Hello, I am Simeon Baum, president of Resolve Mediation Services, mediators.com. I started out years ago as a litigator in the 1980s in a broad range of areas, commercial, insurance, reinsurance, tort. And by the early '90s and frankly throughout, I'd had some frustrations with some of the adversarial approaches and cost and time and limitations of our litigation system. And then, in the early '90s, I was reading the law journal one day and saw a squib advertising a program that effectively was a mediation program. It was called Early Neutral Evaluation, but really used a mediation model in the eastern district, one of these 20 federal court pilot projects that had just been started in 1990. I was fascinated and I applied and fortunately was permitted at what they considered a young age onto that panel. And as soon as I took the training, it was like a light bulb had gone off and I realized this is it. This is what I've been thinking about, even during law school and before. What a wonderful alternative. What a really, frankly, great way to approach the resolution of parties' conflicts, the way, a way to build understanding and open a creative process. So since the early '90s, over the last 30 years, I've built a mediation practice and served also as an arbitrator, but primarily far more as a mediator in over 2,000 matters. All kinds of shapes and sizes. Had the fascinating experiences having mediated matters with, you know, Donald Trump and the West Side properties here in New York City, the World Trade Center with Reskin and Silverstein. And here on Quimbee, again, which is got a history as an animated platform. I also have the chance to mediate something involving "Archie comics," that classic. All of which I can talk about 'cause they all were mentioned in the press. You know, mediation is a confidential process, but it's published, it's published. So since that time, I've been fortunate for over 20 years to train mediators who serve as in the commercial division. In New York State, we have courts that are dedicated to the handling of large commercial matters. And also to teach negotiation and also dispute resolution processes at Cardozo Law School. And to have had the wonderful opportunity to found, to be the founding chair of the New York State Bar Association's Dispute Resolution Section. And throughout this time, I have felt very fortunate to participate in this incredible process of mediation, which can bring about the resolution of intractable seeming conflicts. So in that context, it's been clear that there are opportunities for us, for lawyers, for counsel to be more effective in the handling of the matter and in mediation. And so for that reason, I'm grateful to Quimbee for the chance to talk with you today about this topic. It's a topic which, if I can give you a graphic image, is vast. You know, Melville said, "If you wanna write a great book, don't pick as your subject a flee." So here, when we're dealing with mediation, we're talking about something that plums the depths of human reach. Substantively in law now, we see mediation everywhere from securities industry, commercial matters, tort matters, insurance matters, reinsurance matters, employment, intellectual property, and basically all kinds of community disputes, real property. It's a vast substantive reach. But for mediators and for representatives in the process and the parties themselves, it's vast in other ways. Because what we do in mediation is we take the person as a whole and we take their life context and have a forum within which we can address their real living human realities of interpersonal dynamics, life problems that have cause people to come into or might cause people to come into a court. So today, what we're hoping, as we look at mediation and how to be effective as a representative in the process, is for representatives, for us lawyers, to keep in mind, how can we be effective. Keep in mind, you know, knowledge is power. What is mediation? Let's understand what the process is. Fundamentally process where we can build understanding and dealmaking, where you could think of it as negotiation plus. That's another way to look at it. Where the parties, particularly the parties are engaged in their own process of resolving dispute, where they have agency. And we, counsel, should then understand what's the mediator's role. Not a judge. What's that mediator's role? Somebody helping people make their own decisions. But how do we use that mediator in the best way? What are the parties, the council, and the mediator trying to do? So as we go through today's consideration, this is what will have in mind. So why don't we start off with just taking a look at mediation itself. When you think about mediation, it's a confidential process. It's very important to understand parties in the mediation context. We do this by agreement. We do it by court rule. In some states, there are statutes that's say mediation is confidential or in some, the statutes for mediation act. It's a privileged, statute privilege. But basically, we want people to be able to talk comfortably and openly. It involves a compassionate neutral. So that's not somebody who like a judge or an arbitrator, stands back in judgment, makes decisions, and is so detached. No, the interesting phenomena the mediator is the mediator is not on no one's side. Mediator's on everyone's side, warmly, supportive, and engaged with the parties, while at the same time neutral. It's a beautiful paradox. In mediation, we're looking to build understanding and dealmaking. So on the understanding level, we've got a school in the, either 1979 or 1981, we'll talk about in a moment Himmelstein and Friedman. But understanding can be very deep. They can go all the way to people's core, you know, their needs, their interests, their concerns, you know, what their stories are, where they come from, how they understand, where they are. And not just for themselves, but for everybody around the table or the virtual table as we do Zoom-based mediations. And also, in the process of building understanding. And by the way, that understanding could include, hey, what's gonna happen if this matter does not get resolved today? What's your alternative, both in life and in court? How might that turn out in court? And in the context of all that, thinking about that builds understanding. There is also a process of dealmaking. Parties are engaged in looking to resolve their matter and make a deal. So thinking about negotiation in the context of mediation makes total sense. It's a process of party empowerment and engagement. In mediation, not a judge, not the lawyers, but the parties are first and foremost. It's their process. They have agency. They can be actively engaged talking with each other or as if we break out into private meetings, which we call caucuses. The common meeting, we call a joint session. But whether it's in a joint session or in caucuses, the parties themselves can talk. The mediator can help, council can guide. Council might speak also, of course, but party active engagement is also part of mediation. It's a process that's flexible. You can mix and match how you want to arrange it. Do we talk together? Do we talk separately? You know, to put lawyers together. We put parties together. You know, that kind of flexibility of the process. And very informal in the form of communication. No rules of evidence or relevance stopping people from talking certain ways. It's also flexible in the source of values. We're not looking for, okay, what's the court outcome here in order for us to decide, you know, what kind of deal people should come up with. Maybe in some disputes the party's relationship means more to them than the dollars and cents. Or maybe, in a business context, calming a party who's been running around the country defaming the company to major clients. Maybe that's more important from a business context. than the dollars involved in paying or being paid. So, there's economic considerations. There's all kinds of