Same-Room Mediation for Small Cases?

It’s a case. Not a huge case, maybe it’s worth $12,000 to $30,000. How do we resolve it efficiently? Same-room mediation before depositions in a motor vehicle collision case can provide the information necessary to settle without the costs of filing fees, service fees or deposition fees. Specifically, the attorney and adjuster get a chance to “eyeball” the parties through the eyes and questions of the mediator.

Many Oregon mediators prefer separate-room or “caucused” mediation to minimize the risks of dispute escalation. Attorneys are comfortable with caucused mediation because that’s the way we usually do it. Also, Attorneys may fear giving inadvertent “tells.” Some parties and / or attorneys just do not like each other, and sharing a room will feel uncomfortable, making them prefer the buffer of distance and the impartial go-between. On the other hand, parties who are willing and able to negotiate in good faith can achieve efficient results with same-room mediation before depositions. Here’s how it works.

Pre-Mediation Exchanges
The injured party presents his or her “bill” for economic losses supported by necessary documents: medical bills and records, wage loss information plus any other out-of-pocket losses. The parties have exchanged other necessary documents in plenty of time to have a feel that this is a case that ought to settle in a fairly limited range.

Those attending the mediation should include the plaintiff, the defendant driver, the adjuster and the attorneys. There are many reasons for the defendant driver to attend, including for the plaintiff’s attorney to “eyeball” him or her without the cost of a deposition. Experienced attorneys agree that the value of a case often turns on the relative likeability of plaintiff and defendant. This procedure allows everyone to make those judgments before making settlement offers.

Preferably, whatever boilerplate the adjuster requires has been provided to plaintiff’s counsel so there will be no post-mediation fights about wording or what constitutes the “usual terms.”

The mediator and the attorneys have discussed the format of the mediation and agree to the procedure.

Conduct of the mediation

Set up.

Generally, the mediator should sit at the head of the table, flanked by the attorneys on either side, their clients next, and the adjuster behind. This makes the clients feel protected.

The mediator talks to the parties, confirming that the parties understand the procedure and ground rules.

Exchanging Facts.
Next, the mediator has one side or the other tell his story. The plaintiff need not go first. Sometimes there are great benefits to having defendant driver go first. If the defendant is likeable and contrite, that can go a long way toward dissipating tension. If the defendant driver is angry because he thinks the lawsuit is bogus, then everyone gets a preview of what a jury or arbitrator might see. For example, in one mediation, a commercial truck driver disclosed to the plaintiff husband and wife how scared he was that he’d lose his job. At the beginning of the session, there was some shouting caused by the pent-up stress and fears of the parties. By the end of the mediation, plaintiffs and defendant understood each other as human beings and shook hands with genuine affection.

This exchange of stories provides two main benefits of same-room mediation. The first is confidential* and efficient discovery. A mediator with knowledge of the subject matter can elicit the stories in a direct way. Often the parties will agree on many facts. Where they disagree, the mediator inquires about supporting evidence. When parties get stuck on irrelevant or inadmissible facts, a skilled mediator can allow them to express their frustrations or point and then help them realize that these issues do not affect settlement value.

The second main benefit is what I call “self reality checking,” as contrasted with the mediator’s efforts to help you understand the potential risks of trial. When the parties sit together, even though it is uncomfortable, they learn that there are two sides to the story. Too often, people and their advocates lose objectivity. We tend to overvalue our cases. As an advocate, I’m a true believer in my clients (otherwise, I drop them). As a mediator, however, I see a full range of credibility; I see evidentiary holes; and I see where some parties might be blindsided if they proceed to trial. Same-room mediation puts the attorney in an observer role. The attorney sees through the eyes of an impartial third party asking questions in a non-adversarial way. Advocates begin to comprehend that a neutral fact-finder might NOT believe our clients 100% of the time on every issue. Perhaps my biggest epiphany as a mediator is to understand how both sides overvalue their cases, and same-room mediation provides a better eye-opener for advocates than does caucused mediation.

The law.
Often, the attorneys have a very similar view of the law. When that is confirmed in joint session, then nobody says in the private session, “Doesn’t the other lawyer get it? He / She is just dumb!” Also, there are times when the client does not fully appreciate burdens of proof, and joint confirmation can facilitate reasonable proposals.

Secret Weapons
Sometimes attorneys believe they have secrets. In one case, defendant had a video of the injured person with 50-pound bags of dog food. In another case, the defense attorney believed the plaintiff’s attorney pleaded the wrong legal theory and would lose on a motion at the close of plaintiff’s case. In another, the employer had E-mails that undercut plaintiff-employee’s credibility. What to do in these cases?

If you want to try your case, then don’t mediate. Keep your secret and hope that the other side is not keeping secrets, too. Maybe all of your witnesses will show up and testify. On the other hand, maybe you’d learn that plaintiff freely admits to handling 50-pound bags or that, with the disclosure, the other attorney might push the client to settle for peanuts.
After both sides tell their stories, mediations take off in many directions.

The First Offers & Initial Impasse
In Oregon, our standard practice is to shuttle offers back and forth. Typically, both sides want to start with unreasonable positions. (How many hours and dollars have been spent letting go of unrealistic positions?) Parties use unacceptably high offers to (1) express their intense feeling, (2) hide their true evaluation of the case, (3) provide a lot of room for bargaining, and (4) preserve the chance of a windfall if the other side is stupid or weak. The result is that most mediations begin with impasse: Neither side wants to be the first to step into the realistic range

When face-to-face, however, the first offers tend to be less outrageous. Or, if the party’s offer is ridiculously high or low, usually, body language, tone or other “tells” indicate that he or she knows it is a throwaway offer. For most people, it’s harder to state something outrageous without the shield of a separate room and a mediator to blunt the response.
Also, if the parties have spent the time together reviewing the facts and law, then each side knows that the other side possesses similar information and will not be fooled by a demand that is too high or an offer that is too low.

