MEDIATION STRATEGIES FOR THE ADVOCATE JOHN W. KELLY, JR. JOHN W. KELLY, JR. ATTORNEY AND MEDIATOR ATTORNEY AND MEDIATOR ADJUNCT PROFESSOR UNIVERSITY OF HOUSTON LAW CENTER ADJUNCT PROFESSOR UNIVERSITY OF HOUSTON LAW CENTER

THIS IS MEDIATION NOT MEDITATION OR IS THERE A DIFFERENCE?

MEDIATION A FACILITIATED DISPUTE RESOLUTION PROCESS LED BY A TRAINED PROFESSIONAL MEDIATOR. A FACILITIATED DISPUTE RESOLUTION PROCESS LED BY A TRAINED PROFESSIONAL MEDIATOR. IT INVOLVES MUTUAL AND MULTIPLE INVOLVEMENT, RESULTING IN A JOINT RESOLUTION. 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. 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 RESOLUTION RELAXATION RELAXATION INTERNAL ENERGY INTERNAL ENERGY COMPASSION COMPASSION PATIENCE PATIENCE GENEROSITY GENEROSITY FORGIVENESS FORGIVENESS JOINT CONSENTRATION OR ANALYSIS JOINT CONSENTRATION OR ANALYSIS

PURPOSE OF MEDIATION FOR THE ADVOCATE OBTAIN ADVERSARY’S EVALUATION OF CASE PRIOR TO TRIAL OBTAIN ADVERSARY’S EVALUATION OF CASE PRIOR TO TRIAL OPPORTUNITY TO OBSERVE AND SPEAK DIRECTLY TO OPPOSING PARTY 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 USE PROFESSIONAL FACILITATOR TO SETTLE CASE, I.E., MAKE HIM/HER YOUR SPOKESPERSON IN THE OTHER ROOM

WHY MEDIATE QUICK RESOLUTION QUICK RESOLUTION SAVES TIME AND MONEY FOR THE CLIENT SAVES TIME AND MONEY FOR THE CLIENT REMOVES THE RISK OF UNKNOWN TRIAL REMOVES THE RISK OF UNKNOWN TRIAL KEEPS DECISION-MAKING IN THE HANDS OF THE PARTIES RATHER THAN THIRD PARTIES KEEPS DECISION-MAKING IN THE HANDS OF THE PARTIES RATHER THAN THIRD PARTIES ALLOWS THE PARTIES TO CONTROL THEIR OWN DESTINY ALLOWS THE PARTIES TO CONTROL THEIR OWN DESTINY

WHEN TO MEDIATE PLAINTIFF’S ATTORNEYS MEDIATE EARLY TO: PLAINTIFF’S ATTORNEYS MEDIATE EARLY TO: *INCREASE CHANCE OF RECOVERY OF MONEY SOON WITHOUT ADDITIONAL ATTORNEY HOURS *INCREASE CHANCE OF RECOVERY OF MONEY SOON WITHOUT ADDITIONAL ATTORNEY HOURS * AVOID DISCLOSURE OF UNFAVORABLE FACTS * AVOID DISCLOSURE OF UNFAVORABLE FACTS

WHEN TO MEDIATE FOR DEFENDANTS, LATER SO DEFENSE ATTORNEY CAN EARN ATTORNEY FEES FOR DEFENDANTS, LATER SO DEFENSE ATTORNEY CAN EARN ATTORNEY FEES LATER INORDER TO DISCOVER WEAKNESSES OF PLAINTIFF’S POSITION LATER INORDER TO DISCOVER WEAKNESSES OF PLAINTIFF’S POSITION EARLY MEDIATION WILL AVOID DISCLOSURE OF DEFENDANT’S DANGEROUS FACTS EARLY MEDIATION WILL AVOID DISCLOSURE OF DEFENDANT’S DANGEROUS FACTS

PARTICIPANTS MEDIATOR MEDIATOR YOU YOU YOUR CLIENT (or DECISION MAKER) YOUR CLIENT (or DECISION MAKER) OPPOSING PARTY (or DECISION MAKER) OPPOSING PARTY (or DECISION MAKER) OPPOSING PARTY’S ATTORNEY OPPOSING PARTY’S ATTORNEY

