4/10/2023 0 Comments Mediator tiltshift toggle keyNone of these qualities is mutually exclusive of the other.Ī nationally acclaimed, widely celebrated trial lawyer with an impeccable reputation for civility and professionalism once said: “Conflicts come and conflicts go. Tough as nails in a negotiation yet polite and professional in the process. Often counsel at mediation adopt a polarizing stance and a harsh tone in delivering a message they feel beneficial to the client’s position. Kindness and empathy go a long, long way. In addition, counsel should examine themselves on their own needs, concerns, and motivations to ensure that they align with those of the client and present no conflict of interest.Ģ. The second question to ask oneself: “What is my professional relationship with the other counsel to this particular dispute?” It is important to ponder the triggers that seem to cause any breakdown in communication with other counsel and how to manage those at mediation.Ĭounsel must probe to discern the underlying needs and concerns, fears and motivations of the client. Counsel should consider this pre-mediation question: “Of the several outcomes desired from mediation, what is most important to my client?” These apply to almost any mediation, irrespective of the size or complexity of a particular dispute, because, after all…people are people.ġ. If counsel are to be of maximum effect in their role, they would do well to explore the basics of human behavior-the psychological and behavioral factors of problem solving.įocus on the People Involved The six people-focused points below can help counsel begin to shift their mind set about their essential role at mediation- or at least to get their mediations off to a more productive start. The human factors at play in mediated negotiations are central to resolution and fundamental to reaching settlements and making deals. This happens when counsels’ negotiating orientation tends toward rights and entitlement, on law and facts, often to the exclusion of the people involved and their deepest needs. In practice, however, many mediated negotiations break down because counsel and parties fail to consider the people component- the people side of conflict and the people side of negotiation-and its critical importance in the quest for persuasion. The mediation provides parties with both an arena and an opportunity to confront each other with genuine needs and concerns and engage in quality discussions that hopefully will allow them to persuade one another to view the dispute differently. The Art of Negotiation, the Science of Persuasion Mediation is the “theatre of persuasion”-a blend of the art of negotiation and key principles drawn from the science of persuasion. In many cases, that outcome could be full and complete resolution of the issues that prompted the mediation. In so doing, settlement negotiations and problem solving may unfold more smoothly and help disputing parties arrive at mutually acceptable outcomes. Both counsel and client alike should prepare for mediation substantively, emotionally, and attitudinally. Prepare for Mediation- Not Litigation Reframing begins with preparation counsel must appreciate the need to prepare for mediation-not litigation. However, for maximum effectiveness at mediating settlement agreements, many counsel first could benefit by a veritable reframing of how they view their role as counsel and their approach to zealous advocacy. This post addresses how counsel can benefit from a veritable reframing of their view of the role of counsel.Īt the core of their being, lawyers want to advocate for their clients. These shifts transpire in the parties’ perspectives on the people involved, on the law applied, on the “facts” interpreted, on the risks assessed-and on the very possibilities presented through mediated problem-solving and settlement negotiations. Mediation Mind Shifts are the critical, incremental shifts in thinking that must occur to move people embroiled in conflict from entrenched, diametrically opposed positions at the outset of mediation toward the goal of resolution at the end. By: Harold Coleman, Jr., Esq., CCA, Senior Vice President, AAA-ICDR ® Executive Director/Mediator,
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