Nancy Hudgins

Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class actions. She has settled and mediated thousands of cases. In addition to civil litigation mediation, she also co-mediates divorces with John Duda, a marriage and family therapist.

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Articles and Video:

Co-Parenting Skills: Credit Where Credit is Due (06/25/12)
I conducted a divorce mediation recently where the parties have been separated for many years but now have started the divorce process by coming to mediation. They have been co-parenting their children during the separation. We have worked through most of the issues involved and are very close to resolution. What was to be the last session turned out to be the next-to-last session.

Co-Parenting Skills: Credit Where Credit is Due (06/11/12)
I conducted a divorce mediation recently where the parties have been separated for many years but now have started the divorce process by coming to mediation. They have been co-parenting their children during the separation. We have worked through most of the issues involved and are very close to resolution. What was to be the last session turned out to be the next-to-last session.

Mediation Preparation: Selecting the Mediator (06/04/12)
It only takes 40 hours of training to become a mediator, and if you’re a judge, you get a bye. Mediators have different skill sets and varying degrees of conflict resolution training. Think about your case, your client, opposing counsel and the other side’s client before you select a mediator.

Preparing for Mediation: Starting a File (05/29/12)
We’ve all spent weeks on trial preparation. If mediation (or other ADR) is going to resolve most cases (only 98% to 99.5% of cases go to trial in some studies), we should consider matching the disciplined approach we take to preparing for trial to mediation preparation.

Mediation Preparation: Evaluating the Settlement Value of Your Case (04/30/12)
An important component in preparing your clients for mediation is evaluating the case value for settlement. For your clients to be able to make informed decisions about settlement figures proposed by the other side, they will need to know what to compare them against. Otherwise, they are making decisions in a vacuum.

Ten Common Negotiation Mistakes (04/23/12)
Harvard Business School professors Deepak Malhotra and Max Bazerman wrote one of my favorite negotiation books: Negotiation Genius. There are many powerful negotiation strategies in this book. They also point out seven common mistakes that negotiators make.

Civil Litigation Mediation: Making Money Talk (04/17/12)
J. Anderson Little, a North Carolina mediator with 20 years of experience in civil litigation mediation, has written a terrific book on mediation called Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes. Initially Andy introduces the reader to a typical rear-ender case. After 12 rounds of proposals, the parties settled.

Persuasion in Mediation: Try Storytelling (04/09/12)
Lawyers who try cases know that telling stories in opening statements and closing arguments is a compelling and persuasive way to influence juries. As Annette Simons in The Story Factor puts it, when you are trying to influence a group, giving them more facts is just piling on more facts. Jurors likely have more facts than they can process well.

Mediation Preparation: Strategize for the Joint Session (04/02/12)
Whether you know in advance there will be a joint session or not, preparing for one just makes good sense. The mediation process is flexible. Joint sessions might take place initially, episodically, or near the end of a mediation. As part of your mediation preparation, consider strategizing for the joint session. It's a mediation skill you'll want to acquire.

Mediation Skill: Persuade Through Affiliation (03/19/12)
Roger Fisher and Daniel Shapiro in Beyond Reason advise negotiators to turn an adversary into a colleague. Sounds like Lincoln (turn an adversary into a friend), doesn’t it?

Negotiation Preparation: Scripting Your Moves (03/05/12)
I moved to San Francisco in the late ‘70’s, about the time Joe Montana and Bill Walsh got here. Of course I became a big ’49er fan. Bill Walsh, the legendary ’49er coach, prepared for game day by scripting the first 25 plays. The team practiced these during the week. On game day, Walsh might not use all of the plays, or he might change the order of the plays as the situation warranted, but he could always return to the list.

Emotion in Negotiation (02/28/12)
If you think I’m talking about your clients’ emotions, you’d be half right. It’s not just our clients’ emotions we have to deal with; it’s ours as well. Think back to your last several mediations. How many times were you personally frustrated and upset by a proposal from the other side?

Mediate . . . or Roll the Dice? (01/16/12)
As a practicing lawyer, when I tried to explain the vagaries of jury trials to clients, I told them a story about the negotiation class I took at U.Va. law school in the 1970’s. This was a “how-to” class in negotiation taught by Charles B. Craver, who is now at The George Washington University School of Law.