values that can come into consideration, principles parties can share. And whatever it is, that's the source of creativity in mediations. That those values can be, come into play, identified, and actualized, and actualized outcomes. So the outcome doesn't have to be what's gonna happen in court, it's the deal the parties make. It's very flexible. So we can tailor the outcomes to meet the needs and interests of the parties and the constraints and circumstances of their lives, their life context, business life context, whatever it is. It's a form where we integrate the norms of justice and harmony. I've got an article on that. If you ever wanna visit mediators.com, you can look at the articles. And it's not just about justice or even fairness. Harmony could go to the relationships of the parties or accommodating with actuality. Sometimes, we put something into a contract and life has a different idea. Maybe there are financial limitations. Maybe maybe things have happened in terms of supply chains or whatever it is. And we find ways in this forum to integrate more, in order to bring people to closure. But of course, by their own consensus. And so basically, the mediator, the role of mediator is one who helps the parties engaged in their own decision making, not somebody who makes a decision for the parties themselves. That's very important to keep in mind. Quite often, representatives, in particular lawyers, think, "Well, we gotta get this mediator to get the the point, you know, so they can understand that we win." Well, keep in mind the mediator's job fundamentally is help the parties and, you know, and their, the council engage with the parties in bring about their own decision, their own decision making process. So this was a general overview of what goes on in mediation, what it is. Over the years, there have been a number of different folks who have views on what is mediation, what is the role of the mediator. Back in the 1990's, Len Riskin, professor Riskin did a piece which produced what was known as Riskin's grid. He called it a grid for their perplexed, with reference to . And basically, he looked at the field and he said, "Hey, there are some mediators out there who tend to be a evaluative and directive. They think their job is to people come in and it's like at its settlement conference." You know, and the mediator will say, oh, you're right, you're wrong, you're gonna win, you're gonna lose, this is the deal for you, this is what you should do. That's evaluations and directives, telling what to do. There were other mediators, Riskin observed who were more along the lines of facilitating, helping the parties help themselves, like the Jerry McGuire quote, "Help me help you." In that context, in the mediation context, mediators elicit from the parties their own activities as they engage in building understanding and dealmaking. And some of those mediators could be narrow in their focus. Think it's all just talked about the case. Others risk and observe could be broader, talking about the business interests or the relational issues or even, you know, community values or whatever. And over time, frankly, as the field developed from really in America, although this mediation process goes back millennia, but, you know, it became active in the '80s in labor and community disputes and then the '90s starting to come into the courts. And now, we know it's all over the place today. As the field developed, we've seen people understand mediation's a very broad, open process. Not narrow, not pointed, wide open circle. Another school, the transformative. Baruch Bush and Robert Folger wrote book in the '90s called "The Promise of Mediation." And they have proposed a very kind of initially shocking view of the mediator's role. They said, The mediator's job is not to be facilitator of the party's own problem solving," like the classic Harvard Negotiation Project view of what a facilitated mediator does. But rather, we're not looking at it as kind of a let's figure out what the interests are, let's identify the issues, let's generate options to meet those needs and interests to maximize gains, and let's do all that stuff and come up in a problem solving way, with collaborative, cooperative joint principle-based bargaining to a deal. Mediator is not a trying to settle a case, which is what we often find in court. But the mediator for the transformative is looking to do two things, empowerment and recognition. Mediators looking to foster among the parties their own sense that they have the ability to make choices. And the theory there is based on their theory of conflict, which is that parties in conflict. It's quality of their relationship. It's the modality. It's communication. And the mediator's job is really to augment that mode of communication and raise up for the parties opportunities to feel that they can make choices. Because when parties are in conflict, they hunker down. They're defensive. They're not feeling comfortable. They're only busy thinking about their own interest. They can't even consider what's going on for the other party. Too busy trying to protect their own eggs. But once they start to see that they can make choices, the shoulders drop, they can get calmer. And when that occurs, then they can look around, "Oh, here's another human being. Here's another group. What's going on for them?" And begin perhaps have a little bit of empathy, recognition what's going on for the other side. And that growth and empathy for the transformative, that moral growth is the transformation from which the name transformative mediation comes. So that's a transformative view of mediation. I think I mentioned earlier the value of, you know, you wanna go to somebody who's gonna kind of tell you, "Hey, if you don't make a deal, this is what's gonna happen or this is what you ought to do." I had mentioned earlier as well, Himmelstein and Friedman. One says it was in 1979, the other says was 1981. They formed their Center for Understanding Conflict. And their view is mediation's all about building understanding. For them, they only have joint session. I had mentioned earlier there's caucusing, where we can break out into private sessions and the mediator can meet confidentially with fewer than everybody, you know, party A or party B, or you know, any type of mix or match. But rather than split people up, which the Himmelstein-Friedman group sees bringing a rift right into the room. They say let's bring peace into the room and keep people together. So they stay together. And their view is mediation's really about Jones v Smith, let's get beneath the V. Let's see what's going on for everybody. Build understanding of self, build understanding of other, building their understanding of context. And out of an understanding, resolution will arise. There's other views, the protean, the shapeshifter, you know, 360 degree mediator. Do what's appropriate under the circumstances. And a services view, you know, you can list all the different things that we do as mediators if you looking to understand mediation in that way. Now, one thing for sure, we understand it's not rent-a-judge, okay? There's some judges who are great mediators, former judges are great mediators, but the role and function is very, very different. Litigation, arbitration, you've got party people designated as neutrals who can make decisions. They're gonna identify core facts. They say, "This is the fact," and they're going to bring to bear the operative rules, "This is the law." And then, they apply it with their evaluation and determination. And that third party then has power. But in mediation, the mediator is powerless. It's a beautiful place to be. Mediators kind of letting the process occur and helping the parties help themselves. So now, we've got neutral evaluation mentioned here. You could go to a neutral, in a process known as neutral evaluation and share, "Hey, this is how I think the case is." And the other party, "This is how I think the case is." Neutral could say, "Okay, given