Mediation Insights:What Is Going on in the Other Room?

Upchurch Watson White & Max Mediation Group

and the University of FloridaLevin College of Law

Institute for Dispute Resolution are proud to cosponsor today’s Webinar:

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Meet …

Our moderator, Sandra Upchurch

• Mediation CounselUpchurch Watson White & Max

• supchurch@uww-adr.com

• uww-adr.com2

Our presenter, Richard Lord

• ShareholderUpchurch Watson White & Max

• rlord@uww-adr.com• uww-adr.com

Med

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@thezenmediator @RLordMediator

Mediation InsightsWhat Is Going on in the Other Room?

#otherroom

© Upchurch Watson White & Max

INTRODUCTION

Mediation is not one discrete event, nor a single process, so much as many small processes undertaken consciously and subconsciously by each and every active participant in the process. That is why progress ebbs and flows and may seem elusive for quite a while before it is clearly being made.

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© Upchurch Watson White & Max

Introduction

Can be wrong

What you predictwill happen

How it happens

At what pace

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Introduction

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Introduction

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IntroductionAnd those layers flow from the individuals – their experiences, framework, worldview or what we commonly refer to as “perspective.”

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Introduction

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Introduction

• All of the above impacts not only what happensfrom room-to-room, but also what happens within each one M

edia

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Insi

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:W

hat I

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on

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What is mediation?It’s more than what happens between interests & parties.

Exploration?

Communication/Sharing/Withholding?

Argument?

Negotiation?

Risk management?

Reconciliation?

Planning?© Upchurch Watson White & Max

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What is mediation?What happens within (not necessarilybetween) the rooms

Interactions?

Analysis?

Posturing?

Expectation management?

Risk management?

Psychological processes?

Logistical Processes?

Decision-making processes?© Upchurch Watson White & Max

What is mediation?Happenings within each room could be most important. They affect:

Interactions between rooms

How the outcome is reached

What the outcome is

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‘One size does not fit all’

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All affected by:

• Emotion• Principle• Practicalities or pragmatism• Risk, reward, net & time

• Personality• Formative experiences• History/experience• Psychology, Perspective

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ExpectationsClients Counsel

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What does each room want to know?

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What are the other room’s limits?

Is the other side here to get it done, or just fish?

Is the mediator attempting our strategy?

Is our public view being conveyed by the mediator?

What will it take to get this matter resolved?

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Related concerns and questions

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Is there ‘authority’ to settle?

Who is making decisions?

How are things being received? What is being said in response?

Is someone an obstacle?

Are their time constraints being revealed?

Who is speaking up?

What unique uses or benefits can resolution yield to a party?

Are we missing some-thing?

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Obtain more information than we give up

Look for concessions before giving them

Conceal our true analysis and bargaining posture

Try it our way first

Eachmay want:

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Only convey what is necessary;take no longer than necessary.

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You can influence what is going on ‘over there’

• Don’t be afraid to leave posturing behind sooner• Be willing to try what your mediator suggests

• If the progress stops, ask if there would be a better day, a different person, or more information that could increase the odds of meaningful mediation 19

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Look for clues

• Ask questions, perhaps of counsel directly if you have rapport, and make what observations you can

• Ask your mediator what he or she can share and how things can be interpreted. We can see things you cannot. Our assumptions and feelings about progress will be informed by

all of our mediations, not just this one, not just the one you are in at the time. 20

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Pay attention to what is said AND UNSAID.

© Upchurch Watson White & Max

For the record …• The mediator may not be at liberty to tell you everything

that’s going on in the other room. • Rule 10.360(b) of the Rules for Certified and Court-Appointed

Mediators provides as follows: • “Information obtained during the caucus may not be

revealed by the mediator to any other mediation participant without the consent of the disclosing party.”

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Pay attention to:• What is said and left unsaid• Consistency• Variability• Mid-Points• Brake Lights• How long each step takes

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Including brackets

• They should not automatically be relied on as an indicator• They mean more later in the process, and when consistent

• Brackets are only partial offers to commit• Avoid misleading brackets

• Avoid mid-points that move farther away from the other side• Be credible

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Points about

Midpoints

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Your Questions 25

What are the signs?How do carriers decide? Med

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© Upchurch Watson White & Max

Takeaways 26

© Upchurch Watson White & Max

“What’s Going on in the Other

Room?”

Florida BarCLE Credits

General: 1.0

Certification Credits

Civil Trial: 1.0

THANK YOU FOR JOINING US.

Daytona Beach Maitland/Orlando Jacksonville Miami Fort Lauderdale/Plantation West Palm Beach

Upchurch Watson White & Max Mediation Groupuww-adr.com

Please email cklasne@uww-adr.com with questions about course number, Webinar recording, etc.

Please contact Richard at rlord@uww-adr with questions or comments regarding content.

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Med

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