#7.
Mediator proposal
Benefits of MEDIATOR PROPOSAL
• Latter stage after party development of offers and
information sharing;
• Choice: Possible Impasse or Directive Mediator Involvement;
• Still Party Empowerment as to Process and Ultimate Deal
Terms
• Mediator Proposal Can Be on Single Issue either During or At
the End of the Discussions; or Can Be An Overall
Comprehensive Settlement
SETTING UP
MEDIATOR PROPOSAL
1.
2.
3.
4.
Assess Progress of Parties’ Negotiation;
Check in with parties
Ask if parties and counsel want help
Describe Process of Mediator Proposal
Steps of MEDIATOR PROPOSAL
1.
2.
3.
4.
5.
Neutrally describe state of negotiation
Set out areas of agreement;
Set out issues (and sub-issues) that need further work;
Check in with parties as to agreement with your description and
invite other areas that need work to achieve overall agreement
Inquire what facts or objective criteria are needed to bridge gap;
Inquire if there are additional decision makers who should be
involved in receiving, reviewing and responding to mediator
proposal
Steps of MEDIATOR PROPOSAL
6. Ask parties and counsel if they are ready to hear Mediator Proposal
at the session itself or whether they would prefer to have
mediator send by email in days following session
• 7.Indicate that Mediator Proposal is not take it or leave it—It is
Mediator’s ideas of what might meet the interests and concerns
as developed in mediation in days following session
• 8. Prepare a Term Sheet
MEDIATOR PROPOSAL
• 9. Prepare Mediator Proposal: Range, Absolute, Reasons
• 10. Criteria for Proposal: What Parties Will Accept?; What Court
Would Decide?; What Mediator Believes Is Fair?
• 11. Present Mediator Proposal Either Jointly or Separately
• 12. Discuss Questions and Concerns Jointly or Privately
• 13. Use Mediator Proposal to Resolve or Quick Start Further
Negotiation
FINAL FINAL
MEDIATOR PROPOSAL
1.At Session: Gather parties and counsel in joint session or
Communicate
After Session: Communicate by Skype or Phone Conference Call
2. Indicate that it appears that energy and ideas of discussion are
running dry—Choice is between Final Final Mediator Proposal and
Suspending/Terminating Mediation
FINAL FINAL
MEDIATOR PROPOSAL
3. Inquire whether parties want a Final Final Mediator
Proposal—
4. Mediator give specific proposal as to each and every
outstanding issue;
5. Each party discusses the Final Final Proposal separately
6. Each party must sign off on entire Mediator Proposal without
change or mediation is suspended
FINAL FINAL
MEDIATOR PROPOSAL
• 7. Both parties report back to mediator whether they accept.
• 8. If both parties accept, mediator reports that the matter is
resolved.
• 9. Be prepared to neutrally draft
• 10. If either party rejects, indicate that the mediation is over
• 11. Ask parties if they would like help with next steps: Selecting
Next Process, Clarifying Issues; Draft Partial Agreements
• 12. Indicate Availability if Situation Changes: Follow Up
#8.
process design
SETTLEMENT FORMATS
•
•
•
•
•
•
•
1 WAY—SELF-RESOLUTION
2 WAY PARTIES
2 WAY LAWYERS
4 WAY TRADITIONAL
4 WAY COLLABORATIVE
3 WAY MEDIATION
5 WAY MEDIATION
Roles of Mediator
•
•
•
•
•
•
•
•
Host
Teacher
Referee
Negotiation Coach
Emotional Supporter
Reality Tester
Idea Generator
Recording Secretary
MODELS OF INTAKE
•
•
•
•
LONG INTAKE
SHORT INTAKE
USE OF ASSISTANTS/CASEMANAGERS
INTAKE WITH COUNSEL
TYPES OF
PRIVATE SESSIONS
• Private Sessions Prior To Joint Mediation Session
• Meetings And Telephone Contact Between Joint
Meetings
• Caucuses During Mediation Conference
# 9. UNBUNDLED LEGAL SERVICES
Advice
Discovery
Drafting
Research
Facts
Court
Representation
Negotiaion
•
PROTOCOL FOR ENGAGING A
LAWYER
If either ofCONSULTING
you wishes to consult an attorney,
you will let the other
party and me know ;
• You will only consult Collaborative or Mediation friendly lawyers
whom I approve, unless a
• different agreement is made. I have your authority to provide these
referrals to either of you without compromising my neutrality;
• You both will need to discuss and agree as to whether all
communications with your attorney will remain confidential or
whether you will share the advice if it provides information or
different perspectives than have been discussed in mediation;
•
PROTOCOL FOR ENGAGING A
CONSULTING LAWYER
• Once engaging an attorney, you will need to discuss and agree whether I
send summary agreements to them, I may communicate with them, and
what the lawyers’ role will be.
• If either of you wish for your attorney to attend a mediation session, this
may occur without the agreement of the other party. However, the party
intending to have his/her lawyer attend must give at least 3 days notice to
the other party and to me so that the other party may bring her/his
lawyer. If a set time for a mediation is not convenient for either lawyer, it
is agreed that the date of the mediation will be changed to accommodate
both of you and both lawyers.
•
•
#10.
WITCHES AT TABLE
#11.