that I predict this is the outcome." In the Wayne Brazil model of neutral evaluation, rather than share the outcome, that neutral evaluator might write it down and then say, "Okay, I've written down my prediction. Would you like to mediate this matter?" Do a mediation. If it gets snagged, say, "Well, hey, we seem to be snagged. Would you like to know what my prediction is?" And then they probably say, "Sure." And then that neutral party might say, "Okay, here's my prediction. Now that you've heard it, you wanna keep mediating?" And they use that in what the Europeans would call conciliation model, where you're bringing the norms into the room. They use that then as a way of triggering further negotiations. Bargaining as Professor Mnookin says, "The shadow of the law and coming to a deal that way." But for mediation, it's not litigation, arbitration, neutral evaluation. What it fundamentally is is building understanding of dealmaking. And we wanna keep in mind as we, representatives, in the process, you know, wearing that hat, as we think for whom does understanding matter, okay, it matters most to the parties. We're helping them in a process of building understanding, okay. It doesn't matter so much to the mediator 'cause the mediator's understanding ultimately is not what makes the difference. Of course, the mediator tries hard as possible in all kinds of ways to understand and to build understanding. But we keep in mind, for whom does it matter. Of course, counsel helps to know what's going on too. So remember, who has agency, how is the resolution reached. Parties, not the neutral. Really fundamentally, the ones with agency. And resolution is reached when they reach an agreement, you know, unless you're, you know, transformative. And then they don't even need to agree as long as people of understanding dealmaking. But fundamentally, it's reached through an agreement. So we had talked about the facilitative mediator and the what does that mean. So a mediator is helping facilitate the party's communication, helping them identify what's important to them, their interests, what they care about, what their needs and concerns, helping generate from the parties options to meet the interest of all concerned. And we'll talk about that a little bit more in a bit, and helping them recognize and validate emotions, perceptions, and principles, their values, and also to consider what happens if we don't make a deal. The alternative to the proposal that's on table some might call that and we'll talk about that in a bit. But that best alternative to negotiating an agreement. And another way of looking at the mediator is that we mediators we grease the wheels of the party's negotiation. The parties are engaged effectively in a negotiation with council and the mediators helping that happen. So, we're greasing the wheels. So mediators, we really ought understand negotiation as well and representatives we ought understand negotiation. And we can help with timing. You wanna make that proposal now. You wanna wait. You wanna give some more information. You wanna say a few more things about the case. You wanna examine the business. You wanna see if there's ways of reorganizing this. You know, timing of what it is that people do. Dealing with cognitive and emotional barriers. We'll take a look at that in more detail in a bit. But people have all kinds of things that act as impediments to making decisions, making, you know, to engaging with one another and in conflict resolution, You know, we project, you know, we have reactive devaluation. Oh, they've said this and they're my enemies, so it must be bad, you know. So one of the roles, another theorist of mediation, has identified is the mediator is trickster. You know, helping people get past some of these cognitive and emotional snags. Dealing with the impact, helping manage expectations. You know impact of statements, impact of a particular behavior in a negotiation process. Managing expectations, you know. "Hey, you seem to be looking for, you know, a massive thing." I'm not saying it that way. Maybe it might be a little bit different. Helping parties with the tone, helping them frame messages, helping them frame understandings. Bracketing, you know, we can talk about. It's basically like a conditional offer, where people are bargaining. Say a party had a, made a million dollar offer and the other parties made a hundred million demand. And they seem a little bit far apart. Well, maybe with bracketing, they could say, "Okay, let's negotiate with it in this range, 20 million to 40." And that's a conditional offer. I'll go to 20 if you go to 40. And dealing with end games and all kinds of things the mediator does. And so, what does a representative do? Understand that this is what happens and work through each of these elements with the mediator. So now, in light of all of that, and considering that this is one way of looking at this and building understanding of dealmaking is as a negotiation. We attend to much more than just the legal analytics. It's important for lawyers to come in the process and be aware of course of the law and be prepared, very well prepared, to talk about it, and think about it, and readjust one's understanding of it. But as we are entering this great whale of a process, we tend to a lot more to people, including oneself. A lot of things going on. Everyone has emotions, principles, interests. Looking at the parties, their relationships and dynamics. We look at the circumstances, they're business interests, business context. How the communications occurring? Are you pissing somebody off by the way you're speaking? Considering the process. Is now a good time to make this particular move? Is now a good time to join together or separate out? And attend to the deal. What are the elements of the deal? What might meet the needs of the other party? What might be away for us to deal with these particular potential terms? So in understanding that this is a broad dynamic, really exciting kind of context because it activates us on so many different levels. Let's take a look more closely. That's how we look at this as facilitated negotiation. Let's take a look a bit more closely at negotiation and negotiation theory as it applies within the mediation context. So one way, from a couple thousand years ago, pulling a quote from Pirke Avoth is a balanced approach as a representative, as a party engaged in negotiation. "If I'm not for myself, who will be? If I'm only for myself, what am I? And if not now, when?" That's the quote from Pirke Avoth. But it it's essentially saying, you gotta be able to assert, be aware of and assert for one's own interests, needs, emotions, beliefs, and values. Okay, what are they? Be able to speak up. And at the same time, be aware and respectful in recognizing the interests, needs, emotions, beliefs, and values of the other party. So, there's both assertiveness and empathy are needed in the effective balance negotiator. In much more contemporary times, Fisher and Ury, outta the Harvard Negotiation Project. They're the authors of the contemporary classic, "Getting to Yes." And they talk about the win-win approach in negotiation. Basically kind of cooperative as opposed to competitive style in strategy for handling negotiations. And what Fisher and Ury say is, "Hey, let's separate the people from the problem. Let's be soft on the people and hard, analytically hard, on the problem, on identifying what's the issue." An issue is that which impedes satisfaction of the party's interests. So, you know, one example, you know, if you can imagine the shook, you know, the bargaining zone. And then, the kid comes in for a lamp merchant and says, "I wanna buy a lamp." And the merchant says, "Okay." And the kid picks one out, "How much is this lamp?" "For you, 900 dinars." And the kid says, "900 dinars? That's outrageous. For this piece of junk, I'll give you 10 dinars." And the merchant says, "You call my ware's junk? How dare you? You know, everyone knows you're, all the members of your family are very rude people, but I'll reduce it to 800." And the kid says, "Rude people? We're truth speakers and everyone knows that you're a gone if you're a thief. So frankly, I don't have to listen to what you have to say. I just need a lamp, so I'm buying from you, but otherwise I have absolutely nothing to do with you." But I'll give you 50 dinars," and so on and so forth. And people can be entangled with insults and devaluation of the other as they engage, as well as of their product if they're the seller. As they engage in the interplay of negotiation, until finally position from position, you know, as we hear the numbers change, they look to make a deal. But what Fisher and Ury say is, "Hey, let's separate the people from problem. Nothing calling each other, you know, insulting names and poking each other in the eye. Let's speak in a way that shows recognition and understanding of the other. And instead, let's not do this back and forth positional bargaining. 