Mediation - Carolina Mediations

Bracketology

July 4, 2019

In virtually every mediation that bogs down, I am asked about the use of brackets. Brackets have their place but to state the obvious: the use of brackets will not change parties’ calculation of their BATNA (Best Alternative to Negotiated Agreement), will not affect their underlying interests, or their perception of the right or wrong of a settlement. These are the real drivers toward settlement and every advocate — and mediator — should address these issues directly with their client. So, what purpose(s) does bracketing serve in a negotiation? What are brackets? Bracketing is essentially conditional negotiation. One party suggests that they will offer X if the other party agrees it will demand Y. Instead of making an incremental offer or demand the parties make conditional offers and demands conditioned upon the other party’s response. In truth every demand and countering offer is a form of bracket. But brackets as

Elements of a Good Mediation

April 13, 2019

One of the benefits of a being both a mediator and an advocate is the opportunity to view other mediators at work and try to employ what they do that is effective and avoid what is not. I recently had a mediation where the mediator announced his expertise in the substantive area — thereby losing a substantial amount of his role as mediator — and bragged about his settlement percentage. The case neither settled nor accomplished much of anything else. So what are the elements of a good mediation. Here is a link to one view that I think is worth contemplating. What does good mediation look like? A consumer’s eye-view.

Narrative Mediation

January 11, 2019

For the past 18 months or so, I have been studying and trying to implement in my mediation practice, techniques from a “discipline” called Narrative Mediation. Narrative Mediation is not new even though it is relatively new to me. John Winslade and Gerald Monk published “Narrative Mediation: A New Approach to Conflict Resolution” in 2000. Winslade and Monk’s work in turn grew out of narrative family therapy concepts in use in Australia since the mid-1980s. At the risk of over-simplifying, the techniques championed by Winslade, Monk, and others are based upon the idea that people understand facts within the context of a story or narrative. In a conflict, the narratives lead to differing understandings of those “objective” facts. Those narratives are based upon one’s point of view such that the facts are rarely completely objective. In other words, we all see facts through an interpretive lens. A person’s point of

Dealing With A Competitive Approach in Mediation

October 4, 2018

In my mediation practice I have found that cases are much more likely to settle when the parties approach the process collaboratively. For many advocates, their role in the opening session is to soften the other side. This generally means some version of a toned down jury argument. These statements are almost always followed by an unconvincing statement that they are present in good faith to try and settle the claims. The unstated but clearly understood meaning is we are here to settle “as long as it is on our terms.” In my experience, this is not the best way to get adversaries to listen, which should be your first priority. In this excellent article, Jeffrey Krivis, presents a comprehensive strategy for developing a collaborative approach to settlement negotiations when confronted with a competitive approach on the other side. Following extensive computer testing of the Prisoner’s Dilemma, Professor Robert Axelrod

How to Win Every Mediation

September 29, 2018

Any article on winning must start by defining the term. Unlike most of what we do as litigators, mediation never results in an absolute “win.” Some settlements feel more like wins than others and settlement alone is not the right judge of win or loss. With motions, trial, or arbitration it is usually possible to distinguish a win from a loss, even when there is some kind of compromise verdict. However, in mediation if the parties reach an agreement, it is always a function of compromise. So, how do you define a win in mediation? Of course there are many possible definitions of a win: e.g., Fisher & Ury would define a win as a negotiated settlement that is better than your BATNA. After hundreds of negotiations as both a neutral and an advocate, I do not believe there are any universal definitions of win and loss; each party goes

The Power Of Apology

January 24, 2018

In my experience, apologies in business or civil litigation mediation are the exception not the rule. There may be good reasons for this but you should never underestimate the potential of a good apology for reaching a resolution. Amongst the recent revelations coming from #MeToo the story of Dan Harmon and Megan Ganz did not make a lot of headlines. I bring it up here because Dan Harmon recently offered a public apology and did it in a way that his victim called a “Master Class in How to Apologize.” https://twitter.com/meganganz/status/951373404485033985?ref_src=twsrc%5Etfw So, what can we learn from this unusual public exchange; what makes this a “good apology.” In Ms. Ganz’ words, Mr. Harmon’s apology acknowledges the full details of his wrongdoing without justification, rationalization, or excuse. Listening to the full account, however, reveals that Mr. Harmon does explain why this happened but he does not use that explanation to

Power In Negotiation

November 4, 2017

Benjamin Franklin is credited with saying that “Necessity never made a good bargain!” In his wonderful book, Practical Negotiating, Tom Gosselin contends that “In negotiating, power is a function of alternatives.” Gosselin is right, of course, and hopefully a discussion of alternatives brings to mind Ury & Fisher’s BATNA (Best Alternative to a Negotiated Agreement) concept. Gosselin goes further though and breaks down the alternatives concept and outlines how to go about forecasting the other side’s alternatives. Gosselin separates these alternatives into three categories: (1) alternative sources, (2) alternative currencies, and (3) alternative skills and behaviors. The point being that the more alternatives a bargainer has the more power in the negotiation. Gosselin believes that these categories or levels of alternatives are “cascading” and a negotiator should therefore explore each exhaustively before moving to the next. It is imperative to evaluate your alternatives before each negotiation and at least

Guided Choice Mediation: Nuts and Bolts

August 23, 2016

This post is part of our Guided Choice Mediation series, where we explore what it is, why it improves on traditional mediation, and how it works. Guided Choice Mediation is an evolving process that expands and builds on more common place facilitated settlement conferences. Even a cursory review of Guided Choice principles demonstrates its potential to facilitate early resolution of complex legal disputes where traditional mediation would likely fail. Guided Choice Mediation has seven core principals: An obligation to mediate — in North Carolina an obligation to mediate is a part of every civil case. Notwithstanding our mandatory mediation, early mediation (even pre-litigation mediation) should be a feature of every dispute resolution clause. Retention of a mediator as early as possible — early retention of a mediator is likely to lead to earlier resolution. More importantly, in the pre-negotiation stage the mediator determines when and how the parties will negotiate and what information the parties need

Exciting New Alternatives For Claims Resolution

June 15, 2016

Resolving commercial and construction disputes is expensive. According to one source, 98% of commercial disputes are resolved prior to trial or arbitration. However, most are not resolved until the parties have spent an enormous amount of time, energy, and money on discovery and motions. Even worse, the parties are usually unable to continue a working relationship after this warfare. Fortunately, there are alternatives — and they’re designed just to avoid these high costs and damaged relationships. Meet your alternatives: Guided Choice Mediation and Civil Collaborative Law. Two very different processes with the same goal: early, cost-effective dispute resolution. Civil Collaborative Law Collaborative Law requires each party to engage counsel trained in the process who commit to withdraw from the representation it cannot be resolved through the collaborative process. The collaborative lawyers to work together to overcome the obstacles to resolution, such as the need for information sharing without formal discovery. The

The Mediator’s Role In Positional Bargaining, Part 1

September 2, 2015

In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle. This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution. If, in fact, negotiations in mediation become an exchange of offers and demands that (hopefully) are moving toward each other, what is the value added by a mediator? Can’t the parties simply exchange these numbers without the benefit of mediation? As a practicing litigator and mediator, the theoretical answer may be yes but in practice negotiations rarely progress without an active, neutral intermediary. Given the practical reality, how does mediation and a good mediator affect the dynamic so profoundly? In my experience, the primary value of mediation is that it facilitates the flow of information. We

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