WHEN A PARTY IS NOT AVAILABLE YOU CAN’T DANCE (SETTLE) WITHOUT A DANCE PARTNER YOU CAN’T DANCE (SETTLE) WITHOUT A DANCE PARTNER SKYPE MORE EFFECTIVE THAN TELEPHONE SKYPE MORE EFFECTIVE THAN TELEPHONE TELEPHONE LEAST EFFECTIVE CAN’T SEE THE PARTICIPANT SOME COMMUNICATION IS INTERRUPTED TELEPHONE LEAST EFFECTIVE CAN’T SEE THE PARTICIPANT SOME COMMUNICATION IS INTERRUPTED

FAMILY MEDIATION THERE NEEDS TO BE A TIME TO VENT THERE NEEDS TO BE A TIME TO VENT PARTIES MAY HAVE NOT SEEN OR COMMUNICATED FOR A LONG TIME PARTIES MAY HAVE NOT SEEN OR COMMUNICATED FOR A LONG TIME PARTIES WANT TO VENT THEIR HURT PARTIES WANT TO VENT THEIR HURT VENTING NEEDS TO BE KEPT TO A MINIMUM VENTING NEEDS TO BE KEPT TO A MINIMUM THEN THEY NEED TO GET DOWN TO BUSINESS THEN THEY NEED TO GET DOWN TO BUSINESS

WHAT TO EXPECT AT THE MEDIATION I REQUIRE A GENERAL SESSION I REQUIRE A GENERAL SESSION OTHERWISE, IT IS DOOMED TO FAILURE OTHERWISE, IT IS DOOMED TO FAILURE I NEED TO COMMUNICATE TO EACH PARTY AT THE SAME TIME WHAT THE GOALS AND PROCEEDURES WILL BE 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 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 * CANCEL ALL APPOINTMENTS FOR THE DAY * ELIMINATE ALL DISTRACTIONS * DON’T TAKE OR MAKE CALLS WHILE I AM WITH YOU * ELIMINATE ALL DISTRACTIONS * DON’T TAKE OR MAKE CALLS WHILE I AM WITH YOU

PERCEPTIONS STUDY OF HUMAN NATURE STUDY OF HUMAN NATURE PEOPLE WATCHING PEOPLE WATCHING IDENTIFYING THE DECISION MAKER IDENTIFYING THE DECISION MAKER INQUIRE OF THE MEDIATOR WHAT IS GOING ON IN THE OPPOSING PARTY’S CAUCUS ROOM 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 AND SEPARATE REAL ISSUES FROM IRRELEVANT ISSUES IDENTIFY WHAT IS IMPORTANT TO THE OPPOSING PARTY IDENTIFY WHAT IS IMPORTANT TO THE OPPOSING PARTY

MEDIATION TECHNIQUES DO NOT MAKE UNREASONABLE OPENING DEMANDS OR OFFERS *YOU LOSE CREDIBILITY 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 DO NOT GIVE SOMETHING UP WITHOUT GETTING SOMETHING IN RETUREN *NEVER BID AGAINST YOURSELF

MEDIATION TECHNIQUES IDENTIFY OPPOSING PARTY’S STRENGTHS AND WEAKNESSES IDENTIFY OPPOSING PARTY’S STRENGTHS AND WEAKNESSES IDENTIFY YOUR STRENGTHS AND WEAKNESSES IDENTIFY YOUR STRENGTHS AND WEAKNESSES

MEDIATION TECHNIQUES FEED THE MEDIATOR INFORMATION FEED THE MEDIATOR INFORMATION MAKE THE MEDIATOR THE EXTENTION OF YOU AND YOUR CLIENT MAKE THE MEDIATOR THE EXTENTION OF YOU AND YOUR CLIENT CONTROL THE OFFERS AND DEMANDS * DOSES OF REALITY CONTROL THE OFFERS AND DEMANDS * DOSES OF REALITY

MEDIATION TECHNIQUES KNOW WHEN TO HOLD THEM KNOW WHEN TO HOLD THEM KNOW WHEN TO FOLD 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 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 INCLUDE LOGIC AND REASONING WITH YOUR OFFERS INSIST UPON LOGIC AND REASONING FROM THE OPPOSING PARTY TO SUPPORT COUNTER OFFERS INSIST UPON LOGIC AND REASONING FROM THE OPPOSING PARTY TO SUPPORT COUNTER OFFERS