Listening as a Negotiation and Mediation Skill (11/28/11)
I taught a series of classes on Civil Negotiation and Mediation to law students at the National University of Mongolia School of Law last month. I began the active listening lesson by pointing out that while hearing is passive, listening is active.

Divorce Mediation: How it Works (11/14/11)
I co-mediate divorces with John Duda, M.F.T., a family and couples therapist who practices on the peninsula south of San Francisco. John and I appreciate the collaborative aspect of our mediation practice. Our clients tell us they appreciate the male-female, therapist-lawyer perspectives we bring.

Overconfidence and the Illusion of Superiority in Negotiation (11/07/11)
Multiple studies have shown that lawyers (and parties) are overly-confident that their side will prevail at trial. This belief tends to foster hard bargaining (which can be successful, but can also lead to impasse).

Negotiating with the Most Difficult People (10/31/11)
I’m a fan of Bill Eddy’s. Bill is a clinical social worker who became a lawyer and then a mediator. He has made a study of working with high conflict personalities. He founded the High Conflict Institute, which is also on Facebook, here.

Making Nice in Divorce Mediations (10/24/11)
Over the years, I’ve given and received lots of advice for how to act during a divorce mediation. Put simply, it can be summed up in two words: “Make nice.” Does being nice make sense in divorce mediation?

Loss Aversion in Negotiation (09/26/11)
The Brafmans identify loss aversion as an irrational force. Simply put, we will do almost anything to avert a loss.

Negotiation and Certitude (08/29/11)
I was certain for at least 50 years that there were 9 planets and the farthest one away was Pluto. Even now, I choose to believe that there are still 9 planets and the farthest one away is Pluto. It’s hard to give up beliefs formed in childhood.

Ten Tips for Preparing for Divorce Mediation (08/15/11)
In preparing for the mediation of your divorce, you are wise to take time to do a bit of planning. Here is a list of ten things to consider ahead of time.

Why Cases Fail to Settle (08/08/11)
It’s a rare case which is so one-sided that a party can say, “I’m right, you’re wrong” and refuse to negotiate. If your client can’t stand the thought of giving the other side money, give it to someone else—the other side’s favorite charity for instance. Be creative. Think of ways to increase value without necessarily increasing the settlement amount.

Dr. Joan Kelly’s Top Ten Ways to Protect Your Kids from the Fallout of a High Conflict Break-Up (06/13/11)
Dr. Joan Kelly’s Top Ten Ways to Protect Your Kids from the Fallout of a High Conflict Break-Up

Negotiation: Uncovering Underlying Interests (06/05/11)
Here’s a story about how a diamond ring could be “divided” between two daughters that I came across in Harvard’s Program on Negotiation newsletter. It was told by Jeswald W. Salacuse, a professor at the Fletcher School of Law and Diplomacy at Tufts University. Professor Salacuse is the author of The Global Negotiator, from which this story is taken.

Social Media Tips for Mediators (05/23/11)

What Makes a Successful Mediator? (05/16/11)

Making Decisions in Negotiations (04/25/11)

Gaining Cooperation in Negotiation (04/18/11)
I’ve been thinking about persuasion, and how, as negotiators, we can gain the other side’s cooperation in settling a case.

Negotiation Mistake 7: Losing the Momentum (04/03/11)
(This is the last in a series of 7 Mistakes Really Good Negotiators Make.)

Negotiation Mistake 6: Stopping at Their "No" (03/27/11)
(This is the sixth in a series of Seven Mistakes Really Good Negotiators Make.)

Negotiation Mistake 5: Thinking Impasse is "Their" Problem (03/14/11)
Impasse. Either the word is overworked or people are just giving up too soon.

Negotiation Mistake 4: Shortening Up Too Soon (02/24/11)
If there’s one thing mediators hate to see, it’s parties shortening up too soon, either leaving the table when the other side was willing to pay more, or walking away with additional money left to offer. In other words, a deal that could have (and probably) should have been made is lost because one side or the other has shortened up too soon.

Negotiation Mistake 3: Ignoring Emotions (The Elephant In The Room) (02/21/11)
If you think I’m talking about clients’ emotions you’d be half right. Let’s start with you.

