A Conversation on the Challenges of Mediation Practice
To learn more about the challenges of mediation practice and how the practice has evolved, Kimberlee Kovach recently sat down with Jeffrey Krivis, Judith Meyer, and Larry Watson to get their perspectives.
STEP IN to Improvisational Negotiation
The improvisational orientation and approach to negotiation is characterized by adapting to a set of circumstances in a strategic yet unconventional way.
New Interview with Jeff Krivis - The Future of Mediation and Negotiation in Our Culture, Politics and Society
New interview with mediation leader and author Jeff Krivis by Robert Benjamin as part of Mediate's new "The Future of Mediation and Negotiation in Our Culture, Politics and Society" video series.
Building Coalitions and Story Telling
In order to be more effective in mediation, the story of the case must be told just like the unfolding of a movie or book. Like any story, there is a common structure that has a beginning, middle and end and is broken down into three acts.
Can We Call a Truce? Ten Tips for Negotiating Workplace Conflicts
Whether two employees are fighting or a disgruntled client is on the verge of leaving, you—yes, you—can step in and help solve the problem. Here are some tricks of the trade.
The Evolution of Hunters and Gatherers
Our evolution has been largely shaped by our environment, which gives us new resources and technology to continue our journey. But make no mistake about it, we are and will always be hunters and gathers.
Where Have All The Idealists Gone? Long Time Passing, Part II
Over the years, a common theme heard among litigators after a grueling case where one side loses is that there must be a better way to manage disputes. In the mid -1970s, legal scholars from around the nation came together to review ways to make the legal process more user-friendly and accessible. They concluded, among other things, that a multi-door courthouse with processes that were designed to fit the forum to the dispute might be worth considering.
Where Have All The Idealists Gone? Long Time Passing
A recent discussion among a seasoned group of neutrals about the struggles of the professional mediator caught my eye. Some complained that the trend in litigated cases was to reduce the value of the mediator to a commodity, due to the constraints put on them by the litigants who were not process oriented.
Settlement Drift Is Not Inevitable
"Settlement drift does not have to be the new normal. It’s time to press the reset button so we can return to our founding principles about mediation as a preferred method of dispute resolution." Read Jeff's article here.
Wanting It Too Much
Imagine a marine layer floating over a coastal town. A family in this town is hopeful that the sun will burn the fog away so they can go to the beach and enjoy the great weather. The day seems to go on forever and the sun never comes out. The children are totally bored and expect their parents to figure out ways to keep them busy.
The Negotiation Campaign
Negotiations are like political campaigns. It is an organized effort to influence decision makers. Don’t just throw a case against the wall and hope the other side gets it. Mount a negotiation campaign that is strategic and considers who might be needed to vote for your side and what they will need to solidify their vote.
The Settlement Drift
According to commentator Rachel Maddow in her book “Drift,” the way the United States goes to war has gradually become more secretive and less democratic. She observes that in the last half century, the decision to go to war has become too easy. This is contrary to what the Founders of our nation had in mind. Hence, we have “drifted” away from our founding principles about war.
The Settlement Drift
The "drift" in our ability to go to war, as written about by Rachael Maddow, is similar to what has become of modern mediation in the litigation arena. Initially a product of the desire for more efficient and cost effective settlements, the mediation session was initially seen as the final play in the drama. Now, almost 25 years later, the mediation session has transformed itself into just one additional step in the litigation menu. The process has become strained to the point that the current approach is to schedule mediation without any sense of urgency. It is done to comply with a court order or simply as a matter of practice, now often with no expectation of finality.
What Movie Do You Want To Make?
The arc of a litigated case has many narratives, particularly when it comes to settlement opportunities. While some cases fall into standard, often repeated formulas, others cannot be scripted. Yet, there are moments in the cycle of a case where some litigators simply react to events as they unfold rather than actively creating the settlement drama. The drama of a case is like storytelling in a trial, where events unfold in front of an audience of people who are in a position to evaluate and put a price on the story. Knowing what scripts are available in advance will assist in being less reactive and more resilient in achieving a better process and successful resolution.
The Argument As A Persuasive Tool In Negotiation
Mediation, like the sketches in Monty Python, is like theatre. In order to succeed, the actors must keep the scene going forward without denying the other actors the opportunity to be heard. Arguments work on the stage provided they are done in a way that maintains the flow of the scene, allows conversation to be fluid, and doesn’t box in the other players.
Fretboard Logic: Learning From The Guitar How To Value Your Case
The Problem: You think that your client’s pain is so severe and different than the typical client that you value the case substantially higher than the other side will pay. The Solution: Understand what “category” your adversary has put your case in and either accept it or try and create a new category of value.
