mediation in a time of social distancing - a …...free cme training relevant to mediating remotely...

Free CME Training Relevant To Mediating Remotely During The Pandemic:

Mediation in a Time of Social Distancing - A Mediator’s Response to Covid-19, recorded webcast by The National Judicial College, Nancy Yeend

This highly interactive webcast will not only enable mediators to continue to help resolve cases during this period of "social distancing” but may also open doors for more mediations opportunities.

Here is the link to the recorded version of the April 7, 2020, webcast. https://judges.webex.com/judges/lsr.php?RCID=5bf777a25f294ea3be675fcabcd9850c

The course materials and webcast slides may be found here.

Keep It Moving: Using Videoconferencing to Settle Your Mediations (JAMS Boston) Presented

by JAMS Boston on April 21, 2020, 1 p.m. EST, https://www.jamsadr.com/events/2020/using-

videoconferencing-to-settle-your-mediations-remotely

The use of videoconferencing technology has become an increasingly critical part of limiting business disruptions throughout the legal industry, all while maintaining an exemplary level of service for each of us. Join JAMS Zoom training experts along with Boston neutrals and staff on this webinar who will share:

What equipment the parties need to participate.

Logistics TIPS for how to appear on-line, preparing your background, selecting lighting,adjusting volume and other factors to ensure professionalism

Preparation details: How to practice with your client before the day of the session andwhat they need to know in advance.

How JAMS case management can assist you throughout the entire process.

Important steps to prepare for Remote Mediation versus In-Person

Becoming familiar with essential components of the process like breakout rooms,confidential communication, redundancy, group chats and more.

As of March 2020

Free Continuing Mediator Education (CME) Opportunities

compiled by The Florida Dispute Resolution Center

∞ ∞ ∞ ∞

With the exception of mediator ethics this list includes enough options for a mediator to complete all 16 hours and component parts, IPV and diversity, of the CME requirement via free resources. There are some ethics hours but not a total of four hours. National Association for Court Management (NACM) 2020 Midyear Meeting https://nacmnet.org/conferences/past-conferences/video-gallery/

Micro-Disruption: Simple Changes for Significant Results, 55 minutes, 1.1 CME Human Trafficking and the Courts, 75 minutes, 1.5 IPV CME Conflict and Drama in the Workplace Part (A), 60 minutes, 1.2 IPV CME Conflict and Drama in the Workplace Part (B), 70minutes, 1.4 IPV CME Managing a Crisis: State Courts Respond to National Opioid Epidemic, 54 minutes, 1.1 CME Expanding Communication Channels with the Public Using A1, 75 minutes, 1.5 CME Leadership for You and Your Presiding Judge, 70 minutes, 1.4 CME Creating a Happy Workplace by Leading with a Grateful Heart, 60 minutes, 1.2 CME

Mediator Ethics: We Are Headed to a Disciplinary Hearing, Florida Dispute Resolution Center CME: 1.2 hours in mediator ethics https://www.youtube.com/watch?v=O0IhrgBjkGg&t=198s

Elder Abuse, The Honorable Michelle Morley, Circuit Judge, Fifth Judicial Circuit CME: 1.0 hour in IPV https://www.youtube.com/watch?v=AKgGeT5o-_U&t=21s

Domestic Violence Case Law Update, The Honorable Thomas R. Eineman, Circuit Judge, Fifth Judicial Circuit CME: 1.0 hour in IPV https://www.youtube.com/watch?v=RPkWC1WX4w8

Eliminating Cultural Basis in the Courtroom, The Honorable Rosa Figarola, Circuit Judge, Eleventh Judicial Circuit CME: 1.0 hour in Cultural Diversity https://www.youtube.com/watch?v=u8r03O-2RBE

https://nacmnet.org/conferences/past-conferences/video-gallery/

https://www.youtube.com/watch?v=O0IhrgBjkGg&t=198s

https://www.youtube.com/watch?v=AKgGeT5o-_U&t=21s

https://www.youtube.com/watch?v=RPkWC1WX4w8

https://www.youtube.com/watch?v=u8r03O-2RBE

As of March 2020

National Association for Court Management (NACM) past annual conferences Each one-hour session is worth 1.2 CME https://nacmnet.org/conferences/past-conferences/video-gallery

https://nacmnet.org/conferences/past-conferences/video-gallery

As of March 2020

National Center on Substance Abuse and Child Welfare Tutorial for Legal Professionals https://ncsacw.samhsa.gov/tutorials/RegForm.aspx 4.5 IPV hours for all five modules

Florida Department of Law Enforcement, Bureau of Professionalism, Elder Abuse Investigations http://www.fdle.state.fl.us/Media/BPDtraining/ElderAbuse/story_flash.html 1 hour of IPV credit for taking all modules and passing quiz at end of the training