Negotiation Mistake 2: Selling, Not Listening (02/14/11)
Lawyers are taught to be message deliverers. We are not taught to listen. Yet the social psychology of persuasion teaches us that when we have first listened to another person, we are more likely to persuade that person when it’s our turn to talk.

Negotiation Mistake Number 1: Not Developing A Game Plan (02/07/11)
As a lawyer, I used to think that I could attend a mediation and just rely on my instincts to negotiate. Prior to the mediation, of course, I would evaluate the case and decide upon an opening demand/offer. But I would go in to the mediation armed only with my first number and the number beyond which I would not move.

Listening To Clients (01/24/11)
As a mediator, I have spent a great deal of time reading, training and thinking about how best to listen to the parties (as distinct from the attorneys). I spend a lot of time in mediations listening to the parties. I want the quality of my listening to be respectful, authentic and empathetic. I want to make a truly human connection.

Listening: The Most Under-Utilized Skill In Negotiation (01/17/11)
As a mediator, I rank listening as the most under-used skill in the negotiations that play out in front of me.

What Style Of Negotiator Are You? (12/13/10)
Being aware of your negotiating style can help inform your negotiating strategy.

Preparing For Strong Emotions In Negotiations: Your Clients'. . . And Yours (11/29/10)
As a practicing lawyer, I never thought much about emotions. If anything, I made an effort not to feel them. Yes, my clients had them, but that’s why they hired me—so that I could be their dispassionate advocate. Yes, I had them, but dwelling on them only made me compassionate, not dispassionate, so I ignored them. That philosophy worked pretty well in trial preparation and trial, but not so well in negotiations and mediations.

What We Can Learn From Law Students (11/02/09)
The American Bar Association, Law Student Division, hosts a variety of negotiation tournaments for law students. I spent a Saturday afternoon recently as a judge of an early round of the in-school competition at UC-Hastings College of Law.

How To Start A Successful Negotiation (07/27/09)
Social psychologists point to mounds of research to prove that likeability is a major component of persuasion (e.g., Cialdini, The Psychology of Influence). Management professors invoke research to show that civility is important to closing the deal (e.g., Conger, Winning ‘Em Over). Legal scholars cite multiple studies to prove that building rapport is the most important initial phase of a negotiation (e.g., Craver, Effective Legal Negotiation and Settlement).

Creating A Negotiation Plan (07/20/09)
Most of us prepare for mediations on auto-pilot. If we’ve evaluated the case, gotten settlement authority from our clients and written the mediation brief, we kid ourselves into thinking we’re good to go.

A Secret About Mediators (07/13/09)
I hope not to get drummed out of the mediation profession for revealing this.

Mindful Mediation (05/04/09)
Last weekend approximately 250 mediators, arbitrators, lawyers and conflict resolution professionals gathered at the 16th Annual Northwest Dispute Resolution Conference in Seattle, Washington. So how was it? Exceptional as always! Mingling with colleagues and friends, catching up on new happenings in the ADR community is always inspiring, but what I noticed most this year was how many of the workshops focused on…or at least brought up “mindfulness”.

Why Bullying Doesn't Work In Mediation (04/27/09)
Ever been bullied? How did you react? I’ve always reacted to bullying by digging in my heels. I don’t think I’m alone in this. Does this strategy sound like it will settle a case? I wonder, then, why so many lawyers resort to bullying in mediation?

Everything is Negotiable (03/23/09)
We Americans generally accept the stated price of goods and services as non-negotiable. I found this assumption to be inaccurate before the financial downturn. It is even more inaccurate now.

Choose Facilitation! (03/16/09)
So the first thing to ask a mediator is: Do you use a facilitave style or an evaluative or directive style?

Finding Your Divorce Mediator! (03/03/09)
Locating a qualified divorce mediator is essential and significant to the process. The mediator is your guide throughout the divorce mediation process. At first locating a mediator may seem like looking for a needle in a haystack because divorce mediators have all sorts of backgrounds and abilities, from lawyers to therapists to financial professionals and many in between. One difficulty is that in most states anyone can hang their shingle and mediate. So how do you distinguish a really good mediator from a so-so mediator?

Mediation Steps (02/23/09)
What are the steps involved in mediation?

