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  • CADRe: ESCAPE FROM SELF-INFLICTED EDUCATION Ten Points to Avoid Gambling With A Client’s Case
    them It is a powerful self protecting mechanism that we are born with We need to see reality in a way that best suits our needs and desires We are afraid that if we acknowledge for example that the other side has a good point it will demonstrate weakness on our part or legitimize the other s case and enhance their confidence Making Smart Decisions Harvard Business School Press 2006 This is not reality Where it is obvious the other side has a good point along with evidence or law to support it ignoring it or saying it isn t so causes a swift and damaging loss of credibility Argue with reality and you will lose Admit what is obvious Do it out loud And then explain why your client will nevertheless prevail or why it will not have the impact the other side believes it will Acceptance is not submission it is acknowledgment of the facts of a situation then deciding what you re going to do about it Kathleen Casey Theisen Also do not be distracted by disagreeable personalities Accept the other as they are If odd or offensive be amused not disarmed 3 Maintain Focus Not Being Sidetracked by the Immaterial Too many times we are distracted by inconsequential matters or events arising during interactions or exchanges It may be a rude remark or a fact or issue raised by the other side which is immaterial but nevertheless results in a negative emotional reaction Our focus can easily be lost when this occurs Allowing yourself to be sidetracked and lose focus impacts your negotiating power and allows the other side to diminish your effectiveness It s the same as diverting water from a stream The power of the flow is diminished We know from war history that significant battles were lost when attention was diverted from the main battle by small skirmishes started intentionally by the opposition There are varying ways in which we react under these conditions The fight or flight instincts engage These are fatal to one s effectiveness in negotiation Maintaining poise and remaining above the fray is always the best defense It is disarming to the other side Slip down to their level and you will fail 4 Be Organized and Prepared One of the worst offenses committed during mediation or negotiation is the lack of preparedness or lack of organization If you do not have all of your ammunition immediately available your effectiveness is compromised Facts evidence supporting law and crisp statements outlining your client s position and support for it need to be retrievable at a moment s notice It needs to be organized for easy presentation and understanding Failing to recognize the importance of this and following through before the mediation or negotiation session severely handicaps a client s bargaining power 5 If Things are Going South Don t Pretend They Aren t We must all learn to play the ball where it lies Bobby Jones One of the worst

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=88 (2016-02-13)
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  • CADRe: TRANSFORMATIVE MEDIATION STYLES THAT WORK IN LITIGATION AND COMMERCIAL SETTINGS
    just another battleground full of anxiety and grief Some transformative approaches in a typical tort case for example are as follows Recognizing who the players are and understanding their roles One way in which humans are able to vilify others is to demonize them Rather than using their names they are referred to by unflattering labels This does not mean that an attorney may not be less than truthful or a particular claimant unrealistic or dishonest An insurance adjuster may be trying to settle for below the true value of the case This is not always the case and blanket labeling and perceptions are artificial unnecessary obstacles thrown in the way of productive negotiations For example it may be worth going into the role of the adjuster and exploring the claims analysis and adjusting process When a plaintiff sees that the representative from the carrier is an ordinary human as is the attorney representing the defendant and they are undertaking their appropriate roles the negotiations can be more positive and productive Avoid the trap of labeling and unproductive cynicism If a plaintiff is overreaching and the plaintiff s attorney is unrealistic there are reasons They want more money than they should realistically expect Dwelling on these conditions yields no progress toward settlement No brain transplants can be performed during mediation Recognition of what is controllable and what is not is one key to escaping the floundering that occurs when the focus is on the unflattering characteristics of others involved in the mediation It is what it is now what are we going to do about it Understand it as best you can and then move on On the other hand most times opponents are not the villainous objects we at first perceive them to be We tend many times to lapse into to our default mode of projecting onto another what we expect of them before making the effort to find out what the other individual is truly like It does make a difference in negotiations to better understand those on the other side What is the situation really Not too long ago the Mar s Rover became stuck in sand This baffled the scientists The terrain was not that problematic On earth the Rover navigated greater obstacles An exact replica of the conditions in which the Rover was lodged was made and a sister ship Rover placed in the same position as the one on Mars It moved out easily Later it was determined that due to the difference in gravity between Earth and Mars the sand was not as compacted on Mars Thus the problem A rigorously honest exploration of the true circumstances of one s location is crucial Where am I really in all of this What are my realistic options How much will each cost What are my true chances or the potential outcomes Doing a simple plus and minus analysis is helpful many times especially under stressful circumstances where it is difficult to think clearly

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=75 (2016-02-13)
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  • CADRe: IN MEDIATION ARE WE THINKING WISELY OR MERELY REACTING?
