10 Thanksgiving Survival Tips From A Mediator

Posted on November 22, 2011 by stevemehta

By Steven G. Mehta

I want to wish everyone a Happy And Blessed Thanksgiving.   However, not all Thanksgiving Experiences are happy and blessed.  For those of you who may be worried about having the less than perfect thanksgiving, I thought I would give you some Mediation Thanksgiving Tips to Help you with that Challenging Family Member.

 

Hit the Pause Button

I know Uncle Arthur is the family curmudgeon and he is going to comment negatively about  something.  You know it is going to make you angry.  The solution is to hit the pause button on your reaction.  When the comment comes out, take a second, minute, or even five to react.  Many times you will find out that you don’t need to react after you have paused.  In mediation, many hostile things are said.  Pausing will help to manage the reaction and help you to not overreact.

Mental Mantra

In the movie, Point of No Return, Bridget Fonda is being trained as a spy.  She was training to be placed in very difficult situations.  Her trainer said, “whenever things bother you, just say something like, “I never did mind about the little things.”  Well when things get tight, find your own little mantra that you can either say out loud or internally.

Keep Them Talking

Sometimes all the challenging family member wants is to have a forum to talk.  So rather than doing something to shut them up, let them talk.  Ask questions.  By asking questions, you can help to lead the conversation in a direction that is more suitable to your needs.

There Is No Place Like Home

In the Wizard of Oz, Dorothy keeps repeating that there is no place like home.  Well the same is true for you.  “It is only one day.  It is only one day.”  “There is no place like home. – meaning soon it will be over and you will be home.”

Savor A Raisin Before It Starts

One study found that by savoring the flavor and taste of a raisin and being mindful of that experience, people were dramatically less likely to retaliate against personal attacks.  Take something you like such as coffee, wine, or chocolate and savor it before you open the door for the Thanksgiving onslaught.  If you don’t want to savor that, simply listen to calm relaxing music and focus on your breathing.  Big deep breaths for 5 minutes.  Another study found that focusing on your breath can help combat stress when it comes.

 

Tag Team Wrestling

If a member of the family bothers you, the odds are you are not alone.  Find that person and play tag team wrestling.  Enter into an agreement that you will help each other when things get bad.  When you have had enough, find your partner, and tag him or her just like in wrestling.  Maybe you can even be like a famous Luchador team and double team the person.

Invite “Buffers.” 

There is nothing so good at forcing the challenging people to behave as having a stranger amongst the company.  Remember the old saying, “familiarity breeds contempt.”  Well “unfamiliarity breeds politeness.”

Take charge of seating.  Put people who hate each other at different parts of the table.  Don’t let the guests choose.  Then have the younger kids make place cards and place their cards at the spots.  It is very hard for adults to attack a seating assignment when a 7 year old child has made it especially for them. Seat the most challenging persons near you and your wrestling buddy.  This way you can steer the conversation.

Provide escape routes.

Make sure that people have different spaces to congregate or go to.  If you see someone being overwhelmed by a challenging family member, ask them to help you with something.  Create activities for the challenging person or for the escapees.

Reward Yourself.  After it is all over, sit down and pull out something special for yourself that you have saved before the holiday.  Maybe it is a nice glass of wine, port, or piece of pie.  Tell some of your wrestling buddies to stay for the After Thanksgiving party.  Commiserate and laugh at the the funny moments.

Remember that you can choose your friends, but you can’t choose your family.  But without such family, you wouldn’t be who you are.

 


Posted in argument, dysfunctional, family, holiday, Mediation, social science, solutions, suggestion, thanksgiving, tips | Comments Off

Major Mistakes In Mediation Briefs

Posted on November 22, 2011 by stevemehta

By Steven G. Mehta

It is never ceases to fascinate me that there are so many styles of providing mediation briefs.  Recently, I   received a brief that screamed “I don’t want to do this case.” As a result, I thought I might give some of the biggest mistakes in mediation briefs.

 

Don’t Know Your Target Audience

First, before you write your brief, you must consider who is your target audience?  If you write a brief without such focus, it will not be persuasive or useful to anyone.  Typically, you possible audiences are the mediator, the opposing lawyer, the opposing client, or your own client – or some variation and combination of those.  Given the different targets, you might consider different briefs – such as a confidential brief for the mediator and a public one.  One counsel wrote briefs that were informational for the mediator, but intended to show his client that he was an advocate for the client’s position.

Wait Until the Last Minute to Let the Other Side See Your Brief

If you are writing a brief for the opposing counsel or client, make sure to have it to them well in advance for them to consider.  If you send it to them a few days before the mediation, they won’t have time to digest the information.  Consequently, the decision that you want them to make can never be made in such short time.

