The Strategic Mediator

Negotiating with Local Environmental Agencies

2010-06-02T09:34:00.000-05:00

Yeah, OK, I admit it…I let that pile of bar journals stack up until they are just about to the ceiling before I take the time to peruse them for little jewels. Well I recently perused the stack (really for office safety and ingress/egress reasons) and there it was, a little gem in the form of Anna Long’s article entitled Negotiating Consent Orders and Settlement Agreements with Local Environmental Agencies. It appeared in the March issue of the Briefs which is a publication of the Orange County Bar Association.

Anna is an attorney with Lowndes Drosdick Doster Kantor & Reed, P.A., in Orlando who specializes in environmental law. Her article was most interesting to me because it focused on the practical aspects of dealing with environmental agencies and environmental Notices of Violation (“NOV”) rather than the technical aspects. Not surprisingly, most landowners on the receiving end of these little NOV gifts respond with a knee-jerk reaction which is to immediately go on the attack like rabid dogs. Anna wisely encourages landowners to step back and suggests a more measured response. Her suggestion is simply to do your homework. She suggests that you hire the right people, and gather the right team before walking through the environmental agency’s front door. I would add to her advice by simply stating that it is wise for landowners to also check their foaming mouths at the door. Anna also suggests that you research with whom you will be meeting and what their education, background with the agency and level of decision-making authority is. I note here as well the importance of actually scheduling a meeting rather than raging into the agency’s office unannounced (not a good way to set the right tone for warm fuzzy feelings of negotiation and compromise). Her approach to the actual meeting and necessary follow-up is equally as level-headed. Go on, read her article for the rest. It is really great.

And, if all else fails and the NOV sticks, don’t forget that there is a seldom-used relief valve for landowners in the form of Florida’s Environmental and Land Use Dispute Resolution Act. Sure it has its own problems but in this economy isn’t a stab at resolving the dispute a better alternative than filing suit and enduring the often drawn-out and expensive litigation process?

- Sandra C. Upchurch

supchurch@uww-adr.com

Communicating with your mediator; sometimes smoke signals aren’t enough…

2010-03-11T10:10:00.001-06:00

While conducting a mediation recently I was simply baffled by the position of one of the attorneys. The position appeared to be contrary to caselaw, contrary to common sense and just plain old contrary. I spent most of my day reading tea leaves trying to figure out if this attorney was waiting for me to play “bad cop” or was waiting for me to perform the obligatory “reality check” for his client as mediators are so often expected to do or did this guy simply need to go back to law school. I was simply confounded and beginning to wonder if I had stepped out of litigation mode too long ago to recall how this type of case was going to play out in front of judge or jury. Or horror of horrors, could I actually be wrong in my analysis?

In this situation I finally had the opportunity to have a private conversation with the attorney. I delicately explained that I generally can play any role I am needed to play but that I needed a hint from him about what was expected of me. In this case he did confess that he was having what he called a “client control” problem and he would very much like for me to step in and be the bearer of bad news. Hallelujah!! The attorney and I were seeing eye to eye and it appears after all that I was not w-r-o-n-g (I really hate that word!!)

The lesson learned here is that morse code, smoke signals and mental telepathy are not practical means of communication at mediation. If you need help from your mediator, just ask for it. You don’t need to make a federal case out of it in front of your client and ask for a private mediator/attorney caucus. Just step outside of the room for a beverage or a snack and track us down. That is why we are pacing the halls rather than sitting back at our desks. We are all yours all the time while we are mediating. Client control problem, bad set of facts, unwelcoming venue, we have heard it all and can deal with it all if we are just given a clue as to what you need from us. Just in case, I am scheduling my mind-reading course for this summer.

- Sandra C. Upchurch
supchurch@uww-adr.com

Mediation: A Place for Form and Substance

2010-03-04T13:12:00.002-06:00

The form should be for them, and the substance, for you. What do I mean?

From where I, as a mediator sit, everyone should both be focused on the substance of deliberations and be cognizant of the form in which the deliberations take place. For parties, it is important to focus on the form when interacting with the other side (and mediator) and the substance in the quiet of your own caucus room.

Still want to know what I mean? Well, we all know by now that the achieving the goal of resolution requires a multitude of things. The way in which you pursue resolution, the manner in which you speak and convey ideas or information, THE WAY YOU INTERACT with people is crucial. A proper tone can be the difference between getting the other side to work with you or push against you. That is what I mean by "form". How you interact makes it possible, in most cases, to make meaningful progress in a rational, efficient manner whether the issues are mundane, technical, simple, complex, or riddled with emotion. I believe form is the canvas on which everything else is delivered and thus may be judged. A bad attitude, adversarial response, a snide comment, or an insensitive dig can stop all progress.

While form is important in terms of what you say and do and how you do it, do not make the mistake of getting hung up on the other side's "poor form". When making substantive decisions, you need to, of course, focus on the substance. In the back-and-forth of mediations, people all to often fall into the trap of reactively negotiating. They may get lucky and get through even though they behave in the same way the other side is behaving. But more often than not, the side that stays focused on the substance and always works to use "proper form" will get a better result, or a result no less advantageous, but achieved more cost effectively.

So, to summarize. Both form and substance are important. YOUR form and the substance that is. Try ignoring the other side's gaffs, missteps, and destructive behavior. The other side's form should not be an impediment. In mediation, if you always act from a position of confidence and politeness with an eye on the substance, you will be glad you did.

- Richard B. Lord
rlord@uww-adr.com

Wills, Families and Children: An Ounce of Prevention…

2010-02-22T12:54:00.001-06:00

Once upon a time there were three children all of whom were loved equally. One child spent his adulthood in and out of rehab all on Daddy’s tab. Another child married into a wealthy family and was in need of no financial assistance. The last child lived a happy life and over the years asked for nothing from dear old dad but when push came to shove she needed a little help getting the grandkids through college and setting up some funding for retirement. When Daddy had a heart attack and passed away unexpectedly the three siblings gathered to learn what they have been left by their father. What they didn’t know is that Daddy felt as though he spent a small fortune on child number one just getting him through rehab and whatever inheritance he had coming had long since been spent in Daddy’s mind. Daddy looked at child number two and saw a loving and stable marriage, grandkids through college and retirements already established with no uncertainties. When Daddy saw child number three he realized that here is where his money would most wisely be spent so he left the majority of his estate to this child. When the siblings gathered to learn about the will provisions, they hugged and kissed and accepted their father’s intentions and realized the wisdom behind his choices, right?

WRONG!!! WRONG!!! WRONG!!!

This is when it hits the fan and blame is distributed by spouses, grandkids, siblings, you name it. Child number three is smothered with anger and feelings of guilt and that is just the beginning of the family feud. This is where some preventative measures would have been most helpful. In 2008, writer David Cay Johnston discussed the problem and suggested that “being upfront may be hard but could serve you in the long run.” In his New York Times article he encourages sitting down with families in good times and disclosing estate plans and will distributions. At the very least this will direct the fire at the person responsible for the decision and not at the recipient.

Gerald LeVan, a family wealth mediator at the Upchurch Watson White and Max Mediation Group, strongly encourages families to sit down and talk about their plans to avoid litigation and will disputes. Mr. LeVan says that in this manner at least the families have been put on notice, they have been treated with respect and they don’t have unrealistic expectations. Recently the San Diego Estate Planning Lawyer Blog touted the importance of communication in dealing with the harsh reality of unequal will distributions.

So, take the time to sit down with your families and have that awkward, uncomfortable conversation. Be clear, be direct and be honest. Who gets what, when, why and how. As hard as it may be, your real gift to them will be a healthy and continuous sibling relationship after you are long gone.

- Sandra C. Upchurch

supchurch@uww-adr.com

The "Goal Oriented" Approach to Mediation Negotiations

2010-02-17T13:06:00.002-06:00

As I have mediated thousands of cases over the last couple of decades, I have come to realize and appreciate the importance of the concepts of mutuality and trust in this process of self-determination. As mediator the question becomes how to encourage the implementation of both concepts for the sake of the "bridge-building" exercise. The answer for me has been in the use of a "goal-oriented” approach to the negotiations.

A "goal" is defined as "a reasonable expectation to achieve a negotiated resolution". In recognition of the multiple sides to a negotiation, it is reasonable to anticipate each party has one. The chance that these "goals" are the same is fortuitous at best.

More likely these goals are not the same, and the ultimate issue is "how different are they?" The answer requires the patience of the process that allows a claimant to move from his/her/its demand and a respondent to move from zero (or his/her/its respective demand).

The key in building both the mutuality and trust of the negotiation is to reach these goals at the same time.

For the claimant/respondent to be above/below his/her/its goal at the time that other side is at his/her/its goal is not only contrary to the mutuality of the process, it usually results in the statement, "Well, if you are that high/low, we may as well not go any further".

However, if both sides can be orchestrated to get to their respective goals in an agreed number of moves, then the bridge-building has the opportunity to be effectuated. Regardless of the initial demand (or response) the understanding is that each move has everything to do with where that party is going and nothing to do with where the other party is or has moved to.

The result is the avoidance of relationship bargaining which can destroy a mediation negotiation (i.e., "she moved a dollar, so we will move 50 cents"). If both sides can get to their respective goals in 3-5 moves, at that point the parties themselves will have created the figurative "reasonable ballpark" within which they can then try to identify "common ground".

Why the designated number of steps? It is not likely that either side trusts that the other will get to their "goal" in the first move. (There are exceptions.) The trust- and bridge-building usually takes a minimum of three moves; and the patience for "getting to goals" as well as the timing of a one day mediation usually dictate a maximum of 5 moves. Of course, we have all been in mediation that has gone into "extra innings" to as many as 15-20 moves until 3am! However, these are either exceptions or are otherwise scheduled for multiple days. The latter event will still be orchestrated consistent with that timing, (i.e., to get to goals by day two, and to bring goals together in day three).

It should always be remembered that these goals are likely different, and therefore when both side have reached their respective goals, a reasonable "ballpark" should have been established. If so, common ground can thereby be achieved. Because the ballpark should based not on what either side wants, but rather on the same known facts, law, venue, and party evaluations, the goals while differing should have the same basis. If there are facts, law, venue, or party evaluations that are differing, those differences should be better understood, dialogued through facilitation, and likewise mutually re-evaluated.

Once re-evaluated, the exercise of establishing common ground can be negotiated through direct, facilitative discussions; indirect, facilitative discussions; or a Mediator's Proposal. In whichever method the parties elect, there is a "home plate" in every reasonable ballpark".

So, let's play ball! Work to build trust, appreciate the mutuality of the process, and ultimately common ground can be achieved.

- Rodney A. Max
ramax@uww-adr.com

Language as a Tool of Conflict Resolution: The problem of familiar address

2010-02-09T11:22:00.001-06:00

As attorneys, mediators or negotiators we are in the communication business. Our success or failure is directly related to what we say and how we say it. How we communicate determines in large part whether people see us as “civil,” “competent,” “credible,” “professional’ and “ethical.” This is true of both the spoken and written word, but it is especially true of our oral communication. When we write, we have time to deliberate and make fine distinctions. When we speak, we are in a linguistic sense flying by the seat of our pants. No word or phrase means the same thing every time or in every circumstance, and speech on a subconscious level can be irreversible. When the choice of language results in the creation or aggravation of conflict, there is something linguistically amiss with the speaker, the listener, or both.

In this and future blogs, we are going to talk about the way we talk. Using the science of discourse analysis, we are going to work toward an increased sensitivity to language as a tool of conflict resolution. We begin with problems inherent with familiar forms of address. In our zeal to develop a friendly atmosphere with others, can we get too familiar too fast and under the wrong circumstances and thereby end up being counter-productive?

Most Indo-European languages have both formal and familiar forms of address. German is a good example. In German there are two words for “you.” “Sie” is used when talking to adults you know only casually, in business situations, with colleagues, and any time you have doubts about the degree of intimacy. “Du” is used when talking to family members, close friends and children under the age of twelve. German speakers can become very uncomfortable or insulted if the sie/du rules are broken.

A problem in English is that our familiar forms for addressing another person (“thou,” “thee”, “thine” and “thy”) has died out. To distinguish between formal and familiar situations English speakers resort to titles and first names (“Mr.” Brown versus “Bob”).   We still retain, however, a very real, subconscious aversion to violation of the formal/familiar rules of address. Generally speaking, older persons are more apt to be offended by the use of their first name in non-intimate settings than younger persons – but some situations can render the use of a first name offensive to persons regardless of age.

A younger speaker talking to an elderly listener: a great many elderly persons grew up in a society where the formal/familiar dichotomy was strictly observed in speaking with elders.

Members of racial minorities: Historically, Afro-Americans were routinely called by their first names as a signal of subservient status. The use of the first name was in and of itself a badge of disrespect. Many Afro-Americans (and members of some other minorities) retain an aversion to the use of their first names in non-intimate settings. The problem can be compounded when addressing elder members of minorities.