Adjudicating DV Cases – Training for Judges National Center for State Courts http://education.amjudges.org/modules/module1 3.3 IPV hours, 2.3 hours of IPV education for Modules 1-3; and 1 hour of IPV education for Module 5

https://ncsacw.samhsa.gov/tutorials/RegForm.aspx

http://www.fdle.state.fl.us/Media/BPDtraining/ElderAbuse/story_flash.html

http://education.amjudges.org/modules/module1

Mediation in a Time of Social Distancing –

A Mediator’s Response to Covid-19

National Judicial College Webcast

April 7, 2020

Presentation by Nancy Neal Yeend

Copyright

© 2020, NANCY NEAL YEEND. i

© 2020, Nancy Neal Yeend. All Rights Reserved.

These materials were designed and developed by Nancy Neal Yeend for the Mediation in a Time of Social Distancing—A Mediator's Response to the Covid-19 webcast. All materials, including the text, handout and PowerPoint, are intended to support the lecture and exercises for this presentation. No part of these materials may be circulated, reproduced, transmitted, or distributed for any purpose, in any form or by any means, electronic or mechanical, including photocopying or scanning, without the express written permission of the copyright holder.

Please direct inquires and requests to reprint to:

Nancy Neal Yeend TES: The End Strategy 10260 SW Greenburg Road, Suite 400 Portland, OR 97223 Direct line: 503/481-2986 Email: [email protected]

Objectives

ii © 2020, NANCY NEAL

YEEND.

AFTER THIS WEBCAST, YOU WILL BE ABLE TO:

1. Identify the mediation process components and elements that may need modification for successfully conducting distance mediations.

2. Identify appropriate equipment and network provider for phone or video conferencing. Develop skills, which can improve distance mediation settlement rates.

3. Develop a framework that gets attorneys and their clients organized and prepared to fully participate. Focus on scheduling time and duration of the session; maintaining decorum and control of the mediation; and structuring and managing party opening remarks and subsequent discussions. Identify special issues related to working with self-represented litigants.

4. Identify the key confidentiality factors to be considered and addressed during distance mediation, and the most effective techniques to use in caucus to enhance the probability of settlement.

Table of Contents

© 2020, NANCY NEAL YEEND. iii

ESSENTIALS Overview .................................................................................................................................................... 1-1 Basics ........................................................................................................................................................... 1-1 Process Elements ...................................................................................................................................... 1-1 Mediation Process ..................................................................................................................................... 1-2

TECHNOLOGY Overview .................................................................................................................................................... 2-1 Initial Considerations ................................................................................................................................ 2-1 Equipment & Service Providers .............................................................................................................. 2-2

INTAKE AND PREPARATION Overview .................................................................................................................................................... 3-1 Intake .......................................................................................................................................................... 3-1 Preparation ................................................................................................................................................. 3-1

CONFIDENTIALITY AND CAUCUS Overview .................................................................................................................................................... 4-1 Underlying Principle ................................................................................................................................. 4-1 Maintaining Confidentiality ..................................................................................................................... 4-1 Caucus ......................................................................................................................................................... 4-1 Assignments ............................................................................................................................................... 4-2 Summary ..................................................................................................................................................... 4-2 Pledge .......................................................................................................................................................... 4-2

RESOURCES Preparation Worksheet ..............................................................................................................Appendix A Preparation Strategy ................................................................................................................... Appendix B Risk Analysis ............................................................................................................................... Appendix C About the Presenter .................................................................................................................. Appendix D

1—Essentials

© 2020, NANCY NEAL YEEND. 1–1

Change is the law of life, and those who only look to the past or the present are certain to miss the future.

John F. Kennedy, 1963

OVERVIEW

Identify the mediation process components and elements that may need modification for successfully conducting distance mediations.

BASICS

The fundamental process elements essentially remain the same for distance mediations; however, before scheduling such a mediation, it is important to review each step in the process to determine if any adjustments need to be considered or made.

In addition, mediators need to evaluate everything that they typically do, including reviewing their opening statement, how they manage the process, and how they instill trust among and between the parties. Making sure that the participants are empowered may be more challenging with distance mediation, and the parties may be more likely to look to the mediator to “tell” them what to do, rather than taking responsibility for finding a resolution that will meet their own unique needs.

PROCESS ELEMENTS

For purposes of this presentation, the 5-step process is used: initiation and intake, opening remarks, problem solving, resolution and closure.