Saying Good-bye! (02/16/09)
Tip: Remember to NOT fall in love with a particular asset. It may be best to simply say good-bye.

Key To The Puzzle! (02/09/09)
Divorce mediation is a client centered, transparent, flexible process that allows clients to create a plan that meets their unique needs and goals based on their circumstances. But what if the divorce clients do not have the information and skills they need to make decisions?

Chose Your Future! (02/03/09)

Money Talk! (01/19/09)
Most people don't have piles of money to burn....especially when they are getting divorced!

Stocking Stuffer! (12/23/08)
Holidays are a busy, stressful time of the year whether you are in the process of getting divorced or not….so why add stress by bringing up taxes? Because taking a little time to do tax planning may save you substantial tax dollars!

Peace and Joy! (12/14/08)
Holidays can be a sad and stressful time for people in the midst of divorce... but you do have a choice about how you celebrate the holidays! Most people want to have peace and joy in the Holiday Present rather than being haunted by the Ghost of Holidays Past! Here are some ideas.

Keep Kids Out Of The Middle! (12/08/08)
Do you want your children to thrive after divorce? First, learn to communicate respectfully and stop saying negative things about the other least when the children can hear. Keep your children are out of the middle and take steps to prevent parental alienation. Mediation can help.

Practice Negotiating (12/08/08)
What to do when the economy is in the tank? Practice negotiating! The latest issue of AARP magazine has an article by Jeff Yeager, a man who makes his living bargaining for discounts and then writing about his experiences. The article lists 10 things you can do to negotiate lower prices for goods and services.

Imagine Peace! (12/01/08)
Imagine what would happen if everyone practiced non-violence and chose peace!

Happy Thanksgiving! (11/24/08)
Holidays can be a stressful time for many families, divorce adds even more complexity because of the changes to routines and family traditions. The most important thing to do is to be civil with your former spouse and keep your children in mind so that they can enjoy the holiday and the turkey….no matter how you feel. Here are some tips!

When To Start Mediation (11/10/08)
It is in your hands… can contain the flames by choosing mediation. You can start mediation anytime, but the best time to start is in the beginning of the divorce process.

Telling The Children (11/03/08)
Keep your children from feeling they have to choose! How parents tell their children about the divorce sets the stage for how the parents will co-parent in the future and has a significant impact on whether the children thrive………no matter what you do legally, both of you will continue to be parents.

Sidestepping Emotion in Negotiation (10/27/08)
When the other side is angry, and you don’t get why, ask. For instance, “It sounds like you’re angry. I’m not sure I understand why. What’s going through your mind?”

The Best Interests of the Children (10/27/08)
We encourage parents during divorce to put their children first. This can be hard to do when you are in the middle of conflict. It reminds me of a cartoon in which a guy is standing on a sidewalk and there’s a sign above him with an arrow pointing down to where he’s standing which says: “In the Thick of It.”

Open The Door To A Better Future! (10/14/08)
Isn’t mediating in the same room only for couples who are cooperative?

Going To The Balcony (10/14/08)
When the other side attacks you or your client or your case evaluation, one of your strategies can be to go to the balcony.

No Dukes (10/14/08)
I liken litigation to duking it out. There are three main drawbacks to litigation. (Yes, this blog has a bias.)

Emotion in Negotiation (10/06/08)
If you think about it, emotion plays a large part in negotiation. It’s the elephant in the room that we, as lawyers, mostly ignore, because we’ve been taught and trained to think logically through a problem.

Q & A with Master Mediator Gary Friedman (09/16/08)
I am so pleased to present an interview with Gary Friedman, author of the important new book, Challenging Conflict: Mediation Through Understanding. Gary (on the right) is pictured here with his co-author, Jack Himmelstein.Q: What is the Understanding Method of conflict resolution that you practice and that you describe in your book?A: We all, parties and lawyers, tend to be conflict avoiders. In the Understanding Method, we offer people in conflict a way to work together to make decisions by...

Persuasion Through Openness to Persuasion (09/10/08)
Say what?It’s true. Being open to persuasion can make you more persuasive.Professor Jay Conger (Claremont McKenna College), in Winning ‘Em Over, addresses the myth that persuasion is a one-way process.“At the heart of successful persuasion there is a continuous feedback loop from our audience to ourselves. To persuade meaningfully, we must not only listen to the other person and understand his point of view; we must also incorporate his perspective in our arguments. And we...

