MEDIATION THAT WORKS, PART IV: LYDIA’S CHEAT SHEET

November 19, 2012 § 1 Comment

This is Part IV in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

LYDIA’S CHEAT SHEET

Questions to ask yourself in order to aid the mediator if the process gets bogged down:

  • What does my client want to achieve?
  • What does my client think the other party wants to achieve? 
  • Does my client have any particular expectations about the process or expectations about the resolution? 
  • Can my client identify for the mediator what he/she believes the key issues are? 
  • Can my party identify for the mediator what he/she believes the key stumbling blocks to resolving the issues are, either for him/herself or for the other party? 
  • Does my client have to “account” to others for the resolution which may be reached, or “explain” his/her decision to others (advisor, family, friend)? If so, what do I need to know about those others? 
  • Does my client have an interest in maintaining a relationship with the other party or, for that matter, initiating a better relationship with the other party? In Chancery matters, it is often significant for relationship protection to occur within the context of a mediation. Chancery is often the “family court” and family matters, however strained, can be protected and, with a good mediator, even improved. 
  • Does my client perceive that the other party has ulterior motives? 
  • Does my client have personal goals that will be affected by the outcome of the process? 
  • Are there any outside constraints on the outcome, either real or perceived?

 

SCENE IN MISSISSIPPI

November 16, 2012 § 7 Comments

Where?

MEDIATION THAT WORKS, PART III: USE SILENCE AND TIME AS ALLIES

November 15, 2012 § 2 Comments

This is Part III in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

LEARN TO USE SILENCE AND TIME AS ALLIES

As litigators, we talk.

In mediation, it’s different. We must learn to use silence and time as allies. First of all, parties need to vent. Most mediators will give all parties a period of time to vent in a joint session. Encourage your client to listen respectfully – really listen – while the other party tells his/her story. If this party feels that he has been heard, it makes a difference in the remainder of the mediation.

Recognize that one party to the mediation may need silence and/or time to contemplate. That party may be on the verge of coming to a resolution which causes him/her to give up something dear, to realize that he/she has made erroneous assumptions, or to personally address his/her fear of loss of power, prestige or status. We must give the party time to process those feelings and thoughts.

Mediation is a process. Time and silence are allies.

 

MEDIATION THAT WORKS, PART II: CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE

November 14, 2012 § Leave a comment

This is Part II in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE

Daniel Yankelovich says, in The Magic of Dialogue: Transforming Conflict into Cooperation: “There is no greater obstacle to dialog than mistrust.” Litigation is laced with mistrust. In order for us to be effective for our client in mediation, we must focus on the party opposite and capture their attention and confidence. It is only after that party has deemed us to be trustworthy and rational that we can begin to effectively combat the mistrust that the parties have built up for each other, disclosed or undisclosed.

One way to develop this rapport is to reiterate the goodwill with which you and your client have approached the mediation. Remind party opposite that there is a mutuality of purpose between them, and that purpose is the successful resolution of a joint problem. Encourage them to listen to each other, and listen to each other empathically. Remind everyone that people are rarely the demons that they may seem.

One of the simplest ways to capture the attention and confidence of another is to demonstrate a genuine interest in him/her. It is refreshing for a party to hear that while in the courtroom you will come on like a tiger, mediation is the place where we can all be willing to relax and explore options that will not be available at trial. I always like to remind my client and party opposite that you can never predict what a trial judge or jury may do, and mediation is the last best opportunity to take control of their future. While they may not get everything they want in mediation, they surely will not get everything they want as the result of a trial.

MEDIATION THAT WORKS, PART I: DON’T BE AN ADVOCATE

November 13, 2012 § Leave a comment

This is Part I in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

DON’T BE AN ADVOCATE

What are the “to dos” of being an effective counsel in a mediation setting?

As lawyers, we have been taught advocacy, and advocacy has a part in mediation. But zealous advocacy does not.

Instead of advocating for our client in a mediation setting, step back and consider why our client has chosen to mediate (or why the judge has demanded we mediate) and, within those parameters, how we can be most effective.

Mediation is a different animal from litigation and we must recognize this in order to be effective for our client. In many ways, becoming an effective counsel in a mediation setting is a paradigm shift. In our heads, we must see our client and the opposite party as joint problem-solvers, not adversaries. We must coach them to work together to reach a wise and workable decision. We must encourage them to be open about their interests and look for win-win opportunities.