Step 1. Initiation & Intake (pre-session)

Step 2. Opening Remarks

Step 3. Problem Solving

Agenda Negotiation Options

Step 4. Resolution

Step 5. Closure (post-session)

Case initiation and intake is the time for mediators to gather information, which will enable them to prepare for the mediation, to anticipate challenges that may arise, and to develop strategies to prevent impasse, or breaking an impasse, should it occur. For example, giving assignments to be worked on during caucus saves time and keeps the parties focused on finding resolution. The opening remarks, problem solving1 and resolution steps are during the actual mediation session.

1 Problem Solving, Step 3, includes developing an agenda (list of topics/issues to be resolved), time for the parties to negotiate and to generate options. During distance mediation it is very important to keep the parties engaged in the process, which in turn will enhance the probability of their achieving a settlement.

1—Essentials

1–2 © 2020, NANCY NEAL

YEEND.

MEDIATION PROCESS

Intake becomes much more critical for distance mentions, because it is harder, if not impossible to get all the non-verbal messages, especially if mediating by phone. In addition, people who are unprepared for the mediation are far less likely to settle. It is easier to say “no” when everyone is not sitting at the same table. Settlement rates for distance mediation are significantly lower than for in person mediations.

The heart of the mediation process is when the mediator and participants are able to make opening remarks, and the parties spend time problem solving, negotiating, and coming to a resolution. Even if there is no initial settlement, often a mediation that addresses all the issues raised and allows the participants to develop potential options, may well settle after the participants have had time to reflect and evaluate the cost of not settling.

Closure is another area that is especially important following distance mediation. It is not just having the mediator send a bill or notification to the court, but because settlement rates tend to be lower for distance mediation, mediator follow-up may enhance the prospect of a settlement. Mediators who give an assignment following a failed mediation session, and who check in with the parties a few days later, often find the parties are interested in a second session, and ultimately settle.2

EXERCISE

Based on the type of cases you mediate, typical number of participants and issues that are usually discussed, what are areas that you may need to review and possibly modify? Consider the following:

Intake/Pre-Mediation: ______________________________________________________________

________________________________________________________________________________

Opening Remarks: _________________________________________________________________

________________________________________________________________________________

Negotiations: _____________________________________________________________________

________________________________________________________________________________

Option Generation: ________________________________________________________________

________________________________________________________________________________

Resolution: _______________________________________________________________________

________________________________________________________________________________

Closure: _________________________________________________________________________

________________________________________________________________________________

2 Yeend, N., Mediation 101: Understanding the Magic, Value Examiner, 2005.

2—Technology


It is said that one machine can do the work of fifty ordinary men. No machine, however, can do the work of one extraordinary man.

Tehyi Hsieh, 1948

OVERVIEW

Identify appropriate equipment and network provider for phone or video conferencing. Develop skills, which can improve distance mediation settlement rates.

EXERCISE

Do you have a preference: phone or video conferencing? Any particular reason?

INITIAL CONSIDERATIONS

First there needs to be agreement on how the distance mediation will be conducted: phone or video conferencing. An important consideration is access to equipment. It may be that some individuals do not have access to a computer;3 may not be well versed in the technology associated with video conferencing; and for some the expense of video conferencing may be prohibitive.

There are advantages and disadvantages to both distance mediation modes. The advantage of being able to continue to provide mediation services, during this Covid-19 outbreak, is being able to continue helping people resolve cases. There are many restrictions on courts during this pandemic, and helping manage and or even prevent a backlog of cases is important.

The very significant disadvantage, of not being in the same room with all the mediation participants, is the inability to effectively communicate.4 Only seven percent of a verbal message is the words, while 93 percent is made up of tone inflection, body language and facial expressions—especially eye movement. With video conferencing5 some non-verbal indicators might be observed, like a nervous tic, furtive glance or perhaps even seeing someone's face flush. With phone mediation the only additional aspect of communication is tone inflection.

To overcome some of the inadequacies of not having everyone in the same room for the mediation, there are a few basic considerations for the mediator to enhance communication: promote listening, summarize, and ask open-ended questions.

Establishing a ground rule of only one person speaking at a time is very useful, and for phone mediation having each speaker identify him/herself before talking, insures that everyone knows whose perspective is being expressed. To further promote listening, a mediator will need to ask the person

3 School closures have shined the spotlight on the lack of access to technology and equipment in many regions. 4 The primary issue is confidentiality, which will be addressed in the Chapter 4. 5 Also referred to as ORD, online dispute resolution.

2—Technology

2–2 © 2020, NANCY NEAL YEEND.

who is listening, what they understood the speaker to say. This does two things: insures that they are listening and clarifies if the message received is what the speaker intended.

Having the mediator summarize and paraphrase a speaker may make it easier for the listener to hear the message, since it is coming form a neutral voice—the mediator. It also provides an opportunity for the speaker to know the mediator is paying attention and remaining impartial, which in turns builds trust.