In settings of disparate economic or social status: The use of first names across groups occupying divergent economic or social strata can prove offensive to persons in the lower strata. It may be seen not as an egalitarian effort but as an assertion of superiority by the speaker.

In settings where the familiar form (first name) is applied to some individuals while titles (“Mr.”) are applied to others: It is not uncommon in mediations or other group settings to have professionals or other persons who protocol requires to be referred by their title (“Dr.” “Professor,” Senator,” “Captain,” etc.).   Any speaker using a title for these persons but referring to others by their first names runs the risk of having the untitled persons resent the unequal treatment.

Launching into the use of first names too early: We have all heard some person, as soon as a group convenes, insist that we all call one another by our respective first names. This misunderstands the formal/familiar dichotomy. The right to call someone by their first name, linguistically speaking, derives from status determined over some period of time – even if it is a short period. It is not a right that can be established by decree. In every discourse there will come a time when the parties feel comfortable switching from the formal to the familiar. Skillful speakers begin with the formal and watch for an appropriate time for moving from the formal to the familiar: “Do you mind if we use our first names?” This usually occurs after a significant period of interaction – during which some degree of bonding or intimacy has been established.

In summary, the appropriateness of familiar address is highly situational. Any speaker who carelessly assumes that the automatic use of first names is an endearing or egalitarian exercise may impede conflict resolution.

Howard R. Marsee
hrmarsee@cfl.rr.com
UWWM Mediator/Arbitrator/Special Magistrate

Mediation between the Rational and Irrational - a little about tigers and stripes…

2010-01-07T14:46:00.005-06:00

I just read a simply phenomenal blog by John Folk-Williams: Mediating on Two Tracks: the Rational and the Rest of Human Nature. In a few short paragraphs he summarizes exactly why some cross-collaborative efforts are not successful and even why so many cross-collaborative efforts are not attempted. In truth, he summarizes really why the alternative dispute resolution process as a whole sometimes fails.

Oftentimes one party is fostering a hostility which is based on raw emotion, misinformation or as John says “past clashes on unrelated issues.” Let’s call this the “irrational party.” If you pair this party with an opposing party, the “rational party” if you will, whose approach is “just the facts, mam,” one who may be too impatient to allow the mediator the time to nurture the other party through their issues, then you have before you the potential for one unproductive day and one unproductive mediation.

John reminds us of the divide that the mediator must bridge in these cases and make no mistake about it, the gap between rational and irrational immediately becomes the mediator’s biggest challenge. The mediator must try delicately to move the “irrational party’ more toward the middle where emotion may not run as deep while also dragging the “rational party” closer to the middle in reluctant recognition of the other party’s perspective and feelings. This happens most often in cases where one party is a corporate entity or a governmental entity and the litigation they are facing is just a part of the daily grind while the other party is an individual unaccustomed to the tension of litigation and with much more personally at stake.

May I introduce you to your mediator, Dr. Jekyll and Mr. Hyde. The mediator must be logical and fact-oriented in one room and play the gentle role of psychologist and trust-builder in the other room. Whether the mediator finds this delicate balance is only apparent at the end of the day when the parties end up shaking hands with a fully executed settlement agreement in hand or gruffly packing up their bags and sheepishly waiting to leave the building until an announcement is made that the other party is gone, empty-handed of course.

To avoid these types of clashes I could counsel you to address the issue in your pre-mediation conference with your clients. I could tell you to prepare your clients to listen with real empathy to the opposing party’s story or I could tell you to coach your client to accept that the other party’s documentation tells a far different tale and that evidence is really what drives the train at trial. I could tell you to request that your client shelf his/her Spock-like demeanor or drama king/queen persona for the day but I know how that works, you know the adage, tigers and stripes… not gonna happen…

So, your best bet is a good mediator, a patient mediator and a persistent mediator. I wonder where you can find one of those…

- Sandra C. Upchurch
supchurch@uww-adr.com

Only in my dreams….

2009-11-24T11:11:00.002-06:00

A quick read of Joseph Markowitz’ recent blog about The Power of Metaphors at Mediation’s Place really got me thinking about metaphors and dreams and, believe it or not, my career choices.

I was a litigator for 15 years and really enjoyed it, or at least I thought I did. What I had not connected to my career choice was a recurring dream that I had that can only be called “anxiety-riddled.” In my dream my car was accelerating rapidly, I mean I was flying down the street, and despite the fact that I had my foot and all my weight on the brake, I simply could not stop. It was dreadful. It was terrifying. Luckily I always awoke before the inevitable crash and urban myths tell me that is a good thing. I had the dream at least once every few months and it was so real to me that it made me wonder sometimes when I got in the car if my brakes really were faulty.

Approximately one year ago I was asked to join the Upchurch Watson White and Max Mediation Group to become a full-time alternative dispute resolution practitioner and do you know that I have not had my faulty brakes dream since I changed careers? Obviously I felt out of control in litigation-mode and my dreams were trying in vain to tell me what now seems so clear.

It was at this point in my self-analysis that I had one of those Oprah Winfrey “aha! moments.” Whoops! Has Ms. Winfrey copyrighted that phrase yet? Regardless, isn’t litigation often like a speeding car racing out of control toward trial? Don’t the parties feel somewhat helpless as I did in my dream, trying desperately but ineffectively to avoid a possible disaster and the unknown? Well, yes, of course they do.

So there you have it, the birth of another version of my opening remarks at mediation. I used to share with the attendees some insight into how mediation fits into my family life as a soccer mom but now I will begin retelling the story of my faulty brakes dream and how litigation can grab hold of your life in an unexpected and uncompromising manner as it apparently grabbed hold of mine. I will share with the parties a piece of the calm that mediation has brought into my life and share with them my hope that our mediation session(s) can result in the same for them and allow them to leave their litigation and all the grief that comes with it in my office and in my conference room while they walk out with a little less weight on their shoulders due to the settlement agreement the parties were able to craft, create and negotiate. You see, litigation can feel like the speeding car and in the right situation the mediation can serve as the much needed brakes. Mediation allows parties to regain some control of the situation and certainly allows parties to write their own ending to the dream (or nightmare), as the case may be.

- Sandra C. Upchurch

supchurch@uww-adr.com

Curiosity – the overlooked/underrated trait of a great mediator

2009-11-18T13:07:00.008-06:00

As I sat down today to rifle through my growing file of unread RSS feeds I stumbled upon Diane Levin’s blog post, “The why’s have it: teaching curiosity for effective negotiation and mediation.” Sheer genius I tell you ,sheer genius!

I cannot tell you how many articles I have read, webinars and seminars I have attended, and blogs I have written that list for us the most important qualities of a mediator. We all discuss “patience,” “perseverance,” “objectivity,” and “creativity” and we can all agree that those qualities are imperative. However, no list that I have read has mentioned “curiosity.” In truth and in fact, isn’t curiosity the most important quality of all? Of course it is. This is how you learn the motivating factors of the parties. This is how you get beyond impasse.

Diane ponders whether curiosity can be taught. I tend to think that curiosity cannot be trained. To be inquisitive is to have an instinctual need to learn more and get to the bottom of something. How do you teach that? It would be like teaching someone to have empathy or teaching someone to love cats. It’s simply not going to work. Either you have it or you don’t. Either you like cats or you don’t.

So, find a mediator that likes to dig deeper, that likes to ask questions and likes to learn about the parties and the underlying problems. Find a mediator that isn’t afraid to ask the all-important but very simple “why?” As we all know, litigation is the present problem but not the root of the problem.

- Sandra C. Upchurch

supchurch@uww-adr.com

2009-2010 Cumberland School of Law Mediation Fellow Selected

2009-10-29T13:33:00.007-05:00

The Upchurch Watson White and Max Mediation Group is pleased to announce that third year law student Whitney Henry has been selected as the 2009-2010 Cumberland School of Law Rodney Max Mediation Fellow. Established by Rodney A. Max, principal at Upchurch Watson White and Max, nationally renowned mediator, and 1975 graduate of Cumberland School of Law, the fellowship recognizes the interest, achievements and scholarship of Cumberland students in the area of mediation.

Ms. Henry was selected as this year’s recipient because she demonstrated not only a strong interest in mediation but also a desire to pursue mediation as a career. Her application was certainly very impressive. As this year’s Rodney Max fellow Ms. Henry will receive a $5,000 fellowship award for the 2009-2010 academic year. She will work under the direction of the Director of the Cumberland Community Mediation Center with primary responsibilities including; managing the Samford Residence Life Mediation Project, co-mediating disputes, and researching and writing projects. Ms. Henry is certainly a rising star in the field of mediation.

The Cumberland School of Law and Upchurch Watson White and Max look forward to following her career as it develops over the next few years.

We are very proud of Rodney for creating this fellowship opportunity and of Ms. Henry as the 2009-2010 fellowship recipient.

Mediation Strategies from the Defense Attorney Perspective

2009-10-26T09:23:00.006-05:00

Many thanks to James F. Bleeke of SweetinBleeke in Indianapolis. He provided me with the article Mediation Strategies: What Plaintiffs Really Want that was very insightful for many reasons, not the least of which is that it suggests depositions can be used as a mediation tool. Counterintuitive…Right? Not really…

Jim points out that there are many key motivating factors for plaintiffs as they struggle through the litigation process and head toward mediation and trial. He suggests that those factors are as follows:

Money
Being heard
Getting an explanation of what happened and why
Vindication
Helping future individuals avoid the same fate
Punishment/revenge
Teaching the defendant a lesson
Assuaging personal guilt
Wanting the whole thing to be over
Avoiding trial

Jim feels that it is important to figure out which factor is of primary importance to the plaintiff and he sometimes utilizes depositions to figure this out. He is not suggesting the use of “gotcha” questions and coercive tactics during deposition. Rather, he encourages the use of feeling or emotive questions which put the plaintiff at ease and may encourage the plaintiff to open up.

For example, questions such as “how did the incident make you feel” and “what led you to initiate this lawsuit,” even if objected to, may allow the plaintiff to recognize that their feelings are valued, respected and sought and that the defense may not be as horrible as expected. This can serve to open doors at mediation that might otherwise have been slammed shut and may allow mediation day to be productive from the very beginning. Now wouldn’t that be nice?

There is much more to Jim’s piece and I invite you to read it in its entirety. Thanks again, Jim.

- Sandra C. Upchurch
supchurch@uww-adr.com

Blogging – Have you gone there yet?

2009-10-19T14:02:00.006-05:00

When I became a mediator at Upchurch Watson White and Max I am not sure that I fully appreciated the fact that I would be helping the firm launch their Web 2.0 efforts but now that am fully engaged in mediation AND online marketing, the aspect of Web 2.0 that I truly appreciate and enjoy the most is blogging. Our blog, the Strategic Mediator, is quickly becoming a “player” in international ADR blogging circles, if I do say so myself, and it is thrilling to watch it happen.

For those of you that don’t know, blogging is not simply sitting down at a computer and writing about a topic of interest to you and your firm and posting it on your firm website. Blogging is a way to connect in a meaningful way with potential clients and like-minded people around the world.

To blog, you first need to lurk. Get on the internet and Google your area of practice followed by the word “blog”. You will be inundated with blogs that you will find intriguing, helpful, insightful, infuriating, and so much more.

The next phase of blogging is a bit more bold and requires that you become interactive. Once you have lurked to your satisfaction, begin posting comments at those blogs. Let the author know that you agree or disagree and why. Praise or condemn the piece but be constructive after all you are trying to build an online reputation and some street cred for you and your firm, you really don’t want to become that Facebook friend that everyone eventually blocks because of all the garbage they post.

Lastly, put pen to paper or in this case fingers to the keyboard. Begin writing a blog at your website. Your tech people that host your website will be able to get it set up for you so that you can post as often as you like. Comment about books you have read. Comment about an interesting thing that happened to you at work that day. Poll your partners on an issue and write about their feedback. Write an article about a specific legal problem you have encountered and solved. But, most important of all, begin linking to others’ blogs. In your blog refer to how an online colleague has addressed an issue and link to that blog. Those authors will begin returning the favor and that is how it all begins.

At our firm website we have three blogs: The Strategic Mediator, The Family Business and Wealth Mediation Blog and the Local Government Charette. If you would like to give blogging a try, consider becoming a guest writer on any of our blogs.

