How to Share a Mediator’s Powers: The Advocate’s Perspective
Mediators have powers, and good advocates take advantage of them to advance their clients’ bargaining goals. This program presents new video which shows how litigators develop tactics with clients in private and how two leading commercial mediators deal with “difficult” advocates. Some techniques contradict classic mediation theory, but anyone practicing in the commercial sector needs to understand them. This session combines video excerpts, litigator comments and audience discussion to probe unique perspectives on advocacy in legal mediation.
Dwight Golann, Suffolk University Law School, Boston, MA
Marjorie Aaron, University of Cincinnati College of Law, Cincinnati, OH
Coaching in Caucus: Expanding the Role of the Mediator
The role of the mediator has been described as one of facilitating negotiation between parties to a dispute. Mediators engage in such facilitation by using many techniques, including caucusing with the parties for the purpose of identifying their interests, reality testing their proposals, etc. While these are worthwhile activities, if mediation is really a process that belongs to the parties and if it is “their negotiation” as we mediators like to say, shouldn’t one of the primary tasks of mediators be to coach the parties on how to effectively negotiate with one another? This presentation will explore the role of the mediator as coach, the contexts in which coaching in caucus might be needed, and the areas in which coaching in caucus could be beneficial.
Michele Riley, International Center for Cooperation and Conflict Resolution, Columbia University, New York, NY
Gregorio Billikopf, University of California--Agriculture and Natural Resources, Modesto, CA
Self-Reflective Mediation Practice: 100 Mediator's Lessons Learned From Post-Hearing Analysis
Last year, the presenter chose one case per week to analyze after the mediation had concluded. She wrote out the stories, taking care to observe the nuances of the personalities, dynamics and the nature of the conflict. Then she stood back and critically reviewed every move that was made in the mediation process with a view towards drawing lessons for future practice or a better understanding of the magic of a successful mediation. This session will be a presentation of 5-10 of these cases and a guided group analysis of the lessons that can be learned retrospectively through an in-depth introspective analysis. It will include an examination of the conduct of the lawyers, their clients and the mediator from both an ethical and strategic view.
Jan Frankel Schau, ADR Services, Inc., Los Angeles, CA
Mediating in the Major Leagues: An Elder, Adult Family Mediation Convening Process
"If you don't know where you are going, you will wind up somewhere else." Yogi Berra. Elder and Adult Family Disputes are the major leagues of mediation, presenting complex, multiple issues, high-conflict parties, deep-seated resentments and rivalries, secrets, complicated ethical issues, communication challenges, grief, greed, guilt, logistical difficulties, intrigue galore and more. In this lively workshop, Dana Curtis will introduce a systems-design approach to convening these challenging cases, derived from 20 years of mediation practice and teaching, which she sets forth in A Guide to Elder Mediation, to be published by ABA Publishing later this year. Participants will explore applications of this model to other disputes that also present convening and structuring challenges.
Dana Curtis, Elder Mediation Group, Sausalito, CA
Literary Intelligence for Mediators
Literary intelligence is a prime tool for helping mediators develop empathy and creative responsiveness to parties in conflict. The self- awareness and relationship-awareness skills of emotional intelligence can be enhanced by engaging literary representations of conflict. Patterned language in poetry engages the whole person through the senses, emotion, and intellect; drama creates visuals and actions from revenge to reconciliation; while story and the novel offer narrative world-making, helping us imagine possibilities for peace. From Homer, Aeschylus, and Shakespeare, to Louise Erdrich, Maxine Hong Kingston, and Toni Morrison, literary conflicts can help mediators gain strategies to create real-world peace.
Peter Arcese, Peter V. Arcese, Esq., New York, NY
Inga Watkins, Watkins Law and Dispute Resolution, PLC, Alexandria, VA
Let’s Get Real: From “Win-Win” to “Can Live With-Can Live With”
Historically, proponents of mediation have extolled its virtue as the vehicle for the “win- win” solution. The problem? Parties come expecting to “win.” The reality is that parties rarely dance out of the process feeling as if they won. They may feel relief – but they can also feel let down. The real key to mediation success, which not only resolves conflict but leaves the parties with a feeling of accomplishment, is to change expectations. How do you do this? Get the parties to go for the “Can Live With–Can Live With” solution, introduced by Amy Lieberman in her new book, Mediation Success: Get it Out, Get it Over, Get Back to Business. 4 panelists with different perspectives share their views and give their guidance.
Amy Lieberman, Insight Employment Mediation, Scottsdale, AZ
Elizabeth Bohannon, Williams-Sonoma, Inc., San Francisco, CA
Gay Crosthwait Grunfeld, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA
Kristin Culbertson, Littler Mendelson, PC, Phoenix, AZ
When Both Sides Are Righteously Indignant: Mediator Tools Derived from Fee-Shifting Cases
ADA access and other fee-shifting civil rights cases present mediators with unique challenges. Those challenges primarily arise because both sides ordinarily present as righteously indignant. This presentation focuses on three aspects of mediating these cases: early intervention; understanding the psychology of righteously indignant parties; and learning to hold this indignation without losing one's center. The presenters will share examples from their extensive experience mediating these cases, and discuss tools they have developed for these situations. The session will include brief experiential exercises. Although the focus will be on fee shifting civil rights cases, the underlying principles apply to any situation in which the parties hold their positions with righteous indignation.