Caucusing
Caucusing is common even when the parties begin in joint session. I will call a caucus for a variety of reasons including:

• The discussion has become circular or repetitive.
• Allow for venting in a way that does not escalate the dispute.
• I need to refocus a party on his or her interests.
• I want to probe the parties for their true feelings and help them understand their risks and weaknesses.
• Discuss the possible use of confidential information.
• Provide time and space for confidential attorney-client discussions.
• I want to brainstorm settlement proposals in a situation where the parties feel safe.

But, you know all about caucused mediation. The point of this post is to discuss same-room mediation. To summarize, the two key benefits of same-room mediation are: (1) confidential, pre-deposition or pre-litigation chance to evaluate key witnesses and (2) reality testing of the advocate’s subjective view of the case while he or she observes mediator discussions with the parties. Overall, in the right case, with attorneys who respect the process, a joint session can provide a more direct and cheaper path to settlement.

Jeff Merrick

Endnote:
* ORS 36.220 et. seq. provides for strict confidentiality of mediation communication. What is said in mediation stays in mediation and cannot be used later if mediation fails.

© 2012 Jeff Merrick, Merrick Mediation Services

Ninth Circuit Rules on Use of Statistics

Last week, the Ninth Circuit Court of Appeals discussed the use of statistics in proving employment discrimination. By statistics, I mean trying to prove discrimination by comparing the numbers employees: for example, men compared to women or people over age 40 compared to people under 40. Schechner & Lobertini v. KPIX-TV involved layoffs at the television station. William Schechner and John Lobertini alleged the employer favored younger employees and women when deciding who to keep and who to let go.

To understand the ruling, one must understand the three-part structure for proving employment discrimination. First, an employee must produce evidence that raises a sufficient stink of discrimination, which is called the prima facie case. For example, if a company kept only women and fired only men, then that smells fishy enough to require an explanation from the employer, which is part two. In part two, the employer must explain a legitimate, non-discriminatory reason for its decision. In part three, the employee must show that the employer’s stated reason is phony, a “pretext.”

The legal issue in last week’s case had to do with part one. The employees showed that the group of people laid off were older than the group of people who remained after the reduction in force by a statistically significant margin. The employer claimed that the statistical evidence was not valid, because it did not take into account its reasons for the decision. For example, the employer immunized high-profile news anchors from lay offs, and the statistics should have excluded them, too, claimed the employer.

The Ninth Circuit disagreed with the employer. The court held that employees may establish the prima facie case – the stink of discrimination – with the raw statistics, and employees’ statistics need not account for the employer’s stated reasons. “A plaintiff who relies on statistical evidence to establish a prima facie case… bears a relative low burden of proof.” The court cited previous cases where very weak statistics were enough to meet part one.

But that is only for part one. The employees still lost because they could not show that the stated reasons for the lay off decisions were mere pretexts or that age was not a motivating factor in the lay off decisions.

Jeff Merrick, Merrick Mediation

Copyright 2012

Book Review: The Power of a Positive No.

Is it a self-help book? Is it a book on negotiations? The Power of a Positive No felt like both. Author William Ury called it a pre-quel to his classic book, Getting to Yes and this follow up book, Getting Past No. His thesis is that people must (1) fully understand their interests before negotiating, (2) say “no” to that which is against their long term interests, (3) say no in a “positive way that enables them to stand up for what they value without destroying the relationships” with the other side. By going through this process, parties can say “yes” to a deal that satisfies both parties with a lower risk that the agreement will fall apart later. Better to assert a principled “no” than say “yes” to something that “undermines our deeper interests” says Ury.

A positive “no,” argues Ury, is the best choice when one conflicts with another. Less attractive options are accommodation with something you do not like, attacking the other side, or trying to avoid the true issues. Ury views the process as uncovering and saying “yes” your own deeply rooted interests, saying “no” in an appropriate way to the other side, and then “get to yes” with the other side. He uses this tree several time to illustrate.

Ury’s illusration of his Positive No concept

The book goes on and on and on for 240 pages. It rehashes many of the concepts familiar with mediators and negotiators – concepts Ury and his co-author discussed in Getting to Yes. The perspective is a bit different. This book seems like a support group for someone about to enter into an important negotiation. It provides an analytical framework for thinking about an upcoming negotiation or confrontation, whether it is in business or between family members. The book offers suggestions on tone and technique of communications, which include explaining your interests or reasons for rejecting the other’s proposals and treating the other with respect and dignity before you present your counter-proposal. Ury reminds people to remain calm and in control of one’s emotions and other things that are pretty much common sense. I found myself skimming pages after the midpoint of the book.

Experienced mediators and negotiators can skip The Power of a Positive No. On the other hand, if you, personally, are facing a big issue, whether it is with family, work or business, this book will help you prepare and give some tools to for the upcoming confrontation.

Ury’s third book reminded me of some movie sequels. Rocky I was pretty good, but by Rocky III, we’d been there and done that.

Jeff Merrick, Merrick Mediation Services, ©2012

What Makes a Good Mediator?

What are the desirable traits of a mediator?  I reviewed five articles on the topic and came up with five characteristics.  Although people use different words, the concepts are fairly consistent from survey to survey.

*  “Humanity” encompasses some characteristics considered desirable by mediators and consumers of mediation services.  To develop trust, the mediator must respect the parties, listen carefully, and identify and relate to the deeper emotions that underlie spoken words.  One author wrote that a mediator must “create the feeling of being ‘at one’ with the disputants and concerned with their well-being.”  More than one author noted that good mediators show an appropriate sense of humor and display optimism.  Other words people use to describe good mediators include, “empathy,” “sympathy,” and “friendly.”   I absolutely believe that identifying and acknowledging each party’s feelings is critical, not just the party who feels “injured.”  Insurance adjusters, bill collectors, and business owners are people, too.  All must be respected as individuals and not be treated mere role-players.