Provide a Four Page Introduction

Make an introduction just that; not a full factual story.  The introduction should quickly summarize in no more than two paragraphs the theme of the case, the key facts, and the emotional appeal.  It should not be a full statement of the case.  It should tease the audience into wanting to read more and not just stop at the introduction.

Provide a 32 Page Brief

Be Concise, Clear and Short.  One time I received a brief that was 76 pages.  After a while the mediator will not be able to digest all the facts and information that you are providing in the treatise on Doe v. Roe.  The more concise you can make the brief, whilst communicating the message of the case, the better.  Consider the brief like a motion in court, there is a page limit.

Don’t provide any Legal Authority

The mediation brief needs to address the factual and legal issues in the case.  Some cases require less legal analysis.  For example, a PI auto case might not need Prosser’s treatise.  But on the other hand, an employment case might need more specific authorities.  When citing to law, it is helpful to cite specific cases that address the specific legal points and not just generic legal authority.  Also, when citing to cases, it is very helpful to quote the actual case and not just your own conclusion.

Make Claims in Your Brief that Can’t Be supported

In the movie Top Gun, Tom Cruise (Maverick) was being chewed out by his superior officer and the Captain shouted “Maverick, You are writing checks your body can’t cash.”  Well, don’t write checks in your brief that your case can’t cash.  Credibility is critical in mediation.  You need the other side and the mediator to believe you.  If you make claims that aren’t true, you will have lost all credibility.  Generally, overstating a case is a sign of a weak case.

Don’t Provide Any Backup for Your Assertions

One simple and persuasive thing that can be done in a mediation brief is to support your claims with evidence.  If you claim that a witness stated something in deposition, either attach the relevant portion or quote it in the brief.

The mediator doesn’t know what fact is or what fiction is.  Having the backup for everything you say in your brief can help the mediator evaluate your strengths and weaknesses.  In one case, every factual statement was supported by a document.  You would be surprised at how credible and impressive that is to a mediator.  It is hard for the other side to argue about the facts.  They can argue the meaning, but they can’t argue the facts.

Depending on the case, consider cutting and pasting the evidence directly into the brief.  One attorney submitted critical pieces of evidence directly into the brief.  As a result, when reading the brief, the reader did not have to flip to the back to see the evidence.  It was right there in front for everyone to see.  The message it sent was: “I know I have the goods.  Do You?”

Copy Your Pleadings Directly Verbatim

Perhaps this is my pet peeve.  But it drives me nuts when I start reading the brief and I see allegations that are just out of the complaint.  You might as well say, “I didn’t have time, nor do I care much about this case, so here it is.”

Make No mention of what has Happened in Prior settlement Discussions

Many times, there have been settlement discussions prior to mediation.  It is helpful for a mediator to know those discussions.  Sometimes, when both sides discuss the settlement discussions in their briefs, it is obvious that there is already a disagreement.  In one case, one side stated that they would settle the case at the end of the day for $100,000.  The other side interpreted the discussion as a starting spot.  Having that information beforehand can help the mediator prepare for the mediation.

Even if the discussions were informal, it is very important to raise those to the mediator.

 

 


Posted in brief, effective, good, Mediation, mistake, mistakes, persuasive, suggestion, suggestions, tips | Comments Off

What Grade is Your Settlement?

Posted on November 16, 2011 by stevemehta

By Steven G. Mehta

Many times when parties to mediation talk about the settlement value of a case, they talk about one number.  The case should settle for $100,000, or $50,000, or whatever number is at issue.  However, all too often that single number is a flawed method of helping you to figure out the best negotiating strategy.

First, it is important to note that there are many factors that go into deciding the value of a case.  This discussion is not intended to address that concern given the multitude of factors that affect the valuation.  Instead, once the value has been decided, we should discuss what should be done from there.

The reality is that instead of deciding a number, parties should really discuss a range of numbers.  Often times focusing on one single number as an outcome gives you a deceptive picture of the true negotiating picture and result.   There should really be 4 or 5 numbers that you should consider as part of your preparatory strategy before the mediation.

Think about a grade for your settlement.  A through F.

A – This settlement would be Awesome.  If I got this, and kept this up, I could make partner in a year.

B – Bravo.  You settled the case for a good number and you’ll get some high fives back at the office.

C- Could Do.  You could Easily Settle For this Number and No one would blink an eye at you.

D- Difficult.  You would have a hard time selling this settlement, but it’s not impossible.

F – Forget about it.  You suggest a settlement like this, and you might as well start looking for another job.

Let’s put this thought process into action.  You have a case that you previously spoke with your client about and you have received authority for and you believe $100,000 is the settlement number that you would be willing to pay to settle the case.