Howard Herman District Court, Northern District of California, San Francisco, CA
Claudia Bernard Court of Appeals, Ninth Circuit, San Francisco, CA
Daniel Bowling District Court for the Northern District of California, San Francisco, CA
Dana Curtis, Dana Curtis Mediation, Sausalito, CA
Definitions Matter: Legal and Ethical Implications
This presentation will focus on the legal and ethical dimensions of the definition of mediation. Through discussion of recent case law and review of relevant ethical standards, the presenters will provide an overview of how and why definitions in mediation matter and the legal and ethical implications of blurring distinctions.
Sharon Press, Hamline University, Saint Paul, MN
Tracey Frisch, American Arbitration Association, New York, NY
Working the Middle Hours: Keeping Negotiations Going, Late Morning to Late Afternoon
Negotiator-Advocates and their clients always know where they want to start, and where they want to end up -- but the hardest work for everyone happens between those numbers. Much of the heavy lifting, creativity, improvisation and ‘craft’ of the negotiation/mediation take place between those numbers, where the differences emerge between carrying water and managing a constructive, dynamic process. The topics covered in this session include building and sustaining negotiation momenturn, impasse avoidance, and removing barriers to settlement. A panel of highly experienced mediators, all of whom are Distinguished Fellows of the International Academy of Mediators and frequent presenters on mediation techniques, take the discussion beyond war stories and "let's split the difference," with suggestions for guiding participants through the toughest part of the day.
Tracy Allen, Global Resolutions, PLLC, Mt Clemens, MI
Jeff Jury, Burns Anderson Jury & Brenner, L.L.P., Austin, TX
Eugene Moscovitch, PMA Dispute Resolution, Santa Monica, CA
Jerome Weiss, Mediation Inc., Cleveland, OH
Getting to the Heart of the Matter: Distinguishing Mediation from Settlement Conferences
In the early days of establishing mediation as a dispute resolution process, it was promoted as an alternative to the highly evaluative, "twist your arm" approach used by judges in settlement conferences. Mediation training focused on needs and interest-based communication and negotiation, based on a broad, problem-solving approach, rather than a narrow, legally focused approach. Many mediators watch with concern as more neutrals use a caucus-only, highly evaluative approach, yet name what their approach "mediation," rather than "settlement conference." This session will examine both mediation and settlement conference, as dispute resolution procedures, focusing on the history, methodology, benefits, challenges, required skills, and personal qualities applicable to each, with the intention of honoring, distinguishing, and preserving the essential and fundamental characteristics of each.
David Hoffman, Boston Law Collaborative, Boston, MA
Marvin Johnson, Center for Alternative Dispute Resolution, Greenbelt, MD
Homer LaRue, Howard University, School of Law, Washington, DC
Daniel Bowling District Court for the Northern District of California, San Francisco, CA
The Mediator's Moth: Stories Mediators Tell
Inspired by master story tellers in the recently published Stories Mediators Tell, this session will offer new stories in a format inspired by "The Moth," a popular live storytelling event. We will be sharing new stories from Eric Galton and Tio Hardiman, the Director of CeaseFire in Chicago, and we will be seeking participation by those present. Come ready with a story about mediation that you think the world should know. The Moth is a non-profit group dedicated to the art and craft of storytelling, founded in 1997 by poet and novelist George Dawes Green, to recreate the feeling of summer evenings in Georgia, when moths were attracted to the porch light and friends would gather to spin spellbinding tales.
Lela Love, Benjamin Cardozo School of Law, New York, NY
Eric Galton, Lakeside Mediation, Austin, TX
Glen Parker, Benjamin Cardozo School of Law, New York, NY
Tio Hardiman, CeaseFire, Chicago, IL
Is the Demand for Mediation Declining?
There is strong anecdotal evidence that the demand for complex, commercial mediation is declining. If the proposal is accepted, the presenters will undertake to collect data to assess whether the anecdotal evidence is supported by data and produce a paper and powerpoint to communicate the findings. In addition, the presenters have several theories as to why this trend may be occurring which will be explored before the conference as well as solicit ideas from the audience for their theories. Note: complex, commercial or public policy matters involve multiple parties, disputes of high value, and/or complex public policy disputes involving multiple stakeholders or issues. These are cases where the parties choose their own mediators and are not mandated by courts.
John Bickerman, Bickerman Dispute Resolution, PLLC, Washington, DC
Kathleen Bryan, CPR Institute, New York, NY
Christopher R. Carroll, Carroll McNulty & Kull LLC, Basking Ridge, NJ
Bill Hartgering, JAM, Chicago, IL