What blogs do we read? Well, we spend most of our time with Diane Levin at Mediation Channel Blog, Victoria Pynchon at Settle It Now Negotiation Blog, Tammy Lenski at Making Mediation Your Day Job, Christopher Annunziata at CKA Mediation and Arbitration, John DeGroote at Settlement Perspectives, Steve Mehta at Mediation Matters and Phillip J. Loree, Jr., at Loree Reinsurance and Arbitration Law Forum. In my mind these are the blogging world’s best of the best in all things ADR. With any luck maybe someday people will say the same about our firm’s blogs. Only time will tell…

Sandra C. Upchurch
supchurch@uww-adr.com

Early Mediation Is Particularly Well Suited For Self-Insured Companies and Claimants

2009-10-01T10:50:00.001-05:00

We all know that mediation, when taken seriously and done meaningfully can save time, save money and avoid risks. It follows that early mediation can increase the cost and time savings. Self-insured companies that have taken the steps to implement a program of early mediation have seen improvements in various metrics tied to their costs and risk exposure. More and more self-insured companies are mediating early since it is, after all, their money from dollar one that is at stake. But the benefits are not one-sided. Claimants benefit as well, both psychologically and monetarily.

Sooner or later, the typical case is settled. Since "later" rarely happens without increases in economic, opportunity, and psychological costs, it rarely makes sense to wait for someone else to suggest mediating or wait until discovery is complete. If the case gets settled early, litigation costs that occur when in suit can not become an impediment to settlement. A company's reserves, employee costs, litigation costs, claims administration costs, future risk, and premiums for excess insurance are all positively impacted by early resolution. Claimants typically want to be dealt with fairly and the longer it takes to get to mediation, the harder it may be for them to think that anything said or done in mediation is truly tied to someone else's concern for their situation. Thus, by waiting, what it takes to be "fair" or "reasonable" often goes up. Delay does not benefit either side in most cases since it will drive up everyone's investment in the process of disagreeing, ties up more of a company's resources, and delays the day a claimant who likely has real concerns actually has them addressed in a practical way.

Most of the information you need to evaluate a matter can be obtained in a less costly manner than through discovery after suit is filed. An informal exchange of information, under the umbrella of a mediation process, can be a suitable substitute for formal discovery. Too much time in litigation is spent seeking information through a slow and costly process. And lets face it, discovery typically doesn't deliver risk avoidance or closure.

It may not be right for every case, but it is wise in most, especially when the prospective defendant is in the customer service business and good will can be gained. At worst, the parties start the inevitable and necessary dialog. For the above reasons, and perhaps many more, it makes sense to consider mediating early, preferably before suit is filed.

- Richard B. Lord
rlord@uww-adr.com

There is no substitute for being (and having them) there

2009-09-25T10:21:00.005-05:00

Really, there isn't. People ask too often, "Can I appear by phone?" Mediators and attorneys both should ask, "Why would you want to?" It can't be because you want to increase the odds of making a sound decision or of having the other side make one.

We have 5 senses. Sometimes we need inputs from more than one to accurately assess a situation. The same is true for mediation as it is for just about anything else. And how can we get the real flavor of a dynamic exchange of information, ideas, suggestions and proposals if we are only getting one sensory input. We all know that reading a deposition hardly imparts the subtleties, and even sometime misses major revelations or tones. Having someone listen-in to the mediation is always a less than ideal development.

If someone is unable to be there, it should be rescheduled. If someone doesn't want to be there, and it is your client, you have to ask, "Does this person have the perspective I want them to have?" Being present allows a problem solver to say "I am taking this seriously and I am going to give this my / our best shot, so you should as well, before we have no choice but to let a jury or judge decide." It also let's the decision maker respond to the things that are unspoken, or perhaps misinterpreted by others who convey the information to the decision maker in some other city, inevitably with distractions. Avoiding these inefficiencies or inadequacies increases the soundness of the ultimate decision. And the key to resolution may ultimately hinge on the other side's appreciation for their adversary being there, listening, and working on getting something accomplished. Think about it, if it is hard for you to negotiate beyond your preferred zone, does it help if the other side isn't there?

If it is the other side who doesn't want to attend, you should consider trying to get someone higher up to attend in person to take the process, and what you have to add to the analysis and problem solving, seriously. Otherwise, what you say may just fall on deaf ears.

While attending by phone can be adequate in some cases, there really is no substitute for being there. It can also keep the mediator's charges lower than if everyone has to wait for all of the calling back and forth to be accomplished.

- Richard B. Lord

rlord@uww-adr.com

Managing in Hard Times

2009-09-16T14:32:00.005-05:00

Stetson University wants to share with businesses some insight regarding how to be fiscally responsible in this economic downturn. How does a business handle issues such as pensions and health insurance when simply making payroll seems impossible?

Join a team of experts on September 24th in DeLand, Florida at Stetson University and spend a day learning how to Manage in Hard Times.

Issues to be discussed include: How to motivate staff; How to reduce costs; Whether to reposition the company; and, How to possibly even take advantage of the economic down turn.

Hope to see you there…

- Sandra C. Upchurch

supchurch@uww-adr.com

Just Sign on the Dotted Line

2009-09-14T11:30:00.003-05:00

Rule 1.730(b) of the Florida Rules of Civil Procedure, dealing with “Completion of Mediation”, unequivocally states that, “If a partial or final agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any.” Last week, a Florida appellate court once again refused to enforce a mediation settlement agreement that was not signed by all parties. In effect, the court said that the rule means what it says.

In Dean v. Rutherford Mulhall, P.A., 34 Fla. L. Weekly D1739b (Fla. 4th DCA August 26, 2009), the plaintiff law firm sued a former client for nonpayment of legal fees. The parties attended mediation, after which the mediator reported to the trial court that they had agreed to continue working toward a resolution. Thereafter, the plaintiff filed a motion for entry of final judgment, to which it attached a purported “Mediation Settlement Stipulation”. The stipulation was signed by the appropriate representatives of the plaintiff, as well as by the defendant’s attorney. Conspicuously missing, however, was a signature of the defendant. That fact notwithstanding, the trial court entered a final judgment based on the stipulation, and the defendant appealed. In reversing, the Fourth District Court of Appeal quoted Rule 1.730(b), and cited a line of Florida cases uniformly holding that an alleged mediation agreement is not binding absent the signature of all parties.

Rule 1.730(b) seems simple and straightforward in theory, but may not be so simple in practice. Consider a situation in which husband and wife are joint parties; only one may come to the mediation despite the rules setting forth attendance requirements, on the assumption that he or she has “full authority” to negotiate for the other. This is not necessarily a wise assumption, because the absent spouse may later refuse to sign. See, e.g., Holler v. DeHoyos, 898 So.2d 1216 (Fla. 5th DCA 2005) (while mediation agreement could not be enforced against non-signing absentee spouse, court could sanction absentee spouse for failing to appear at mediation). Other examples include litigation between the personal representative of an estate and several heirs, some of whom may be unable to attend mediation, situations where a defendant is insured but only the insurer’s representative and defense attorney come to mediation, or situations where only the attorney appears, claims to have full authority, but states that his or her client is “available by phone if necessary”.

So what is one to do? The lawyer whose client is present may simply refuse to participate in the mediation until he or she can obtain a court order compelling the other party’s attendance. In my experience, however, most lawyers will press on, at least for a little while, just to see if any real negotiations are possible. In those situations, I attempt first to secure an agreement with the absent client and his or her counsel that the client will be available by telephone throughout the entire mediation, that I will be permitted to talk to the client (with counsel present) whenever I request, and that if an agreement is reached, the client will take whatever steps are necessary to review the written settlement agreement with counsel, sign it and return the executed signature page that day, taking advantage of e-mail, home fax machines, and the neighborhood copy shop.

By securing that agreement, we can proceed with mediation in the most “normal” way possible under the circumstances. A perfect solution? No. But it beats the result in Dean any day of the week.

- Michael S. Orfinger

morfi@uww-adr.com

Mediation: A lesson from a soccer coach, parent and player…

2009-09-09T08:56:00.003-05:00

At soccer practice the other day there was a bit of a “kerfuffle” amongst the players. I saw none of it as I was not at the practice but the story/stories were relayed to me when practice was over. My son, the soccer player, told me he and some other players got angry at a teammate for purposely kicking another teammate in the head. My husband, the soccer coach, related to me that at the end of a play a player who should have known better stupidly and carelessly jumped over a fallen teammate, kicking him in the head in the process. The parent angrily informed me that all of the teammates ganged up against her child and she threatened to pull him from the team.

Three different stories and three different perspectives.

None of them wrong but none of them really right either. As I reflected upon this incident I realize that this is a teaching moment that is just too good to pass up. This is great stuff!! I now tell this soccer story during my introductory comments at mediations as a very simple real-life example of why dispute resolution services are so necessary. Mediation allows each party to share their very unique perspective in a safe environment. Once those stories and perspectives are shared and heard the parties can begin to step away from what they perceive as being the problem and begin working on a solution…

- Sandra C. Upchurch

supchurch@uww-adr.com

Mediation Strategies: What Plaintiffs Really Want

2009-08-31T13:11:00.003-05:00

Jim Bleeke, an Indianapolis defense attorney, has authored an interesting article setting forth his views as to the motivating factors that influence plaintiffs, from the obvious to the sublime.

Here's his list:

1. Money!

2. Being Heard

3. Getting An Explanation of What Happened and Why

4. Vindication

5. Helping Future Individuals Avoid the Same Fate

6. Punishment/Revenge

7. Teaching the Defendant a Lesson

8. Assuaging Personal Guilt

9. Wanting the Whole Thing to Be Over

10. Avoiding Trial

Bleeke emphasizes active listening and reframing of plaintiff's position statements during the joint session as helpful in persuading the plaintiff's team that the defense really "gets" their point of view, and as a basis to request reciprocal treatment as the defense is presented.

It seems that the checklist could serve as a valuable tool in crafting opening remarks designed to address as many of these interests as possible.

- John Upchurch

jupch@uww-adr.com

What’s So Golden About Silence?

2009-08-28T09:19:00.005-05:00

For something that’s so, well, silent, much has been said about silence itself. For example, we have a constitutional right to be silent. We’ve long been told that “silence is golden”. One of the world’s most popular cartoonists, Lynn Johnston, says that, “The most profound statements are often said in silence.” And Mark Twain, never at a loss for words himself, summed up the virtue of silence when he said, “It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.”

Silence is perhaps one of the most powerful tools in the mediator’s toolbox. I can learn about the legal dispute by reading the lawyers’ submissions or talking to the lawyers in advance of the mediation. But I can’t learn about the parties – their backgrounds, what makes them tick, which of their personality traits will be helpful or counterproductive in settlement negotiations, or how compelling their testimony might be at trial, without meeting the parties and listening to them. These are the types of things a mediator must know in order to quickly build the rapport and trust needed to assist the parties in deciding how and whether to resolve their dispute. In order to listen, however, I must be silent.

By simply listening to the parties, I have learned about businesses I would have never thought existed, inventions that boggle the mind, people who made millions of dollars on little more than a handshake, and family histories that have led to wealth-destroying will contests. The parties know more about the dispute than I ever will. I can likely figure out what the important factual issues are by asking the right questions, but only through listening will I learn why those issues are important.

One other thing about silence bears mention. In the right context, it is downright deafening. People are inherently social beings, and silence in a group tends to create discomfort among the group. If at the end of a joint session or in mid-caucus there is a sufficient period of silence, a party or lawyer may well try to fill this vacuum by speaking. If this gets the parties talking again, whether to the mediator or to each other, suddenly there is a dialogue the mediator can help direct toward fruitful settlement negotiations. So whether you are an advocate or a neutral at mediation, turn back to Mark Twain’s admonition that, “The right word may be effective, but no word was ever as effective as a rightly timed pause.”

- Michael S. Orfinger

morfi@uww-adr.com

Email marketing and Providing Effective Client Service in One Package

2009-08-26T10:20:00.000-05:00

Joshua Fruchter makes the case for a law firm email marketing program in a recent blog post at LawyerCasting.com. His central point is by proactively reaching out to your contacts on a regular basis with valuable content that reinforces your expertise, they'll remember you more readily when an opportunity to refer new business arises.

Fruchter notes that Stephen Seckler on his Counsel to Counsel blog entitled "Don't Be a Stranger," makes the point that it is important for service providers, including lawyers, to remain visible to past and prospective clients and referral sources. "Because while doing a good job and delivering good value are obviously prerequisites for getting more work, they are not enough to insure that satisfied clients will call you the next time they have a need (or that referral sources will continue to refer work your way). Instead, maintaining visibility through ongoing marketing to clients and other contacts is the key."

Our firm endeavors through regular blog posts, newsletters and CLE presentations to stay in close touch with our clients, and demonstrate our commitment to stay at the cutting edge of the art of negotiating effectively in the organized dispute resolution arena, and sharing these ideas with our clients. This form of client service is the best marketing tool anywhere.

- John J. Upchurch

jupch@uww-adr.com

HOA, Go Away, Come Again Some Other Day!

2009-08-25T09:25:00.000-05:00

With his recent article regarding homeowners associations St. Petersburg Times reporter Rodney Thrash reminds us of the role mediation can play in reducing the costs of litigation and restoring or repairing broken relationships in deed restricted communities.

