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From the First Mediation Blog of Jeff Krivis and Mariam Zadeh.
This is the technique suggested by John DeGroote of Settlement Perspectives which is used as a quick, confidential method to determine proximity of settlement positions. While the technique is situational and can vary with each case, generally speaking each party submits its best offer in confidence to the neutral third party (”the confidential listener”), who informs the parties whether their proposals are within a negotiable range. Generally, and absent specific authorization from the proposer, the confidential listener does not relay one side’s confidential proposal to the other.
The parties will normally agree in advance that if the sums overlap, with the plaintiff citing the lower figure, they will settle at a level that splits the difference. If the cited figures are within a specified range of each other, e.g. ten percent, the parties may direct the neutral to so inform them and help them narrow the gap. If the figures are not within the set range, the parties may repeat the process, or the confidential listener can make a mediator’s proposal.
Here is a form agreement offered by the CPR International Institute for Conflict Prevention and Resolution:
AGREEMENT made , 2009
between XXX of XXX
represented by XXX and of
epresented by XXX.
A dispute has arisen between the parties. The parties have agreed to attempt to resolve their dispute through the private process described in this agreement.
Accordingly, the parties agree as follows:
1. THE NEUTRAL LISTENING PROCESS
1.1. Selection. The Neutral Listener shall be _______________ who has agreed to serve and whose compensation has been agreed upon by the parties and the Neutral Listener.
1.2. Submission of Settlement Proposals.
1.3. Role of the Neutral Listener. The Neutral Listener will promptly review the settlement proposals submitted by each party and thereupon will inform the parties whether their settlement offers are:
substantially similar or overlap, or
within a range which the Neutral Listener considers negotiable.
2.1. Confidentiality of Settlement Proposals. Unless the parties otherwise agree, the Neutral Listener shall not disclose the settlement positions revealed by the parties, nor will the Neutral Listener reveal the basis for his/her determination that settlement negotiations should or should not commence.
2.2. Confidentiality of Settlement Process. The Neutral Listening process is a compromise negotiation for purposes of the Federal Rules of Evidence and state rules of evidence. The substance of this process shall be kept confidential by all parties and the Neutral Listener. The Neutral Listener shall be disqualified as a witness, consultant or expert in any pending or future action relating to the subject matter of the settlement effort, including those between persons not parties to the settlement effort.
IN WITNESS WHEREOF, the parties by their attorneys have executed this agreement as of the date first above written.
Jeffrey Krivis is the author of two books: Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies that Resolved Them, and How To Make Money As A Mediator And Provide Value To Everyone (Wiley/Jossey Bass publisher). He has been a successful mediator and a pioneer in the field for eighteen years. Krivis is on the board of visitors of Pepperdine Law School and serves as an adjunct professor of law at the Straus Institute for Dispute Resolution. Contact him at his website, www.firstmediation.com.
Mariam Zadeh was an active trial lawyer in New York City until September 11, 2001, at which time her life was dramatically changed. She moved to Los Angeles, obtained her L.L.M. in Alternative Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine University, and became a partner with Jeffrey Krivis at First Mediation Corporation. Since joining Jeffrey Krivis, Mariam has successfully mediated employment, class actions, commercial, premises & professional liability, mass torts, medical malpractice, ERISA and other tort actions as well as matters pending on appeal. In 2007, Mariam was featured as a “Rising Star” in the Southern California Super Lawyers magazine and was profiled by the Los Angeles Daily Journal. She is a published author and frequently lectures and teaches at ADR workshops and classes throughout California.
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