    s just not what we do well The Chinese are stumped by our babbling The Arabs think it is barbaric T here is puzzlement at the way Americans don t so much listen as they wait for their turn to talk Fearless Negotiating Supra We can be different and do better Many tough litigators know they must take an intelligent approach when negotiating realizing that in most cases there is a stark contrast between doing battle and working to achieve agreement To avoid mistakes and wasting time it is best to spend time in or before a mediation to obtain a good read on the other If you are unable to do this the mediator will do it for both sides as it is a crucial factor necessary for mediators to be effective III Examples of Benefits of Exploration Prior to Engagement 1 Gaining understanding regarding the level of commitment to reach agreement 2 2 Evaluating whether the other will negotiate in a cooperative or hostile manner at first 3 Discovering the most important needs to meet if possible including the monetary and non monetary requirements 4 Obtaining a sense of levels regarding their a hostility or friendliness b fears driving their conduct c their understanding of your case and theirs and where they need to be educated d personality type e communication style and f level of sophistication and experience Questions and listening are like trowels in the garden They help you dig up information examine the soil and find out what will make the garden grow Fearless Negotiating Supra Emphasis Supplied Again these are necessary roles for mediators and helps lift a good deal of pressure off the attorneys and parties IV The Difference Better Understanding Makes When you and the mediator have accomplished this you are far better prepared to negotiate You have opened the vault to gold which allows you to best formulate strategies with the mediator to make progress more quickly and effectively You avoid common mistakes such as for example not knowing that the other is willing to be cooperative and ready to reach agreement one may use the standard default hardball approach to be safe This will likely cause the other to regress into the same mode Opportunities are also missed to dovetail components that will help satisfy non monetary needs required to reach agreement You should be able to rely heavily on the mediator to assist in this area VI Throughout History in Litigation almost all Cases Settle It is the Timing and Manner in Which Settlement Occurs and the Satisfaction of the Clients and Lawyers which has changed Research studies and statistics demonstrate that parties and usually counsel are far more satisfied maintaining control over the outcome of a case participating in fashioning a reasonable settlement and avoiding the expense turmoil and uncertainty of trial As opposed to the old fashioned settlement conferences where parties were mostly left out parties and counsel now work with educated experienced mediators Far better negotiation methods of have emerged resulting in earlier and more productive ways to resolve cases These methods are far more satisfying to the parties Satisfied clients return and spread the word VII Some Simple Adjustments to Improve Effectiveness 1 Cooperative Approach One of the greatest challenges faced by litigators in mediation is the ability and willingness to switch from a fighter to a cooperative negotiator Those who exhibit the highest standards of practice are generally practical and effective in the fight but do not lose sight of the value of reasonable cooperation and avoiding a hostile environment This is so even in the toughest of cases and with the toughest opponents It is frequently said by these top attorneys that they would much rather engage in negotiation with successful litigators possessing high standards of civility instead of those who need to puff themselves up due to fear feeling inadequate or as a cover to hide underlying problems And some are simply mean spirited as a rule Typically hostile litigators do not do well in negotiation or mediation The worst lack patience and the ability to approach negotiation wisely to achieve agreement Bullying and ego driven tactics rarely succeed against other good lawyers They are not intimidated A peaceful person lives in a peaceful world A hostile person lives in a hostile world Everyone you encounter becomes your mirror A principle observed by many including Ken S Keys Jr It is generally true that we get back what we put out If it is an unfriendly and hostile image the other will likely respond accordingly or simply walk away The opposite is true as well Demonstrating a cooperative and friendly approach the same is normally returned Even if this doesn t occur at first I find that persistence in being cooperative will generally wear out the other s hostility The reasons generally are first they see that hostility is not working second you haven t reacted as they expected so they give up Their hostility is neutralized They become cooperative 2 Positive Thinking and Action Being a winner is not what you do but what you are By being you will become R Mayer How to Win Any Negotiation 2006 If your mindset is one of confidence and you project a calm professional and friendly image your chance at success in mediation will grow significantly Thoughts have powerful effects on outcomes Napoleon Hill Think and Grow Rich 21 st Century Edition 2006 and 100 Ways to Motivate Others Supra Be and remain a positive thinker Negative expectations are a quick route to dead end thinking Maxwell Supra Ben Franklin wisely said Blessed is he who expects nothing for he shall receive it Numerous studies and research have demonstrated the power of positive thinking Several books have been written on the subject all with many examples of results that were negative or positive based mainly on whether the individuals thought positively or negatively about their tasks or ventures Think and Grow Rich Supra

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=87 (2016-02-13)
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  • CADRe: JUDGMENT AND DECISIONMAKING IN AN UNCERTAIN ENVIRONMENT