  1.  If you got an A settlement, maybe that number would be $70,000.  Wow wouldn’t that look good on your performance review.
  2. A B settlement might be $90,000.  Good job.  You worked hard on this one.
  3. A C settlement might just be $100,000 or a dollar below that number.  After all, that is what your client authorized you to do.
  4. A D settlement of $115,000 might be difficult for you to sell, but if push comes to shove, you might be able to help to get it done.
  5. Finally, there is no way that you could ever settle the case for $125,000.  That is a clear F.  Your boss knows it’s a recession and there are a thousand lawyers looking at your job.

Now that you have evaluated your range, you can fairly help to change your negotiating strategy.  Maybe, you should making a push to get $70,000.  However, not all cases are awesome; not all settlements are going to be great.  But, it’s worth a try.  Maybe, you should set your sights on $90,000 instead.  This number seems so much more achievable, and is still a great result.  After all, even the best batting average don’t bat a thousand.

This process can also help you over the long term in evaluating your negotiation success.  If you look at all your cases this way, and you are consistently getting C settlements, then maybe you need to think about trying to change your expectations.  On the other hand, if you are consistently getting A’s and B’s and once in a while a C or D, then that paints a completely different picture.

The reality is that settlements are not pass-fail, but instead graded on a spectrum.  By chaning your perspective, you might also have the added benefit of getting better resolutions to your cases.


Posted in a, amount, b, c, calculate, d, f, grades, identify, Mediation, negotiate, negotiation, preparation, range, settlement, value, values | Comments Off

Collaborative Law: High energy, out of the box legal creativity

Posted on November 14, 2011 by Michael Zeytoonian
International Academy of Collaborative Professionals (IACP) held its 12th annual Forum. As always, this Forum was an amazing event, four days of insightful, profound and transformative thought in the legal profession.
Posted in Collaborative Law, Collaborative Mediation, Collaborative Processes, Dispute Resolution Resources, Family Law and Divorce, Mediation | Comments Off

How To Receive Criticism

Posted on November 7, 2011 by stevemehta

By Steven G. Mehta

There comes a time in every mediator, litigator or person’s life when somebody that you have a relationship with — whether it be business or personal — gives you criticism.  How you react can make a huge difference.

The criticism I speak of is not criticism that you know is coming and expect (and perhaps agree with).  But instead, criticism you receive that you weren’t expecting and that you may not necessarily agree with.

First, it is important to understand that receiving criticism is never fun.  It always affects you.  Some people get angry, others get defensive, some people go inward.  But there is no doubt that it will affect you.  I believe that one of the reasons we react so negatively to such criticism is the fight or flight phenomenon.    This phenomenon comes from our stone age ancestors that had to make instantaneous reactions to threats:  Do we fight or take flight?  We still carry those instincts with us today.  The fight or flight reaction can be triggered when anything threatens us:  Our ego, our self worth, our self perception, and so on.  The modern person’s flight or fight reaction is to defend his or her actions or to take the attack against the beast that dared to threaten us.

Second, there is a difference between criticism by a person who is trying to help and a person who is trying to be destructive.  If you are receiving criticism from someone who is destructive, Buddha has some advice for you.

“A man interrupted one of the Buddha’s lectures with a flood of abuse.Buddha waited until he had finished and then asked him, “If a man offered a gift to another but the gift was declined, to whom would the gift belong?”

“To the one who offered it,” said the man.

“Then,” said the Buddha, “I decline to accept your abuse and request you to keep it for yourself.”  (found at the Postivity Blog).

Sometimes, you have to decline to accept the abusive behavior.  But, How?  It is difficult to say, “I don’t want to hear it.”  But you can listen until they stop.  You can move away from the conversation.  You can also thank them for their thoughts, and tell them that you will consider it.  This does not, however, mean that you accept it, but that you will consider it.  You can choose to reject the advice or criticism.   Sometimes simply thanking the other person will allow them to feel that they have been heard and they can move on.

What, if however, the advice is not destructive but intended to help.  It is important to consider that people who don’t care, don’t give advice or comments.  Think about it, your mother or father criticizes because they care about you; your spouse comments because he or she cares, and a person in business with you who takes the time to criticize cares.  They would like to continue the relationship with you.  They want to make you better.  If they didn’t care, they wouldn’t even bother to take the effort to criticize.

Remember, giving criticism is hard.  People don’t like to give criticism.  Recently, I had 2 separate occasions in two completely different circumstances where I received criticism.  At first, the way that both gave such criticism was “rough.”  It initially set off my fight or flight reaction.  But as I sat down and thought that these two people who I knew very little about took the time to provide me with criticism, my instant fight or flight reaction went away, and I was intrigued to understand the reason for their criticism.

I listened to the criticism intently.  I thanked them for their criticism and then went home and considered it carefully.  In one of the circumstances, after carefully considering the comments, I agreed with some of the criticism but not all of it; Nor did I agree with the conclusion.  But the fact that the person made the comment ultimately reflected the fact that she liked me, wanted to continue to interact with me on other occasions, and needed to make sure that I knew that something I did made her feel uncomfortable.  That criticism was valid, and was more of a plea for help.