BREAD
CREATE PRIORITIES
CAKE AND FROSTING
#12.
positions are not evil
“INTERESTS MOTIVATE PEOPLE; THEY ARE THE SILENT
MOVERS BEHIND THE HUBBUB OF POSITIONS. YOUR
POSITION IS SOMETHING YOU HAVE DECIDED ON. YOUR
INTERESTS ARE WHAT CAUSED YOU TO SO DECIDE.”
Getting to Yes
#13. choosing which option
• Brainstorm Options Developed by the Parties
• Add Additional Options with Permission of Parties
and Prioritize based on Each Party’s Willingness to
Consider
•
OPTIONS
Test Selected Options with Both Parties Using Criteria of Impact on
Relationship (Cost, Children, Privacy, Speed of Resolution)
TEST OPTIONS
 HOW WILL THIS OPTION WORK?
 WHAT ARE POSITIVES OF THIS OPTION?
 WHAT ARE NEGATIVES OF THIS OPTION?
#14.
baby steps
USING YOUR TOOLB0X
TO BUILD AGREEMENTS
Strategic Mediation
•
•
•
•
•
Next statement or action to create baby steps
Create awareness
Motivate discussions
Guide don’t direct
Best opportunity to agree
#15.
Orientation Session
 Arrange room and arrival
 Educate – not negotiate
 Assessment
ORIENTATION SESSION
STAGE 1—ROLE OF THE MEDIATOR, INTRODUCTION, STAGES OF
MEDIATION, QUESTIONS AND CONCERNS
STAGE 2----REVIEW MEDIATION AGREEMENT AND RULES OF
CONFIDENTIALITY
STAGE 3– USE OF LAWYERS/EXPERTS, AUTHORIZATION FOR PRIVATE
SESSION, FEES, NEXT STEPS
#16.
mediation protocol options
#17. de-Position with self-interest
DE-POSITION WITH
SELF-INTEREST
De-Position with
Positive Self-Interest
• Accurately Restate Party’s Position
• Ask: Imagine a Judge accepted your
position, how would
that benefit you?
• List: All Benefits---squeeze dry.
• Restate All Benefits
• Ask: If an ultimate settlement dealt with each of these concerns, would
you consider it?
TIPS FOR DEPOSITIONING





Use Either Joint Session Or Caucus
Be Accurate In Restating
Lean Over Backwards To Accept Party’s Goals
Go For Baby Step—not Agreement-leave It Hanging
Can Be Used With Overall Goal Or With A Single Issue
#18.
guidelines an BUDGETS
Allocation of income
need
#19. client resources at the table
#20.
Preliminary private
planning sessions
PRIVATE SESSIONS
AND CAUCUSING
Preliminary Private PLANNING
Sessions
Establish Rapport and Trust
•
• Learn Facts
• Emotional and Relationship Concerns
• Coach Preparation for First Joint Session
PRELIMINARY Private PLANNING
Sessions
•
•
•
•
•
•
•
•
Sign Mediation Agreement
Prepare for Joint Sessions
Bonding
Listen to Concerns
Information
Develop Agenda
Formulate Proposals
Coach Communication
#21. RELATIONSHIP IS NEVER
OVER
#22. CHANGING
PERCEPTIONS
OF THE GAP
CHANGING PERCEPTIONS OF GAP
Purpose: To Keep Party in Mediation by Comparing BATMA and
Costs of Maintaining Position
Late Stage Strategy
Prevent Walk Out
Link with earlier Reasons to Mediate
Accepts Position of Party as Stated
Focus on Costs of Maintaining Position
Do not Test Substantive Terms or Explore Options
CHANGING PERCEPTIONS OF GAP
•
•
•
•
•
•
•
Delineate Gap
Assess Probable Outcome
Soft Costs
Emotional Costs
Financial Benefits
Transaction Costs
Delineate Remaining Gap
DELINIATE GAP
• Restate the current positions and state full amount of
gap
• Ask party if Mediator’s assessment of gap is correct.
• Ask party if party is willing to explore areas to reduce
gap or look at gap in different way.
SOFT COSTS
Non -Out of Pocket Costs
•
•
•
•
•
•
•
•
Loss of Income/Profits
Loss of Momentum and Creativity
Use of Staff Time and Overhead
Personal Reputation
Business Good Will—Corporate Image
Contingent Liability
Impact on Credit
WHAT WOULD YOU PAY TO AVOID THESE COSTS BY SETTLING TODAY?
EMOTIONAL COSTS
• Physical symptoms (tummy, headache, sleeplessness,
etc)
• Internal Feelings-(fear, deprivation, uncertainty)
• Impact on Social Relationships
FUTURE FINANCIAL BENEFITS
• Explore possible future relationship with other party
• Determine whether other party is be able to help in any way
in the future if matter is settled
• Would such help have a direct or indirect financial benefit for
this party?
• What minimum amount could be allocated for this financial
benefit?
TRANSACTION COSTS
•
Lawyer’s Fees
Experts’ Fees
Costs-Filing Fees, Reporters, Parking,
Duplication, Travel
Babysitting
Replacement Staff
ACCEPT AMOUNTS ESTIMATED BY PARTY
REDUCE WHENEVER POSSIBLE
#23. CONFIDENTIALITY OF
MEDIATION
Copyright Forrest S. Mosten, 2011