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MEDIATION STRATEGIES FOR THE ADVOCATE
JOHN W. KELLY, JR.
ATTORNEY AND MEDIATOR
ADJUNCT PROFESSOR UNIVERSITY OF HOUSTON LAW CENTER
THIS IS MEDIATIONNOT MEDITATION
OR IS THERE A DIFFERENCE?
MEDIATION
A FACILITIATED DISPUTE RESOLUTION PROCESS LED BY A TRAINED PROFESSIONAL MEDIATOR.
IT INVOLVES MUTUAL AND MULTIPLE INVOLVEMENT, RESULTING IN A JOINT RESOLUTION.
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.
WHERE DO THESE TWO DISCIPLINES UNITE
RESOLUTION
RELAXATION
INTERNAL ENERGY
COMPASSION
PATIENCE
GENEROSITY
FORGIVENESS
JOINT CONSENTRATION OR ANALYSIS
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
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
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
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
PARTICIPANTS
MEDIATOR
YOU
YOUR CLIENT (or DECISION MAKER)
OPPOSING PARTY (or DECISION MAKER)
OPPOSING PARTY’S ATTORNEY
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
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
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
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
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
MEDIATION TECHNIQUES
IDENTIFY AND SEPARATE REAL ISSUES FROM IRRELEVANT ISSUES
IDENTIFY WHAT IS IMPORTANT TO THE OPPOSING PARTY
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
MEDIATION TECHNIQUES
IDENTIFY OPPOSING PARTY’S STRENGTHS AND WEAKNESSES
IDENTIFY YOUR STRENGTHS AND WEAKNESSES
MEDIATION TECHNIQUES
FEED THE MEDIATOR INFORMATION
MAKE THE MEDIATOR THE EXTENTION OF YOU AND YOUR CLIENT
CONTROL THE OFFERS AND DEMANDS* DOSES OF REALITY
MEDIATION TECHNIQUES
KNOW WHEN TO HOLD THEM
KNOW WHEN TO FOLD THEM
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
MEDIATION TECHNIQUES
INCLUDE LOGIC AND REASONING WITH YOUR OFFERS
INSIST UPON LOGIC AND REASONING FROM THE OPPOSING PARTY TO SUPPORT COUNTER OFFERS
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
BEST PRACTICESMEDIATION ADVOCACY
BE PROMPT
BE PREPARED
BE INNOVATIVE
BE PROFESSIONAL
BE LOGICAL
BE PRACTICAL
BE ARMED WITH INFORMATION
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
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
BE INNOVATIVE
THINK OUTSIDE THE BOX
CONSIDER SOLUTIONS OTHER THAN MONEY
IDENTIFY WHAT YOUR CLIENT REALLY WANTS
IDENTIFY WHAT OPPOSING PARTY REALLY WANTS
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
BE LOGICAL
OFFERS ARE PERSUASIVE IF THEY ARE SUPPORTED BY LOGIC AND REASONING
EVERY OFFER SHOULD BE ACCOMPANIED BY ADDITIONAL FAVORABLE LAW OR FACTS
BE PRACTICAL
DON’T GET HUNG UP ON PRINCIPAL
BE ARMED WITH INFORMATION
BRING CASE LAW
BRING DOCUMENTATION
BRING JURY VERDICT REPORTS
BRING PICTURES
BRING DRAWINGS
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
THANK YOU
CONTACT INFORMATION
JOHN KELLY
713-775-3003
www.experiencedhoustonmediator.com