In the other circumstance, I again agreed with part of the comment.  I even told the person that I agreed with part of his comment, and appreciated his thoughts.  I suggested that after ruminating on his statement, I understood why he made the comment and appreciated the thought even more.  His response was, “That’s what friends are for.”  What amazed me is that I didn’t consider this person as a friend, but more an acquaintance at that point.  But now we were friends.

As Benjamin Franklin once pointed out, nothing can make a friend faster out of an enemy than the enemy giving you a gift.  Here both persons that I didn’t know too well, now became friends because of the gift of a criticism.

So the score at the end of the day:  Two critiques, Two changes in a part of my behavior, Two Friends.  Not bad for something that could have gone so wrong.


Posted in argument, care, caring, criticism, critique, giving, handle, how to, Mediation, mindfulness, negotiation, receiving | Comments Off

What is the Reason For A Mediation Not Resolving a Case In The First Session, You Answer?

Posted on October 31, 2011 by stevemehta
View This Poll
Posted in negotiation | Comments Off

Which Came First, The Chicken or the Egg?

Posted on October 30, 2011 by stevemehta

By Steven G. Mehta

It has been several months since I have last written, and I thought I would get back into writing.  Some of the reasons that haven’t written were vacation, burnout, family crises, busy life and practice, and other issues.   I also found that writing was important to me for my own education and self growth.   So therefore, I am now back.

The question I have is which came first the chicken or the egg?

It’s a question that has plagued man for centuries: Which came first, the chicken or the egg?

Well, scientists in England say they’ve found the answer: The chicken!

Researchers wrote in a recently published report that it all comes down to one protein – ovocledidin-17 – which helps in the formation of the egg’s hard shell.  This essential ingredient in the formation of the egg can only be produced inside a chicken, scientists from universities in Sheffield and Warwick concluded.

But what does this have to do with mediation?  Everything.  In mediation, often times both sides will start off with initial offers that are extreme.  Each side invariably states something to the effect that “the other side’s position is so unrealistic that mediation is not worth it.”  The other side responds, “Our position is such, because they won’t make a reasonable demand/offer.”  Well which one came first, the unreasonable demand or offer?  Probably both.  Each side reacts to each other and to what they perceive the other side will do.  So sometimes even though one side made an offer/demand, they are in fact reacting to what they percieve the other side might do.  Thus which came first, the chicken or the egg?

The other issue with the chicken and egg is the fact that you can debate that topic for a little while, but at some point the debate becomes meaningless and the parties need to be able to move beyond that debate otherwise the case may never settle.  Here are some thoughts as to how to move beyond that:

Ask the parties to change the style of negotiating.  Maybe change the way the offers are made such as going to hypothetical offers/demands or brackets.

Help the parties to understand that the chicken and egg discussion won’t change the nature of the settlement process.  Suggest that someone has to go first and since the next offer/demand is not your final, if the other side doesn’t respond back fairly, you can “put on the brakes.”

Let the parties know that you understand that they came here in good faith and that the other side did also, but both sides are afraid to commit.

Suggest that if the other side started at a billion, that such a number would not dramatically change what the value of the case.

Suggest that your side has an evaluation of the case, and just communicate offers/demands in light of that evaluation irrespective of what the other side does.

The key is that there needs to be some way to break the logjam.  As a mediator or party, you have to be able to give some basis for why the change in position will occur.  So long as you keep trying to find such a rationale, the process is working.


Posted in breaking, chicken, egg, impasse, logjam, Mediation, mediator, negotiation | Comments Off

Is it, or are we, really that important?

Posted on October 4, 2011 by Michael Zeytoonian
We often notice things about people and their cell phones, which have now become a body part for many.
Posted in Business, Core Values, Perspectives | Comments Off

How we view information exchange is at the core of efficient dispute resolution

Posted on September 19, 2011 by Michael Zeytoonian
Are the parties willing to focus on resolution by intention and design and not go to court? What is the most efficient process (the best fit) for your particular dispute situation?
Posted in Case Evaluation, Collaborative Law, Collaborative Processes, Dispute Resolution Resources, Mediation, Sustainability | Comments Off

Why don’t more people use Collaborative Law?

Posted on September 8, 2011 by Michael Zeytoonian
Collaborative Law (“CL”) in civil disputes other than divorce cases have been brainstorming about the expanded use of CL in employment, business, probate, construction and other areas of law. In the spirit of transparency that is an important element of CL
Posted in Case Evaluation, Collaborative Law, Collaborative Mediation, Collaborative Processes, Dispute Resolution Resources, Efficient dispute resolution, Mediation, Preserving Relationships, Sovereignty of the Client | Comments Off