'I'm right.' 'No, I'm right.' And let's focus on interest." And there's a classic story that goes with this one, the story of Susie and Sally, two sisters. And one day their uncle Sal comes by and here's Susie and Sally, the girls, arguing over a dozen oranges. Susie says, "They're all mine." Sally says, "No, no, no, they're mine." Uncle Sal, whose real name is Solomon, comes by and finds a solution. And if I could speak with you directly and get your response directly, I would ask you now what do you think the solution is? And often, you know, people would say, "Well, King Solomon split the baby. You know, cut the oranges in half. You know, six for girl, you know, Susie, and six for Sally." But this Uncle Sal did something different. He asked the question, "Why do you want those oranges?" And Susie said, "Well, I want 'em to make orange juice." And Sally said, "I need 'em for the rind so I can make, you know, zest that I need for an orange cake." All of a sudden, instead of there being a split six and six, there was another solution that arose. Number three, options for mutual gain. And you develop an option for mutual gain by what? Understanding what the interests of the girls are. Okay, so pulp or skin for the interest of juice or cake. And so, the mutual gain option would be, "Okay, Sally, you get all the pulps. Susie, you get all the skins." And now, there's been an expansion of the pie of deal value, okay? The value has expanded from 12 units to 24 units. And so, what Fisher and Ury suggest is that that's by the way known as integrative, an integrative approach, from the word integer, which is a whole, right? So we've expanded the whole. If you split the pie, take those 12 units and divide 'em in half, that's distributed. You're splitting the pie. You're just deeming it to be a closed set. But when you're integrative in your approach, what you're doing is you're expanding the whole. Making it bigger and you're generating greater value. So what Fisher and Ury say is, "Let's do that if we can. Let's maximize gains for the parties. Now, in order to do that, keep in mind we gotta be soft on the parties because if we're pissing each other off, people aren't gonna share information. But if we're being nice enough to each other and disclosing to each other, maybe the others have disclosed to us and maybe we'll actually find out what their interests are instead of having them hide them from us." So that's why the talk part's so important, and that's why the tone part is important too. And can we work in a cooperative, as opposed to competitive way, with each other? That's why that's important. So in Fisher-Ury model for cooperative negotiation, they also suggest how about applying standards? You know, we know say in a car wreck, you go to your insurance company. What do you do? You turn to the Kelly Blue Book, for example. "Oh, there's a book that says how much my car is worth. That's how much I should get paid for it." Having objective standards, it's a trust and estate matter. And there's a family and they've gotta distribute assets. Well, in that family, their whole life, everybody got even-steven, okay? So, they can use the norm, a standard of equal distribution. Well actually, here's another family and they're a bunch of kibbutznik, you know, from each according to his means, to each according to, I'm sorry, from each according to his means or abilities, to each according to his needs. So maybe you got a, you know, well-healed sibling, you know, and yet another sibling, you know, has economic challenges. Maybe a kid with health problems, whatever. And the family might say, "Well, given our of family standards," like that kibbutznik standard, "we're going to give more to the one who really needs it." As long the parties themselves can identify a standard they go by into, whether it's an objective kind of thing like that Kelly Blue Book or whether it's something shared principle, as long as they can do that and identify it, it pulls the bargaining out of the zone of volitional tug of war, the battle of wills. And it moves it instead into a place where they can work together creatively to develop a good deal. And the final point in the appendix that Fisher-Ury make in getting the yeses, consider the BATNA. We call it the WATNA or MLATNA. You know, the best, worst, or most likely alternatives to negotiate agreement. So if you're making a deal and you start to think, "Okay, they've just made a proposal to me," but you don't like it. And think, "Well, if I walk away, what, where will I be? What will happen?" Say you've got a, you're doing, you're negotiating for a job in a law firm. You've been working in a reinsurance firm. You hate reinsurance, which you've been making, you know, $150,000 a year. Now along comes another firm and offers you the chance to do entertainment, entertainment law. And you have, all your life, been a secret rock and roller. And so, you love the idea of being able to do an entertainment law practice. How much should they offer you? Well, you're making 150 at the first firm. You could say, if they offer you 125, for instance, you could say, "Well, I'm making 25,000 more at the reinsurance firm. I'm gonna stick with it cause I need the money," or "For the $25,000, I'd rather be happier and move." But when you're thinking about it or if they give you a 150, it makes it a lot easier. But what if there's partnership, potentially one firm versus another? And so when we see deal proposals, what we do and frankly we do it unconsciously, but we can do it consciously, is we say, "Okay, if I walk away, where will I be? How does my place of walking away compare to what's being presented on the table?" And that is a way of assessing, you know, whether deal makes sense or not and it gives us bargaining strength. So, some takeaways captured by Professor Mnookin who comes also out of that, you know, Harvard Negotiation Project, I think was at Stanford also, whatever, are in his book, "Beyond Winning." He talks about three tensions that we find in this kind of bargaining, empathy and assertiveness, creating a claiming value, and principle and agent. So on the one hand, we wanna be able to be empathetic, to see and understand the other. How else can we learn about the interest to make the creative deal? How else can we get them to work with us? Unless we're really recognizing them, giving them understanding. But we need to assert just like, you know, that first quote from, we gotta be able to, you know, assert for our own interest and needs too. Similarly, the tension of creating and claiming value. In that distributive Susie-Sally set, we can expand the pie, you know, the integrative thing, or we can claim the value, try to capture the goodies. There's a tension in bargaining there too, the distributor approach. And he identifies as well, and this is key for us as representatives in the process, the tension of principle and agent. We lawyers are really agents relative to our clients who are the principals. They're the ones for who this is