* “Hard working” is how one author put it.  Whether we cook for McDonalds or work for the parties to a dispute, our employers expect us to work.  This concept of simply being diligent includes some of the other qualities authors mention as desirable, such as (a) devoting time before the mediation to prepare — procedurally and substantively, and (b) being “persistent,” “proactive, “persevering,” or “relentless” during the mediation.

*  “Trusted.” A mediator must be acceptable to both sides.  Parties want neutrality.  To talk openly, parties must believe that the mediator will keep confidences and use information in a constructive way that advances the process.  Other words used included, “honest,” “reliable,” “impartial,” “objective,” and “respected.”

*  “Intelligent.”  Parties want mediators who can “grasp issues quickly” and “understand quickly the dynamics and complexities of a dispute.”  Although many mediators believe we should act as facilitators more than problem solvers, parties want mediators who can do both.  Parties and their attorneys want mediators with substantive knowledge pertaining to the issues in dispute.  They want mediators who are able to analyze the issues and evidence, point out risks, and manage difficult clients or opponents.  They want flexible and creative problem solvers rather than someone who will passively accept apparent impasse.  In my view, what distinguishes excellent mediators from the hacks is the ability to use their intelligence in the least obtrusive way possible.  The parties are more likely to say “yes” when they believe the elegant solution was their own rather than proposed or imposed by the mediator.

* “Professional” encompasses a range of concepts.  The most elemental is someone who is prepared, controls his or her own feelings, treats people with dignity, and documents all settlement terms.   A “professional” is someone who possesses the skills of the trade or sport and employs them effectively.  Mediators, like all professionals, must continually work to expand and practice our skills.  Only then can we identify, create, and seize upon opportunities to help the parties achieve their goals.

Jeff Merrick, Merrick Mediation Services, © 2012

Judge Acosta Discusses Mediation

As the bar mediates more cases than we try, it is important for us to understand mediation more deeply.  What are the qualities of mediators and attorneys that result in good outcomes?  The Honorable John V. Acosta of the U. S. District Court for Oregon is a favorite choice among the bar to serve as settlement judge. He was kind enough to sit down with me to talk about mediation.

Judge as Mediator

Judge Acosta knows that parties often view a judge as the “presumptive fount of knowledge; ‘Well if the judge says . . . .’”  To encourage self-determination, Judge Acosta “takes every precaution to ensure that [my judicial office] doesn’t take over the process for the parties.”   He takes time at the beginning, especially in plaintiff’s room, “to ensure the plaintiff knows that this is not my decision.  It’s theirs. It’s not my case; it’s theirs.  I am not here to tell them to do anything or to take or make any offers, or to tell them to settle the case.  It’s all up to them.”

Give people time and space

            “I think the process is extremely important to creating ownership of the result,” says Judge Acosta.  If one of the parties thinks “they have been given an ultimatum or the number has been dictated to them,” then they are “not going to own the process.  They are not going to feel good about it, and they are less likely to say ‘yes.’”  Mediation that elevates self-determination over authoritative direction takes time.  That’s one reason why Judge Acosta does not set a time limit for the settlement conference; he sets aside a whole day.

Some mediators believe in same-room mediation, but not Judge Acosta, “I am a firm believer in not convening the parties in the same room — at any point in the process. I have never found that it helps facilitate an open discussion and ultimately a settlement in the cases that I have conducted.  Usually, it hinders the process.”

So what is it about same-room mediation that can be a problem?  Judge Acosta harkened back to his experience as a lawyer.  “When you get them in the same room, then the lawyers have to be advocates, and they have to put their best face on their client’s case.  That usually means saying stuff in the presence of the opposing party that makes the opposing party angry.  Then, that lawyer feels compelled to respond.”

What makes a good mediator?

Judge Acosta says the primary skill of a good mediator is listening. “Most people listen to respond.  When you mediate you have to listen to understand.  The best mediators that I encountered as a lawyer listened and understood my client’s viewpoint, perspective and position. Mediators really have to do that.  If you come in with a preconceived notion of where the case should end up and you start driving the process, that’s wrong. You are not really paying attention to what their interests are, you are just trying to maneuver around positions. I don’t think that is the way it should be conducted. So I think that listening is first.”

A mediator cannot listen unless and until the parties speak openly.  Judge Acosta is terrific at asking the right questions and projecting the empathy, which encourages the parties to talk.  In the plaintiff’s room, I’ve heard him open with, “When you think of this case or your employment [in an employment law case], what do you think of?”   It is a brilliant question on so many levels.  It permits the plaintiff to unload anything she wants.  Maybe she did not sleep at all last night.  Maybe she’s blindingly angry at how she was treated.  Maybe she’s worried about how she can take time from her new job to sit for a week at trial?  The open-ended question identifies interests and concerns that can go well beyond the usual ones that attorneys assume are in play.

Another important skill, says Judge Acosta, is the ability to “honestly challenge each side’s firmly-held beliefs about their cases.”  Here’s where settlement judges differ widely in approach.  For Judge Acosta, “You have to do it in a non-judgmental way that does not put them on the defensive.”  Judge Acosta likes to start with the strengths of a case to build trust.  Later, he tries “to make each side think about their case in ways they hadn’t previously thought about it.  They can’t own the process if I am telling them what their case is and isn’t. So I try to guide them to their own conclusions, which, in turn drives their decision-making.”

Judge Acosta’s approach is to emphasize his position as a neutral person coming to the case with fresh eyes, rather than as judge declaring what will be the likely outcome.  “I put it in the context of what a jury is likely to pick up on and wonder about and ask questions about and respond or react to.  I tell the parties, if I am having these questions, there is a pretty good chance that one or more of the jurors is going to be picking up on the same things.”

What can attorneys do to achieve good results in mediation?

Over the four years he has conducted settlement conferences, Judge Acosta has identified traits that distinguish attorneys.

Understand that the law is less important in mediation.