The Argument As A Persuasive Tool In Negotiation
Argument has a significant role in the legal process, particularly in advancing motions and appellate procedure. Whether and to what extent it fits into a negotiation and mediation process is subject to debate.
THE SOFT TOUCH: The Village Elder
At the beginning of every mediation session, I am not sure which hat I will be wearing. Will it be the role of the poker player who is dealing for dollars? The priest who listens to his parishioners’ penitence? The bartender who tells stories? The judge who tells the parties what to do? The philosopher who shares thoughts about the way of the world? Some days I wear all those hats. Other days I might wear just one. As my experience over many years has developed, there is one hat that I find myself wearing more often -- the Village Elder.
The Preventable Death of Mediation
My basic nature is to be optimistic about the future. If I were one of the six thinking hats described by author Edward DeBono, I would be the yellow hat. The yellow hat is for optimism and the logical, positive view of things. The yellow hat looks for how something can be done and requires a deliberate effort. This is the hat that got me started on my road into the field of mediation in 1989.
The Broken Family
The Central Valley of California, known for its good weather and rich soil, is considered the breadbasket of the country. The many people who live in this agricultural community work hard. They know that the literal fruits of their labors feed people, and are proud of their role in society.
Why Litigators Become Less Intelligent In Group Mediation Settings
How does a mediator decide whether or not to hold a traditional joint session to begin a mediation? What the research now seems to show is that traditional joint sessions in mediation can sometimes make smart lawyers behave less intelligently.
The Reptilian Need for Closure
Understanding the "closure codes" that motivate the decision-makers on all sides of a dispute is a critical step to obtaining a durable and effective settlement.
The Truth About Deception In Mediation
Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.
Planning To Settle Complex Employment Cases? Ten Tips To Increase Your Chance Of Success
Mediating complex employment cases is like rehearsing for a great performance. Success depends on planning and preparation. The Beatles rehearsed and played their music for 10,000 hours before they were ready for the Ed Sullivan Show. That’s not to say it’s necessary to spend that much time preparing for an employment mediation, but success or failure does often depend on your willingness to invest time in planning.
Check the Status, Please
This story is for you if it’s difficult to tell who the decision makers are on your cases. You are looking for different approaches to influence your adversary. You need to adapt to changing events in order to maximize your client’s settlement.
‘TAKE THIS!’ – Some Darn Good Reasons Mediations Succeed or Fail
There is a short period of time in any difficult mediation where the tension escalates and tough negotiation decisions have to be made. Some people call this a ‘do or die’ moment. Its like the last vote in the Supreme Court in Gore v. Bush.
The Mind Of The Advocate In A Product Liability Mediation
Jeffrey Krivis pulls back the curtains to reveal several meaningful tools a trial lawyer can use to set the stage for a productive product liability mediation.
One of the nation's most experienced mediators considers what to do when there is a lack of authority to settle at the mediation table.
How Did They Price The File?
Knowing how the other side has priced the file will give you a leg up in the negotiation and will help you understand the background behind the negotiation moves that occur.
“The Elephant In The Room”
Your client has brought a spouse or a significant other to the mediation who is having a problematic influence on your client’s decision-making abilities. This is preventing you from getting your client prepared for a fair settlement.
Jeff Krivis: Success Will Be Market-Driven - Video
Jeff Krivis claims that the field does not need court annexed cases anymore and that the marketplace will continue to drive the field.
Jeff Krivis: Client-Centered Process of Mediation - Video
Jeff Krivis describes the benefit of mediation working alongside and with lawyers. The client feels more involved in legal process and discussion when they're allowed to put their thoughts and feelings into the negotiation.
“Whose Trial Is It Anyway?”
Picture a group of 30 trial lawyers in an almost empty room, loudly chanting, “Big Booty, Big Booty, Big Booty!” Now imagine a pair of them trying to have a conversation without using the letter “S.” How about two of them vying for the attention of a third by, at turns, singing, crying, jumping up and down, waving their arms, and even whispering? Why on earth would a group of highly skilled and experienced attorneys engage in such seemingly childish behavior? The answer is simple and surprising: they did it to vault their practices to the next level; to recognize and rethink old habits; to break through barriers they may not have even known they had; and ultimately to achieve more success.
Jeff Krivis: Mediation Heading in Wrong Direction - Video
Jeff Krivis describes how arbitration came about, its success, and then its lack of success as more rules came about. Krivis sees mediation heading in that direction, which he's concerned about.
