Commercial Mediation Part VI: 10 Mistakes Even Good Mediators Make

(249 Ratings)

Produced on: March 06, 2015

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 65 minutes
Difficulty Advanced

In many circumstances, timing is everything.  A poorly-timed move or comment made before certain conditions have occurred or before the groundwork has been laid can result in a setback. It helps to be aware of potential landmines and the means of cultivating essential pre-conditions.

 

In Part VI of this Commercial Mediation program, experienced mediator and trainer Steve Hochman joins attorney Simeon Baum to discuss 10 mistakes even good mediators make.  He provides practical tips that reinforce and further develop lessons from earlier segments of the program.  These include: the importance of getting the right people to the table; clarifying the role of mediator as “agent of reality”; providing opportunities for emotional expression; coaching parties on deal proposals; addressing unrealistic expectations; avoiding premature evaluation; handling cognitive and emotional barriers to effective decision making; and other tips.  Mr. Hochman stresses the importance of patience and perseverance and advances his views on proper use of the “mediator’s proposal” as a last-ditch impasse-breaking technique.  Mr. Baum ends this session with cautionary comments addressing some of the implications of Mr. Hochman's remarks.

 

Learning Objectives: 

I.    Consider the importance of timing in mediation 

II.   Understand how to lay the groundwork for later stages of mediation

III.  Review and give practical application to various mediation pointers, including:  

a. Proper party participation

b. Mediator role as agent of reality

c. Supporting needed emotional expression

d. Coaching parties on proposals

e. Managing party expectations

f.  Avoiding premature evaluation

g. Handling cognitive and psychological barriers

IV.  Recognize the benefits, uses, and risks of “mediator’s proposal” 

V.   Appreciate both the benefits and detriments of “orchestrating” the parties’ negotiation

 

 

Faculty

Simeon H. Baum

Resolve Mediation Services, Inc.

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.

Mr. Hochman recently retired from the New York City law firm of Friedman, Wittenstein & Hochman, where he practiced from 1987 – 2006, first as a partner and later as counsel. He was a founding partner in the firm now known as Kramer, Levin, Naftalis & Frankel, where he practiced from 1968-1987, specializing in corporate, commercial and securities law. He also represented both investors and issuers in real estate, tax oriented and other types of investment partnerships. Prior to 1968, he was a partner in Kramer, Nessen & Hochman and an associate at Proskauer Rose Goetz & Mendelsohn, where he began the practice of law following his graduation from Cornell Law School in 1959.

Mr. Hochman now practices exclusively as a mediator and arbitrator. He is a member of CPR’s Panel of Distinguished Neutrals and is on the mediation panels of the federal district courts in the Southern and Eastern Districts of New York, the U.S. Bankruptcy Court in the Southern District of New York and the New York State Supreme Court’s Commercial Division in New York County. For many years he has been one of the two mediation trainers certified by the New York State Office of Court Administration to train the mediators for the Commercial Divisions in the Supreme Courts in New York County and various other downstate counties. He is also a Special Master for the Appellate Division, First Department, of the New York State Supreme Court.

Mr. Hochman writes, consults and lectures frequently on the subjects of arbitration and mediation and is a member of the American Law Institute and various ADR-related bar association and advisory committees. He is a former Chair of the Arbitration Committee of the American Bar Association's Section of Dispute Resolution and former Co-Chair of its Large, Complex Case Subcommittee and served as a member of the American Arbitration Association's Securities Arbitration Rules Task Force and its Commercial Arbitration Practice Committee. He is presently a member of the Executive Committee of the New York State Bar Association’s Section of Dispute Resolution and Co-Chair of its ADR in the Courts Committee. He served for many years as Chair of the American Law Institute-American Bar Association's annual program on Alternative Dispute Resolution and Chair of its annual program on Corporate Mergers and 

Mr. Hochman has mediated over 350 commercial, business, international and other types of disputes, including securities, contract, employment, insurance, real estate, bankruptcy, construction, franchise, brokerage and class action disputes, approximately 98% of which have settled. In addition to his own investment activities, he serves on the investment committees and boards of various not-for-profit corporations, including several hospitals and a non-profit captive re-insurance company. Mr. Hochman has also been an Adjunct Lecturer in Securities Regulation at Columbia Law School and an Adjunct Lecturer in both Mergers and Acquisitions and Alternative Dispute Resolution at Fordham Law School.

Reviews

RD
Randolph D.

Excellent in all ways

SS
Steven S.

The best mediation course I have ever taken. Bravo!

SM
S.A. M.

Thoughtful course regarding mistakes you can make as a mediator

IH
Ira H.

Excellent Presentation!

DG
D. Larry G.

Great team effort. Love learning from the masters. Thank you.

JC
John C.

good

RM
Russell M.

This was a very good presentation.

JP
Judith P.

These gentlemen have a lot to offer. I had no idea there was so much to this topic, and they delivered details. Slides could have been a little bit clearer, but on the whole, a good experience.

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