“Your role should be to represent your client’s best interest.  To try to get the outcome your client wants, and that doesn’t always mean you have to be the zealous advocate that you would be in a trial or a deposition,” says Judge Acosta.

According to Judge Acosta, “In mediation, attorneys tend to place too much emphasis on the law.  Law is not so important in a mediation or settlement conference as lawyers often think it is. Is it important in the case? Sure: motions for summary judgment, motions to dismiss, evidentiary motions, jury instructions, sure.  But we are not doing any of that in a settlement conference. Attorneys often try to impress me with how great this legal issue is for a party, and my response is always, ‘Well, if you’ve got a great legal position, you ought to just go file your summary judgment motion or try the case.  Why are you here?’ Well, they are here because they know there is always a risk to either side in any case moving forward to a jury.  I want to get to the more pragmatic issue of “how can we resolve this?”

Good attorneys let their clients talk.

Judge Acosta continued, “The best lawyers let their clients talk for themselves. I like to talk directly to the parties.  Doesn’t matter what room I am in, it absolutely doesn’t. If I am in the defendants’ room, I take the same approach. I talk with the representative.  I can talk to the lawyer anytime, but I can’t talk to the representative except this time.  It is their case, not the lawyer’s case.  It is not the lawyer’s decision.”

“The best lawyers let their clients talk and don’t interrupt. When they do interject, it is usually very helpful context or affirmation of what I am saying or linking it to something that the two of them have talked about as a factor in that party’s decision making. That is very useful.”

Counsel your client on the realities of the case.

Judge Acosta advises attorneys to “be realistic about the case before you ever show up for the settlement conference.  Candidly identify the weakness of the client’s case.  Manage the clients expectations by honestly conveying to them jury verdicts or settlements in similar cases.”

“Quite often plaintiffs start very high in a range that they know the defendant is not going to pay. They are trying to create some room so that when they get to the real bargaining, they will end up where they would like to end up. And Defendants always start too low. They come in with a number that they know that the other side is not going to take, but they do it for the same reason.”

“Very effective lawyers,” said Judge Acosta, “have already had a heart-to-heart talk with their client about starting at a realistic range. It doesn’t matter if it is the defendant who comes in realistically or the plaintiff who comes in realistically. That really helps me because I can say. ‘Look, these folks are already starting at a range that is within the range of reason. You are not even on the map here. You need to get close because if you don’t, I am not going to be able to do much with the other side until you do.’”

Effective attorneys dovetail their counseling with the work of the settlement judge.  According to Judge Acosta, “Some lawyers do this ahead of time.  Other lawyers to do it in the settlement conference itself, [perhaps] because they are waiting for the judge talk to their client before they can say ‘see now, remember what we talked about before we came here today. You heard what the judge said.  That’s a lot of what we talked about.  Let’s look at our number now.’ The good lawyers I have seen in settlement conferences do that very effectively.”

Jeff Merrick
Merrick Mediation Services
Copyright 2012

Should Oregon Mediation Association certify mediators?

The Oregon Mediation Association is considering a program to certify mediators.  Larry Coady, Convener of the OMA Standards and Practices Committee summarized the current ideas under consideration, and he requested feedback from members.  (Click on –  OMA Certification? – to view the article.)

What caught my eye was that the OMA would do nothing to certify competence.  It would merely set standards for education and experience and then certify that people met those standards if the applicant for certification SAID they met the OMA standard.   What follows is my feedback to the OMA.

Dear Larry,

Greetings, and thank you for your work on the OMA Standards & Practices Committee.  I write in response to your invitation to comment on the certification program.

The (rhetorical) question I have is whether the groundswell of support for mediator certification is coming from mediators who want a badge of legitimacy or from victims of “mediator malpractice.”  If the OMA will not adjudge the competency of the mediator, then will certification only serve as a restatement of a mediator’s own resume?  (“Jeff Merrick SAID he attended trainings and was involved in 20 mediations, therefore OMA declares that he did.”)

“Certification” may be the wrong word when the OMA will do no independent investigation of the qualifications submitted by a member.  (And does the OMA have insurance if an “OMA Certified” mediator brokers an unconscionable agreement and the victim sues the OMA?)  It sounds like you will employ an honor system for certification.  In effect, OMA will set standards, and people will self-certify with OMA’s stamp of approval.

Perhaps OMA should consider a different approach.  Perhaps OMA could set forth specific standards for different areas of practice.  Then mediators can say, for example:  “I meet the OMA standards for family law mediation.”

Restated, my thoughts are:

  • Does the public need certification? Or do mediators need certification for their marketing?
  • OMA should not “certify” mediators based on mediator’s own declarations absent some test of competency and some insurance to protect OMA, Inc. from lawsuits.
  • OMA could set standards.
  • If OMA establishes additional standards, then Mediators may declare to their potential clients that their experience and education meet OMA Standards.

Thanks, again, for your volunteer work on the committee, and best personal regards.

Jeff

Understanding-Based Model of Mediation

Group Photo – Gary Friedman Mediation Intensive 2012

Gary Friedman and Catherine Conner led the five-day, 40+ hour mediation intensive class in Spring 2012 in Marin County, California. Gary Friedman has been a mediation leader for decades, having taught and practiced mediation for over 30 years. He has worked with Harvard Negotiation Project and has taught at Stanford Law School. As a passionate and thoughtful practitioner and proponent of same-room, understanding-based mediation, Gary Friedman is in high demand, nationally and internationally. Catherine Conner is a leading mediator and collaborative lawyer. In fact, one of my classmates at the intensive said he has hired her roughly 30 times as a mediator to help resolve his cases. Both are very skilled practitioners and teachers.

We started with 24 students, all intelligent and insightful but with different backgrounds. Some were younger lawyers, and some older. A judge and a few psychologists rounded out the group. What is great about working day and night with the same group is that we can pick up where we just left off to work through the process, the issues, and engage in great discussions. At times, I felt like I was in ancient Athens learning with Socrates and Plato.

