The Latest CKA Mediation and Arbitration Report is Online.

I released my latest report/newsletter yesterday to several hundred friends, clients and prospective clients.  You can find a web-based version of it here.   I hope you find the tips useful the next time you mediate.

-Chris

Win-Win Thinking on YouTube

Mediators often speak of the win-win: parties working together to make the pie larger or construct a settlement or agreement that allows both parties to benefit.  This is often a difficult concept for many people to work, especially in the world of intellectual property.  The IP rights holder wants desperately to control the dissemination of the property, be it a patent, a film or in the case of the current You Tube viral sensation, the Chris Brown song “Forever”.  They believe that they can only maximize profitability by limiting access or usage.

Upon learning that a YouTube video contains non-licensed music, most record labels will contact You Tube and demand that the offending video be removed for infringement.  Chris Brown’s label or his publisher could have easily done so with the wedding video making the rounds.

Instead, they recognized an opportunity when the saw it and included a Click-to-Buy link within the video encouraging users to buy the song on Amazon or iTunes.  As a result,

over a year after its release, Chris Brown’s “Forever” has again rocketed up the charts, reaching as high as #4 on the iTunes singles chart and #3 on Amazon’s best selling MP3 list.

That’s creative win-win thinking.

Don’t Mediate that Case??

Sandra Upchurch of the Florida-based mediation practice group Upchurch Watson White & Max discusses an interesting article from Human Resources Leader magazine entitled, “Don’t rush to mediate that employee complaint …” The article makes some interesting points about cases for which a face-to-face negotiation could be detrimental.

How to Screw Up A Mediation.

Over at The Strategic Mediator, Florida Mediator Sandra C. Upchurch spells out the Top 10 Ways that a practitioner can “botch” a mediation (she’s more polite than I).   She echoes the complaints I repeatedly hear from fellow mediation practitioners and other bloggers.  Except for her last complaint, which is frankly quite unique.

I missed Lincoln’s Birthday yesterday.

But I love this quote, so I’ll post it today:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, “Notes for a Law Lecture” (July 1, 1850?), p. 81.

It is interesting to see a glimpse into the legal mindset of 150 years ago. Apparently, lawyers in Lincoln’s time were just as fond of taking every matter to court, and there were voices in the wilderness crying “Settle it…….settle it……”

As a litigator, I recognize that sometimes parties must fight for their rights. Sometimes litigation is the last best option. But there are also times when communication, cooperation, and compromise are best employed to resolve a dispute, and the parties need an experienced mediator who understands litigation, can analyze the risks, can help break communication barriers, and can recommend creative solutions.

A Mediation Advocacy CLE Closer to Home

My Atlanta readers and clients might appreciate a Mediation Advocacy CLE slightly closer to home.  The Georgia Bar is offering their annual class on my birthday – March 18, 2009.  Bill Goodman is a well respected former trial lawyer and mediator who will certainly make the class informative and useful.   I am particularly interested in the segment on demonstrative evidence in mediation, about which my colleague Nancy Hudgins has written before.

Exchange Your Bottom Line Blindly?

I’m sure that at one time or another, most mediation advocates have walked into mediations unsure whether the other side was in the same “zip code”, “ballpark” or even “universe”.   Even after a few rounds, even the mediator may be unsure whether that 8 figure demand is bluster or a serious number.

Over at the always interesting and practical Settlement Perspectives,  John DeGroote discusses a creative method of determining whether mediation might be useful in resolving the dispute – the “blind bottom line approach” or as John W. Cooley called it, “blind bidding enhancement.”

In this process, each side agrees to submit to the neutral their bottom line positions.  If the numbers are within an agreed upon range, then the mediation proceeds.   If not, the neutral informs the parties that they are not within range and keeps the numbers confidential.

Initially, I didn’t think that this would work unless the lowest demand was less than the highest offer.  But John explained to me that it is an issue of re-framing.  He believes that even though the plaintiff might say they won’t go below $4million (or $4,000 even), and the defendant says they won’t go higher than $3.5million (or $3500), once the parties realize the gap is small (relative to the total amount at stake), they will proceed with mediation.   This may be the case, but I’ve seen people fight over $10 in a small claims mediation.  Yes.  $10.