In addition, asking questions not only helps with listening and clarification, but also places the responsibility for settlement back on the parties. The person who asks the question controls the conversation. Mediators need to ask solid, open-ended questions and must avoid leading or “why” questions, which place people on the psychological defensive. People cannot negotiate without information. If the mediation participants do not share information they will not be able to settle.

EXERCISE

If you have used phone or video conferencing, then have you encountered any technological issues? If “yes”, then what were the most frustrating?

EQUIPMENT & SERVICE PROVIDERS

Although the equipment to be used is extremely important, and there are a number of service providers that can manage phone as well as video conferencing, not all of these services are available throughout the entire country. This is especially true when considering video conferencing. Keep in mind, prior to scheduling distance mediation, to confirm availability of equipment and ability to use software.6

When using phone mediation some mediators have the capability to “patch in” all the callers, while others use conferencing services.7 Before using any video conferencing service try out the software before you schedule the mediation. Understand the time limitations, as some videoconference services cut off after 30 to 40 minutes. An additional consideration—should everyone be on the screen at the same time, or only the speaker?

At the time when individuals are calling in, using a central exchange, being able to hear is typically not an issue, but conducting a sound check before any distance mediation starts may be prudent. The camera that is providing the images needs to have a clean lens and focus. The mediator needs to sit “front and center” with no distracting background, and dressed professionally.

Caucusing is possible with both phone and video conferencing. Confidentiality is a significant issue during caucusing.8 With phone mediations, be sure to have ring tones when people exit the call, and announced when they return to the joint session. The mediator needs to join the conference at least

6 Kanazawa, S., Tips for Online Mediation in the Age of Social Distancing, Law360, March 2020. 7 There are many phone conferencing services such as Conference America and video conferencing like GoToMeetings and WebEx. 8 Video conferencing is not immune from hacking.

Chapter 2—Process


five minutes ahead of time to be ready to greet everyone as they join the session.9 Most video conferencing providers have ways to separate the participants.

9 Fowler, C., Mediating with Zoom, Mediate.com, March 2020.

3—Intake and Preparation


A forewarned man is worth two.

Spanish Proverb

OVERVIEW

Develop a framework that gets attorneys and their clients organized and prepared to fully participate. Focus on scheduling time and duration of the session; maintaining decorum and control of the mediation; and structuring and managing party opening remarks and subsequent discussions. Identify special issues related to working with self-represented litigants.

INTAKE

When beginning a new case that will be mediated in the traditional “face-to-face” manner, there are a number of tasks for the mediator: educate everyone about the process, disclosures, distribute forms (agreement to mediate or contract, confidentiality agreement, court forms, etc.), and more. With distance mediation making sure that everyone understands the process, the mediator's role, defining settlement authority, confidentiality and its exceptions, and related information is extremely important. Time must be spent, in advance of the mediation session, to address all of these issues, or the settlement rate will drop even further.

Establishing who will participate in the mediation, their role and settlement authority is key. In addition to attending to those details, making sure that there will be enough lines for phone mediations, and technology available for video conferencing is essential.

Mediators have learned that prepared participants are more likely to settle. Since the mediator does not make a decision, and the rules of evidence are not applied, pre-mediation preparation is crucial. For example, prior to mediation, the mediator must discuss with counsel what is needed for the mediation, such as a brief and any other documents. This helps the mediator prepare, and ensures that all participants share a common expectation, thereby avoiding unanticipated surprises during the mediation that can torpedo settlement efforts.

PREPARATION

Cases are far more likely to settle, if everyone, including the mediator, is prepared. There are fundamental pieces of information that will be useful: the facts (both disputed and undisputed); history that includes offers and demands; case analysis (strengths and weaknesses from each side's perspective); decision making criteria (both attorney's and client's); and identification of all issues to be resolved and potential options.10

10 See Resources Section, Appendix A, Preparation Worksheet.

3—Intake and Preparation

3–2 © 2020, NANCY NEAL YEEND.

When one or more of the participants is self-represented, SRL, they can do a better job when they are prepared. According to one study, most SRLs appear in family cases. In one jurisdiction, 30 percent of the plaintiffs and 75 percent of the defendants were SRLs. About 25 percent of probate cases and up to

85 percent of limited jurisdiction cases involve SRLs. According to one group of researchers, SRLs require a more “active role” on the part of the mediator. This leads to a constant “balancing act” by the mediator: maintaining neutrality, while at the same time ensuring progress.11

EXERCISE

What do you presently do to get mediation participants prepared before the mediation? Specifically, what do you do prepare for a mediation?