    evaluation They will continue to hold onto the belief that the judge or jury will somehow embrace their thinking and beliefs despite odds to the contrary It seems that once a public comment is made about one s view of a case we tend to see that choice as more worthwhile than we did immediately before we made the decision As a result we close ourselves off from information that suggests our choice may not be the best Harvard p 13 Social scientists have discovered for example that one deciding to make a bet at the track is uncertain at first regarding the potential of a particular horse This feeling dramatically changes however once their money and emotion is invested Suddenly the horse has the best chance of winning Harvard Supra p 126 On the other hand Las Vegas Odds Makers take a dispassionate and utilitarian approach in assessing the prospects of a win or loss by a horse or sports team For Example see Kahneman Choices Values and Frames p 106 In sports betting the House even factors in the expected difference in scores and adds that as a part of a bet The House wins most of the time as a result The House has acted dispassionately and used detached methods of analysis which provide better odds overall of picking the correct team and margin of victory We can learn from them Unfortunately we must first overcome the filters of our minds These filters govern which data lands on the active agenda of our consciousness and which gets shuffled off to the mind s dark corners Harvard p 72 This tendency leaves us with a skewed vision Supra p 73 V AVOIDING OVERCONFIDENCE OBJECTIVE ANALYSIS Individuals are mostly affected by psychological biases rather than actuarial or objective evaluation as described above The reality is that a sense of confidence in a particular choice does not ensure that the same choice would be made in another frame Supra p 7 In other words if individuals were to have switched sides or have no stake in the matter their level of confidence in the outcome would likely be different Many litigants and lawyers suffer from pseudo certainty where an event that is actually uncertain is weighted as if it were certain Supra P 9 Theories from these studies have demonstrated that various individuals are better at risk analysis and practical decision making than others But all must overcome their hard wired biases in order to make objective decisions Kahneman observed that Our review of research on individual risk attitudes suggest that the substantial degree of risk to which individuals and organizations willingly expose themselves to is unlikely to reflect true acceptance of these risks The alternative is that people and organizations often expose themselves to risk because they misjudge the odds Kahneman p 404 When it comes to organizations a group within the entity are highly susceptible to what is referred to as groupthink A group of decision makers can go very wrong when a we feeling of solidarity is running high its members fall prey to concurrence seeking behavior Harvard p 138 Decision bias runs highest in this type of circumstance more so than with individuals Supra Nevertheless frequent cognitive quirks tend to result in extreme optimism in planning Supra Kahneman refers to two methods of risk analysis One being referred to as the insider approach that which leads to bias and misjudgment and the other an outsider approach the inviting and embracing of realistic and objective thought including the assistance of outside analysis The outside approach more reliably frames the matter for an objective view as opposed to a group of insiders predicting risk when they are infected with biases p 405 Bad decisions overrely on intuition and emotions Harvard p 83 Nevertheless many attorneys are prone to reject the outside approach when assessing risk Kahneman Supra p 407 Clients and counsel also create perceptions of less risk when they perceive the risk to be vague To them uncertainty renders it more likely they have the advantage Therefore uncertainty vagueness and ignorance typically lead to overconfidence Supra VI STRONG PSYCHOLOGICAL AVERSION TO LOSS A significant problem arises also in negotiations and mediation due to the investment scenario It s similar to one who pays to join a tennis club only to develop tennis elbow He is advised not to play tennis for some time but plays anyway in significant pain unable to accept his financial loss One who thinks in this manner is prone not to settle because comprising when there is a financial and emotional investment represents a dead loss We are hardwired to abhor outright loss and will remain more apt to continue in the financial and emotional pain of litigation rather than recognize the benefit of reasonable compromise or the high risk of additional loss To act rationally and reasonably in negotiations and mediation where compromise is bothersome is difficult It become necessary for that party to make peace with reality and approach settlement on an objective basis As Kahneman points out unless a person is able to do this he or she is likely to accept gambles that would be unacceptable to him or her otherwise p 41 For example a couple must sell a home for business reasons It was purchased for 350 000 00 The true market value now is 275 000 00 Rather than accept the true market value and cut their losses they continue to pay the mortgage payments taxes maintenance and other expenses with the expectation that they will somehow get a higher price They won t rent the home because they fear it won t sell if rented They accept far more loss despite the very low odds of receiving the true sales value A practical and outside approach would allow them to make better choices The same problem arises in negotiations and mediation Numerous studies show that there is a strong overestimation component that comes into play

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=84 (2016-02-13)
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  • CADRe: LAWYERING WITH EMOTIONAL INTELLIGENCE- THE KEY TO GREATER SUCCESS AND SATISFACTION