Oftentimes matters can be talked through if you can just get people to the table and create an environment that requires them to listen to each other and allows them to truly hear each other possibly for the first time. These facilitated meetings need not be ordered by a judge after litigation has been initiated but rather should be mandated in the covenants of deed restricted communities. If you have a homeowners association issue that needs resolution consider turning to a local mediator for a resolution before filing that lawsuit because oftentimes once you cross that threshold into litigation there is no turning back and what relationship there was is often irretrievably broken.

Mediation is not an intimidating process – here is a brief podcast created by the Upchurch Watson White & Max Mediation Group which explains what a mediation is and what it is not - have your home owners association join in the conversation and give mediation a chance…

- Sandra C. Upchurch

High Fives to…

2009-08-24T11:29:00.000-05:00

The Romano Law Group and John Romano, Senior Partner at the Romano Law Group, for their spectacular venture into the world of all things “green.” The American Trial Lawyer Magazine in its Summer 2009 edition declares of The Romano Law Group’s new office building appropriately named the “EcoCentre.”

“It’s Alive: The Living Law Office.” And, the building really is alive. From the rooftop which is green with life to capture storm water, to the raised floors which allow for office occupants to individually control their office’s temperature, to the noticeable lack of artificial light, this office is a tribute to mother nature.

So, high fives from the Upchurch Watson White and Max Mediation Group to John Romano and The Romano Law Group for making green living a priority.

- Sandra C. Upchurch

Managing Hard Times – Perhaps Stetson University Can Help?

2009-08-21T10:29:00.001-05:00

Almost without exception businesses are struggling in this economy. Do you downsize, do you restructure, do you lay off staff, do you close your doors? So many questions and so few answers.

The Stetson University Family Enterprise Center is hosting a day-long conference in DeLand, Florida on Thursday, September 24, 2009, which may help to set your business on a course to weather this financial storm. Managing Hard Times: Navigate the Economy and Control Your Own Destiny is a new offering from Stetson’s Business Renewal Series and it is intended to help your business reposition, develop a financial plan, revise sales and marketing strategies and so much more. Business owners, managers, accountants, attorneys and consultants are signing up to attend. Several representatives from the Upchurch Watson White and Max Mediation Group will be in attendance to help you understand how conflict resolution strategies can help business owners avoid litigation and effectively control the soaring costs of litigation. Central Florida attorneys Judith Lane and Christine Ertl of Lane & Ertle will also be in attendance offering insight into the legal issues facing businesses in this down-turned economy.

We, in Central Florida, are fortunate to have Stetson University so close to us. I encourage you to take advantage of this business opportunity being offered in our own backyard. The insight you gain and contacts you make may be just the thing your business needs to stay afloat.

- Sandra C. Upchurch

A Jazzy Mediation

2009-08-19T09:58:00.000-05:00

The courtroom is in many ways a theatre, and the most successful of trial attorneys have something of the actor in them. Presumably, human suffering and corporate intrigue, with all the attendant drama laid bare for all to see, have made lawyers, judges, and jurors the centerpieces of many movies and television shows. Perhaps trials are conducted on a stage, one where middling lawyers chew the scenery and great lawyers wage spoken battles comparable to the Lincoln-Douglas debates. If that is true, then I suggest to you that mediation is also performed on a stage. Not the wide-open stage of a theatre or courtroom, mind you, but rather in a more quiet, private and intimate setting of a jazz performance.

Bear in mind that jazz at its purest is musical improvisation. Is there a structure? Yes, but nothing like the restraints placed on a play or a trial. Jazz compositions usually look pretty simple on paper. A typical jazz chart will have a melody line and a chord progression. After playing the melody through once or twice, the musicians will play solos in which they invent melodic improvisations over the same chord progression. Some improvisation can get pretty dissonant, but an attentive listener will hear beauty in the discord as well. Eventually, the musicians work themselves back to the melody line, as the performance comes to an end. The musicians may perform the tune again tomorrow, but it will never sound quite the same twice.

So too is it with mediation. The mediator is the nominal “bandleader” and “drummer”, in that the mediator orients the parties to the mediation concept (the underlying chord progression), and sets a rhythm at which the mediation will proceed. Counsel and/or the parties then give their opening presentations (the melody, with allowances for some variations on the theme). Once the parties move to private caucus, the improvised solo performances begin, by the parties, the lawyers, and the mediator.

What will those solos sound like? Well, it depends. They’re anything but mechanical. Just as a jazz musician will plumb the emotional depths of the music, so too will the party in caucus expose the emotions that underpin his or her positions and goals. The more harmonious one party’s solo is (i.e. how well the other party perceives the offer as meeting its needs or expectations), the more harmonious the responsive solo should be. A dissonant solo, such as a demand grossly disproportionate to the value of the claim, will likely draw a dissonant response, such as a reactive and artificially low counter-offer.

When discord becomes too much a threat to the process, the mediator must be prepared to improvise as well. Just as in jazz, timing is critical. At what point, for example, should the mediator suggest the concept of bracketed settlement proposals, engage the parties in decision tree analysis, call a meeting between the parties without their counsel, or propose any other technique that can move people closer together? Once again, the answer depends on how far the parties have strayed from the underlying chord progression, for if they are no longer even playing variations on the same composition, then perhaps the mediation should be adjourned.

If everything comes together correctly, however, the parties’ positions will become more harmonious as the mediation continues. When the solos are completed, the parties can return to the melody with which they began, changed, however, by edits made during the solos that make the tune sound even better. The parties, with their counsel, will then prepare and sign a settlement agreement. The session can close with the parties at peace, with the sizzling sound of brushes on cymbals.

- Michael S. Orfinger

Ms. Mediator, Your Lips Are Moving But All I Hear is “Blah, Blah, Blah..."

2009-08-04T14:23:00.000-05:00

I have blogged time and time again about how crucial the parties’ opening remarks are at mediation. For your sake I will not get back on that soapbox. But a recent blog from Lee Jay Berman has thankfully allowed me to step onto a different soapbox – after all I like it up here!

The opening remarks of the mediator – yes, those. I know, they are the same old schpeel each and every time and they send you scrambling to your newspaper to find something entertaining rather than being forced to endure the mundane yet again. Well, think again. The American Institute of Mediation recently republished Lee Jay Berman’s article Neutrals Reveal Tips With Their Opening Statements which was featured in Mediate.com in April 2009 and originally published on January 19, 2004 in the Daily Journal. It reminds all of us, litigators and mediators alike, that the opening remarks of the neutral allow the parties some insight into the demeanor and personality of the neutral. There can be much to learn during those opening remarks which can be to your advantage. So, listen up. Look for clues and tips. You may learn something that will help you and, most importantly, your client and your case.

- Sandra C. Upchurch

When neighbors don’t get along…

2009-08-03T17:43:00.000-05:00

I used to work as an attorney for local government in Tallahassee, Florida and Ormond Beach, Florida. It simply amazed me how much time I spent trying to de-escalate problems that were brought to my attention for my attention but really weren’t local government issues at all. What they inevitably amounted to were Hatfield vs. McCoy situations with never-ending phone calls for assistance to a wide variety of departments and anger-riddled commission meetings at which the feud is fueled. These are the landscape encroachment, dog-peeing-on-my-lawn, loud bird, debris accumulation issues that will drive a neighbor to the brink of insanity. Karen L. Levian hits on these concerns in her recent blog Your Dog is Killing My Lawn.

Levian’s blog is timely for me as shortly after I joined the Upchurch Watson White & Max Mediation Group and helped to create their Government Affairs Practice Group I was asked to craft a neighborhood dispute resolution program specifically for a local government. The idea behind the program is that this local government’s staff spends so much time and money trying to resolve neighborhood feuds that it makes sense to hire a mediator, at the sole expense of the local government, to work toward resolving the underlying issue once and for all, an in-house mediator of sorts. I am familiar with the community dispute resolution programs which exist in many urban areas and which are run at no or little cost to the parties but the idea of a local government paying for someone to resolve such disputes was a novel one to me although certainly not a new concept in the business sector. I continue to work on creating the program and I am convinced that it will free up staff to work on truly important matters that are truly of local government concern and allow the feuding parties to get past their issues and on to bigger and better things.

I’ll let you know how it goes…..

- Sandra C. Upchurch

To Effectively Negotiate, Resist Your Negative Urges

2009-07-31T11:48:00.000-05:00

I have been both a mediator and advocate in negotiations for many years. In addition to preparing, listening, understanding the importance of both the time spent in and the timing of negotiation, and being pleasant, I can not think of anything more important than resisting negative urges when you are negotiating. What do I mean by a 'negative' urge? Sometimes, I refer to them as counter-productive urges. Whatever names they go by, they are things you want to do that are more likely to impede progress in response to something someone else has done that you do not like.

What are some examples? The most common is assuming a "like kind" posture in negotiation when the other side does something that you do not receive positively. An unrealistically high start followed by an unrealistically small response; a frustratingly small move begetting a frustratingly small response; a perceived reversal of coarse prompting a move in the opposite direction; and dueling ultimatums are all examples of things that are seen or threatened in negotiations.

Reasons to avoid them should be obvious. The frequency with which they manifest themselves suggests that the reasons are not appreciated to the degree that they should be. While every case, participant, and context may be different, generally speaking, following through with a negative urge can lead to the unintended consequence of bogging down the process of reaching an eventual deal, or worse yet, derailing it.

We are all human. We are both intellectual and emotional beings. The emotional side is speaking loud and clear when we have an urge. When you feel one coming on, be mindful of unintended consequences, take a deep breath or pause, and think about how you can address your concerns in a less reactionary way that keeps you on course to your target. To do otherwise may just play into the hands of the other side.

- Richard B. Lord

LITIGATION: The Family “Doomsday Machine”

2009-07-30T12:25:00.001-05:00

At the climax of the cult movie “Dr. Strangelove”, the Soviet Union unleashes its “Doomsday Machine”, a destructive device so powerful that once activated, it can’t be shut down. In many ways a family lawsuit resembles the “Doomsday Machine.” Its destructive power can’t be recalled. Everyone loses. Nobody wins.

Fulton Oursler wrote many books, including The Greatest Story Ever Told, a popular account of Jesus’ life, eventually made into a movie. Under an assumed name, Oursler’s second wife, Grace wrote rather torrid (for the times) love stories. Fulton and Grace had two children; Fulton also had two other children by a prior marriage. Fulton’s will left everything to Grace. When Grace later died, her will left everything to their two children, but nothing at all to Fulton’s two other children. The two omitted children claimed that Grace had promised Fulton to leave them equal shares, and brought a lawsuit to enforce their claim.

The outcome of the lawsuit is unimportant at this point. But its effect on the family presents a sober lesson. In his memoirs, Will Oursler, a son by Fulton’s first marriage describes its effects. Here are some excerpts.

“It was a battle I did not seek, did not want—brother and sister against brother and sister, love against love, hate against hate. I did not seek it, but I had no escape. The challenge was there. And if I did not wish to battle for myself, I still could not leave Helen (the other child of the first marriage) and her children to go the road alone.

“To accept passively would be to believe that my father did not love my sister Helen and me, that he loved only the children of his second marriage, April and Tony. It would be to believe that my father wanted two of his children to live in luxury on the money he had earned, and the other two to know nothing but the earnings they struggled for…”

“It is an experience to be disinherited. Of a sudden there is a brand upon you, the letter etched into your flesh. You should feel guilty. But guilty for what? Of being born? For if you had not been born, Grace would have faced no problems, no lonely set of children to remind her of an other wife.”

“You turn to lawyers and courts to seek a remedy, if remedy there be. Could I go to them and ask them to give us money their mother left to them?”

“In the hands of the law, lawyers, legalism, of procedures, delays, and tactics, you are no longer yourself or even your own master. Abruptly, you are part of this too, and your lawyer informs you that introducing testimony about some of the facts might be painful. But this is the way of the law and courts; this is the meaning of conflict between human beings, the bitterness of conflict.”

“We made our claim for a share of our father’s estate. It went on for five years, the battle that hung above our lives like a smoky cloud. Helen and I were asking only for the shares that would have come to us, and for our children the share that would have come to them, under the terms of Grace’s original will…”

“While the battle of brother and sister against brother and sister went on in the courts, so also it went on in our lives, with no word between these two sets of children beyond the legalisms of complaints and answers and pretrial interrogations…”

“All this time the case went on, the battle of briefs and counter-briefs. There was an effort at settlement, and April and Tony and Helen and I had several meetings, through which would occasionally glow the feeling that we were truly brothers and sisters.”

“For a few weeks it almost seemed as though a settlement were possible; it almost seemed as though the flickering flame of brotherhood was coming alive. But it, too died in the suffocating questions that arose—lawyers’ bills and which side was to pay them, questions of who was right and wrong at this time or that. The lawyers tried to work it out and failed; we all tried to work it out and failed. The staggering legal fees remained to be met, and unanswered questions that dogged us remained.”