When mediating cases remotely, scheduling can be easier if the participants are not in the same city, especially not needing someone drive a long distance or fly across country. When scheduling a distance mediation do not forget to verify the time zones!

In order for a mediator to prepare, the participants must provide the mediator with a short brief, which answers all the questions identified in the Mediation Preparation worksheet. When the mediator has received all necessary information and the participants prepare, mediations take less time. This is important, since mediations conducted remotely often require shorter sessions, which in turn means that there may be more sessions. Distance mediation sessions typically are scheduled for about two hours. Sitting holding a phone or looking at a computer screen for longer periods of time are not productive.

The mediator's opening can be shortened by providing all the participants with information about the process prior to the session, including information on confidentiality, explaining caucus and outlining ground rules, etc. Sessions are also shortened when mediators send out their resume in advance, rather than wasting time prattling on about themselves. People are only able to listen for five to seven minutes, so keeping mediator openings short!

Preparation enables both the mediator and the participants to spend less time on opening remarks.12 This in turn reduces the unproductive posturing and the inevitable “dance of the peacocks” openings. Condensed openings mean that there is increased negotiation time. One suggestion to reduce participant openings is requesting that parties initially just identify the issues they want resolved. The history and details can come later. This technique helps build rapport and trust in the process and mediator, because participant openings are less vitriolic.

11 For an article on the topic of SRLs read Judicial Techniques for Cases Involving Self-Represented Litigants, Albrecht, R. A. Greacen, J. M., Hough, B. R. and Zorza, R., Judges Journal, Winter 2003, ABA, vol. 42, no. 1. 12 See Resources Section, Appendix B, Preparation Strategy.

Chapter 3—Pre-Mediation


EXERCISE

List one thing that you are presently doing that would work well during distance mediation? What areas would you need to review and possibly need to modify?

4—Confidentiality


Do not speak of secret matters in a field that is full of little hills.

Hebrew Proverb

OVERVIEW

Identify the key confidentiality factors to be considered and addressed during distance mediation, and determine the most effective techniques to use in caucus to enhance the probability of settlement.

UNDERLYING PRINCIPLE

Confidentiality is mediation's foundation. People are more likely to be candid and disclose information when they believe such information will not be used against them. Confidential information might include an admission of wrong doing—for instance in a medical malpractice case, the doctor admits a mistake followed by a sincere apology, which may go a long way to help settle a case. Perhaps a company wants the terms of the settlement kept confidential to prevent copycat cases. Making sure that distance mediations are structured so information remains confidential is critical to a successful outcome.

EXERCISE

What concerns do you have regarding confidentiality as it relates to distance mediation?

MAINTAINING CONFIDENTIALITY

There are three primary steps a mediator can take to help insure that what is discussed during the mediation remains confidential. First, everyone needs to sign a confidentiality agreement in advance of the mediation. Second, the mediator needs to make an effort to prevent unauthorized people from listening in or recording any portion of the mediation. Third, when caucusing, explicit tones or announcements must indicate when someone leaves or joins the session. For video conferencing there are a number of caucusing options. For example WebEx offers “breakout rooms”.

When all mediation participants are connected, either by phone or Internet, the mediator needs to have everyone confirm that no one else is present, can overhear the conversations, and that there are no recording devices.

CAUCUS

Mediators must be sure to give time checks before starting a caucus, and to give assignments to the parties. The mediator needs to keep the parties focused on trying to find a settlement. When people are participating from their homes, they are less likely to focus on settlement, when the mediator is working with the other side. Time checks are critical, so if the caucus is going to take more than the 10 minutes planned, the mediator needs to check in with the other side, letting them know how much more time is

4—Confidentiality


YEEND.

needed, ask how they are coming with the assignment, and assure them that they will have equal time. This also helps maintain trust and continues to empower the parties to find a solution.

EXERCISE

What type of assignments could you give distance mediation participants that will keep them focused on trying to find a settlement?

ASSIGNMENTS

Since the information gained during a caucus is confidential, people are often more willing to disclose information or even consider options that they had previously rejected. When parties are in caucus sessions, there are a number of assignments that they can work on, which will help them focus on finding a settlement that meets their unique needs.13 Having them generate a list of possible options for each issue being negotiated helps reduce the tendency of “positional bargaining”.

Caucuses are also an excellent time for attorneys to talk candidly to their clients. Often these one-on-one conversations have not happened, and it is interesting to note how frequently each learns something new! For instance, just having the attorney hear, for the first time, what is important to the client: finality, confidentiality, prevention, etc. can enhance settlement. Understanding what is important to the client often reveals the criteria that the client is using to make a decision to accept or reject an offer. Lawyers tend to use the law as their primary decision-making criteria—clients rarely do.