Presenting Magically - Tips for Making a Lasting Impression
At TED 2009, the Technology Entertainment Design conference, Bill Gates delivered a speech on the scourge of malaria, an important global problem the Bill and Melinda Gates Foundation has been addressing since Gates retired from day-to-day operations at Microsoft.
Spiritual Fatigue In Mediation
In the recent edition of the Journal of Dispute Resolution, Magistrate Judge Wayne Brazil writes about how “spiritual fatigue” can affect seasoned mediators. His thesis is that staying centered emotionally and behaviorally in core purposes and principles of mediation can lower the level of psychic strain that this work can impose on mediators and can serve as a significant source of renewable professional energy.
The Confidential Listener Technique
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.
Say Cheese - Cracker Barrel Signs Mediation Agreement with the EEOC
The U.S. Equal Employment Opportunity Commission (EEOC) and Cracker Barrel Old Country Store, Inc. have signed a Universal Agreement to Mediate (UAM) to resolve workplace disputes prior to an EEOC investigation or potential litigation.
Improvisational Negotiation Podcast - Interview with Brian Breiter
Welcome to our first Improvisational Negotiation podcast. This month’s interview is with actor, professor and trial lawyer, Brian Breiter.
Recent Confidentiality Decisions ... In a Nutshell
Jeff Krivis and Mariam Zadeh here offer a summary of decisions from across the country that has impacted the confidentiality protections afforded parties in a mediation.
Ten Tips to Help Take the Pressure Out of Complex Multi-Party Mediations
If you think it’s difficult to get two opposing sides to see eye to eye, imagine a situation where you’re mediating a seventeen party case with fifty-three participants.
Court of Appeal Overturns Class Action Settlement Arrived at in Mediation
The California Court of Appeal in Kullar v. Foot Locker Retail, Inc. found that the trial court abused its discretion in finding the terms of the class action settlement to be fair, reasonable, and adequate where the record failed to establish what investigation counsel conducted or what information counsel reviewed on which counsel based their assessment of the strength of the class members’ claims.
Decision Making and the Complexities of the Brain
Sam Wang, an associate professor of neuroscience at Princeton, and co-author of Welcome to Your Brain: Why You Lose Your Car Keys but Never Forget How to Drive and Other Puzzles of Everyday Life explains, “decision-making is thought to involve two parts, gathering evidence and committing to a choice. In tasks as simple as deciding whether a shifting pattern of dots is moving to the left or to the right, brain activity in the parietal cortex rises as evidence is gathered, eventually reaching a tipping point of choice - though it is not yet known what brain regions drive the final choice.”
The Impact of Visual Storytelling
The power of visual information while not easily quatifiable, can be utilized quite effectively at the negotiating table to shape and shift another’s perception of the matter at hand. Glenn W. Richardson, Jr. discusses the power of visual information and the relevant supporting scientific data at length in his article on visual storytelling published in the American Communication Journal.
Lessons on Improvisation from Paul Newman (1925 - 2008)
A sign famously hangs in Paul Newman’s Westport, Conn., office that reads, “If I had a plan I would be screwed.” Newman, who died of cancer this year at age 83, firmly believed in the benefit of “creative chaos,” welcoming the opinions of others whether in business or on the movie set.
President Bush signs the Americans with Disabilities Act Amendments Act of 2008
On September 25, 2008, 18 years after his father signed the Americans with Disabilities Act of 1990 into law, President George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008 (”ADAAA” or “Act”).
Mandatory Mediation Programs Help Homeowners Facing Foreclosure
In light of all the recent dismal activity in the housing market, states across the nation are responding with mandatory mediation programs to provide some form of relief to struggling homeowners.
Martti Ahtisaari Wins The 2008 Nobel Peace Prize
Finland’s ex-president Martti Ahtisaari won the Nobel Peace Prize on Friday for his long career of peace mediation work including a 2005 accord between Indonesia and rebels in its Aceh province and his efforts to build a lasting peace from Africa and Asia to Europe and the Middle East.
Book Review: Yes! 50 Scientifically Proven Ways to Be Persuasive by Robert Cialdini, Noah Goldstein, and Steve J. Martin
Yes! 50 Scientifically Proven Ways to Be Persuasive is Robert Cialdini’s latest effort at gathering research findings in behavioral psychology, social science, and related areas that can then be used to generate tips on how to be more persuasive in one’s personal and professional lives.