The first part of Friedman’s model requires that mediators ensure that the participants agree to THE process. Friedman’s essential paradox took me a couple of days to accept. On the one hand, Friedman preaches self-determination: A mediator should follow where the parties want to go and should not drive them to a process OR result. But what if the parties prefer separate-room negotiations where the mediator keeps secrets and shuttles back and forth? It’s their decision, right? Yes, but Friedman would not serve as their mediator because he is thoroughly convinced in the superiority of his method. With his commitment to the understanding-based model, Friedman was the perfect teacher for me, because most of my experience as an advocate had been with separate-room mediation. I found it worthwhile (a) to explore philosophical underpinnings of the method and (b) to practice mediator tools used to conduct such mediations.

Stages two and three of the model are to define the problem and work through conflict. Here’s where the mediator in Friedman’s model earns his or her money. When the parties are in the same room, the mediator must be conscious of everything: positioning and body language, eye contact, and emotions. Spoken words are only the tips of icebergs as we gather information. People will often say “what” they want. A mediator should dig down to help identify “why” they want it. In Watergate, it was: “Follow the money.” In Freidman’s method, it is “follow the ‘why trail’” to fully understand where each party is coming from and to determine their needs, interests and priorities. The classic example is, “Why do you want the orange?” Maybe one person wants the peel for cooking and the other wants the inside to eat. If that’s the case, an agreement on how to split the orange is obvious.

Following the “why trail” is easier said than done for a lot of reasons. Sometimes, the parties, themselves, do not fully comprehend their own needs. Sometimes anger, frustration, fear and other emotions boil over, and the mediator has to be the calm center holding it all together. The mediator must help the parties dig down to reveal all of the concerns so that the parties can achieve a durable agreement that resolves as many of their issues as possible.

Stage four is not unique. Here, the parties brainstorm options, preferably without any evaluations. Once the parties have exhausted the options, then Friedman and Conner suggest that the mediator ask each party to rank each option as follows:

A = interested in taking about it.
B = mildly interested in talking about it.
C = not interested talking about it at this time.

As we worked through the process in our exercises, this ranking proved more useful than I would have imagined. When both sides give a “B,” then one feels like the parties are getting somewhere because the parties discover points of potential agreement.

The next part of the process is to compare the acceptable options against the parties’ interests. Some options will meet both parties’ needs, but other options will not. By now, the mediation has funneled the dispute to the true differences that remain and on which they must bargain to conclude their agreement.

So, that’s the skeleton outline of the Friedman, Understanding-Based Model of Negotiation.

Jeff Merrick, Merrick Mediation, ©2012

Mediation “Schoolhouse” at Green Gulch Farm

R.P. Jones Model of Mediation

The Honorable Robert P. Jones passed away a few years ago. He served as Circuit Court Judge in Multnomah County. (Not to be confused with U.S. Dist. Ct. Judge Robert E. Jones.) I liked and respected him. He conducted mediations or settlement conferences in a way that I’d not experienced before or since. This post describes his approach.

First, he possessed a great presence. He emanated a feeling of strength, kindness and wisdom. When he greeted, for example, a bereaved parent, there was not a feeling of being rushed or that this was just another case. Instead, Judge Jones put out his hand, looked a mother in her eyes, and said simply, “I’m sorry for your loss.”

The attorneys knew, coming in, that Judge Jones was among the best judges. He was the “go to” judge for medical malpractice lawsuits. He was very active and interested in trial practice. For example, he wrote a “Tips from the Bench” column for The Multnomah Lawyer. Also, he advocated for better jury instructions that were more understandable than the legal mumbo-jumbo that makes a juror’s eyes glaze over. Lawyers trusted him.

Second, Judge Jones was a careful and patient listener. He did not “loop” or “VECS” as much as trainers teach mediation practitioners to do. But he did his best to understand the parties’ feelings about their cases. Of course, he asked clarifying questions, as necessary. However, one never felt like he repeated information just for the sake of proving to you that he understood, which, I feel, can sound patronizing in the hands of someone without sufficient sensitivity.

After taking the necessary time with each party, maybe 30 to 45 minutes. He did what others do not do, at least not without advance discussion and explicit direction from the parties. Judge Jones, himself, came up with a settlement proposal. “I think this case should settle for $400,000,” for example.

Some people who teach, practice or study mediation would be aghast. Many mediators, even if asked to give their opinion in such a manner, would decline on principle. There are a variety of valid reasons to oppose such an approach. Chief among them is that it diminishes the self-determination aspect of mediation.

But here’s the other side. Many people who are untrained in law and do not watch trials every day have no idea how to place a dollar value on a claim for injury. They look to their lawyers for guidance. On the other extreme, other people think they know the value of a case, because they heard about a verdict in Georgia for $10 million, and they think their case should be worth $10 million. Judge Jones provided the parties his opinion, FROM WHICH the parties could begin discussions.

The parties could accept Judge Jones’ evaluation and be done. Or, they could start their negotiations from “the middle” instead of opposite extremes, which is more common in negotiations. When parties begin with $10 million on one side and $5,000 from the defendant, then the parties begin with an impasse over who will make the first offer within the range of reasonableness. (I discussed this in a prior post.)

Any mediation, whether it is pure facilitation or begins with the neutral’s opinion depends on trust. The parties must trust the process and trust the neutral. Few neutrals could pull off what the Honorable Judge R.P. Jones did. But for some people, it proved an efficient way to resolve what needed to be resolved and get on with their lives.

Jeff Merrick
Merrick Mediation Services
Copyright, 2012

Understanding-Based Model of Mediation, Part 1

Gary Friedman leads the 40-hour intensive mediation training that I will attend this week. He’s a proponent of what he and co-author Jack Himmelstein call the Understanding-Based Model of Mediation.* Four principles guide this approach.