all being done. And sometimes, we think about the contingent fee example. You know, sometimes the lawyer's interest in, economic interest in getting payment of a third, for instance, might motivate that the lawyer to say, "Okay, you know, I think I can do better." You know maybe the client says, "I don't care, I wanna be done." Or maybe the lawyer says, "I don't wanna spend a ton of time on this. Let me get my third now." And the client says, "No, I wanna keep going." So there can be tensions between principal and agent. I'm not saying that that's what happens with contingent fees. I actually have a tremendous trust, candidly, in the honor of people in our profession more than is often stated, you know, humor and cynical comments. But nevertheless, these tensions are there. They exist and we've both seen 'em operating one way or another. And we gotta be aware of those tensions and be sensitive to what is our real role here as we are representing our parties in negotiation or mediation. So just very quickly, all of this, this model suggests that we've gotta be able to learn how to communicate effectively. You know, Columbia School ICCCR have this chips and chops model. The facilitators, the statements that make people feel better. Empathy, non-judgemental, acceptance, compliments, rewards as opposed to using insults and uncaring ignorance and rejection and threats. The inhibitor's ad homina that people can use. Let's watch how we talk. And people for years have talked about the benefit of active listening. You know, VECS, validate, empathize, clarify, summarize. Can we talk in a way that makes the person on the other side of the table feel like they're really being understood when they're talking with us? Okay, so these are some of the tips from negotiation theory that we now can bring into the mediation context. So, let's take a look. So, let's look at how we prepare for the mediation process. There's a ton of things that happen before we even get into the mediation itself. You know, where all the parties get together in a room or virtual room these days and work through, talk, and come to a deal in a confidential setting. So in preparation, we look at, you know, what is it? How do you deal with the mediator? How do you deal with the lawyers? How do you deal with your own parties? We consider, you know, how we kick it off? How do you pick the mediator? How do you talk in advance in the mediation? What information you develop? Getting mediation statements and, you know, writings with, you know, additional information over to the mediator to help bring the mediator up to speed with the parties. Maybe people need a demand, you know, in advance of the mediation, so that if their insurer is involved, they can price the matter and come in with actual dollars in pocket or maybe some information disclosures need to be made so that people can reduce the informational asymmetry when they're sitting around the table. They don't have to be disagreeing with one another over something that disclosure in advance could have eliminated the disagreement about. Making sure people are at the table, who are the right people, people with authority, people at the right level of hierarchy in the organization. And figuring out in advance with one's client who's gonna do what during the mediation. And maybe developing cues. Hey, if the lawyer, you know, lawyer, "If I'm talking, you know, do me a favor, don't talk yet." Or if you're talking to the client and I say, "Excuse me, maybe hold off talking. We can have a private powwow just to make sure we're not getting into a zone that we don't want to." Figuring out timing and logistics. You know, where's it gonna be held and when. So there's a bunch of things we do in preparing for the mediation. On mediator selection, keep in mind what is it you're doing. Who are you trying to pick? Are you looking for somebody who's gonna give you some Delphic pronouncement? But then find that the parties and lawyers don't agree and then what do you do? Are you looking for somebody who can really help you deal, build understanding and dealmaking, understand what your process? In the pre-mediation communications, there's all kinds. You know, there is the initial call where you're picking the mediator. There is a initial joint pre-mediation conference call or Zoom these days, where the lawyers might meet in advance with the mediator. And we're gonna talk about that in a sec. You can also have private calls with the mediator, where, you know, the mediator can learn all kinds of things about the parties, the dynamics, information on the case, you name it. The mediator is not decision making, you know, person. So, this is not an ex parte communication with a judge or an arbitrator. This is is doing the work of mediation. Mediator helping the parties and counsel themselves prepare and reflect, and build their own understanding so that they can move forward best in this process of building understanding and negotiation. So pre-mediation meetings can also take place and we can talk a bit about the statements. So, let's focus on the initial joint pre-mediation conference, Zoom or phone call. Typically, at least in my own pre-mediation meetings, I'll say the parties, you know, "Hi, love to hear from you in a nutshell what matters about really for the purpose of figuring out what if anything needs to be done between now and when we get together. So when we do get together, it's a fully productive session." So that nutshell that the counsel can provide, it's not like we win. It's really laying out the feel, the lay of the land, for everybody on the phone call, the mediator and the other lawyers on the call, assuming this is counsel on, which is most typical, at least in my own practice. So that people can start thinking about what needs to be done. Is there information that needs to be provided. That gets addressed often in that first call. Let's make sure we have the right people there, you know, the people with authority. Doing it jointly gives parties on the other side a chance to say, "Hey listen, if you're only bringing the CEO and we're bringing the, you know, chairman of the board, that's gonna be a problem." So of course, this has to be managed so nobody's really getting pissed off at each other while these calls are happening. And ultimately, it's the party itself, which has the call on who they want to bring to a mediation. It's just like a dealmaking session. You can't go tell somebody on the other side of you who's you're making a deal with, "Oh, I don't want Joe Blow, you know, thinking with you about how you're gonna make your deal." People make their deals the way they wanna make their deals, but people are often sensitive on that issue. And so that discussion is helpful to have in an initial joint pre-mediation conference call. The logistics can get picked, where are we gonna hold it, you know, the time. And also even, you know, beyond, you know, the pre-mediation statements can be addressed and we'll talk about that in a moment. And then, the, you know, beyond who's gonna be there, how they wanna open. It's not a bad thing to think in advance with the mediator. Are we gonna open with, you know, full blown openings by counsel, where we lay out our case? Are we gonna open with the parties talking? Are we gonna move quickly into show diplomacy after the mediator does the kickoff? How do we wanna do it? Many things can be done on that initial joint pre-mediation conference call or Zoom. Really what the goal here for mediators and also for council managing process is to maintain tone and atmosphere conducive to a productive discussion. And we're designing process, thinking in advance, you know, and maybe during the day of the mediation itself what's the agenda, what's the information, should we be taking breaks, who are the participants, what are their roles, you know, should we be in a joint session, should we be in caucus, should we see anything coming up that's gonna be a problem, can we design it in a way to avoid the