Mediation: Making Money Talk (09/02/08)
I had the pleasure of meeting Andy Little, the author of Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes, at the ABA Dispute Resolution section's annual meeting in Seattle earlier this year. Andy is a great guy, as well as a thoughtful mediator.Andy has written a wonderfully useful book about mediating civil trial court mediations. His bona fides are inpeccable: after 17 years as a trial lawyer in North Carolina, he began mediating litigated cases. He has been...

Persuasion Through Preparedness (09/02/08)
I laughed out loud when I read in Negotiation Genius (now in paperback!) that in a negotiation, if you are not prepared, you should at least look prepared. I laughed because it’s true.Think about a situation you’ve been in, in which acting the part was as important as being the part. It happens all the time in social settings and in business settings. It works at trial.Malhotra and Bazerman believe that paying attention to detail and being systematic in approaching negotiations...

Mediation Joint Sessions: Are You Missing the Boat? (08/18/08)
Most mediations have a component of caucusing, where the mediator and one side will sit down together to discuss the case. Some parties and some mediators will negotiate in caucus during the entire mediation.I’m going to suggest that you could be missing the boat by caucusing. We could start the laundry posts I've recently completed on persuasion:1. Appreciation2. Affiliation3. Storytelling4. Respect5. Likeability6. Out-ListeningIt’s very difficult to ...

Mediation and Negotiation Summer Reading (08/18/08)
Where does the time go? Only two weeks ‘til Labor Day weekend. Yikes!For those of you who are off to the pool or beach before school and the presidential campaigns start in earnest, I am pleased to suggest an End of Summer Mediation and Negotiation reading list. All of these books came out this summer with the exception of Professor Craver’s. (It just happens to be new to me.)Cloke, Conflict Revolution: Mediating Evil, War, Injustice and Terrorism. I interviewed Ken about his book,...

Welcome to the Blogosphere Paul Merlyn! (08/11/08)
My friend and colleague Paul Merlyn has launched a new blog called Wires Crossed. Paul is a well-respected, accomplished mediator in Northern California. He has three great websites: New Resolution, which features a varied and general mediation practice, CID Resolution, which features disputes involving homeowners associations, tenants in common, condo conversions and homeowner/contractor disputes, and San Francisco Real Estate Brain, which covers all things real estate. I hope you'll check...

Practicing Negotiation (08/05/08)
Negotiation professors Charles Craver and Linda Babcock recommend practicing the art of negotiation at every opportunity. In fact, they suggest creating opportunities to negotiate where seemingly none exist.Here’s how I put their recommendation into action.Over the years, I have been invited to a series of potluck dinners by my friend, the restauranteur. My dilemma, of course, was always what to take to a potluck hosted by a renowned cook. No point cooking, right? Instead, I have...

'Winning' at Mediation: A Blueprint for Preparation (07/29/08)
I’ve been honored by Tammy Lenski with an interview that she posted today on her blog, Mediator Tech. Tammy is a leader in blogging, marketing and technology, so I was especially appreciative that she featured my new pamphlet, “Winning” at Mediation: A Blueprint for Preparation. I just published the 24-page color pamphlet in which I compiled tips for lawyers on preparing for mediations. Let me know if you’d like a copy, and be sure to send one to your favorite Northern...

Negotiation: The Disconnect (07/21/08)
I’m seeing a disconnect between what’s being taught to current law students about mediation and what the best negotiation professors are advocating versus what’s actually taking place in front of me in many mediations.Current teaching. Last Spring, the ABA’s Dispute Resolution Committee held a mediation competition for law students. (Quinnipiac University School of Law’s team won, which I wrote about here.) The ABA’s scoring system gave the highest marks...

Yes! 50 Scientifically Proven Ways to Be Persuasive (07/21/08)
Professor Cialdini’s done it again! In this eminently readable book, he and his co-authors (Noah Goldstein at the University of Chicago and Steve Martin of Influence at Work in London) have put together 50 persuasion techniques which have been proven by social science research to be effective. The book has only been out for about a month.Summer’s only half over. If you buy Yes!, now, you will come back to work in the Fall with persuasion techniques which will give you a decided...