SUMMARY

During this unique time in history, which is placing a strain on court resources, distance mediation provides an invaluable benefit—reducing case backlogs. Distance mediation faces some unique challenges, especially as it relates to technology and confidentiality; however, with extensive pre-mediation preparation, the settlement rate can be increased. Utilizing all the tools in the proverbial mediator's “toolbox” will also enhance the experience for the participants.

PLEDGE

Following this Webcast, I will go back to the exercise on page 1-2 in the handout materials, and I will re-evaluate how I will modify what I do during Intake, Opening Remarks, Negotiation, Option Generation, Resolution and Closure, and in the future confirm with attendees the most appropriate mode and equipment to use that will enhance distance mediation settlement rates and participant satisfaction.

13 See Resources Section, Appendix C, Risk Analysis Worksheet.

Chapter 4—Strategies


YEEND.

Resources

© 2020, NANCY NEAL YEEND. APPENDIX A

PREPARATION WORKSHEET

FACTS

UNDISPUTED DISPUTED

HISTORY

CHRONOLOGY OFFERS/DEMANDS

CASE ANALYSIS: OUR PERSPECTIVE

STRENGTHS WEAKNESSES

CASE ANALYSIS: THEIR PERSPECTIVE

STRENGTHS WEAKNESSES

Resources

APPENDIX A © 2020, NANCY NEAL YEEND.

CRITERIA: OURS

COUNSEL CLIENT

CRITERIA: THEIRS

COUNSEL CLIENT

ISSUES AND OPTIONS (Generate a list of possible options for each issue to be negotiated.)

ISSUES OPTIONS

KEY ELEMENTS FOR BRIEF

1.

2.

3.

KEY ELEMENTS FOR OPENING REMARKS

1.

2.

3.

Resources

© 2020, NANCY NEAL YEEND. APPENDIX B

PREPARATION STRATEGY TECHNOLOGY

Determine what means will be used: phone or Internet.

Confirm that all parties have access in order to participate. Consider duration and number of sessions.

PRE-MEDIATION Check to determine if all the right parties will attend? (settlement authority)

Emphasize that finding a resolution belongs to the participants.

Review elements of the process: steps, confidentiality, caucus, etc.

Determine if they have enough information to go forward.

Provide assignments.

Evaluate the mediation process and identify areas that may need modification: mediator's opening, how to get the parties to negotiate and generate options.

Consider changes if one or more of the parties are self-represented litigants, SRL.

Prepare open-end questions in advance.

MEDIATION SESSION

Emphasize confidentiality.

Reiterate that mediator is not a decision-maker.

Establish ground rules and explain confidentiality and caucus.

Provide openings at initial joint session, and initially focus parties on issues to be resolved.

Ask open-ended questions to get the parties to provide information.

Build trust: validate participant's feelings; listen; and summarize.

Caucus when requested or to focus parties on generating options or to prevent impasse.

Give time checks and assignments to all participants to focus on settlement during caucus.14

ADDITIONAL THOUGHTS TO TAILOR DISTANCE MEDIATION

14 Additional articles that may assist with getting mediation participants prepared include: Yeend, N., Three Key Factors to Successful Negotiation, Plaintiff Magazine, November 2017; Yeend, N., Problem Solving without an Elephant, QuickRead, January 2020; and Yeend, N., Fly on the Wall, Plaintiff Magazine, January 2017.

Resources

© 2020, NANCY NEAL YEEND. APPENDIX C

RISK ANALYSIS

This technique enables the mediator to get the attorneys involved with finding solutions, and may be helpful in breaking impasse. Using the Risk Analysis tool helps the mediator stay out of the conflict content, and “throws the ball” back into the parties’ court. This technique also helps with “reality-testing.” Typically, this tool is used in caucus, so that there is a greater chance that the responses will be more candid. This is an ideal assignment when caucusing with the parties.

This technique is based upon a very simple Bell Curve distribution, the high verdict occurs 25% of the time, a middle verdict 50% of the time, and a low verdict 25% of the time. Risk analysis can be extremely complicated, and this is a simplified version that can be used easily—even by those who are mathematically challenged.

Step 1: Ask the attorney “If you tried this case ten times before computer-selected juries, how many times would you win?” The answer becomes a percentage factor by which you multiply the outcome of the next step. For example, assume that the attorney predicts a verdict in the plaintiff’s favor six times out of 10, or 60%. The mediator writes .60.

Step 2: Ask the attorney to give an opinion as to the high, middle and low verdict amounts for those times that a jury returns a favorable verdict.15 For example, assume that the attorney predicts $120,000 for the high, $100,000 for the middle, and $40,000 for the low. Record the three numbers.