The first and, by far, most important principle is to develop understanding. The mediator helps the parties understand their own and each other’s perspectives, concerns and priorities. With this better understanding, the parties can then work on solutions to the problem that brings them to mediation.

I’ve found that with better understanding, the parties can sometimes solve problems in addition to the immediate problem or lawsuit. While mediating cases for the Clackamas County Court, I encounter parties who have issues that go well beyond the money over which one party sued. Through better understanding, the parties craft agreements that go beyond the issues raised in the lawsuit.

Friedman describes the second principle as “going beneath the problem.” To me, this is a bit redundant with the first principle. Under this prong, Friedman discusses the subjective dimensions: assumptions, beliefs, feelings, anger, fear, etc. With this depth of understanding, the parties have a chance of working together, both today and in the future.

This is precisely what happened during my last mediation. One party was an insurance company that was trying to claw-back payments to a doctor. To the insurer, the issue was about following its rules. To the doctor, it was about integrity and the implication that he did something wrong or tried to sneak something past the company. He had performed the services for which he sought reimbursement. The doctor’s office-manager wife attended the mediation and expressed their anger at the implication of fraud and their fear that if they challenged the health insurer, then the company might dismiss them from the coveted preferred provider list. Once the doctor’s wife understood it was just “bean counting” for the insurer and that the insurer would not retaliate, she could move forward. Once the insurer understood how deeply offended the doctor felt, they were able to resolve the lawsuit plus develop additional agreements on how to avoid this problem in the future. This same-room negotiation was critical to developing understanding and options for agreement and a continuing relationship. The good result probably would not have occurred either with a trial or with separate-room, or caucused mediation. The insurer needed to see and feel the raw emotion it caused to a real person with a beating heart and functioning tear ducts.

Friedman’s third principle is party responsibility. He believes mediators should ask the parties to own their conflict: to assume responsibility, work through the issues, and reach agreement. This dovetails into his fourth principle, which is “working together.” Friedman wants the parties and their lawyers in the same room. He prefers no caucusing or shuttle diplomacy between rooms. The mediators job, he says “is to enable the parties to reach a mutually agreeable solution together.”

Among the dangers of separate-room mediations, argues Friedman & Himmelstein, is that the mediator becomes armed with more information than the parties. Then, the mediator is able to develop his or her own solution and urge or manipulate the disputants toward the mediator’s endpoint. Better to let the parties own and solve their problem(s) with your help in an open-transparent manner.

I agree that it is best if a mediator can convert disputants into partners working together to achieve success. However, if the premise is that same-room negotiation is THE ONLY way to go, then I start this 5-day training with some skepticism. Instead, I believe that a mediator should be skilled in all forms of mediation and, with the permission of the parties, determine which approach or combination of approaches might best help the parties. (I also begin this five-day workshop with pants on which I just spilled airplane coffee.)

Jeff Merrick
Merrick Mediation Services
©2012

* Gary Friedman & Jack Himmelstein, Resolving Conflict Together: The Understanding-Based Model of Mediation, 4 J. of American Arbitration 225 (2005).

Recent EEOC Disability Discrimination

The EEOC reported on four disability discrimination cases in March. Collectively, they show that some employers either do not understand their obligations or take calculated business risks when deciding to break the law.

Managers should not nickname bipolar workers “Psycho.”

In Maryland, a Jeep Dealership was not exactly compassionate when its office worked disclosed she had bipolar disorder. Instead, management started referring to her as “psycho” and “pill popper.” While the employee was out on medical leave, the employer fired her.

The employer stood firm, refusing to settle before a lawsuit. Then, the EEOC sued, alleging illegal harassment and discrimination because of disability or a “record of disability.” Psychiatric conditions may constitute a disability, too. The employer settled the lawsuit by agreeing to pay monetary damages and distributing a written policy to all employees on disability harassment and discrimination.

You want medical leave? We want you gone.

In Wisconsin, an employee was on approved medical leave when she requested an extension of leave to treat the osteoarthritis that was killing her knee. After the request, and while the employee was still on approved leave, the employer fired her without discussing how they might work through the issues. The Americans with Disabilities Act (ADA) requires an “interactive process” to discuss “accommodation alternatives.”

The EEOC sued the employer, alleging that the employer’s action violated the ADA. The lesson for employers is to, AT LEAST, talk to the employee and see if a reasonable accommodation is possible.

Request for leave denied, and your fired.

In North Carolina, a licensed practical nurse working for a nursing facility was diagnosed with a major depressive disorder. She had an episode that caused her to be admitted for psychiatric evaluation and treatment. Her husband called in, reported the problem, and said that the employee needed a medical leave of absence. Two days later, the employer refused the leave request and fired her. The EEOC tried pre-lawsuit negotiations, but the EEOC could not broker a deal. So, the EEOC sued, seeking back pay, compensatory and punitive damages, and other relief.

Retaliation for reporting harassment.

The fourth ADA case reported so far in March came from Buffalo, New York. A sales associate with Family Video Move Club, Inc, a huge outfit located in 19 states, had major depression and social anxiety disorder. He was subjected to harassment on the job because of his disability. When he complained about it, the employer had a duty to investigate and take immediate and appropriate corrective action. Instead, it fired the employee after he complained.

The EEOC sued, and the case settled via a consent decree, which is a court order to which the parties agree. Under the decree, Family Video must pay $70,000 in damages to the employee, and the employer must prepare anti-discrimination policies and procedures, provide training, and monitor its own workplace for three years. This could be a big deal because if another discrimination case happens, then the employer could be in violation of a court decree, not just the laws against discrimination.

Jeff Merrick, Merrick Mediation

Copyright 2012

Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes.

Mediators fantasize about converting fierce opponents into genial joint problem solvers. However, in the real world of personal injury and other lawsuits for money, mediators must help parties who hear the first offer and shout, “That’s insulting! Don’t they realize. . . ?”

Mediator J. Anderson Little shared his strategies for facilitating resolution of such disputes in his book, “Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes.” Little’s ideas are useful to both mediators and advocates who negotiate civil lawsuits over money.