“Grimly, like a Greek tragedy, the plot went on and we returned to court. For this breakdown in negotiations that could have made us all more content I don’t blame April and Tony. I blame the four of us—and Grace and Fulton, the past, all our lives.”

“There were too many problems, too much involvement with lawyers and fees and bills to be paid. And below the surface perhaps the chasm had become too great to bridge.”

“We were bothers and sisters, but we could not agree. Once more the case went back to the courts…April and Tony won, four to three and it was over.”

“There are no villains in this family story. What can I be but sorry for what Grace has done to Helen and to me, to April and to Tony, to Fulton’s grandchildren, most of all for what she did to herself? Can I find it in my heart to hold rancor, where there is only pity and sorrow for the woman of many gifts and accomplishments who suffered bitter insecurity and guilt? She was bewildered and confused, torn by conflict. And her last gesture, incomprehensible to Helen and me, left our family irreparably estranged.”*

- Gerald Le Van

glevan@uww-adr.com

Mediation is in the air – mediation tips everywhere!!

2009-07-16T13:28:00.000-05:00

I am new at blogging and spend much of my time scanning the web for blog-worthy information on the topic of mediation. My goal is to get information out to litigators so that they have easy access to what is current and relevant in the field of mediation without having to attend time-consuming, often mind-numbing seminars on the topic.

What do I gain from this endeavor? As a mediator at the Upchurch Watson White and Max Mediation Group in Florida I selfishly love mediating cases in which both parties arrive at mediation at the top of their game with all of their mediation tactics and strategies sharpened to a fine point. I always find simply phenomenal stuff at Victoria Pynchon’s awe-inspiring blog, Negotiation Law Blog, and this time I was again not disappointed. In Pynchon’s recent blog Mediators’ Proposals: The Good, The Bad and the Ugly, which of course is informational and instructional in its own right, she refers to Ralph Williams’ Mediation Tips - Negotiation.

WOW!!! What a goldmine for litigators. His list offers one-stop shopping for mediation strategies, tactics, preparation, presentations, psychology, you name it. Williams’ list of tips is a must read for litigators and mediators alike and addresses subjects ranging from brackets and bluffing to reactive devaluation and rapport.

As a blogger it is nice to craft your own material and fancy yourself as an author of sorts but sometimes you need to bow to those who have mastered the craft. With these references to your material I bow to you Victoria Pynchon and Ralph Williams!

- Sandra C. Upchurch

Update on Confederate Flag Controversy –Will the show (I mean “parade”) go on?

2009-07-15T08:04:00.000-05:00

I first reported on this issue in The Strategic Mediator in June of this year. Most recently the Miami Herald is reporting that the confederate flag controversy in Homestead, Florida, appears to be dragging on. The City is refusing to apologize for the flag’s appearance in a Veterans’ Day parade last year because it was an event “where the city had no say over who would participate.” And, although it appears that most parties to the dispute, the City of Homestead, the Chamber of Commerce and the Sons of Confederate Veterans’ group, are all ready and willing to mediate, one main party, the NAACP, is keeping their next step a secret for now.

The Herald reports that the confederate flag is “to some a symbol of Southern pride, to others a symbol of hate and violence” which is why its unexpected appearance at last year’s parade was so divisive. Time is ticking on this issue as a decision about whether the parade will be canceled needs to be made by September. Will the show go on? Will mediation prove an effective tool to diffuse emotions and reach agreement? Stay tuned…..

- Sandra C. Upchurch

Pre-Suit Mediation: Only a Mid-West Trend?

2009-07-14T07:55:00.000-05:00

The International Academy of Mediators recently reported that pre-suit mediation is more common in the mid-west. The Academy refers to a June 25, 2009 article at the Chicago Daily Law Bulletin and states that it is believed the increase in pre-suit mediation is due to the “economic climate” while others attribute it to the “natural result of court programs encouraging parties to mediate.”

As for Florida, and Volusia County in particular, it still appears that pre-suit mediation is the exception to the rule perhaps because parties do not feel they have negotiating leverage until suit is filed and some discovery is conducted. I cannot help but believe that pre-suit mediation is always worth a try – what do you have to lose?

- Sandra C. Upchurch

Mediation Preparation– Don’t Forget Your Decision Tree

2009-07-13T13:56:00.000-05:00

I have blogged ad nauseam of the importance of preparing for mediation, preparing your client for mediation, giving an impressive opening presentation, and the like. Well, part of that very necessary and grueling effort should be a decision tree analysis. At his blog, Settlement Perspectives, John DeGroote provides an excellent 2-part discussion with Marc Victor on the issue, the first installment of which is Advanced Decision Tree Analysis in Litigation: An Interview With Marc Victor, Part I.

DeGroote’s second installment, Advanced Decision Tree Analysis in Litigation: An Interview with Marc Victor, Part II, is equally as informative and enlightening.

Decision trees should not just be used for your complex cases – even in the most straight-forward cases they are a tool which litigators and their clients should use to make educated decisions.

- Sandra C. Upchurch

PowerPoint Presentations at Mediation: Overkill or Going in for the Kill?

2009-07-10T13:55:00.000-05:00

Recently I spoke to a group of Florida attorneys on the topic of mediation advocacy. I strongly encouraged the group to prepare for mediation and opening remarks as if preparing for trial. I also touted the use of PowerPoint presentations during opening remarks/joint session and emphasized that opening remarks may be mere rhetoric and puffery for attending attorneys but, for the client audience, meaningful opening remarks with powerful presentation tools such as PowerPoint are extraordinarily persuasive and impressive. This is especially true if and when their attorney takes the bare bones, “no need to prepare, I already know the file like the back of my hand” approach.

After my seminar I was peppered with questions about the use of PowerPoint at mediation. Isn’t it overkill and a waste of time/money for the client on the hourly billing clock? How many attorneys are really doing this?

Rather than answer those questions based merely upon my own experience, I chose to turn to my colleagues at the Upchurch Watson White & Max Mediation Group for a roundtable discussion on the issue. The following conversation ensued…

Moderator, Sandy Upchurch: How often are you seeing PowerPoint being used in mediation opening remarks?

Kimberly Sands: Plaintiffs are more likely to use it than defendants. The
likelihood of its use increases with the complexity of the case and the amount
at issue.

Rod Max: In my experience a majority of attorneys are using it. More
Plaintiffs are doing it than Defendants but I do believe it is effective on both
sides.

Moderator, Sandy Upchurch: What are the benefits of using Power Point in opening presentations?

Kimberly Sands: I believe it is a useful tool in any case in which the parties feel there is important evidence that may not have been persuasively conveyed to the decision-maker.

Larry Watson: The benefits are obvious. In technical defect cases (construction, product, etc.) animated model slides can be essential to explaining how the failure occurred. They are equally indispensable with damage tallies and calculations.

John Upchurch: If done well, it conveys competence and thorough
preparation. If done REALLY well, it can strike fear in the heart of the adversary. What it all boils down to is failure to deliver a compelling and organized opening is a subtle signal to the other side that they have the upper hand.

Rod Max: I believe it is especially effective in complex factual or legal cases. It helps to simplify issues or magnify points. After all, a picture is worth a thousand words!

Moderator, Sandy Upchurch: Is it “overkill” to use PowerPoint during mediation opening remarks?

Michael Orfinger: It is overkill therefore entirely ineffective if it is exaggerated or overstated. That just results in the rolling of the eyes and the “tuned out” expression on people’s faces.

Moderator, Sandy Upchurch: What are your suggestions for the most effective use of PowerPoint at mediation opening session?

Richard Lord: Less is more. Speed and tempo are important. Just reading from the slides is bad. If it is just boiler-plate, entirely scripted or perfunctory, it is of absolutely no value and may actually be detrimental.

Kimberly Sands: It is important to consider your audience and edit your issues
and evidence. The presentation must not be too long or unnecessarily detailed.

Larry Watson: Don't make the opening presentation a matter of simply reading
the PowerPoint text. The presentations should illustrate and illuminate - not dominate or reiterate. Don't make the presentations too busy with complex diagrams. Simpler is better. Don't make the presentations too wordy with long textual quotes, narratives etc. Shorter is better. Don't make the presentations too plain - white on black is BORING. Put a little color into them, but moderately. Utilize consistent back ground, font size and color. Don't make the presentations overly decorative – these are serious issues, after all. Test your equipment in advance - don't delay start up trying to figure out how the computer works – you’ve just begun by annoying everyone in the room.

Moderator, Sandy Upchurch: What have you experienced as the most effective use of Power Point presentation during mediation opening remarks?

Richard Lord: The best I have ever seen had embedded video of sworn statements
and depositions - very compelling, very smooth, very prepared. Needless to say, very impressive and persuasive!

Kimberly Sands: The best are dynamic presentations, incorporating different
visuals and highlighting texts. It is imperative to utilize video depositions, animations, etc. if they exist. This is powerful stuff, self-explanatory stuff, stuff that you would never want a jury to see if you were the opposing party.

John Upchurch: One of the most effective uses I've seen of power point is when it is used in tandem with audio/video clips of the key witnesses' video depositions. It allows the presenting party to compare the opposing party's position in pleadings or paper discovery (perhaps shown on one or more slides) with the actual sworn testimony on that point by the witness (dragged and dropped into the next slide).

So, there you have it… The opinion of six highly experienced mediators regarding the use of PowerPoint at mediation. It appears the jury is in with a unanimous verdict. Run, don’t walk, to the bookstore to buy PowerPoint 2007 for Dummies then dash to your computers and get started.

- Sandra C. Upchurch

Amendment 4 – Smart Growth?

2009-07-09T13:38:00.000-05:00

Ed Timberlake recently discussed in the Orlando Sentinel Amendment 4 which will be put to the voters in November 2010. See: http://www.orlandosentinel.com/news/opinion/orl-edpmyword-hometown-democracy-06062409jun24,0,3434376.story

The proposed Amendment to Florida’s Constitution would require that all technical land-use changes across the state of Florida be put to the voters. Some local governments have enacted their own local versions of this amendment and have been surprised by the consequences.

Timberlake raises the question of whether Amendment 4 is truly a growth-management proposal or whether it is merely a tool with which growth can be halted with “non-stop political campaigning.”

It will be interesting to see how this turns out at the polls… You can bet that the Governmental Affairs Practice Group at the Upchurch Watson White and Max Mediation Group will be watching.

- Sandra C. Upchurch

More foreclosure fallout...

2009-07-06T14:37:00.000-05:00

I have blogged on numerous occasions about the mess that foreclosures create for neighborhoods and local government code enforcement/neighborhood improvement departments because of the blight caused by un-maintained, abandoned properties.

I blog about these local government issues as it appears that no one else is and because I used to work with local government I know how important it is to share information so that agencies don’t reinvent the wheel each time a new problem arises.

Well, pay attention county and municipal agencies! It appears St. Paul has had enough and has passed an ordinance requiring mortgage-holders to step up to the plate and maintain those vacant properties. See:

http://americancityandcounty.com/news/mortgage-holders-maintenance-responsibility-20090608/

Bravo, St. Paul. Now we have to wait to see how effective these new ordinances are and how many other communities follow suit.

As far as this issue is concerned, in my opinion we have hit rock bottom and there is no where to go but up…

-Sandra C. Upchurch

Web 2.0: A brief digression from mediation

2009-07-03T13:01:00.000-05:00

Are you a technophobe afraid to plug in your hairdryer? Do you scream out for your assistant to rush in to your aid each time your word document simply “disappears” from your screen? Are you the black thumb of death to any computer you touch?

Unfortunately for you it is now terribly chic to efficiently maneuver through your computer’s PowerPoint application. And today it is cool to carry an extra flash drive on your key chain. Blogging has become a way of life. And Facebook, Linkedin and Twitter? If you’re not there – well fuggetaboutit!!!

If you are still leery of the web and its social networking capacity, I provide you with the following must-do social networking steps you can take to dip your toe into these uncharted waters.

1) Establish your internet presence with a webpage for your firm. Profile the members of your firm. Identify your areas of specialty. Include location and contact information.

2) Read blogs on topics of interest to you and your practice. Comment on others’ blogs. Subscribe to blogs to keep updated and current.

3) Write a blog at least once/week. Write about matters of interest to you and your potential clients. Link your blog to your website, other websites and other blogs. Give readers a glimpse into your personality with your writing style.

4) Create a Linkedin account. Use it to refer readers to your blog, your website and your profile. Slowly begin accumulating connections. Establish meaningful connections not just numbers.

5) Create a Facebook page. I suggest keeping a professional page separate from a family and friends page. Link it to your website, blog and Linkedin and Twitter accounts. Collect meaningful friends not just numbers of friends.

6) Establish a Twitter account and tweet at least several times each week. This is just flat out fun! Join Twibes of interest to you and your practice area. Retweet things of interest to you. Follow people in fields of interest to you and relevant to your practice area.