Step 3: Multiply the figures that the attorney provided by the corresponding Bell Curve percentage. For example:

A $120,000 high verdict, X 25% equals $ 30,000 A $100,000 middle verdict X 50% equals $ 50,000 A $40,000 low verdict X 25% equals $ 10,000 Total $ 90,000

Remember: The attorney said that the plaintiff wins only 60% of the time, so the final step is calculate the statistical probability of a verdict.

Multiple the $90,000 by .60 (Step 1 Factor). $54,000*

*This figure resulted from using the attorney’s numbers, and not the mediator’s!

Practice Exercise: Attorney speculates that the plaintiff will prevail 80% of the time. The attorney provides the high, middle and low verdicts as $1,000,000, $600,000 and $200,000 respectively. What is the probable outcome?

15 Note that if a defendant is assessing, then it will be the defendant’s attorney’s assessment of the likely jury awards that the plaintiff would receive.

Resources

APPENDIX D © 2020, NANCY NEAL YEEND

About the Presenter

Nancy Neal Yeend is a dispute management specialist, who maintains a national practice that includes

mediation, training and dispute management system design. She mediates cases involving real estate,

construction, employment and a variety of contract and business matters. Nancy has served on trial and

appellate panels, and mediates ADA cases emanating from the Justice Department for the Key Bridge

Foundation. She founded The End Strategy, TES, a highly specialized dispute management firm,

located in Portland, OR.

She has trained over 6000 mediators nationally. Nancy has served as faculty at The National Judicial

College for 25 years, and formerly taught ADR at San Francisco Law School in California, and Stetson

University College of Law in Florida. For nearly a decade she taught how to mediate intellectual

property cases at Franklin Pierce School of Law, now the University of New Hampshire School of Law

in Concord, New Hampshire.

Nancy writes extensively on ADR topics, including mediation, negotiation, dispute management system

design, ethics, summary jury trial, and how to create court-connected ADR programs. Based on her

national study of appellate ADR programs, Nancy created Maryland's first appellate mediation

program, and she evaluated and re-designed the Nevada Supreme Court’s ADR program. She

completed a design for Superior Court of California County of Solano, enabling the court to provide

mediation, arbitration, and early neutral evaluation to litigants. In addition, the court’s Small Claims

Mediation program was expanded to include mediation of small claims case appeals.

Expanding dispute management into the workplace, Nancy assists companies and organizations to constructively manage conflict in the workplace. Conflict impacts employee health, because of the associated stress. When conflict is reduced, stress levels decline, with the result of improved employee health, less absenteeism, improved productivity, and ultimately reduced healthcare costs for the company.

Nancy Neal Yeend TES: The End Strategy 10260 SW Greenburg Road, Suite 400 Portland, OR 97223 Direct line: 503/481-2986 Email: [email protected]

THE NATIONAL JUDICIAL COLLEGE

Mediation in a Time of Social Distancing – A Mediator’s Response to Covid-19

A Webcast

Tuesday, April 7, 2020 9:00 am in Hawai’i / 12:00 pm Pacific / 1:00 pm Mountain / 1:00 pm Central / 3:00 pm Eastern

Table of Contents: Page

1. Faculty Biographies ..................................................................................................................2 2. Description and Learning Objectives .........................................................................................3 3. Nancy Neal Yeend, Mediation in a Time of Social Distancing – A Mediator’s Response to

Covid-19 (Apr. 2020) [NJC PowerPoint] ..................................................................................4 4. Link to NJC On-Demand (For additional resources) .............................................................18

Sponsored by

Nancy Neal Yeend Nancy Neal Yeend is a dispute management specialist, who maintains a national practice that includes mediation, training and dispute management system design. She mediates cases involving real estate, construction, employment and a variety of contract and business matters. Nancy has served on trial and appellate panels, and mediates ADA cases emanating from the Justice Department for the Key Bridge Foundation. She founded The End Strategy, TES, a highly specialized dispute management firm, located in Portland, OR.

She has trained over 6000 mediators nationally. Nancy has served as faculty at The National Judicial College for 25 years, and formerly taught ADR at San Francisco Law School in California, and Stetson University College of Law in Florida. For nearly a decade she taught how to mediate intellectual property cases at Franklin Pierce School of Law, now the University of New Hampshire School of Law in Concord, New Hampshire.

Nancy writes extensively on ADR topics, including mediation, negotiation, dispute management system design, ethics, summary jury trial, and how to create court-connected ADR programs. Based on her national study of appellate ADR programs, Nancy created Maryland's first appellate mediation program, and she evaluated and re-designed the Nevada Supreme Court’s ADR program. She completed a design for Superior Court of California County of Solano, enabling the court to provide mediation, arbitration, and early neutral evaluation to litigants. In addition, the court’s Small Claims Mediation program was expanded to include mediation of small claims case appeals.