Have a plan, work the plan, and revise the plan.

Little’s primary message is, Have a plan for movement. Before attending mediation, consider where you will to start and end the negotiations. Plan the moves you will make to achieve settlement within your authority. During mediation, consider what message you communicate with each offer and how to avoid miscommunication.

Reactions to Unrealistic Offers.

A large part of a mediator’s job is to help the parties process their negative reactions to unrealistic offers. Usually, one party will open with a unrealistic offer. The mediator can discuss with the offeror the reasons for the too-high (or too-low) offer and identify the benefits and risks of such an offer. If, nevertheless, the party wants the mediator to present an outrageous offer, then the mediator must help the other side control their negative reaction. One approach is to talk through the pros and cons of the following options: (1) get up and leave, (2) make a counteroffer that is similarly outlandish, (3) or, in effect, ignore the outrageous demand. Pretend that the initial offer was reasonable, and counter with what you would have offered, anyway.

Movement Breeds Movement.

“The greatest motivation of the parties to settle is the perception that the case can settle. And the greatest impediment to settlement is the perception that the case will not settle,” observed Little. If parties begin negotiations on opposite planets of, say, $800,000 and $8,000, then they feel discouraged from making offers in a “real” range. One common response is to make small moves — $780,000 and $8,200 — thereby trying to pull the other side toward a real range and trying to avoid a signal that you’re willing to split the difference. Small moves breed small responses. On the other hand, a big move will often motivate the other to make a significant move, too. “The solution to getting better movement then, is counterintuitive. The way to get movement is to make movement,” says Little.

There’s a time in most mediations when litigants get discouraged about the chances of resolution. “We’re not getting anywhere!” Or “We’ve made our best efforts.” As litigators, the optimism with which we began the day has soured into fatigue, frustration, and anger that the other side is so pigheaded. However, from my own experience as a litigator, it is during this last phase of the mediation that we can best serve our clients. Everything before was just the preliminary ritual. Now, the real negotiations begin.

Conclusion

Little’s book, “Making Money Talk” reminds us that before attending mediation, litigators and their clients need to consider what they are willing to pay or accept, their opening bids, and how to move through their range of acceptable outcomes. Money does talk; litigants derive meaning from offers. A mediator’s job includes trying to help the parties interpret the offers and respond. Before concluding any mediation, the mediator should help the parties reevaluate their positions and help them determine additional strategies for movement. Only then can the parties measure the true distance between their positions and decide whether they can bridge the gap.

Jeff Merrick
Merrick Mediation
Copyright 2012

Too much mediation? Try a civil conversation first.

Elden Rosenthal was spot-on in his article Second Thoughts on Mediation, A Trial Lawyer’s View. Mediation is not appropriate or necessary for every case. Mandatory mediation contravenes the most fundamental principle of mediation: self-determination regarding what process to use to resolve the dispute. See, OREGON MEDIATION ASS’N. CORE STANDARDS OF MEDIATION PRACTICE (Rev. 2005).

The expectation of mediation discourages negotiations. Not long ago, another attorney initially refused to negotiate. He said, “I do not want to put a number out there before mediation.” I responded that I would not mediate the small case. As Mr. Rosenthal urged, attorneys should refuse mediation unless the parties are unable to negotiate their own resolution.

The expectation of mediation in which the parties remain separated can discourage good faith. As Mr. Rosenthal notes, when attorneys and parties never expect to talk with one another, it can lead to overly aggressive litigation ploys. When the parties never sit face-to-face, then neither needs to “keep a straight face” when they open with unrealistic “demands” and “offers.” The results are predictable. Litigation is more expensive than necessary, and mediations begin with impasse over who will step into the realistic range first.

Some courts have responded to slashed budgets and reduced personnel by requiring mediation as THE alternative to trial, and some lawyers prefer mediation because they lack confidence in their negotiation skills. Perhaps the Oregon State Bar should be more directive in what CLEs an attorney must take during the first 3, 6 and 9 years. Perhaps forcing attorneys to study negotiation would encourage them to negotiate and, thereby, resolve cases without trial or mediation.

Some courts that order mediation simply find an available trial judge to mediate. If the parties must pay for involuntary mediation, then, at the very least, the parties should be able to select their own mediator. Mediators vary in skill and dedication to their profession. Some trial judges are terrific mediators, but not everyone ranks in the top 10%.

I agree with Mr. Rosenthal’s biggest point: the pendulum has swung too far toward mediation as the primary alternative to trial. Members of the bar need to push back and negotiate first.

Jeff Merrick, OSB # 842987
Trial Attorney and Mediator

Improvisational Negotiation: Book Review

Improvisational Negotiation” is a fun little book by Jeffrey Krivis.  Essentially, it is a breezy collection of stories that could loosely be called mediation case studies.  The subtitle sums up the tone and content: “A Mediator’s Stories of Love, Money, Anger – and the Strategies that Resolved Them.”

Each story sets forth the nature of the people and their conflict, from a rock & roll band member jilted by the star, to wealthy people battling over a multimillion-dollar New York building.  Medical malpractice cases, car crash cases, toxic mold in a rental home. . . you name it, and there was an example among thirty case studies.  The almost jocular tone kept me reading along.

After each story, the author has a section called, “What Happened?” in which he highlighted the key turning points in the mediation. To wrap up each study, Author Krivis listed the take home points in a section called, “What strategy can we learn?”

What I found most interesting was all of the various approaches on exhibit in this book. Typically, mediators find a comfort zone.  For example, some mediators always keep the parties in separate rooms.  Others always start with the parties in the same room.  The overall impact of the thirty scenarios is to emphasize that a good mediator will try to read the parties, identify what are their needs, and modify his or her approach to meet those needs.  For some situations, letting the parties hear what the other side says unlocks the emotional barricade preventing closure. For other situations, letting the lawyer ask a few questions of the other party proved pivotal.