Persuasion Through Appreciation (07/21/08)
Face it. We all like to be appreciated. Even lawyers. Even opposing counsel.From Fisher and Shapiro, Beyond Reason:“If you and the other side appreciate one another, you are more likely to reach a wise agreement than if each side feels unappreciated. In fact, you benefit by helping the other side feel appreciated, whether or not they reciprocate. They will tend to feel more at ease and cooperative. And by appreciating them, you are more likely to foster their appreciation of...

Negotiation: Persuasion Through Affiliation (07/15/08)
Fisher and Shapiro in Beyond Reason advise negotiators to turn an adversary into a colleague. One way to do this is to seek out ties that bind, which they call affiliation. Affiliation occurs when we feel that we are “in it” together, (somewhat) like peas in a pod.Fisher and Shapiro suggest connecting at a personal level. An effective way to do this is to talk about things you care about. I’ve found sharing stories about raising children to be a way to take a business...

Persuasion Through Storytelling (07/15/08)
Check out the little boy's face. Remember when you were a little kid listening to stories? They can be mesmerizing. Even for adults, as there is a child in each of us. Somewhere.Lawyers who try cases know that telling stories in opening statements and closing arguments is a compelling and persuasive way to influence juries. As Annette Simmons in The Story Factor puts it, when you are trying to influence a group, giving them more facts is just piling on more facts. Jurors probably have more...

Persuasion Through R-E-S-P-E-C-T (07/07/08)
A tip from Aretha Franklin. . . .I often marvel at the difference in outcome in mediations where respect is shown. Settlements are much more common in these circumstances.On the other hand, I despair at the negotiating styles of those parties or lawyers who show disrespect. Here’s how it happens. The mediation is moving along. Real progress is being made. Then one side says something disrespectful. It’s like tossing a hand grenade. You can actually see the other side stiffen. Then...

Negotiation: Persuasion Through Out-Listening (06/30/08)
Have you ever witnessed an argument when two people are talking simultaneously? Each is stating his position and airing his grievances? They’re frowning in frustration? Their voices are rising? Why? Because neither one is feeling heard. Each one feels the other side is not listening to them. This is not a recipe for persuasion. It’s a recipe for continued conflict.Here’s a truism about human interaction. People are more able to listen once they feel they’ve been heard....

Negotiation: Persuasion Through Likeability (06/23/08)
Lincoln, a legendary lawyer as well as president, once said, “The only lasting way to eliminate an enemy is to make him your friend.”Professor Robert Cialdini’s seminal book, Influence: The Psychology of Persuasion, cites seven “weapons” of influence. I've previoulsy posted about one of them, reciprocity. (See links below.)Likeability, Cialdini’s research shows, is another way in which we can influence people. It’s the key reason that when I’ve...

Congratulations to CUNY's 'Make Talk Work' Video Competition Winners! (06/23/08)
The City University of New York's Dispute Resolution Consortium has decided upon the 10 winners of its Make Talk Work International Video 2008 competition. The videos have been posted to You Tube and you can find all ten of them here. (When you get there, scroll down the list to the right and click on the videos.)If you have ten minutes, it's lots of fun. The videos are 60 seconds each.To see two dozen bookmarks from CUNY's Make Talk Work bookmark project, click here.Kudos to the JAMS...

Strategy and Negotiation Games (06/23/08)
O.K. This will date me. I grew up playing board games.Three games involving strategy I played were Stratego, a board game equivalent of “Capture the Flag;” Gettysburg (Avalon Hill), a more complicated game involving strategy that I played with my older brother; and, of course, Monopoly. I have to admit, though, that Monopoly was not one of my favorites. Either it took too long to play, or my brother always beat me, I can’t remember which.Thanks to the worldwide web, I found a...

Generational Differences in Negotiation (06/17/08)
One aspect of diversity which is sometimes overlooked is age. Phyllis Beck Kritek, in her provocative presentation at the ADRNC annual conference earlier this year, got all of us thinking about age. She included the table above in her handouts. While it focuses on age differences in how people approach their jobs, it is an insightful and useful tool to remind us that age affects how we look at the world. This is especially a good reminder for me, as my default thinking is that (of course)...