Expanding dispute management into the workplace, Nancy assists companies and organizations to constructively manage conflict in the workplace. Conflict impacts employee health, because of the associated stress. When conflict is reduced, stress levels decline, with the result of improved employee health, less absenteeism, improved productivity, and ultimately reduced healthcare costs for the

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Webcast Description and Learning Objectives "Social distancing" is changing how courts and businesses provide services to the public, and mediation has not escaped this new reality.

Mediations conducted remotely do not enjoy settlement rates as high as those held in a face-to-face setting. To overcome the settlement rate disparity, this webcast identifies factors to consider and provides tips and techniques to modify the process and enhance settlement rates, while maintaining participant satisfaction.

This highly interactive webcast will not only enable mediators to continue to help resolve cases during this period of "social distancing” but may also open doors for more mediations opportunities.

After this webcast, participants will be able to:

• Identify the components and elements that need modification for distancemediations.

• Examine changes that must be considered when conducting distance mediation,focusing on preparing the parties, scheduling time and duration of the session,maintaining decorum and control of the mediation, presenting an openingstatement, and structuring and managing party opening remarks and subsequentdiscussions.

• Identify appropriate equipment and network provider for phone or videoconferencing.

• Identify the key confidentiality factors to be considered and addressed duringdistance mediation.

• Design methods for building rapport, establishing trust, and setting a cooperativetone; emphasizing effective listening and questioning techniques; promoting partyempowerment.

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© 2020, THE NATIONAL JUDICIAL COLLEGE.All rights reserved.

Mediation in a Time of Social Distancing—

A Mediator’s Response to the Covid-19

Nancy Neal Yeend

Where are you from?

1

2

4


Did you take the Civil Mediation course at the National Judicial College?

a) Yes

b) No

QUESTION

List the types of cases you typically mediate or intend to mediate.

1 ________________________

2 ________________________

3 ________________________

QUESTION

3

4

5


Intake/Pre-Mediation

Opening Remarks

Negotiation

Option Generation

Resolution

Closure

EXERCISE

5

6

6


Do you have a preference(polling question):

a) Teleconferencing

b) Video conferencing

Answer with the polling tool

Exercise

Is there any particular reason youprefer teleconference or videoconference?

Answer in the chat tool.

In the Chat Tool

7

8

7


Determine mode: phone vs video

Connection: mediator vs provider

audio & visual check

software check

Duration: time limits

Caucus

TECHNOLOGY/EQUIPMENT

9

10

8


Emotions

Perceptions

Place

Listening Filters

OPEN-ENDED QUESTIONS

“What happened next?”

“Who else was involved with themerger decision?”

“How were you able to gather thedata for the final report?”

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12

9


If you have used phone or videoconferencing, then have youencountered any technologicalissues?

If “yes”, then what were the mostfrustrating?

EXERCISE

Confirm all participants can useequipment & software

Consider mediator’s location

position: front & center

camera angle

background

dress

FINAL CHECK

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14

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No time for robe & bunny slippers!

Facts: disputed and undisputed

History: Chronology and offers

Strengths & weaknesses of case with360° assessment (look from all sides)

Criteria: decision making factors

Options: for all issues raised

Key elements to include in brief &opening remarks

PREPARATION WORKSHEET

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16

11


What do you presently do to getmediation participants prepared before the mediation?

Specifically, what do you do prepareyourself for a mediation?

EXERCISE

17

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12


List one thing that you are presentlydoing that would work well duringdistance mediation?

What areas would you need toreview and possibly need tomodify?

EXERCISE

What concerns do you have regarding confidentiality as it relates to distance mediation?

EXERCISE

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Three ways to help protect and maintain confidentiality:

1. Written confidentiality agreement.

2. Request confirmation no others orrecording devices.

3. Extra measures for caucusing.

CONFIDENTIALITY

Time Checks

Assignments

Confidentiality

CAUCUS

21

22

14


What type of assignments could you give distance mediation participants that will keep them focused on trying to find a settlement?

EXERCISE

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15


Questions?

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26

16


I will re-evaluate how I will modify what I do during Intake, Opening Remarks, Negotiation, Option Generation, Resolution and Closure, and in the future confirm with attendees the most appropriate mode and equipment to use that will enhance distance mediation settlement rates and participant satisfaction.

PLEDGE

If you think of a question later, just email me and I will be happy to try and answer it.

[email protected]

THANK YOU

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mediation in a time of social distancing - a …...free cme training relevant to mediating remotely...

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