The point, I believe, is to be flexible and creative. If the parties give you something to work with, then use it. Perhaps the best example of this was the gambling approach. When the parties were packing up to leave, defendant told plaintiff his case was lousy, and no jury would award more than $10,000. “Don’t bet on it,” said the plaintiff. “I can’t wait to see your face when the jury returns a verdict for $150,000.”

The mediator’s light bulb went off as he proposed that the parties make that bet. $20,000 paid to the party who guesses closest to the verdict. This would help cover attorney fees. That got the the parties thinking. They were willing to bet, but each wanted to re-think their positions. So, the mediator gave them until noon the following day to fax their betting numbers. Sure enough, the gap narrowed to $40,000 and $90,000, leading to a $65,000 settlement.

Overall, “Improvisational Negotiation” was an entertaining and educational read that I’d recommend to mediators and others interested in mediation.

Jeff Merrick
Merrick Mediation Services
© 2012

Oregon’s Foreclosure Mediation Law

Oregon Senate Chamber
Oregon’s Legislative Assembly passed a law to requiring mediation for the purpose of negotiating “foreclosure avoidance measures.” If Governor Kitzhaber signs the law, then SB 1552, kicks in 90 days later. This post answers some of the frequently asked questions.

Q. What loans?
A. The law applies to residential trust deeds.

Q. Who?
A. SB 1552 applies to beneficiaries of trust deeds, that is, banks and other lenders who seek to foreclose.

Q. What must banks do?
A. If lenders want to foreclose, then they must enter into mediation with the “grantor” (home owner) to negotiate over “foreclosure avoidance measures” if the homeowner formally requests mediation.

Q. What’s a “foreclosure avoidance measure?:
A. An agreement between the lender and homeowner that uses one or more of the following to modify the trust deed:

  • Lender allows the homeowner to skip or delay payments.
  • Lender modifies the payment terms.
  • Lender accepts a “deed in lieu of foreclosure.”
  • Lender allows a short sale.
  • Lender does something else to enable the homeowner to avoid foreclosure.

Q. How will the foreclosure mediation law work?
A. The homeowner requests mediation. Then, within 30 days, the mediation service provider must send both parties the date, time and place of the mediation, which must occur between 45 and 90 days. The law directs the Attorney General to contract with a mediation service provider, and the AG must prepare rules that cover the qualifications and fees of the mediators.

Q. What are the exceptions?
A. The biggest exception is that this law only applies to the big lenders. If the lender did not start more than 250 foreclosures during the previous year, then they can opt out of the mediation requirement. One hopes, however, that the program will benefit lenders and homeowners, so that lenders will want to participate.

Jeff Merrick
Merrick Mediation Services
© 2012

Getting Past No: Book Review

“Getting Past No,” is William Ury’s sequel to “Getting to Yes,” the classic book on how negotiators should bargain. “Getting Past No” provides basic strategies on how to deal with difficult people and situations. In other words, the book tries to answer the question of what to do if the other side does not “play nice.” This post highlights some of Ury’s key concepts. My one-sentence summary is: Be the adult in the room, and keep your attention focused on your goal, which is to achieve a result superior to what you will likely achieve without settlement.

Successful negotiators turn adversaries into problem-solving partners. Author Ury identifies five barriers to such cooperation. (1) Your own emotional reaction to the adversary’s conduct. (2) The other side’s emotion, which might include anger, hostility, fear, distrust, or the feeling that they are right and you are wrong. (3) Their efforts to state a position and insist that you give in. (4) Their desire to avoid losing face by accepting your proposals. (5) Their power and lack of interest in cooperating.

Ury offers strategies to address each of the five barriers. The first is to “Go to the Balcony,” his metaphor for looking at yourself and the situation as an observer rather than as a fighter who naturally reacts. Once on the balcony, (a) you name the tactic used by the other side, whether stonewalling, attacking or tricking, (b) give yourself a chance to think, and then (c) determine your best strategy for response, which, hopefully is, “Don’t get mad; Don’t get even; Get what you want.”

The response is what I call being the adult and what Ury calls, “Step to their Side.” Use your best listening skills. Agree with and acknowledge their feelings and their points, to the extent you can. Measure your words and tones so as to not provoke a negative response in an effort to create a better environment for negotiating.

Step three for Ury is to “reframe” rather than reject. Ury provides strategies and examples of how to get the other side off their positions and how you can deal with their tactics. His examples throughout the book draw from many situations: from international diplomacy, to business negotiations, to parent-child discussions. This section of the book offers useful reminders to litigators of the different mindset we must have when our goal is to convince an adversary to do something as compared to winning before a judge or jury.

Step four is to “Build Them a Golden Bridge,” between their initial position to a mutually acceptable place. Ury identifies obstacles to agreement, including (1) it was not their idea, (2) their interests are not met, and (3) their fear of losing face. Here, the biggest mistake a negotiator makes is to downplay the importance of the process or ritual of negotiations and to announce that he has divined the correct solution. A skilled negotiator takes a step-by-step approach and involves the other side. Give them the opportunity to leave their positions in a face-saving way.

The last step is to use your power to educate the adversary, not to escalate the battle. Sharpen the choice between the face-saving settlement and the consequences of no settlement. Begin with reality-check questions: “What do you think will happen if we do not agree?” Then, “warn, don’t threaten.” Such subtleties convert negotiation from a skill to an art. A threat is what you will do to them. A warning is an objective and respectful statement of what will likely happen. Continue to contrast the choice between the opportunities of settlement to the consequences of no settlement.

The overall message I received from “Getting Past No” is that negotiation is a process and ritual. To succeed one must:

– Identify your adversary’s tactics.
– Identify and control your own visceral response.
– Be the adult and try to guide the other side to a sensible outcome.
– Stay focused on the goal: to improve upon your likely alternative to settlement.

Jeff Merrick
Merrick Mediation Service
Copyright 2012