I think this can be a great idea for certain types of cases – high end PI cases and employment cases come to mind.  But I am not certain I would want to mediate the case knowing the parties’ bottom line positions.  I generally avoid this knowledge as  I think it can unnecessarily and perhaps unconsciously alter the way I approach the mediation.  Especially as the parties reach that “sweet spot.” But that is a “me” problem.

John has called on the mediation blogosphere to come up with an agreement that would memorialize this type of arrangement.  I’ve got some cases this week, but I promised him I’d put it on my To Do list!

The Importance of Having the “Decider” at Mediation.

No, I’m not actually talking about the decider, George W. Bush, but the ultimate decision maker.

While there is no authoritative definition of “mediation,” I think most would agree that a key to successful mediation is the meaningful participation of the parties.  All too often, I am asked to mediate cases involving businesses or insurers who send only their counsel to mediation.  And all too often, these cases don’t settle.

An adjuster, EVP or C-level officer “available by phone” doesn’t truly engage the other side.  They are not forced to participate in candid discussions about the strengths (and possibly more importantly) the weaknesses of their case.  They cannot look the other side in their eye and assess their credibility or whether they would make a sympathetic witness.  There are an infinite number of things that can occur in a mediation that change a party’s assessment of a case, few of which can be communicated “over the phone.”  Failing to send the ultimate decision maker also sends the not-too-subtle message that “your case really is not that important to us.”

To their credit, most of the attorneys I see in such mediations lament the absence of their corporate representative and do an admirable job without the person with final settlement authority; but it is very difficult to get the decision maker to move from an entrenched position unless they directly and fully participate.

Mediation Tips for the Practitioner from a Savvy Plaintiff’s Attorney

Vickie Pynchon is taking a break from blogging while campaigning for one of the Presidential candidates.  In the meantime, she has asked some guest bloggers to post content.  On Tuesday, Brian Herrington, a plaintiff’s lawyer from Mississippi offered some useful tips on preparing for mediation from a practitioner’s perspective.

After a mediation fell apart on Tuesday because the ultimate decision maker did not attend and was not privy to the discussions necessary to allow him to make an informed decision, I could not agree more with Brian’s assertion, “Make sure the money person is there.” Brian states that he

will no longer attend a mediation unless the individual authorized to write the settlement check is present.   None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only.

Good stuff in Vickie’s absence.

How to Help Your Clients During Challenging Times.

As a seasoned litigator, you understand that litigation filings actually increase in trying economic times. Businesses seeking to protect the bottom line file lawsuits against non-paying customers, IP infringers, and employees who violate restrictive covenants.  Home sellers sue to enforce sales contracts.  Divorces increase because of the stress of financial difficulties.

At the same time, however, your clients (and potential litigants) are looking for ways to cut expenses.  Somewhere in the back (or maybe the front) of the client’s mind is the thought that litigation is costing them more than the case is worth.  It becomes more challenging for you to show that you are providing value.

That is why mediation should become an important aspect of any successful litigator’s practice.  Your clients will thank you when you suggest mediation because:

1.  Clients Feel Involved.

Clients are used to the attorney calling the shots.  During mediation, the clients get involved.  They tell their story.  They are asked their opinion.  They present ideas, suggestions, alternatives.  When clients mediate, they feel involved.

2.  Clients Understand Plain Talk.

While it seems familiar to us lawyers, the legal process is daunting and unfamiliar to most law people.  But mediation is plain talk, and everyone understands plain talk.  When clients mediate, they will understand the result and how they got there.

3.  Clients Save Money.

One study by the Justice Department showed that U.S. Attorneys who mediated their cases saved 89 hours in attorney and paralegal time and over $10,000 in direct costs compared to taking the matter to trial.  When clients mediate, they appreciate the fact that you actually saved them money.

4.  Clients See the Value in Your Services.

You work hard preparing a case, but most of what you do takes place in a “black box” the client never sees.  Mediation allows you the opportunity to open up the black box and demonstrate all that you actually do for the client and the value of all that hard work.  When clients mediate, they see value.

5.  Mediation works.

Finally, mediation works.  When clients mediate, you are giving them the best opportunity to reach a successful resolution.