7) Become proficient with PowerPoint or hire someone who is. OK this is not really social networking but an important practice tip. Use this for your mediation opening statements and at trial. Just do it!!

These are just the basics and believe me there are many additional ways to supplement your Web 2.0 efforts such as webinars, podcasts, site engine optimization consultants and the like but take baby steps first. Come on in – the water is fine.

Sandra C. Upchurch

Mediation Counsel

Upchurch Watson White and Max Mediation Group

Blog: http://uwwm.blogspot.com/

Twitter: @scupchurch

Website: http://uww-adr.com/

Facebook: http://www.facebook.com/sandra.c.upchurch

Linkedin: http://www.linkedin.com/in/sandracupchurch

Mediators declared “Florida Super Lawyers”

2009-07-02T09:30:00.000-05:00

Mediators John Upchurch, Larry Watson, Terry White and Rod Max have once again been named to the list of Florida “Super Lawyers” which is no surpise to those attorneys relying on these gentlemen each and every day to assist in resolving their most significant cases.

Joseph B. Stulberg, associate dean and professor of law at The Ohio State University Mortiz College of Law, in a congratulatory note writes:

"Bravo. What a wonderful acknowledgement of your skills, stature in the
field, and your contributions to the profession. I certainly am proud to
know that the people I learn from regularly are so highly regarded by their
colleagues. Heartiest congratulations, super lawyers!"

We at the firm are proud of our “super lawyers.” Thank you John, Larry, Terry and Rod for your mentorship, guidance, leadership and vision and congratulations on your accomplishment!

- Sandra C. Upchurch

Privacy Matters

2009-07-01T09:48:00.000-05:00

When public figures and personal tragedies collide it does not take long for the voyeurs of the world to attempt to gain access to photos of grim crime scenes or autopsies. In fact, in this world of instant news the tragedy need not be of public nature but rather just grisly enough to spike interest in whatever photos may be accessible.

Well, although in our country we do hold close to our hearts the freedom of the press, that freedom does have some limitations as Jon Mills tells us in Privacy: The Lost Right. Jon was consulted regarding the issue of privacy in the face of public tragedy for a blog at AmericanLawyer.com.

Jon Mills is a highly respected member of the Upchurch Watson White and Max Mediation Group. He served as Founding Director of the Center for Governmental Responsibility at the University of Florida College of Law from 1973 - 80 and from 1988 to present and was Dean from 1999-2003. He was elected to the Florida Legislature in 1980, serving as Speaker of the House from 1987 - 88.

Mills has advised families such as the Versaces and the Earnhardts in their efforts to keep private those graphic photos that would have been so heart wrenching to see coldy displayed by the media.

- Sandra C. Upchurch

Mediating Government Disputes – Confederate Flag Controversy

2009-06-09T18:47:00.000-05:00

The Miami Herald recently wrote about a controversy brewing in Homestead concerning the flying of a confederate flag at an upcoming Veterans Day parade. The City Council and Chamber of Commerce are just two of the parties to the upcoming mediation.

Mediation is being used more and more in pre-suit situations in the government sector and with community disputes as it is cost effective and allows the parties to constructively share their perspectives.

- Sandra C. Upchurch

The Family Road Trip - AKA: “Where Is A Mediator When You Need One?”

2009-06-05T12:02:00.000-05:00

Reading the Family Road Trip article by Brandy Ford brought me back to those days of yesteryear when we packed up for the summer RV trip in our handy dandy Winnebego. Living in Florida the disputes did not usually begin until the Georgia line but begin they did and with a ferocity that was unimaginable. I wanted lobster for dinner and my bratty brother wanted McDonalds. I wanted to stay in a hotel with a comfy bed and 500 thread count sheets and he wanted to sleep in the puny top bunk. I yearned for a hotel tiled shower that did not require sitting on a toilet and showering at the same time (all the Winnebego had to offer) and he loved the shower-shoes trek to the campground nasty, spider-infested, cold-water-only shower.

Our parents allowed me to win some and my brother to be the victor at times. Maybe my career choice is a direct result of those vacations. It was a constant lesson in mediation and negotiation skills for three long weeks every summer. The trips ended abruptly the year we had a family vote allowing us to choose between putting in a pool or going on another three-week- long RV Trip. If I could go back in time, I would pick the RV trip every time!!

- Sandra C. Upchurch

Mediation: My recipe for success

2009-06-03T11:56:00.000-05:00

I tend to be a “half-empty” kind of gal henceforth my most popular blog entry to date…Top 10 Ways to Botch a Mediation. In hindsight, I feel bad about that blog. Did it need to be so negative, so sarcastic? Is that what subscribers, readers and fellow bloggers really want and find entertaining? Isn’t there enough negative in the world right now? Why not put a more positive spin on what I have happily chosen for a career? Well, here is my best effort…my recipe for a successful mediation.

1 part: The right mediator
Don’t just blindly schedule your “go-to” person. Spend some time thinking about your client and your case. What type of personality and mediation style will best fit?

1 part: Preparation of the mediator
Brief the mediator in detail (in confidence of course) regarding your case. This can happen over the phone or with a written case summary. By whatever method, just do it. Many litigators are skipping this step in the current economic climate to avoid “wasting” the client’s money. I submit to you that preparing your neutral is far from a waste. Preparing your mediator allows him or her to hit the ground running on mediation day and serves to significantly reduce the time he or she must spend getting “up to speed.”

1 part: Preparation of your client
Schedule a pre-mediation meeting with your client and for all you procrastinators out there, this does not mean on the morning of the mediation. Bring your client into your office several days before the mediation. Explain what the typical mediation looks like and that it is not a formal affair. Calm their nerves. Settle them in for a long, trying day. Take them through your expenditures to date. Take them through the costs of discovery and trial yet to be incurred. Seek their input and their motivating factors. Discuss numbers with them; discuss possible resolutions with them; and, discuss reality with them. Give them your best judgment of success at trial based upon your experience.

2 parts: Preparation of your case
Go to the effort to prepare a power point presentation. Like it or not – it certainly is impressive. It may not make an impact on the opposing counsel who has seen the dog and pony show a zillion times but it will have a significant effect on the client who in many cases has never seen a power point presentation at all. Please don’t just drone on and read from your notes. Look the other party in the eye – this is the time for the impassioned you , the opening-statement you to make an appearance. Be present and be impressive. This is why they pay you the big bucks.

A splash of: Planning ahead
Inevitably mediations run longer than anticipated even when or perhaps especially when things are going well. This means that the parties are still talking and are still bringing new ideas to the table. Don’t plan on picking your child up at school at noon. Don’t tell your client they will be able to make that afternoon doctor’s appointment. You and your client should make plans to stay the day to give the mediation process a fighting chance.

A dash: Compassion
I tell my children to “use your listening ears and your gentle hands.” The same advice is appropriate at a mediation. Don’t come to mediation on a mission to hunt and destroy. Try to do no damage to the relationships at the mediation which may come back to bite you at trial.

A heaping tablespoon: Humor
I never leave home without this.

Bon Appetit!!

- Sandra C. Upchurch

High Fives to...

2009-06-02T12:38:00.000-05:00

the 16 finalists for the 2009 Innovations in American Government Award from the Ash Institute for Democratic Governance and Innovation at the Harvard Kennedy School in Cambridge, Mass, including Orange County, Florida for its Primary Care Access Network, Kingsport, Tennessee for its Higher Education Initiative and Chula Vista, California for its Residential Abandoned Property Program, just to name a few.

These governments set out to solve a problem that was unique to their community or that other governments thought too big to overcome and solve it they did and in a big way.

For a full listing of all nominees click here.

Just goes to show you that government can be innovative too. I will keep you posted regarding who the big winners are!! And, if you would please forgive my Florida roots - go Orange County!!!

- Sandra C. Upchurch

I Never Thought of it That Way...Spillover Parking

2009-05-22T13:11:00.000-05:00

Spillover parking need not be avoided and perhaps in this economy should be encouraged so says Michael Lewyn in his article, When Spillover Parking Isn't So Bad.

As a mediator I am constantly trying to think outside the box, constantly trying to fit that square peg in a round hole and constantly trying to switch perspectives in my eternal hunt for resolution. I love it when someone helps me look at something a different way. Michael Lewyn has done just that.

Lewyn’s article can and should be kept in the tool-belt of local government planners and administrators and indeed can be a useful tool for those of us in the field of alternative dispute resolution. In this economy, parking in one location to access a business at another nearby location may very well help our economy. After all if you park at the local pet store because your doctor’s parking lot is full, aren’t you more likely to pick up that cat litter or fish food that you have been meaning to pick up? Businesses are often required to accommodate the maximum number of customers/clients that they could possibly have in any given hour. However, how often is that maximum actually realized? Perhaps it would cut down on development costs to allow the developer to install slightly less parking and perhaps the real benefit would be to neighboring businesses. Perhaps...

- Sandra C. Upchurch

Mediation “Must-Reads”

2009-05-19T12:10:00.000-05:00

I admit it. I confess. I am a book worm at heart. Give me a cup of tea, a book and a comfy sofa and I am in heaven and if you add to that a rainy day then forget about it, I am lost for hours. I turn to books to zone out at the end of a busy day. I turn to books for child-rearing advice. I turn to books to learn and to improve in life and in my career. Here are a few of my favorite titles that I recommend if you are interested in the mediation process and how to prepare your case and your client for mediation. Happy reading!

- Sandra C. Upchurch

So true in mediation and in life...

2009-05-11T13:54:00.000-05:00

“It is better to be thought a fool than to open your mouth and remove all doubt." This was Mediator Jeff’s quote of the day last Friday on his blog, Enjoy Mediation.

His quote reminds me of the importance of hearing and really “listening.” I collect drink koozies – the dumber, the better. My favorite koozie right now says “your lips are moving but all I hear is blah, blah, blah.” I love this koozie but is it really dumb? I think not.

Mediator Jeff’s quote reminds us to stop talking and hear more than “blah, blah, blah” because I can assure you that there is more being said than that.

-Sandra C. Upchurch

You Go Girl!

2009-05-01T09:57:00.000-05:00

It is no surprise to me that the University of Florida has found that girls are more likely to intervene to protect someone from being bullied. I keep telling my 9 year old son never, and I mean never, underestimate the power of a girl, after all, I am charged with insuring that he grows up to respect women.

I will show him this study from the University of Florida to back up all that I have been telling him. And, as neat aside, a recent Special Report issued by the Program on Negotiation at Harvard Law School entitled “Gender Matters in Negotiations” suggests that “women perform better when negotiating on behalf of someone else than they do when negotiating for themselves.”

So you see, women are natural conflict resolvers and peace makers – they do it every day at work, every day at the playground and every day as they negotiate the dinner menu.

Click here to subscribe to Harvard’s incredibly informative Negotiation Newsletter.

-Sandra C. Upchurch

The 7 Benefits of Mediation – I Could Not have Said It Better Myself!

2009-04-30T12:39:00.000-05:00

Tristan Loo took the words right out of my mouth. His article “The 7 Benefits of Mediation” is spot on. The highlights are that mediation is affordable, fast, empowering and emotionally healthy.

High Fives to...

2009-04-29T12:31:00.000-05:00

Bryant Miller Olive, P.A., for becoming a partner in the Law Office Climate Challenge offered by the American Bar Association and the Environmental Protection Agency.

To become more “green” and ultimately help us all, the firm has committed to recycling, double-sided copying and printing and a whole host of other environmentally friendly practices.

Join Bryant Miller Olive and rise to the Law Office Climate Challenge.

For more information about the Climate Challenge, please see: Climate Challenge Overview, WasteWise, Green Power and ENERGY STAR.

- Sandra C. Upchurch

Repeat Player Syndrome: What Is A Mediator To Do?

2009-04-22T11:13:00.000-05:00

An interesting exchange at the IAM conference in New York centered on issues associated with the mediator having frequently worked with one of the attorneys or parties in other mediations, while being introduced to the other participants on the other side for the first time.

Often the “repeat player” will innocently greet the mediator warmly, signaling a high degree of familiarity. Staff members at the firm hosting the mediation may walk by and call out a greeting in the waiting area, while the opposing party is present, waiting for his counsel to arrive. This can send a chilling message, and get the mediation off to a poor start; all due to a perfectly normal and innocent gesture.

First, it is critical that mediators be aware of this phenomenon, and take proactive steps to offset any impression of favoritism. The unfamiliar party and counsel should be warmly greeted by the mediator informally before the mediation begins, and engaged in conversation. By showing an interest in their individual backgrounds and seeking to identify common acquaintances or interests, the mediator signals a social evenhandedness, offsetting the negative effect of focusing solely on the familiar faces during the premediation socialization period.

If the mediator determines to project the aura of neutrality from the time he or she hits the door, any potential problem should be minimized. Here, an ounce of prevention is worth a pound of cure.