    Their mental and other resources are devoted to positive thoughts and action Their minds are not cluttered with negativity and unproductive thoughts Where things go wrong these attorneys see it more as an opportunity to face and get through the circumstance with dignity and grace They don t make excuses or seek to pass out blame They realistically assess the circumstance and calmly take appropriate action They follow the course described in Ben Stein s book How Successful People Win He calls it bunkhouse logic When a cowboy finds that a well on his trail has run dry he doesn t sulk go into a rage or seek to assess blame He sees the circumstance as just a good argument to move on to another water source Attorneys and others with EQ usually stand out in their circles They are comfortable to be around Their clients trust them as do their opponents and judicial officers This is because this attorney takes into account the situation and feelings of everyone around him or her They react and communicate in a manner dictated by the results of their ability to accurately assess the perspectives feelings and perceptions of others within their sphere of influence Jerry Spence How to Argue and Win Every Time describes and explains the aspects of emotional intelligence for lawyers better than anyone He recounts his mistakes early in his practice where he failed to employ this quality After a trial where he had taken a witness apart in blistering cross examination a juror asked Spence Why did you make us hate you so much He had forgotten to take into account the potential reaction of the jury to the manner in which he presented himself He had not empathized with the jury In another example where he used EQ Spence describes his approach when filing a brief He pictures the judge and what it must be like to be that judge He thinks of how the judge must want to throw most briefs at the wall because they have to read so many lengthy boring predictable bombastic and unenlightening briefs On this topic Justice Wickson Woolpert once told me as I was preparing an appellate brief Dave make it interesting and short Abraham Lincoln displayed this quality in his statement that when he would be facing a man to influence him he spent two thirds of his time thinking about what the other would say and one third of the time thinking of what he would say Complete and accurate listening is crucial In the book Making Smart Decisions Harvard Business School Press the authors point out the filters of our mind that compel us to tune out negative information or information disagreeable to us When we do that we will ultimately fail Leadership experts point to this as the single worst trait of leaders who end up getting their company or the country in trouble The company Compaq suffered a huge downturn due to its leaders failure

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=86 (2016-02-13)
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  • CADRe: THE DREADED IMPASSE: SOME KEYS TO AVOID IT OR TO HANDLE IT EFFECTIVELY IF NOT AVOIDED
    is necessary to aggressively fight and do battle rather than determining first whether this will in fact be productive The difference between an aggressive competitive approach and one that is more cooperative is when one or both sides view compromising as a losing strategy The negotiation becomes a test of wills and frequently involves tactics of rudeness intimidation and one upmanship Emotions run high As they do adrenalin causes the blood levels in the brain to diminish as it goes to the areas of the body that support our instinct to fight or flee Rational thought becomes more difficult or non existent These circumstances produce the greatest risk of impasse that cannot be overcome unless there is a neutral who is experienced in assisting parties in breaking this pattern and moving the parties to a more cooperative approach and also assist them in rational analysis of their BATNA the risks involved and what is best to meet the realistic and achievable goals of the client Before the plug is pulled when unnecessarily competitive conduct puts the parties at impasse the mediator must have the experience and expertise to recognize the difference between hard negotiation tactics and hopeless bad faith behavior that cannot be altered no matter the efforts made to do so Experienced mediators have all dealt with extreme demands and offers The two coming to mind for me are one case where the demand was 2 000 000 00 and no offer was made in response and another where the client was convinced she should receive 33 000 000 00 in a soft tissue case Both cases and many more where there were extremes at the outset settled We are able to handle extreme or aberrant behavior so it would be a mistake to end a mediation just because parties are being difficult in the beginning This is different however than a party having no intent to settle but is using the process to obtain free discovery gain an advantage for future negotiations or to simply intimidate the other side When this becomes patently obvious it s best to end the process and not waste more time and money SOME EFFECTIVE WAYS TO HEAD OFF IMPASSE Research and experience demonstrate that preventing impasse begins long before the potential deadlock arises It begins with the attorneys Informed and experienced lawyers will prepare themselves and their clients to approach the mediation process in a cooperate fashion This does not mean in a weak or surrendering manner but simply that they will employ those strategies that will demonstrate that they wish to be cooperative with the other side in finding a solution to the common problem they face that is they wish to settle and will work with the mediator and other side in good faith to find a reasonable solution An appropriate opening statement would be for example We are here in good faith and will work with you and the mediator if you will do the same By employing this

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=85 (2016-02-13)
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  • CADRe: DEVELOP A STRATEGY FOR NEGOTIATION—A GUIDELINE FOR ACHIEVING SUCCESS AT MEDIATION