This is difficult. It is not in our adversarial nature to lead our client to such rational behavior. And it certainly is not the mindset of the client during the course of a lawsuit. But we must lead our client to rational behavior, sensitive behavior and nuanced attention to detail in order that we, together – client and attorney – can get the best result in mediation.

November 12, 2012 § Leave a comment

VETERANS DAY. Courthouse closed.

APOCALYPSE NOW

November 9, 2012 § Leave a comment

MEDIATING FOR SUCCESS

November 8, 2012 § 3 Comments

There’s no question in my mind that there are many cases pending in my court that should — and could — be settled by mediation.

So why don’t I order more cases to mediation? Well, to put in in blunt terms, it’s lack of faith.

In my experience as an attorney in mediation, I found that neither I nor counsel opposite had much of an idea of how to prepare for mediation, or how to prepare our clients for mediation, or what strategies and tactics we should and could use to maximize the chances for success. So that’s the source of my lack of faith.

I also found, in the few domestic mediations in which I was involved as an attorney, that there was some infuriating game-playing. In one case I had, co-counsel and I persuaded our doctor-client, defendant in a divorce, to make a quite reasonable (he thought overly-generous) opening offer. He and we took time out of a busy day to travel to Jackson for the event. We made our initial offer, and the mediator remarked that it was more than he expected. He then disappeared to confer with the other side, only to return an hour later with a counteroffer for more than twice what we had offered. We calmed our client down and persuaded him to give a little more ground toward the middle. Again, the mediator left and returned another hour later with a counteroffer more than three times our initial offer. We were negotiating apart, instead of closer together. I could go on through the increasingly frustrating day, but I can sum it up by saying that we left finally for a late lunch and decided not to return for more of that treatment. Oh, and that exercise in futility cost my unhappy client a couple of thousand dollars. 

So I look at mediation in domestic cases with a somewhat jaundiced eye.

But I’m not ready to discard it. My theory is that if lawyers understood how to maximize the process, then they could use it to their clients’ benefit.

So, with that in mind, I invited attorney and mediator Lydia Quarles to do a series of posts for this blog with tips and ideas for attorneys on how to approach mediation, how to prepare your client for it, how to prepare yourself for it, and how to work with your mediator.

Beginning next week, we’ll have the benefit of Lydia’s five-part series on mediation in domestic cases.

I’ve suggested before, and I’ll repeat it here: Someone with mediation expertise should offer a CLE on how lawyers can prepare themselves and their clients for mediation, how they can make money doing it, some strategies, tactics and approaches, and how mediation can benefit lawyers’ practices. Every mediation segment in CLE’s I attended focused on what a mediator does. We know that. What lawyers need to know is how to do their job vis a vis the process.

NOT BITING

November 7, 2012 § 6 Comments

Anybody else got this email? I got it last week, complete with the Regions graphic.

It’s phony. First of all, I don’t do any business with Regions Bank, and I have no reason to have any “incoming Payments” there.

Also this language reads suspiciously like the Nigerian scam artists, doesn’t it? … “to VALIDATE your informations and wait for responds from Regions Bank ,” and “we apologies for any inconvenience.” Best of all … this is cute … it comes from a “security prevention” team. I’ll say.

Me, I’m not biting on this one. I don’t need their incoming Payment, informations or responds, or even their apologies.

This comes on the heels of a flurry of bogus Comcast “Security Alerts” emails with the Comcast logo.

  Dear Sir/Madam,
At Regions Bank We are proud to announce about our new updated secure system. We updated our new SSL servers to give our members a better, fast and secure service.
Due to the recent update of the servers,Your incoming Payment was placed on pending status In order to receive this payment CLICK HERE 
to VALIDATE your informations and wait for responds from Regions Bank . . We apologies for any inconvenience and appreciate your understanding.
Sincerely,Christopher Polumbo Regions Online Banking Security Prevention Team


The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you received this in Spam, please kindly move it to inbox.

   

PLEASE GO VOTE

November 6, 2012 § 1 Comment

If you voted already, thank you, fellow citizens.

If you haven’t voted, please get off of this bleeping computer and go vote right now.

If you don’t plan to vote, or, God forbid, you aren’t even registered, shame on you.

Where Am I?

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