Confidentiality Update: Petition for Review filed with the California Supreme Court in the Estate of Thottam
California Supreme Court
On September 23, 2008, Stephen L. Kaplan, Esq., counsel for Respondent Jameson Thottam, filed a Petition for Review with the California Supreme Court in the matter of Estate of Thottam. Therein Mr. Kaplan presented the Court with two issues to consider:
ISSUE ##1: Fair v. Bakhtiari, (2006) 40 Cal. 4th 189, 192 held that subdivision (b) of Evidence Code §1123 does not waive mediation confidentiality for purported settlement agreements created during mediation that are...
Harvard Law School's Great Negotiator Award is Presented to the 'The Gates' Artists
The Gates, Central Park by Grahamlyth on Frickr
The Great Negotiator Award, presented annually by Harvard Law School’s Program on Negotiation has historically been awarded to figures in business and international diplomacy. This year however, the award was given to artists Christo and Jeanne-Claude, a married couple recently known for their 2005 project “The Gates” in Central Park, which featured over 7,500 bright orange structures erected along the park’s pathways.
Robert H. Mnookin, Harvard ...
Recent Confidentiality Decisions In a Nutshell
In light of the extensive blogosphere coverage that mediation confidentiality has received in recent months, we will keep this post short and sweet. The last year has yielded a host of decisions from across the country that has impacted the confidentiality protections afforded parties to a mediation.
We have summarized these cases with their respective citations so that the information is available and encapsulated in one area for easy reference.
Estate of Thottam, Case No. B196933 (Cal....
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Ten Tips on Maximizing Success in ERISA Mediations
Employee Retirement Income Security Act (ERISA) disputes present unique and specific challenges in large part due to the statutory limitations imposed on scope of discovery, standard of review and plaintiff’s recovery. “It’s just not fair!” is the response most often heard from plaintiffs after they are reminded at the mediation that the upside of their recovery is limited to the extent of contractual damages available under their disability policy, that a “win” in court means receiving back benefits and being reinstated, and that their “day in court” will amount to no more than a hearing over the administrative record at which they cannot testify. The tips below maximize the likelihood of success by laying the groundwork and staging the negotiation in a manner that encourages closure and enables the plaintiff to understand and appreciate the parameters within which a settlement may be reached.
Free teleseminar with Jeff Krivis — How to make money as a mediator
Sign up for the free teleseminar with Jeff Krivis — How to make money as a mediator on March 27th, 2007
The link is ready: http://mediationmarketingtips.com/jeffkrivis.html
Sign up for the free call where successful California mediator, Jeffrey Krivis, will share insights from his book (How To Make Money As A Mediator, Jossey Bass 2006) and his personal practice building success secrets.
How to Make Money as a Mediator (Book Review)
Many newly minted mediators have just completed the military’s equivalent of 'basic training.' They have taken several classes on mediation and gained some experience mediating disputes, sometimes through a local court panel or community organization. Now, they are ready to quit an old line of work and dive into a career as a mediator. With this limited background and high hopes, the first question typically asked is 'How can I establish a financially successful practice?' This book by Jeffrey Krivis and Naomi Lucks seeks to answer that question.
Book Review: How to Make Money as a Mediator by Jeff Krivis
So, how does one make money as a mediator? To answer this question, Krivis has turned to consider the habits of 30 highly successful people, comprising a Who’s Who of top mediators from Canada to New Zealand and across the United States, all of whom are liberally quoted in the book.
Improvisational Negotiation (Book Review)
If a picture is worth a thousand words, a powerful story helps us make sense of our experience and captures truth in a way that nothing else quite can. This is a book of such stories.
Hunting for Deception in Mediation – Winning Cases by Understanding Body Language
Yes, we said it. The “D” word. We’ve all used it as negotiators and we’re here to highlight ways of detecting it when it’s used against you.
Book Review: Improvisational Negotiation: A Mediator's Stories of Conflict About Love, Money, Anger - and the Strategies that Resolved Them
With this book, Jeff Krivis reveals himself as one of the top storytellers in the mediation profession today. Krivis’ style in Improvisational Negotiation makes the reader feel that you are right in the midst of his mediations. Treating yourself to this book is like signing on for a delightful internship with an experienced mediator from the comfort of your easy chair.
Book Review: Improvisational Negotiation by Jeffrey Krivis
This is a book review of 'Improvisational Negotiation: A Mediator's Stories of Conflict about Love, Money, Anger - and the strategies that resolved them' by Jeffrey Krivis. This is an outstanding book of stories, strategies and methods that the author has tested and proven in thousands of mediations over a span of fifteen years.
Common Ground: To take the intimidation out of mediation, experts advise looking for a positive perspective
The X factor in mediation is the ability to influence the other side to pay more or take less. Finding this elusive factor is the challenge for most mediators and often takes place in the face of uncertainty. This uncertainty takes many forms and can serve as a barrier if not acknowledged and addressed.
