Mediation Insights: What Is Going on in the Other Room?
description
Transcript of Mediation Insights: What Is Going on in the Other Room?
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:
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
1
Meet …
Our moderator, Sandra Upchurch
• Mediation CounselUpchurch Watson White & Max
• uww-adr.com2
Our presenter, Richard Lord
• ShareholderUpchurch Watson White & Max
• [email protected]• uww-adr.com
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
@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.
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
4
© Upchurch Watson White & Max
Introduction
Can be wrong
What you predictwill happen
How it happens
At what pace
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
5
© Upchurch Watson White & Max
Introduction
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
6
© Upchurch Watson White & Max
Introduction
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
7
© Upchurch Watson White & Max
IntroductionAnd those layers flow from the individuals – their experiences, framework, worldview or what we commonly refer to as “perspective.”
8
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
Introduction
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
9
© Upchurch Watson White & Max
Introduction
• All of the above impacts not only what happensfrom room-to-room, but also what happens within each one M
edia
tion
Insi
ghts
:W
hat I
s G
oing
on
in th
e O
ther
Roo
m?
10
© Upchurch Watson White & Max
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
11
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
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
12
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
13
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
‘One size does not fit all’
14
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
All affected by:
• Emotion• Principle• Practicalities or pragmatism• Risk, reward, net & time
• Personality• Formative experiences• History/experience• Psychology, Perspective
15
ExpectationsClients Counsel
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
What does each room want to know?
16
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?
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
Related concerns and questions
17
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?
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
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:
18
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
Only convey what is necessary;take no longer than necessary.
© Upchurch Watson White & Max
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
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
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
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
21
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.”
22
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
Pay attention to:• What is said and left unsaid• Consistency• Variability• Mid-Points• Brake Lights• How long each step takes
23
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
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
24
Points about
Midpoints
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© Upchurch Watson White & Max
Your Questions 25
What are the signs?How do carriers decide? Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?
© 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 [email protected] with questions about course number, Webinar recording, etc.
Please contact Richard at rlord@uww-adr with questions or comments regarding content.
27
Med
iatio
n In
sigh
ts:
Wha
t Is
Goi
ng o
n in
the
Oth
er R
oom
?