- John J. Upchurch

Leading Attorneys Discuss Mediator Effectiveness

2009-04-20T11:38:00.000-05:00

The International Academy of Mediation (IAM) met in New York City April 15th for a day of stimulating presentations on a variety of key topics. Jeffrey Kichaven of Los Angeles assembled an all star cast of law firm luminaries from across the country, including:

Allan J. Arffa, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; John S. Kiernan, Partner, Debevoise & Plimpton LLP, New York, NY: Robert J. Mathias, Partner, Joint Global Leader and US Chair, Litigation Practice, DLA Piper, Baltimore, MD; Marko Mrkonich, Littler, Mendelson, P.C., Minneapolis, MN; and Kenneth M. Roberts, Partner, Executive Committee Member, Schiff Hardin LLP, Chicago, IL.

to comment on what plays – and what does not – on the Broadway stage of mediation. Primarily, effective mediators were seen as those with the skills – and courage – to engage counsel and the parties; test their positions; and help them modify those views when appropriate, even with their clients in private caucus. A skilled mediator was seen as one who helps people along an emotional path; and always finds a way for the parties to leave with their dignity intact.

Preparation and persistence were prominently mentioned, together with the plea, “Do no harm”. With a nod to the Hippocratic Oath, this maxim should be on every mediator’s mind as he or she enters the arena.

Other essential mediator skills included:

Demonstration of intellect and attention to detail, together with an awareness of the “humanity of the exercise”.

Projecting an interest in arriving at a “fair” decision. (Query: What is the definition of “fair” as opposed to the perception of a party’s interests? An outcome that distributes the pain equally? Or most approximates the probable court outcome, perhaps adjusted for fees and costs?)

The merits should always be part of the conversation, even when the parties are focused on the numbers.

Contextual awareness is key. A focus on agendas of participants, their agents and those they report to. Attention to the interpersonal dynamics among counsel, parties and stakeholders.

Trustworthiness; security of confidential communications and no “tricks” – ever.

Does your favorite mediator demonstrate the skills and traits described above?

- John J. Upchurch

To open or not to open?

2009-04-17T09:17:00.000-05:00

OPEN OPEN OPEN!

Do not let a mediation begin without taking an opportunity to address the other party. Do not let a mediation begin without taking the wind out of the other party’s sails by acknowledging some weakness in your case. Do not let a mediation begin without the other party seeing that you are not an animal but rather a human being. Do not let a mediation begin without the other party hearing what you intend to present at trial. Do not let a mediation begin without offering opening remarks on behalf of your client.

Your opening remarks are your best chance to chisel away at the other party’s confidence in their case. To open or not to open is simply not a question worth asking.

-Sandra C. Upchurch

Will the real lender please stand up?

2009-04-16T11:27:00.000-05:00

As the Florida Supreme Court Residential Mortgage Foreclosure Task Force is presumably gathering information and crafting procedures for addressing Florida’s foreclosures these two articles, Foreclosure Negotiations Difficult and Foreclosure Summit, by Mike Vasilinda from the Capitol News Service make it very clear that the largest hurdle will be determining who the real parties are.

I am inclined to believe that mediation can be part of the solution but mediators are only permitted to facilitate communications between parties who are there to negotiate in good faith and who have authority to settle. If one party cannot produce the underlying note because the paper has been sold fifteen times over then who can properly represent the lending authority? Should a governmental oversight committee be appointed to send representatives to foreclosure mediations to negotiate all mortgages that have been sold into the secondary market leaving real banks to attend foreclosure mediations only if they can produce the note? Do any such “old-fashioned” mortgages exist any longer?

If and when mediation becomes a uniform approach to the mortgage foreclosure crisis we need to be sure that a party with real authority to negotiate is seated at the table. Who or what that party is remains to be seen.

- Sandra C. Upchurch

Foreclosures and code enforcement – the secret local government bailout plan

2009-04-15T11:15:00.000-05:00

Larry Schooler writes in his April 7th blog of the problems presented by abandoned and vacant buildings. The blog discusses the problem in Texas but in truth and in fact the issue of abandoned and vacant buildings is popping up nationwide as the housing slump continues and foreclosures are on the rise. The national focus has been on irresponsible banks lending to individuals without requiring proof of income or ability to pay. The national focus has been on irresponsible individuals stretching to get into a home that is well beyond reach.

While the nation focuses on the big picture, local governments are realizing that the foreclosure crisis has an insidious effect on their budget and politics. When the neighbors move out because they bought more house than they could afford, the house sits vacant and in limbo for months and months and months (get the picture??) at a time. The bank may not “own” it. The neighbors may “own” it but they are long gone. The mortgage servicing company may not “own” it. Certainly the city or county does not own it but whose phone starts ringing when the neighbors’ yard is overgrown or the pool enclosure has been breached or the fascia is falling off? You guessed it, your friendly code enforcement department’s phone is ringing off the hook right now. Foreclosures have very much become a local government code enforcement nightmare of epic proportion.

The hammer for code enforcement departments is the ability to assess a fine against the property while the problem remains uncorrected. That fine becomes a lien once recorded. The problem with this tactic is that the overgrowth problem or pool enclosure problem or fascia problem remains – unsightly, for sure, but also a drain on neighboring properties’ value, henceforth, all the complaints. Then, when, and if, the property sells, there may or may not be funds enough to pay off the lien. Or when a buyer magically appears, they come begging to the local government for forgiveness of the lien since they were so kind as to take on the unsightly property.

Another option is for cities and counties to fix the yard overgrowth, pool enclosure or fascia and asses the costs of repair against the property. This is all well and good but when there is a “short sale” there is not excess money and the local government is left holding the tab serving in effect as a property maintenance bureau for abandoned and vacant homes. Is this really a government function?

I have heard of the mythical “super-lien” whereby code enforcement departments can lien a property and that lien takes priority over all others but my lawyerly red flag goes up each time I ponder such liens. Can they possibly be enforceable?

We are in the midst of government bailouts but don’t think those are limited to our federal government. Local governments are doing their fair share of bailing out too and just ask your local code enforcement department, there is no end in sight.

-Sandra C. Upchurch

Opportunity Lost...

2009-04-09T11:14:00.000-05:00

Patty Salkin writes in her April 1, 2009 blog Denial of Zoning Amendment Constituted Reverse Spot Zoning of a Miami-Dade land use case subjected to two levels of appellate review presumably at great expense and presumably prolonging final resolution.

How disappointing that more land use attorneys and governmental entities aren’t turning to Florida’s Land Use and Environmental Dispute Resolution Act at §70.51, Florida Statutes.

To learn more about the Act please consider attending the May 8, 2009 presentation of Jon Mills and Sandra Upchurch at the 32nd Annual Local Government Law in Florida Seminar hosted by the City, County and Local Government Law Section of the Florida Bar.

Top 10 Ways to Botch Up a Mediation

2009-04-08T15:42:00.000-05:00

As mediation counsel at Upchurch Watson White and Max I obviously believe wholeheartedly in alternative dispute resolution and the stress that it takes off of the judicial system and the parties both financially and emotionally. There are still a few naysayers out there as Diane Levin points out in her March 4th blog. Although few and far between, some attorneys are openly hostile to the concept of ADR while others are a bit more passive in their disgust. Here are a few of the techniques my colleagues and I have encountered from those passive-aggressive practioners. And, yes, these really have happened.

1) Don’t prepare at all. You know the file, right? To prepare is just a waste of your client’s money.

2) Read the newspaper throughout your mediation. This will really give the opposing attorney the warm fuzzies as he is offering his opening remarks and set a pleasant tone for the rest of the day.

3) Be sure to blast the opposing party and their case during your opening statement. There is nothing better to create a sense a feeling of goodwill and cooperation.

4) Take a long lunch break out of the office. This will certainly break the rhythm of the day and short circuit whatever progress has been made.

5) Overinflate your client’s expectations regarding what their case is worth and encourage them to attach that value to something completely unrelated to the case such as a new house, erasing existing debt, etc…

6) Bring a party to the mediation with little to no authority to settle.

7) Loudly announce multiple times during the mediation that you and your client are preparing to declare impasse and leave for the day.

8) In a true showing of good faith begin the mediation by putting on the table the exact demand indicated in the complaint.

9) Don’t discuss the weaknesses of your case at all with your client. Your job is to tell them what they want to hear not that the wheels may fall off the bus at trial.

10) Come to the mediation covered in pet hair and proceed to brush it off your attire throughout the mediation for all to enjoy. (author’s note: I love all animals just not animal hair and just not in my office)

- Sandra C. Upchurch

High Fives to……

2009-04-03T09:45:00.000-05:00

A hearty “high five” to Deltona for adopting Volusia County’s first green building ordinance.

The ordinance does not mandate green standards but rather offers incentives to builders to use materials that conserve energy, the environment and water resources. Deltona has caught the first wave of this trend which is discussed by Jess A. Pinkerton, the author of The US Green Building Movement- Green Means Go.

Hopefully Volusia County itself and the other 15 municipalities within its boundaries will ride the tide not far behind.

- Sandra C. Upchurch

Negotiating on Venus and Mars

2009-04-02T11:17:00.000-05:00

I sit and ponder “What do I bring to the table that is different from other mediators?” The most common answer? I have local government expertise. The second most common answer? I am a woman. This is intriguing to me as I have always prided myself in my ability to fare relatively well in a male-dominated field and to fit in with the “good ole boys (in hindsight, maybe they just let me feel like I fit in.). Nevertheless, I am often chosen to mediate because I am a woman. But why? Is it that a female mediator brings something different to the table than a male mediator?

I turn to the internet, as always, to find the answer to this nagging question. Surprisingly, I find little on the subject of women in the field of mediation and how they are perceived and how their styles may vary from that of male mediators. Author John Gray, P.h.D, writes of the vastly different communication styles of men and women in his timeless book Men Are From Mars Women are From Venus.

Reading Gray’s book is a watershed moment for many struggling to improve their communication skills at work, at home and in relationships of any sort. He says that women, “Venetians,” like to air out their problems, to vent let’s say, without solutions being thrown at them. He says men, “Martians,” are natural problem-solvers and may listen but in listening are focused on resolution and outcome.

Maybe that is the answer. Female mediators perhaps are perceived as actively listening to the parties and helping the parties hear each other so that they can work to their own resolution. Male mediators are perhaps perceived as being more outcome oriented and actively involved in the problem-solving.

As is evidenced by the nationwide success of female and male mediators alike, there obviously is room in the field of mediation for “Venetians” and “Martians.” Perhaps some situations cru out for a “Venetian” while for others only a “Martian” will do.

- Sandra C. Upchurch

News from the Upchurch Watson White and Max Governmental Affairs Practice Group

2009-03-31T16:15:00.000-05:00

May 8 - 9, 2009

Please join mediation panelists Jon Mills and Sandra Upchurch at the City, County and Local Government Law Section 32nd Annual Seminar in Orlando, Florida. Jon and Sandra will be addressing the section members on May 8th at 2:30 p.m. on the topic of special magistrate proceedings under Section 70.51, Florida Statutes, the Land Use and Environmental Dispute Resolution Act. This is an underutilized provision of state law which allows for cost effective, negotiated outcomes for land use and environmental disputes.

Click here for the brochure.

The Land Use And Environmental Dispute Resolution Act: A Diamond In The Rough?

2009-03-30T14:46:00.000-05:00

I introduce you to the Land Use and Environmental Dispute Resolution Act, Florida Statutes, Section 70.51, (hereafter “The Act”). With all its apparent imperfections the Act seems at first to be a lump of coal. But, but with a little ingenuity, it can be polished into a diamond that can be used to rescue governments and private property owners with cost effective relief short of litigation and/or time-consuming, mind-numbing appeals.

Who are the parties to a special magistrate proceeding under §70.51?

Any legal or equitable property owner who believes a development order or an enforcement action of a governmental entity is unreasonable or unfairly burdens the use of the owner’s property, may apply within 30 days after receipt of the order or notice of the governmental action for relief.

The other mandatory party to the special magistrate proceeding is the governmental entity that issued the development order or that is taking the enforcement action.

The Act recognizes the importance of public participation by allowing contiguous landowners to testify during the special magistrate proceedings. The Act gives an additional nod to the importance of public participation by allowing “substantially affected” persons to participate in the special magistrate proceeding if they participated to some extent at the initial proceeding. Furthermore, the Act specifically provides that the special magistrate process must be open to the public at large.

Obviously, the potential for public participation of this magnitude can be burdensome. However, if properly managed by the special magistrate it is precisely this level of public input which allows the public to feel heard, valued and vested in the resolution or outcome.

The final component of the special magistrate proceeding is the special magistrate. The parties are expected to mutually agree upon the special magistrate within 10 days of the owner filing the request for relief under the Act. The special magistrate need not be a Supreme Court certified mediator but must be a Florida resident and possess experience and expertise in mediation and at least one of the following disciplines: land use and environmental permitting, land planning, land economics, local and state government organization and powers, and the law governing the same.