problem. In a multi-party matter with 25 different groups of lawyers and parties, can we structure multi-days? So it's most efficient process and people aren't sitting around for hours wasting time. So in preparation, another thing for council to keep in mind is what do we do? We're preparing the client in advance. We can talk with a client about, "What do you care about? What are you looking for?" We can share with the client. This is a process of building understanding and dealmaking. So I'm not gonna talk like Perry Mason. The job here is not to insult the other people. It's to open minds, not to shut them. It's to keep them at the table, not to push them away. So that's what we're trying to do here. And then when we explain that to the clients, the clients can feel better about the lawyers and lawyers can feel freer to act in a way that's consistent with what the process is, rather than in a way that jars what the process goes of understanding and dealmaking. Talk with the client in advance. What's your BATNA? If we don't make a deal, what's our walk away? You know, what's our aspiration? What we'd really like to get? What's a reasonable takeaway? And where are we better off just kind of walking rather than sticking with something that's worse than our, you know, projection ahead of what might happen from a legal BATNA, what might happen in court, or from a, you know, life BATNA of where our business is, for example, if we don't make this particular deal. So you can do information, you know, development and game plans, all the stuff could be done with the counsel in advance. For the pre-mediation statements that counsel prepare, it's good to include core facts, law, really just to the extent, for me anyway, it's pivotal. So the party's negotiation and you know, where they're either gonna talk about it or where they're like likely to need for the mediator to help involve an assessment of the value of the matter. But not, you know, bullet plate stuff. Stuff on inter-party dynamics. The settlement history. It's good to know in advance. It's good for the mediator frankly to know in advance what's the settlement history. Because when people come to the bargaining table in mediation and now they go up from where they've been before or they go below where they've previously been willing to offer, that creates its own set of challenges. So, it's good to be aware of that. And frankly, thoughts for resolution. The extent we're comfortable sharing that with the mediator. The mediators really find it helpful. It can help us as we steer the process. And I'll always say to people, you know, who next will share key documents to air on the side of inclusion, rather get more rather than less. So that the mediator could be, as much as possible, up to speed with where a party and counsel are. So that during the day of the mediation, it's less of a first information gathering for stuff that could have been gathered in advance and more the fresh information and the management of the inter-party dynamics on the day of the mediation. So, we do wanna make sure we get the right people to the table. If they're not around, sometimes it's good, you can, in days of Zoom, we can always tell insurance adjusters just be available or you have cell phones people need to reach. Keep in mind, however we approach this, everyone has a role. It's not just about the mediator. It's not just about the lawyers and it's not just about the parties. Everyone's got a role. So for counsel, realize we can take an active role in advance in the preparation phase and throughout the mediation process. The mediator is helping everyone's own process, right? Not a judge or an arbitrator helping people engage in their own decision making. Okay, so if the mediator's not doing that, there's nothing wrong with the council trying to set it up to step in and gently and effectively. You don't want to alienate your mediator, but don't be afraid to suggest, "Maybe we should be doing this. Maybe we should have pre-mediation call. Maybe we should have private appreciation calls. Maybe I think it would be helpful at some point if the principal talk together." Personally, I once many years ago, suggested that in a pre-mediation statement to a mediator. And in the mediation, putting those principals together resolve the matter. So, we wanna know effective representation includes management of the process itself too. We are co-participants and we can make suggestions to the mediators. Just do it politely. But also take cues. The mediators helping pull the parties and representatives have their own silos, have their own biases. So the mediator's, you know, give you a little bit of pushback, feedback, you know, have your intent out to see what you can learn. Now when the day of the mediation comes and everybody's been settled in nicely with the coffee and Danish at the mediation table, there's an opportunity for folks to make opening statements. The mediator will do kickoff. But then afterwards, what do we do as representatives? And I would just put out to you just one potential model. There's a whole bunch of things people can do, but wanna keep in mind who are you and the client, you know, talking to? Is this really in the opening session that I talking to the mediator or you really try and make a deal with the people on the other side of the table? So, you wanna make sure you're talk in a way that's gonna accomplish that, build understanding of dealmaking with them. So what are you trying to accomplish here? Keep that in mind when you make your opening statements. So, I think it's helpful to start with this image of the open hand and the iron fist in a velvet club. 'Cause the open hand saying, "Hey, we're here to make peace. We're here, you know, to give you information. We're here to receive information. We'd love to talk with you and learn." And now you get the same time to say, "Iron fist in a velvet glove." In other words, showing your strength about offending people or, you know, creating negative reactions like, "Listen, we really do believe if we go forward into trial, you know, we've got a lot of strengths and we're happy to talk with you about that further today. And you know, it's X, Y, and Z. But really today, we're here looking to make a deal with you. It's gonna be expensive for everybody. We really think, you know, we've got confidence that if we put our heads together, we can figure out what makes sense in light of the overall realities, which could include your case strengths. And so, we're looking to find a way to make peace with you." So think about your openings. If you're gonna do an attorney opening, it's also an opportunity for clients to talk. But don't just shut it down out of cynicism and fear. Think about the opportunities that still exist for clients to speak during an opening session. So overall view on the handling of the mediation process. The joint session is a fluid thing. You can have it begin. It doesn't have to, you know, have an opening and then we run out. You can have people talking in insurance context, "Let's look a little closer on some of the issues here with this coverage matter." In a business context of, you know, commercial matrimonial, people are splitting. You know, we're thinking, you know, are we really sure we're separating? You know, maybe should we need to figure out first the ghost day. You know, are we really thinking about whether this is an issue? Is that our threshold issue? Should we stay together and reorganize? Do we stay together for one way or another? Do we split? Is that an issue? Or say they're clear, they're splitting. So if it were clear to me, the issues right now in the split are A, B, and C, clients and the evaluations and the property, whatever it is. And people can actually, in a joint session, talk through a ton of things at the beginning. There's a great fear these days about that. But if we handle it properly, it could be extremely productive. Also, keep in mind there's a freedom to caucus, those are the private meetings. But