MEDIATION TECHNIQUES PROCESS CONTINUES BEYOND THE DAY OF MEDIATION PROCESS CONTINUES BEYOND THE DAY OF MEDIATION YOU CAN CONTINUE TO USE THE MEDIATOR AFTER THE SCHEDULED 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 COOLING OFF PERIOD MAY HELP THE OPPOSING PARTY APPRECIATE VALUE OF YOUR OFFER

BEST PRACTICES MEDIATION ADVOCACY BE PROMPT BE PROMPT BE PREPARED BE PREPARED BE INNOVATIVE BE INNOVATIVE BE PROFESSIONAL BE PROFESSIONAL BE LOGICAL BE LOGICAL BE PRACTICAL BE PRACTICAL BE ARMED WITH INFORMATION BE ARMED WITH INFORMATION

BE PROMPT IT IS UNPROFESSIONAL TO BE LATE IT IS UNPROFESSIONAL TO BE LATE IT IS DISRESPECTFULL TO MEDIATOR AND PARTIES IT IS DISRESPECTFULL TO MEDIATOR AND PARTIES IT HINDERS RESOLUTION OF DISPUTE IN THE LIMITED TIME AVAILABLE IT HINDERS RESOLUTION OF DISPUTE IN THE LIMITED TIME AVAILABLE

BE PREPARED PREPARE AS IF YOU ARE GOING TO TRIAL PREPARE AS IF YOU ARE GOING TO TRIAL THE BETTER PREPARED LAWYER HAS A HUGE ADVANTAGE IN THE NEGOTIATION PROCESS THE BETTER PREPARED LAWYER HAS A HUGE ADVANTAGE IN THE NEGOTIATION PROCESS BRING THE LAW AND DOCUMENTATION BRING THE LAW AND DOCUMENTATION

BE INNOVATIVE THINK OUTSIDE THE BOX THINK OUTSIDE THE BOX CONSIDER SOLUTIONS OTHER THAN MONEY CONSIDER SOLUTIONS OTHER THAN MONEY IDENTIFY WHAT YOUR CLIENT REALLY WANTS IDENTIFY WHAT YOUR CLIENT REALLY WANTS IDENTIFY WHAT OPPOSING PARTY REALLY WANTS IDENTIFY WHAT OPPOSING PARTY REALLY WANTS

BE PROFESSIONAL DON’T BE A SHOWMAN/WOMAN DON’T BE A SHOWMAN/WOMAN DON’T ENGAGE IN A TEMPER TANTRUM DON’T ENGAGE IN A TEMPER TANTRUM DON’T GET EMOTIONAL DON’T GET EMOTIONAL BE THOROUGH UPON THE LAW AND UPON THE FACTS BE THOROUGH UPON THE LAW AND UPON THE FACTS

BE LOGICAL OFFERS ARE PERSUASIVE IF THEY ARE SUPPORTED BY LOGIC AND REASONING OFFERS ARE PERSUASIVE IF THEY ARE SUPPORTED BY LOGIC AND REASONING EVERY OFFER SHOULD BE ACCOMPANIED BY ADDITIONAL FAVORABLE LAW OR FACTS EVERY OFFER SHOULD BE ACCOMPANIED BY ADDITIONAL FAVORABLE LAW OR FACTS

BE PRACTICAL DON’T GET HUNG UP ON PRINCIPAL DON’T GET HUNG UP ON PRINCIPAL

BE ARMED WITH INFORMATION BRING CASE LAW BRING CASE LAW BRING DOCUMENTATION BRING DOCUMENTATION BRING JURY VERDICT REPORTS BRING JURY VERDICT REPORTS BRING PICTURES BRING PICTURES BRING DRAWINGS BRING DRAWINGS

BATNA BEST ALTERNATIVE TO NEGOTIATED AGREEMENT BEST ALTERNATIVE TO NEGOTIATED AGREEMENT BE SURE THAT YOU AND YOUR CLIENT HAVE LOOKED AT THE ALTERNATIVES BE SURE THAT YOU AND YOUR CLIENT HAVE LOOKED AT THE ALTERNATIVES THIS ANALYSIS NEEDS TO BE DONE BEFORE THE MEDIATION THIS ANALYSIS NEEDS TO BE DONE BEFORE THE MEDIATION

THANK YOU CONTACT INFORMATION CONTACT INFORMATION JOHN KELLY JOHN KELLY