years of experience conducting mediations both privately and referred by the federal and state courts. Mr. Markowitz currently serves as president of the Southern California Mediation Association.
Trial skills will enhance your ADR skill-set. During the month of January we have focused on bridging the gap of disconnect between the two practices, and we have shown how developing great trial skills can make you better in mediation, arbitration, and negotiation.
For the final post in our Alternative Dispute Resolution series, Karen M. Lockwood, NITA’s Executive Director joined me in studio71 to answer a few final questions on the correlation between the ADR skill-set and the Trial skill-set. Karen has over 30 years of experience in the legal industry. Her specialties include construction litigation, commercial disputes, large disaster cases, antitrust, trademark and copyright, and ADR. She has been on the American Arbitration Association Commercial Panel since 2004. Karen was an Adjunct Associate Professor of Law in ADR at the American University of Washington College of Law as well as a faculty member and program director at multiple NITA trail skills programs.
We hope that this five-part series has helped you bridge the gap between trial skills and ADR, and that you have learned that trial-skills are in fact very important in the practice of ADR. We also hope that this series has helped you be less afraid of trial.
Previous January ADR Series Posts
- Part 1 – Can ADR practitioners excel without honing their trial skills?
- Part 2 – Mediation and endless curiosity
- Part 3 – Negotiation and the insecurities over losing control
- Part 4 – Arbitration and the Art of Witness Examination
Thank you for reading and weighing in on ADR this month. Next month we will be focusing on Diversity in the Courtroom in honor of National Black History Month.
As part of our ADR series, this month’s book report will highlight a textbook that supports and educates legal professionals involved with Alternative Dispute Resolution. The Mediator’s Handbook is a NITA favorite, and a book that covers all aspects of mediation and ADR.
This book is broken down into stages, to better separate and explain the mediation process. The stages include the Initiation and Preparation Stages, the Introduction Stage, the Problem Statement Stage, the Problem Clarification Stage, the Generation and Evaluation of Alternatives Stage, and the Agreement Stage. These stages are prefaced and summarized with introductory and conclusive chapters as well. The Mediator’s Handbook also includes lengthy and convenient Appendices, which provide the reader with helpful checklists, guidelines, examples, and models of mediation-related processes.
The Mediator’s Handbook discusses the basics of mediation; communication skills; pre-conference, conference, and post-conference duties; and hybrid and non-mediation processes. Author John W. Cooley has used his years of experience as a government and private practice mediator to create a book that relates to legal professionals of all capacities, including:
- Mediators and lawyers who are involved with litigation and non-litigation disputes
- Organizers and participants of Continuing Legal Education programs
- Teachers and students of law courses on mediation, mediation advocacy, or ADR, and
- Advocates who represent clients in mediation.
This post is written by guest blogger: Shahrad Milanfar.
Many view Mediation and Trial work as two separate and unrelated events requiring totally different skill sets. This perspective is not exactly accurate because, at their core, mediation and trial work have one thing in common. Both processes are about Persuasion.
If a trial lawyer can’t connect with and persuade a jury, s/he loses the case. At mediation, if the mediator and the lawyers can’t persuade each other that it is in everyone’s best interest to settle, then the mediation process is unlikely to succeed.
As a faculty member teaching in the NITA trial training and deposition training programs, I and the other faculty members help the participants understand that success in trial requires persuading the jury to see the case from their client’s perspective. This is done by presenting their case in a concise manner, through good questioning and argument, with good timing. This approach elicits empathy and understanding among jurors. The most effective trial lawyers (who clearly follow the NITA principles) know how to speak simply, what questions to ask, and when. They do a fantastic job of telling a story that resonates with the jurors and provides the jurors a “road map” for what they believe is the correct result.
As a mediator, mediation instructor & practicing litigation attorney, I have a unique perspective about the litigation and mediation process. I have worked as a plaintiff’s attorney, and a defense attorney in catastrophic injury cases. I have represented family members in litigation, and been a plaintiff in a real estate fraud case. As I tell my litigation and mediation clients, I have personally sat in virtually every seat in the mediation room and can literally shift my focus to every perspective in the room to find the path to success. Why am I telling you this? I’m telling you this because I firmly believe that the same skills we learn in the NITA programs and utilize in a courtroom are transferrable and applicable to the mediation setting.
Many times attorneys come to mediation and use the opportunity to try to scare the heck out of the opponent into settling. Yet, I have never seen this tactic work, as a mediator, because people rarely settle out of fear. They typically settle because they see value in the settlement. The effective attorneys do a great job of asking good, open-ended, questions and really trying to understand the other side’s perspective because this gives them insight into how to reach a settlement agreement. This skill is similar to the NITA funnel technique, which encourages lawyers to ask broad questions and allow the other side to tell their story. The attorneys and mediator can also use the same skills they employ in building rapport, while giving witnesses deposition admonitions. As we know from our NITA training, admonitions are used to set the ground rules and build rapport with witnesses. This allows for a much better flow of information.
Asking great questions and building rapport is also crucial to mediators because it allows the parties to tell their own stories and eventually acknowledge that settlement is the best alternative to a negotiated agreement (BATNA). I can’t count the number of times I’ve asked a good question at mediation which later helped get the parties to an agreement.
So, how can you apply your trial skills to mediation? Here are a few suggestions:
1. Always prepare. Make sure you talk to your clients about the process, about the people, about the law. Make sure that your clients understand that they are there to work hard and solve a problem. This may mean answering tough questions and making difficult choices.
2. Consider what open-ended questions you can ask the other parties and the mediator about ideas, which may move the case toward resolution. Encourage the mediator to do the same.
3. Remember that life is about relationships and others will work with you because they are persuaded by you and not because they are scared of you.
4. Last but not least, make sure that you listen for and hear what the other party needs to walk away from the mediation with a settlement agreement and not simply walk out on the mediation. The ability to read between the lines is a skill all great mediators and trial lawyers must possess.
In order to speak, one must first listen. Learn to speak by listening.
~ Mevlana Rumi
Build castles with your words. Don’t dig graves.
~ David Schwartz
Previous posts in this series:
Upcoming posts in this series:
- Part 3 – Negotiation and the insecurities over losing control
- Part 4 – Arbitration and the art of witness examination
- Part 5 – The ADR practitioner and the trial skill set
You can join in our LinkedIn discussion on the ADR topic here!