Preventing The Death Of Mediation
What I’m hearing from many of my students who volunteer as court ordered mediators is that lawyers are simply not preparing or taking the process seriously anymore. Defendants come into the mediation without an intent to negotiate in good faith and the cases lock up quickly and are put back into the court system. It would seem that history is repeating itself. Like the arbitration system before it, the mediation system that has emerged through court ordered programs has begun to slip into the same indifference that has engulfed the arbitration system.
How To Create More Currency In Employment Mediation
When Congress decided to include, as gross income,
settlements made for "non-physical" injury torts, it
reduced the value of such settlements by up to 45
percent. This has been particularly
devastating in employment cases, where emotional-distress
recoveries often helped the employee transition into a
new employment situation. Now that those recoveries are
taxable, it has been difficult for practitioners to find
ways to create more value out of a settlement, aside from
getting the defendant to pay more money.
Never Had A Thanksgiving
While Dan never had a Thanksgiving as a child, the solution achieved at the mediation allowed him to give thanks for being able to put his life on track and look to the future instead of the past.
It’s Alright Ma, I’m Only Bleeding
A minor tremor threatened California’s sacred mediation confidentiality laws recently that has the mediation community running for shelter. The case in question: Rojas v. Los Angeles County Superior Court.
Stand-Up Comedy:Lessons For Mediators
Recently, I confronted the most difficult challenge of my 21 years in the practice of law. It didn't involve courtroom theatrics or high level negotiations in a mediation room. It occurred on the stage of the Comedy Store on Sunset Boulevard. There I sweated it out during the most stressful final exam of my life, performing a 7 minute stand-up routine which crowned a semester's worth of comedy classes.
What's the first thing you think about when you hear the phrase "Civil Justice?" The search for the truth, of course. In every litigated case, the pressure is on all the participants to search for the truth. The Judge is empowered to assure fairness and truth. The Lawyers believe in their cases and want the truth to come out. The clients feel righteous about their positions and yearn for the truth.
Dealing With A Competitive Approach In Mediation
Most people approach mediation with the best of intentions. However, they sometimes encounter adversaries who don't quite see things
their way, and approach the process in a much more competitive and
sometimes hostile manner.
End of the Cold War: The Marriage of Mediation and the Court System
As we turn the century clock ahead, lawyers stand witness to a unique marriage, one in which the
knot has been tied between the private non-adversarial system of mediation and the public,
adversarial process known as the Civil Justice System. The Civil Justice System had the mediation
community gnawing at its bedside since the door was opened to this innovative approach to
resolving disputes at the Roscoe Pound Conference in 1976.
A Style Index for Mediators
The Mediator Classification Index (MCI) is designed to assist in
understanding the approach or style a mediator tends to use during the
mediation process. The MCI is a valuable tool which you may ask
prospective mediators to complete as part of the mediator selection process.
This is also a valuable tool for mediator self-examination.
From Conflict to Resolution:
When to Negotiate the Litigated Case
There are two eternal truths about litigated cases: 1) There is a tremendous likelihood the case
will be settled without trial; 2) The settlement could occur any time from the moment the case is
filed until the eve of trial. That vacuum of time provides many favorable and unfavorable
opportunities to negotiate a resolution to a case that is satisfactory to your client. It's how you
use the time that counts.
Gratitude is the Attitude
Show some appreciation next time you come to the table to negotiate. Thank the other side for
their participation, and demonstrate your kindness by having an attitude of gratitude.
The Five Stages Of Mediation
This approach is based on the idea that mediation sessions are generally broken down into five
distinct segments or "Stages," and that within each stage there is a "Task," the objective--what
the mediator is trying to accomplish; an "Action," how the mediator is going to accomplish the
objective; and a "Result," the outcome which the mediator expects to achieve.
Responding To The Tactic of No Settlement Authority at Mediation
The person across the table doesn't have the authority to settle.
Lack of authority is not an accidental approach to settling cases. It
is a well accepted and effective negotiation tactic
A Winning Formula For Mediation
As a professional mediator, I have found the cooperative
approach to be the primary reason cases settle successfully. I
have also found that many litigators come to the table assuming
they are still at war, and are willing to do anything to win,
sometimes creating an imbalance in power with the cooperative
Reasons To Consider Mediation
Not all disputes are suitable for mediation. What criteria
do you consider in deciding whether to mediate? Mediator Jeffery Krivis lists 23 reasons to consider mediation.