Active Listening: AACES (06/10/08)
AACES is the mnemonic a local community mediation organization uses to train new mediators in active listening. I spent a Saturday morning recently helping with the training.It occurred to me that the skills we were teaching these new mediators were also skills that would be useful for lawyers in mediations in which joint sessions are held. Here’s the mnemonic:A = AttitudeA = AcknowledgeC = ClarifyE = EmpathizeS = SummarizeAttitude is how you prepare yourself (and your client) for the...

Gender Differences in Negotiation (06/10/08)
When Linda Babcock, a professor of economics at Carnegie-Mellon University, spoke at the ABA Dispute Resolution Section’s annual conference last April, she wove together her research, her personal experiences and her stories about negotiation in a fascinating and compelling way. Her latest research has just been published in a book she co-authored with Sara Laschever called Ask For It. Diane Levin at Mediation Channel has a great review here and Vickie Pynchon from Settle It Now...

Design the Mediation Process (06/02/08)
(This is the seventeenth in a series of posts on preparing for mediation. Although I may circle back to this topic again, it is the last mediation preparation post for awhile. I’ve been ignoring other topics for too long!)Many mediators believe that a pre-mediation conversation is helpful to design the process. If your mediator is not calling you to do this, take the initiative and call up the other side and the mediator and have a conversation. Typically the mediation of a litigated...

Adjust Your Attitude: Go Positive! (05/26/08)
(This is the sixteenth in a series of posts on preparing for mediation.)Lawyers who litigate for a living are apt, at times, to take on the persona of a warrior.As a lawyer representing clients in litigated conflict, I have taken on my client’s causes as my own. Sometimes it feels like winning is everything and the only thing. The skill set used in day-to-day litigation tends to be zealous, aggressive advocacy. When I speak to litigators about mediation, I sometimes start with what...

Preparation for Mediation: Anticipate The Other Side's Negotiation Strategies (05/26/08)
This is the fifteenth in a series of posts on preparing for mediation.During the heat of battle, it’s sometimes difficult to defend against the other side’s negotiation tactics. Anticipating their strategies in advance can be useful. Hey, if it was good enough for Bill Walsh….Here are four suggestions.1. Be prepared. Do your homework about the other party and lawyer as well as historical settlement values for your type of case and venue. Think through the other...

Preparing for Mediation: Scripting Your Moves (05/19/08)
(This is the thirteenth in a series of posts on preparing for mediation.) I moved to San Francisco in 1978. Joe Montana came a year later. Of course I became a big ’49 fan. Bill Walsh, the legendary ’49 coach, prepared for each game by scripting the first 25 plays. The team practiced these during the week. On game day, Walsh might not use all of the plays, or he might change the order of the plays as the situation warranted, but he could always return to the list. Walsh...

Strategize for the Mediation Joint Session (05/19/08)
(This is the eleventh in a series of posts on preparing for mediation.)Hopefully, in advance of the mediation you will have communicated with your mediator as to the process that will be used. (This will be the subject of a later post.) Whether you know in advance there will be a joint session or not, preparing for one just makes good sense. The mediation process can be flexible. Joint sessions might take place initially, episodically, or near the end of a mediation.Early in my mediation...

Line Up Your Negotiation Strategies (05/19/08)
(This is the fourteenth in a series of posts on preparing for mediation.)As a lawyer, I used to tell myself that negotiation was intuitive. Thus seat-of-my-pants decision-making in mediation made perfect sense. That was then and this is now.Having a game plan, scripting your moves and considering a variety of negotiation strategies in advance not only gets you in the right frame of mind (I’m ready!) it just may give your clients a better chance of claiming all of the value of the case (or ...

Q & A With Internationally Acclaimed Mediator Kenneth Cloke (05/12/08)
I am honored to present an interview with international mediator Ken Cloke, who has just published his 10th book: Conflict Revolution: Mediating Evil, War, Injustice, and Terrorism (Janis Publications), a book which takes the constructs of mediation and writes them large upon the world. Ken is a founding member and President of Mediators Beyond Borders.Q: Why do you call this the “riskiest” book you have written?A: I had to approach this book with genuine humility, yet also with...