also to join other caucuses and also to come back into the joint session or to do the mix and match where we have attorneys talk with each other or we have the principals talk with each other, which often can be breakthrough moments. So, keep aware of the fluidity of the process and don't hesitate to suggest to the mediator a process move that you think could be helpful. And yet at the same time, be responsive to the mediator on this as well. So, how do we craft messages in a way that's effective? As we go through, how do we give our clients right along with client, how do we give our clients the ability to talk? Maybe in we're more comfortable in a caucus, in a private session, having the client talk with the mediator. Let the client give the mediator, you know, how what their life story, or you know, the business story, or what they're interested in. The mediator's not there to hurt you. The mediator's there to try to help you and help learn develop trust and rapport with the client. The mediators come in. They're entering a zone where there's been a trust deficit. Parties have deep distrust for one another. But in the mediation process and caucuses, one hopes that the mediator and client can build trust and rapport, and the counsel too. How do we do that? How do we as lawyers, we can be helpful crafting proposals? Let's think about what deal makes sense and how we deliver it. Do we couple it with, you know, case information, or business information? You know, the lawyers also manage commitments and commitment can have multiple meetings. Commitments at deal stages. In other words, when you make a proposal, you understand that once you've put it out there, you can always try to pull it back. But basically if you do, it shakes people's trust in you as a bargainer. And so, there is an element of commitment that's made with each proposal. How do we manage that and how do we manage the commitment level? In other words, at what point do people say, "I'm really ready to do a walk away 'cause I care so much about this deal." Mediators should have it, but counsel and parties frankly should too, patience and persistence. Keep going. Take it on the chin. Don't, you know, let a few upsets stop you from continuing in the mediation process. I often think that the, if there's one value mediator brings, it's keeping people at the table. Because as long as they're there, eventually people do make a deal. One other thing to think about is this great power for deal makers in silence. We can rest. Just listening, just gathering information, just waiting. At no point do you a representative or does your party, if you're in the room with the other parties or separately with the mediator, at no point, do you have to make a particular statement. You can wait. You're not stuck. And you can learn. I've got a note here on mindfulness. I think becoming aware of what's going on inside one's own emotions gives a sensitivity to the emotions of others and gives us a better fluidity and recognition of our own limitations when we get stuck on stuff. So something to think about. And of course we lawyers have a big role in bringing about closure. So, as we go through the mediation process, whether it's in the joint session or in the various caucuses, keep in mind that a lot of what we're doing in negotiation is dealing with the flow of information. Information's the medium of exchange in negotiation, in this facilitative negotiation. That's a mediation. So, you know, for mediators, it works for representatives and clients too. Listen, be alert. We're communicating, We're trying to figure out people's interests and issues, proposals, feelings, principles, values, rules, visions, stories, BATNAs. The mediator's gonna be interested in all of that. So understand that. And you know what? It's okay. It's actually constructive to let that happen. At the same time, as we are engaged with the other parties, keep in mind it's a little bit, when you're negotiating, like dating. If we act with trust and stating this, the other party can trust us enough to share some information. We wanna keep going. We wanna stay sincere. And frankly for mediators, we will use humor sometimes. Humor can't hurt in any context to lighten things up. So as we're negotiating with others, there's a tip in a book by Fisher and Shapiro, "Beyond Reason-Using Emotions As You Negotiate," that says, "Folks have five areas of core concern. If you step on 'em, they get pissed off. And if you stroke 'em, they're happy." They are appreciation, affiliation, autonomy, status, and role. So if people feel appreciated, they're happy. And the opposite, they're really pissed off. People like to belong. People like to make their own decisions. People like to have relatively high status and have a meaningful role. So think of it yourself negotiating in an employment discrimination context or in a business context where people's roles are affected or whatever it is. Be alert to how as you're negotiating with the other parties how what you do matters for them. And as I'd mentioned earlier, as we're looking at impact on others and on ourselves and on our clients, it's good to be aware that there's a ton of science out there and you know, social science, on how it is that when we're in the process of making decisions and in conflict where amygdala, the little, you know, lizard brain in the back of our heads is triggered with a fight and flight impulses. That all kinds of, you know, barriers to decision making can be affecting us. Now, there is anchoring. You know, the first thing you say, people tend to negotiate around it. There is confirmation bias. You know, you're with your team and everybody agrees your case is great. Well maybe, you're possibly just kind of reinforcing one another's bias. There's this dissonance reduction, cognitive dissonance reduction where, you know, if you have two different views, people kind of don't like the dissonance of having two different views, even though each one might have some validity. So they choose one to eliminate the discomfort of the other. And you know, false consensus bias, framing, fundamental attribution error, group think, loss aversion, optimistic, overconfidence, reactive evaluation. There's a ton of stuff on this. I would encourage you to at least be alert to it and sensitive to whether it might be operating within your group or within another. Throughout the mediation process and particularly as you get into the middle zones of caucuses, you're gonna find that the mediator's gonna be engaging with you in reality testing and with the other party as well. Reality testing could be of the BATNAs, you know, the what happens if you don't make a deal, including the legal BATNA, you know, making an assessment of risk in transaction cost. There are very formal approaches to this using decision tree models, which could sometimes be very helpful. But the very simple way of looking at a kind of, you know, a risk analysis is, well, let's say this case, if you win, it's a million dollar case and the likelihood of winning is 50-50. So, you know, 50% of a million, it's a 500,000 value, but it's gonna cost you transaction costs, it's gonna cost you 200,000 to litigate to get there. And say you're the plaintiff, don't think about the contingency issue. Then deduct 200,000 from the 500,000 and you've got case value of 300,000. So that kind of a process of thinking and reality testing on case strengths and weaknesses and probable outcomes, that can help people frame where they might be able to go. When the mediator does it, hopefully the mediator's doing it with a light hand and with an open hand. So that we, you know, now the representatives, have a chance to say, "Well, you know what? We would see it differently and share why." So, there is an interface of the mediator and the parties and counsel in the reality testing process. And it's that flow of information that enriches the models that produce the outcomes in a kind of risk and transaction cost analysis and similarly for