    these possible curve balls take time to educate the client how this could play out under multiple scenarios This will give the client a better appreciation of how concessions can be made compromises reached and alternatives presented so to keep the dialogue open candid and productive If a client goes to mediation and all of a sudden feels that the other side has presented something unexpected the client may pull back becoming unwilling to further negotiate wishing instead to withdraw from the mediation Presenting potential hypotheticals of how the mediation can play out will make it easier for the client to participate without becoming discouraged Another advantage of pre playing hypotheticals is that it allows the attorney to demonstrate how to respond to offers and demands In essence you give the client a chance to role play the negotiation using imaginary formulas without the possible stress of a mediation setting From this type of role playing the attorney gains by doing a rehearsal of sorts with the client to find options for the bottom line The possible increment adjustments of numbers or likely concessions to be made will already be presented to the client in this imaginary setting allowing the attorney to get a sense of the client s approval or disapproval for give and take tactics Plan for Alternatives in the Negotiation When the going gets rather rough in the settlement discussions it is always good to have developed alternatives in your strategy or have some alternate angles to follow This can be described as your BATNA or Best Alternative To a Negotiated Agreement as discussed by the authors Roger Fisher and William Ury in their book Getting to Yes Your BATNA can be used as an alternative when at one time earlier you might have considered it to be unavailable or unwilling to approach However due to changes in circumstances you are placing the BATNA on the table as a possible option The BATNA can allow for flexibility and imagination in negotiations BATNAs can take the negotiations outside the box for more creativity The intended purpose is to keep the negotiation process going Considerable work and effort has been expended and there is no reason to get discouraged and walk away Stalemates impasses and roadblocks are often encountered in the negotiation dance Then what If the BATNA does not resolve the gridlock many times what ifs can unclog the blockage For a case that relates strictly to the payment of money this idea can often be characterized as bracketing Here you are merely offering suggestions for the other side to consider For example what if we go to fill in the blank will you go to fill in the blank or if we are willing to do again fill in the blank are you willing to do fill in the blank The what ifs are used to test parameters of each side and find how much one is willing to bend in respect to the other There is

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=83 (2016-02-13)
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  • CADRe: GET A HANDLE ON YOUR CASE - A GUIDELINE FOR ACHIEVING SUCCESS AT MEDIATION
    of the case prior to commencement Brevity is always appreciated but more details are helpful And get it done well in advance instead of just a day or two before the mediation As for the outline this is intended as a reminder throughout the course of the mediation Utilizing bullet points this condensed outline can highlight essential facts witnesses reports case strengths and weaknesses This will keep participants on track for their own direction in order to stay with the big picture of the entire case Often during the course of mediation information is presented by one side or the other that may be viewed as unnecessary and unwarranted resulting in mental distractions and for some a waste of time Using the short condensed outline maintains focus throughout the entire mediation irrespective of what is actually discussed by the other side Use Confidentiality as Your Tool Rules of confidentiality should not be viewed as a hindrance to discussions When parties unfamiliar with mediation first hear the word confidentiality they sometimes become withdrawn believing all information should now be secret and protected from disclosure They take on an almost hush hush don t tell attitude Evidence Code 1115 1128 set out confidentiality for mediation Become familiar with these statutes Case statements can easily be titled confidential preventing any and all disclosure to the other side If that is your choice it will be followed by the mediator In the joint and or the first private session confirm with the mediator the guidelines of confidentiality that you want used If this is not done inadvertent disclosures could happen causing potential harm in the handling of your case Many mediators work on the understanding that what is shared in private session will be disclosed to the other side unless instructed otherwise Be sure that the mediator understands your requirements for confidentiality including any reports or exhibits that may be attached to your case statement Confidentiality often gets confused by inexperienced parties as a form of secrecy similar to that with international diplomacy Use confidentiality as a tool to allow for candid discussions Do Research of Law and Case Value Prior to mediation research should be conducted in order to assist the direction of the case This should include recognizing what the other side will present by way of potential motions in limine and jury instructions Anticipate attacks on your case strengths and be ready to rebut claims of weaknesses Be sure to have handy references to discuss any credits offsets liens discounts responsibility for breach of contract mitigation of damages and comparative fault Bring specific deposition testimony excerpts discovery responses reports case sites and or statutes for presentation to the mediator This work will take a small amount of time to help make for a very productive and beneficial mediation In addition to doing a work up on legal research look for verdicts and settlements of same or similar cases Merely bringing monetary values without factual support can produce unfavorable results in negotiations

    Original URL path: http://www.sbcadre.org/article/detail.asp?artID=82 (2016-02-13)
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