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Commercial Mediation Part IV: Opening and Joint Session, Caucus, and Generating Movement

1h 3m

Created on February 27, 2015

Intermediate

Overview

We have seen how preparation can make a major difference in the development of an effective mediation.  So, too, the first touch of the mediator's opening statement at the commencement of the in-person mediation session can set a tone for the process. Setting expectations and orienting persons toward dialogue that can build understanding and move towards a deal at the outset is key.  Through an opening statement delivered in joint session, the mediator sends the participants an encouraging message through both verbal and non-verbal communication that these conflicting parties are all in this together; that they are all persons of good will and capacity, who will identify the issues and work things out.

 

In Part IV of Mr. Baum's Commercial Mediation training, we consider ways of setting up an opening joint session - whether by an initial caucus or through pre-mediation discussions - and review various components of an effective first joint session and opening statement.  To this end, Mr. Baum demonstrates an opening statement by the mediator.  

 

In addition, Part IV reviews ways to maximize the use of joint sessions through continued dialogue and information exchange and looks carefully at the deep potential of joint session both for the initial session that launches a mediation process and for later uses as well.  

 

Part IV also continues reflection on the debate sparked by Himmelstein and Friedman's joint-session only approach, and explores ways to use the rich potential of caucuses. We look at the SWAP/LION methodology developed by trainers Jeff and Hesha Abrams for organizing discussions in various stages of caucuses (Strengths, Weaknesses, Alternatives, Perspectives/List Interests, generate Options, and Negotiate), and consider differences in early, mid, and late stages of caucusing in the mediation process.  

 

Learning Objectives:

I.    Prepare parties and counsel for a productive opening joint session

II.   Understand and communicate the potential, and effective uses, of joint session

III.  Burnish your opening statement and elicit helpful opening statements from parties and counsel

IV.  Enhance effective communication among parties in joint session

V.   Learn how to handle emotionally charged parties and situations

VI.  Consider the pros and cons of joint session and caucus

VII. Review various productive uses and opportunities of caucus, including:

            a. Party self-reflection 

            b. Expression of emotional issues to a compassionate listener

            c. Ascertaining parties' interests in safe forum

            d. Recognition of other parties' perspectives in safe forum

            e. Candid case analysis 

            f. Candid analysis of BATNA, including case transaction cost and risk analysis

            g. Safe crafting of deal proposals

            h. Reality testing

            i. Safe consideration of the value of proposals from other parties

VIII. Review the SWAP/LION model for various stages of caucus

 

 

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