deal analysis. But mediator might also reality test a particular point you're making, or, you know, a particular deal move, or the doability of a whole proposal, you know, and the impact of what's gonna happen if you make a move go in a certain direction. All that can be reality testing by the mediator and counsel can have a very good role there in providing information, being receptive, helping translate for the client. This is actually a good process. Because it's not that the mediator's doing anything to us or to our clients in doing the reality testing, the mediator's actually helping us think in a decision making process about what makes sense in light of those realities. And mediators know more than anyone else have a, you know, the lock on what is reality. We understand maybe perception is reality or, you know, there are multiple views of reality. There's always that image of the blind men and the elephant, you know, the Indian image where, you know, six different blind men touching six different parts think reality is six different things, a trunk, you know, a tusk, you know, a tree, you know, the tail, whatever. But it's a very useful process and we should be constructive in the way we handle reality testing when we're representatives. So when we engage in with a mediator, this risk analysis process, one of the things mediators doing is addressing what trainers Jeff and Hestia Abrams have called the FUD factor, fear, uncertainty, and doubt. People walk into the mediation process with these things going on. And frankly to some degree, engaging that risk analysis, if done, you know, in a deliberative way can give people feeling of control and maybe reduce some of this. On the other hand, for those with the optimistic overconfidence, you know, the zeal for their own case perhaps beyond bounds of where it ought to be, engaging in the reality testing process can help engender some fear, uncertainty and doubt. And get people to start to loosen up and consider that there may be is a different approach that they might be wisely taking. So as we're in the midst of these middle sessions now, we've be going back and forth and caucuses with the mediator, one thing to keep in mind is stay patient. When that mediator goes into the other room and is there for 40 minutes, the mediator's working hard. Let your parties understand that they're there and that this is part of the job. And it's actually good for you all because as the mediator's doing reality testing with the other parties, hopefully, they're making adjustments that that will benefit your own client too. Now, in this mid process, we've seen different things operate as people dial for the dollars. People will sometimes make high demands or low demands, low offers, and that's because they're looking to create some anchoring around where they want those, the deal to focus. We've talked about the bracketing. Sometimes when you're snagged and you got a big gap, maybe we representatives wanna propose the mediator brackets. Now when brackets are traveling, or whether it's using brackets, or whether it's simply the offer concession gap, you know, one party's offered 20,000 and the other parties offered, you know, demanded 150,000. In that gap we see, you know, a $65,000, 85,000 midpoint. And so, negotiate with insurance companies. The insurers often keep in mind the midpoint and they find midpoint messages. As the back and forth occurs, people often look at the midpoints. The mediators sometimes read the midpoints and do meta talk. Well, I see your bid point and say, brackets being X and I see the other parties midpoint and their brackets being Y, what if we go in the midpoint between X and Y? So there are ways to keep moving even when things seem to be snagged. Keep in mind pacing. Sometimes when one party takes a long time and then the mediator comes to you and you're ready with an answer, well, that readiness might signal who knows what that you've got even further room to move or it might signal that you're an effective negotiator and anticipated what was happening and plan ahead. But people do think about pacing and what messages it, you know, that conveys as well. Keep in mind also we can monetize sometimes a time term, for instance, can have an economic value. And so, you know, creative negotiators and that means representatives can be helpful in this way. Okay, so now I would like to share with you something that comes from what I think could be considered the bible for mediators, a 2,500 year old text, the "Tao te Ching," classic of the Chinese Daoist tradition. And frankly, if you get the chance to read it, it's great. If you ever wanna read a piece on it, I've got in my website, mediators.com, some articles including a chapter from a book on impasse breaking called, "The Technique of No Techniques," that draws on the "Tao te Ching.". For representatives, I'll share a couple, just a couple of quatrains from the, "Tao te Ching." "Prevent trouble before it arises. Put things in order before they exist. The giant pine tree grows from a tiny sprout. The journey of a thousand miles starts from beneath your feet. Rushing into action, you fail. Trying to grasp things, you lose them. Forcing your project to completion, your ruin what was almost ripe." So the effective representative in mediation, "Takes action by letting things take their course. Remains as calm at the end as at the beginning. He has nothing and thus has nothing to lose." So, the basic message here is you are in a process and the process is bigger than you. It involves your client, involves the mediator, involves other clients, and the other, you know, counsel. It's a process. So you gotta let it happen. If you push too hard, you can cause snags. Make your moves. Keep making 'em, of course, but go with this process. Go with it and be flexible. "Men are born soft and supple; Dead, they are stiff and hard. Plants are born, tender and pliant; Dead, they are brittle and dry. Whoever is stiff and flexible is a disciple of death. Whoever is soft and yielding is its cycle of life. The hard and stiff will be broken. The soft and supple will prevail." So this is advice, excuse me, this is advice for everyone really about being flexible. We can go in there. We can have our plans. We can have our, you know, information and we should be flexible enough to learn, keep learning. And encourage our clients and find a way to help them be comfortable with when people are very, very rigid, when they in a dispute and they're things they think they need and they're fighting, you know, for survival. But in the midst of it, to the extent we can, be flexible in the good way. Balancing, you know, empathy and assertiveness. But the way we can be flexible to be able to take our time, yield, receive the information, make adjustments, work with others, it helps wear supportive representatives. For today, core takeaway. Keep in mind everyone, parties, the other parties, lawyers on the aside, even the mediator, can be challenging. And we lawyers as representatives can help. You can study the process, provide insight, provide discipline. You can help with the legal economic analysis. You can help with the creating and claiming of value. We can engage creatively and with good information and the risk transaction cost analysis. We can help in the reality testing process. We can give support to the clients as they're engaged in the deal. We can think about the elements that go into the closure of the deal. All these things and more are things that we can do as representatives in the mediation process. So, I would like to thank you very much for your time. I know in the somewhat longer than typical piece. And you will note that I've shared with you, in addition to what's here, other slides. I like to come over prepared for these types of CLEs, but I do think you might find them as additional ways of thinking about how to be effective in representing client in mediation. So, please enjoy the process and use it as fully as you can. Thank you very much.