What are the components of the special magistrate hearing process?

The Act contemplates a facilitation phase followed by a fact-finding, information-gathering phase. Although not specified in the Act, common sense dictates that these phases be scheduled for different dates.

Unless the parties agree to a later date, the special magistrate must first convene a facilitation/mediation within 45 days of receipt of the request for relief. It is likely that this hearing will be a hybrid of the mediation process most attorneys are familiar with due to the fact that the session must be open to the public.

If the facilitation/mediation phase is successful and an acceptable resolution is reached, the settlement agreement should specifically express that it is subject to the approval of the local government’s commission/council. The resulting negotiated settlement agreement is a bit of an anomaly as it is not admissible in court but it is nevertheless a public record because it is subject to the requisite formal approval process before the governing body.

If the facilitation/mediation phase reaches impasse for any reason (ie: public opposition cannot be overcome or the parties are too entrenched in their positions) that phase is to be adjourned and the fact-finding, information-gathering phase should be scheduled for hearing. The second phase of the hearing process should be scheduled to allow each party sufficient time to prepare for what really amounts to an adversarial hearing but at the same time recognizing the fact that the entire process must be completed within 165 days unless the period is extended by agreement of the parties. This fact-finding, information-gathering phase looks like the courtroom hearings we are all familiar with except that the formal rules of evidence do not apply and the mediator/facilitator sitting as “judge” can only issue a non-binding recommendation.

The special magistrate can find that the development order or enforcement action at issue is not unreasonable or does not unfairly burden the use of the owner’s property and recommend that the order or action remain undisturbed in which event the proceedings ends. Or, the special magistrate can find that the development order or enforcement action is unreasonable or does unfairly burden use of the owner’s property in which event, with the owner’s consent, the special magistrate can proceed to suggest alternatives to the subject order or enforcement action.

The special magistrate’s recommendation must be issued within “14 days of the conclusion of the hearing.” Within 45 days after receipt of the recommendation the governmental entity must accept, modify or reject the recommendation. Clearly, this acceptance, modification or rejection must be a decision made by the governing body at a public meeting.

Should the governing body choose to accept the recommendation, a property owner will not be required to duplicate the previous processes in which the owner has participated in order to effectuate the recommendation. However, if the special magistrate recommendation were to contemplate a separate and distinct administrative approval process, one which was not previously sought or undertaken, the special magistrate may only recommend that the alternative approval process be initiated. The special magistrate cannot mandate the outcome of that administrative process. The special magistrate’s recommendation must recognize the inherent police powers of the governmental entity and not encroach upon those powers and the due process associated with them.

If the government entity chooses to reject the recommendation it must thereafter issue a written decision within 30 days that describes the use or uses available to the subject property. Rejection is assumed if the government entity fails to act upon the recommendation within 45 days unless that time period is extended by mutual agreement of the parties.

Much ado has been made about the fact that the special magistrate’s recommendation is non-binding therefore of little value. However, the special magistrate’s recommendation serves an important purpose. Because the special magistrate’s recommendation is a public record, it, unlike a negotiated settlement agreement between the parties or the testimony offered at the special magistrate proceeding, is admissible in subsequent proceedings. A written recommendation from a special master deemed an expert in the field by the parties and indeed chosen for their expertise and reputation will serve as very persuasive authority in those subsequent proceedings. And, a written recommendation serves as a strong signal of a likely final outcome should the matter be further litigated or taken up on appeal. It would seem that a property owner or governmental entity unsatisfied with the recommendation should very carefully evaluate whether further pursuit of the matter will be productive and whether a capitulation of some sort may be in order.

Why should a dissatisfied property owner choose to participate in the special magistrate process and why would a governmental entity elect to bind itself to a special magistrate recommendation?

1) The ability to choose a neutral/arbiter experienced in local government law.
2) The ability to participate in a negotiation with a finite time line.
3) The opportunity to control costs.

The Act has not enjoyed the widespread use which was anticipated upon its adoption in 1995. Although the Act is not the perfect solution to land use disputes, it nevertheless is a cost-effective option. Yet, it remains a buried treasure. Unless and until governments begin noting in development orders and enforcement actions the landowner’s right to invoke the Act, its provisions will likely remain undiscovered, and its cost-saving potential will remain unexplored and unknown. Arguably it is the responsibility and duty of governments to notify landowners of their right to invoke the Act. If nothing else, given the state of our economy, it would certainly be in the best interest of governmental entities to point landowners in the direction of the Act rather than toward the costly courthouse steps. The Land Use and Environmental Dispute Resolution Act may well be an undiscovered gem. I suggest to government attorneys and private practitioners alike that you polish it off and see if it is worth adding to your collection of budget-cutting, time-saving alternatives and approaches in these challenging financial times.

For another practitioner’s take on the process see Robert Lincoln’s blog on the topic.

- Sandra C. Upchurch

Pre-Suit Mediation: A Good Start at Governmental Cost Control

2009-03-27T07:38:00.000-05:00

Each and every day seems to bring more grim news about this nation’s economy. This means that each day state and local governments are under increasing pressure to control costs and tighten already taut budgets. Governmental entities can and should examine the out-of-pocket very real expenses associated with litigation to determine whether this typically unpredictable expense can be limited and controlled.

One option is pre-suit mediation. What better way to avoid the costs of discovery and to limit mounting attorney’s fees than to never file suit at all but rather resolve the case at or before its inception. And, the option of pre-suit mediation need not be left to Plaintiffs. Rather a suggestion of pre-suit mediation can and should be made by any potential party to a cause of action. We can pretend to bury our heads in the sand and act surprised when suit is filed against our clients but the reality is that we know when someone out there is disgruntled and contemplating suit. Why not seek a third party neutral’s assistance to suggest a pre-suit mediation before too much time, money and emotion are spent.

For more information about pre-suit mediation and how it can most effectively be used to control government costs, please read my article “A Call To Pre-Suit Mediation In These Worst of Times.”

- Sandra C. Upchurch

Will Freshening Up Main Street Help Clean Up Wall Street?

2009-03-26T12:54:00.000-05:00

In this world of sprawling communities, commercial plazas and vacant downtowns, Architect Magazine is timidly crossing its fingers, hoping that the newly-created Federal Office of Urban Affairs will breathe new life into the neglected urban core of communities across the country and maybe even right this country’s economic course.

Reporter Mimi Zeiger states that “the subprime mortgage bust reminds us that cities just can't support ever-more-attenuated subdivisions and strip malls.” President Obama believes “if you want a thriving suburban area, then you better have a thriving city. If you want a state as a whole to do well, then the metropolitan areas in that state have to do well. There is no separation. It is all linked together. We have to get past this notion that we can just leave the cities to rot, because your economy will rot."

The article encourages insfrastructure spending on downtown shopping areas, parks, green development and the like. Perhaps once our local streets and towns are gleaming some of that shine will rub off on Wall Street.

To learn more about the Office of Urban Affairs and one writer’s opinions regarding its potentials and pitfalls please see Neal Peirce’s article “Hope for Metro Regions in New White House Office?”

End in Sight?

2009-03-23T11:47:00.000-05:00

The effects of the residential mortgage foreclosure crisis run wide and run deep. There are the obvious economic ramifications that are rocking this country’s financial world. Our state economies are affected and indeed our local economies are affected. Court systems are clogged. Local government code enforcement boards are swamped with code violations that cannot be corrected because the home or property in question is vacant with no apparent owner.

Florida’s Supreme Court is hoping to tackle the problem head on and to that end has directed that a task force be developed to identify and begin to rectify the problems using alternative dispute resolution options.

It is believed that our national economy will soon begin to recover. Hopefully the Florida Supreme Court Task Force on Residential Mortgage Foreclosure Cases will help to craft a recovery plan for our state and local governments.

- Sandra C. Upchurch

Words of Wisdom

2009-03-19T15:13:00.000-05:00

We have all read the articles discussing which words have been overused and should be banned from adult conversation for the foreseeable future. After the hurricanes of ’04 in Florida, Floridians voted to remove the term “hunker down” from the English language. Recently there has been talk of removing “bailout” from our vernacular. Now it looks like local governments too are jumping on the bandwagon.

The Local Government Association in Great Britain wants to add its two cents worth by adding such terms as "best practice,” “challenge,” “outsourced,” and many many more.

Looks like the public sector trend may be to return to simply calling a spade, a “spade.” As our lives and these times are complicated enough, I am “all in.”

- Sandra C. Upchurch

Mediation: A Love/Hate Thing?

2009-02-03T08:33:00.000-06:00

Part 1 of a 3-part series

“I hate mediation”

I recently attended a conference and was approached by an attorney that was entirely disillusioned with mediation. She “hated” mediation, did not care for the process and surprisingly had never attended a mediation that had resulted in anything other than impasse. This absolutely shocked me. The huge majority of mediations that I have participated in did result in negotiated settlement.

Several days passed and as her comments began to settle in, they troubled me more and more. My brain began that questioning process that keeps me up at night and wakes me before the sun is up. Was my experience the “norm” or was hers? Because I am a mediator, am I so vested in the process that I have failed to see how others perceive the process? Do lawyers feel forced to participate in a process in which they have little faith or confidence? What percentage of mediations end in impasse? Why do mediations end in impasse?

I turned to my computer and the internet for some answers. What I found is that the statistics are sketchy. Whether a case is “resolved” is a fuzzy concept. Was the case resolved prior to mediation and without the involvement of a mediator? Was it settled at a mediation conference? Was it resolved post-mediation due to the continued and ongoing negotiation of the parties and if so, with or without the assistance of the mediator? Was it settled on the courthouse steps?

I need to know. My thirst for answers has grown stronger. I want to hear from you. Let’s start this discussion with what you feel is lacking in the mediation process. What percentage of your mediations are ending in impasse? Why do you believe your mediations have ended in impasse? Share your stories with me. Are you disillusioned with mediation? Tell me why… Help me help myself…… Help me help you.

Sandra Upchurch

New Arbitration Protocol

2009-01-27T10:47:00.000-06:00

The International Institute for Conflict Prevention and Resolution has just published a comprehensive new protocol for document production and presentation of witness testimony in commercial arbitration. The document covers electronic discovery, depositions, experts, and procedural options in each of these areas. Working groups were chaired by Prof. Thomas J. Stipanowich of Pepperdine University, and Lawrence W. Newman, Baker & McKenzie, LLP. About two dozen CPR members worked on the document, including representatives of firms serving as outside counsel, corporate counsel, and scholars from leading academic institutions.

Known as the CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration, this new resource has great promise in introducing efficiencies and standardization in areas that have proved vexing in organizing and administering complex arbitration proceedings.

A copy will be permanently stored in the resource area of the firm’s website, and a PDF for download may be accessed here.

We suggest that you circulate it liberally among your partners and associates.

Characteristics of Top Mediators

2008-11-20T15:23:00.000-06:00

Urska Velikonja, LL.B., 2003, Harvard Law School, a Teaching Fellow at the Department of Economics at Harvard, recently published an article, Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice.

While the general content of the article may be too arcane for our non-mediator audience, it does contain an enlightening and comprehensive summary of those characteristics generally associated with leading mediators in the field. The author observed as follows:

“A good mediator is hard to describe and is usually referred to as “you’ll know it when you see it.” The reason is that, as one mediator put it, “mediation is much more complex than litigation.” It requires excellent mediation skills, complex analytical skills and the ability to quickly process a substantial amount of information. It requires the ability to move cases relatively swiftly toward settlement. It also requires excellent interpersonal skills: the best mediators are good listeners, who can “read” people and have the intuitive ability to sense the things that are not being said. They are compassionate and empathetic, and can focus all their intellectual energy on the dispute in front of them. They are trustworthy and able to convey their trustworthiness to the parties. They enjoy and are comfortable communicating with all types of people, and they are likeable. Great mediators are creative and able to teach parties how to mediate during the mediation without controlling the process. They are “chameleon-like:” usually evaluative, but able to adjust their demeanor and mediation style to the party and the dispute. They are also calm and patient, and have both a sense of humor and a sense of drama. They can quietly signal to their clients that if the dispute can be settled, they are the ones that can settle it. They are also good businessmen, who market themselves well; not by using traditional marketing channels, but by always performing well in front of clients and their attorneys. Many, if not most, top mediators have formal or informal business plans and excellent case managers, who they pay well. Great mediators also tend to be the most hard-working and committed to the profession of mediation. They are “mediation activists:’ they found, lead, and join professional mediation associations, publish, and teach. And most importantly, the mediators who are frequently selected by attorneys, are the ones who have been able to stay in the field long enough to develop a reputation as great mediators.”

Not a bad checklist to see if your mediator measures up.

John J. Upchurch