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There comes a time in many a mediation when it appear that talks have come to a halt. In Part V of our Commercial Mediation series, we explore various methods of moving parties and counsel from being frozen in their communications, proposals or bargaining positions to return to creative negotiations. The methods and skills considered include reframing, reflection back, "stroking," normalizing, changing the agenda, use of standards and risk analysis, bracketing, conditional offers, baseball arbitration, neutral evaluation, the mediator's proposal and more. We also include a discussion of the "technique of no technique" - the critical role of something greater than any skill or technique in resolving an impasse.
In addition, Part V looks at the elements of risk analysis and examines the benefits and subtleties of this mode of exploring case strengths and weaknesses. We consider the theory and nature of risk analysis, with includes characteristics of both art and science. We look at the importance of information gathering as a prerequisite for this process. Apart from the information itself, participation in information gathering and assignment of risk values generates the "buy-in" of parties and counsel. Risk analysis enables the mediator to generate a case assessment that arises from collective effort, rather than being identified with the mediator as a product of his or her unique perspective, judgment and experience. It can be a collaborative process consistent with the nature of mediation, preserving the mediator's appearance of neutrality. We run through the stages of developing a risk analysis, with events, decision points, values, probabilities and outcomes. We consider its supporters and detractors, its potential and limitations.
I. Identify and diffuse signs of impasse before the freezing or breaking off of talks, keep people at the bargaining table, and restart talks
II. Become familiar with some common impasse-breaking techniques, including:
a. Reflection back
f. Conditional offers
g. Mediator's proposal
III. Appreciate the power of orientation, presence, deep listening, and genuine connection to overcoming an impasse
IV. Understand nature, theory, and uses of risk analysis and recognize risk analysis as a preferred alternative to a mediator's proposal
V. Cultivate effective information gathering and assessment
VI. Recognize risk analysis as a collaborative effort to develop and deliver an outcome
VII. Make the most out of risk analysis without being a prisoner of outcome and use risk analysis to plug in alternative assumptions to loosen party fixations, obtain "buy-in" of parties and counsel
VIII. Identify the potential and limitations of risk analysis
Simeon Baum, President of Resolve Mediation Services, Inc. (www.mediators.com), has successfully mediated over 1,000 disputes. He has been active since 1992 as a neutral in dispute resolution, assuming the roles of mediator, neutral evaluator and arbitrator in a variety of cases, including the highly publicized mediation of the Studio Daniel Libeskind-Silverstein Properties dispute over architectural fees relating to the redevelopment of the World Trade Center site, Trump’s $ 1 billion suit over the West Side Hudson River development, and Archie Comics’ shareholder/CEO dispute. He was selected for New York Magazine’s 2005 - 2014 “Best Lawyers” and “New York Super Lawyers” listings for ADR (http://www.superlawyers.com/new-york-metro/lawyer/Simeon-H-Baum/1de9e280-ba02-4bfb-8fe8-659bc286b8e4.html) and Best Lawyers’ “Lawyer of the Year” for ADR in New York for 2011 and 2014 (http://www.bestlawyers.com/Lawyers/Simeon_H_Baum)and for the International Who’s Who of Commercial Mediation Lawyers 2012-14.
An attorney, with 30 years’ experience as a litigator, Mr. Baum has served as a mediator or ADR neutral in a wide variety of matters involving claims concerning business disputes, financial services, securities industry disputes, reinsurance and insurance coverage, property damage and personal injury, malpractice, employment, ERISA benefits, accounting, civil rights, partnership, family business, real property, construction, surety bond defaults, unfair competition, fraud, bank fraud, bankruptcy, intellectual property,
Mr. Baum has a longstanding involvement in Alternative Dispute Resolution ("ADR"). He has served as a neutral for the United States District Courts for the Southern and Eastern Districts of New York Mediation Panels; New Jersey Superior Court, Civil Part, Statewide; Commercial Division, New York State Supreme Court, New York & Westchester Counties; U.S. Bankruptcy Court, Southern & Eastern Districts of New York; the New York Stock Exchange; National Association of Securities Dealers; the U.S. Postal Service, the U.S. Equal Employment Opportunity Commission, and CPR, and National Academy of Distinguished Neutrals (NADN), among others.
Mr. Baum’s peers have appointed him to many key posts: e.g., Member, ADR Advisory Group, Commercial Division, Supreme Court, New York County; ADR Advisory Group and Mediation Ethics Advisory Committee, N.Y. State Unified Court System. Founding Chair of the N.Y. State Bar Association’s Dispute Resolution Section, he was also subcommittee chair of the N.Y. State Bar Association’s ADR Committee; Legislative Tracking Subcommittee Chair of the ADR Committee of the Litigation Section of the American Bar Association; Charter Member, ABA Dispute Resolution Section Corporate Liaison Committee; President, Federal Bar Association’s SDNY Chapter, and Chair of the FBA’s national ADR Section. He is past Chair of the New York County Lawyers Association (NYCLA) Committee on Arbitration and ADR. Besides serving on the NYCLA’s Committee on Committees, he is past Chair of the Joint Committee on Fee Dispute and Conciliation (of NYCLA, ABC NY, and Bronx County Bar Associations), and is on the Board of Governors, NYS Attorney-Client Fee Dispute Resolution Program. He is also a Fellow of the American Bar Foundation. He is a Director for the New York NADN panel.
Mr. Baum has shared his enthusiasm for ADR through teaching, training, extensive writing and public speaking. He has taught ADR at NYU's School of Continuing and Professional Development, and he teaches Negotiation, and Processes of Dispute Resolution (focusing on Negotiation, Mediation and Arbitration) at the Benjamin N. Cardozo School of Law. He developed and conducts 3-day programs training mediators for the Commercial Division, Supreme Court, New York, Queens, and Westchester Counties. He has been a panelist, presenter and facilitator for numerous programs on mediation, arbitration, and ADR for Judges, attorneys, and other professionals. Mr. Baum is a graduate of Colgate University and the Fordham University School of Law.
Glad too see this topic treated. Useful for negotiation outside of mediation context as well.
Very good. Impasse Breaking very helpful.
Loved it. Very helpful.
The best of the series so far.
If everyone who ever attended mediation could review this lecture and get on the same page with the techniques, the process would be so much less painfuil.
Very good resource.
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