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Windsor Thompson 615-423-2958
Helping heavy topics land softly
Lawyers are Heroes. Mediators working with private parties and their Attorneys can often close conflicts quickly? This can lower stress, reduce time lost from work, strengthen relationships, and reduce fees.
“The notion that most people want black-robed judges, well-dressed lawyers, and fine paneled courtrooms as the setting to resolve their dispute is not correct. People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible.” US Supreme Court Justice Warren Burger
Discourage litigation. Persuade your neighbors to compromise whenever you can. – Abe Lincoln
Consider seeking Attorneys with specialized knowledge for the dispute you are sorting. Know that Mediation is an approach to dispute resolution. Mediators come from all walks of life.
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“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”
US Supreme Court Justice Sandra Day O’Connor
What are the characteristics of a successful Mediation? It depends on how you view Mediation. Mediator/Trainer Katherine Graham says an average 85% of Mediations reach sustainable resolutions.
She highlighted that successful Mediations share these traits:
“I would rather have a calibrated conversation before I give up my power and have an adversarial court case. When the best negotiations stall, the Mediation process enables parties to assertively focus on their own interests while a Mediator manages the process. Mediation empowers parties to learn more things about their own positions and discover motivations from the other side.”
It has been demonstrated over and over that Mediation as a first approach to stalled negotiations, as well as for business, family, governmental and academic disputes is faster, less expensive and less stressful than litigation (going to court). It is wise to look at available approaches and as needed, consult an Attorney to help set your resolution strategy. Srdan Šimac, Ph. D., judge of the High Commercial Court of the Republic of Croatia and President of Croatian Mediation Association, is among the leading Croatian mediation pioneers. In late 2020 he shared a thought from a colleague that offered that usually lawyers who tell clients their case isn’t ‘right’ for mediation are often not the ‘right’ lawyer for their client’s case. Which Attorneys in your area have completed formal Mediation training?
IN A BAD WAY
ON THE WAY
NO WAY
YOU+MEDIATOR+THEM
3 types of Apologies and key components on how to communicate being sorry to another person.
APOLOGY TYPES
Remorse / Regret / Social Harmony
First type: REMORSE apology-->
You hurt someone or caused pain AND You were wrong for doing it.
Examples: 1. You took credit for someone else's contribution. 2.You lied. 3. You broke the trust of someone or a group. 4. You spread gossip that wasn't verifiable.
Second type: REGRET Apology-->
You hurt someone or caused pain AND You were NOT wrong for doing it.
Examples- 1. You had to fire one person on your team of four. All four bring equal returns and your budget has been reduced. You have no choice but to release one of the four and you are forced to make the choice on which of the four will be released.
2. You are playing a game and have to pick teammates. You have two friends left and one choice you can make. It is just a game. Right? Your choice may hurt a friend's feelings but you still have to make a choice.
Third type: SOCIAL HARMONY Apology
You hurt someone or caused pain (whether you knew it or not) AND You do not think you were wrong.
Example: 1. You said something or made a decision about a situation or person without knowing all the pertinent points. 2. You made an assumption before having enough information but did not know other affected parties would be hurt by your statement or decision.
COMPONENTS OF AN EFFECTIVE APOLOGY
You have to stand up, step up and own your part in whatever situation or decision unfolded. Do not play blame games by offering that you were: tired, overwhelmed, distracted or coerced into doing what you did.
--> Be direct and firm in phrasing that you are responsible.
--> Use "I" statements about what you did and reinforce that you intend to avoid doing it again. Avoid trying to explain how you know how they feel about things. You may be able to relate by way of empathy but you cannot imagine how they feel from what you did but you can share how you think you would.
--> Insist on doing something (making reparations) to make up for
the pain you have caused
consider offering that you know they did not deserve what you did
repairing the damage you made
replacing what you have broken
***How you own your mistake and how you invest in repairing it will directly affect the ability to salvage the relationship you are working on.
BONUS CONSIDERATION ON HOW WE SEE OURSELVES IN A CONFLICT
PRINCESS-->KNIGHT --> DRAGON
In any given conflict or dispute, someone feels like the victim (princess), someone feels like the hero (knight), and something (dragon) bad caused the whole thing.
When you think of the conflict you are in, think of your role. Are you the princess, the knight or the dragon. Whichever role you play, try to imagine your role from a different perspective. If you were the princess (victim), try to imagine yourself as the knight (hero).
Emotional Intelligence (EI) is that ability to consider and appreciate someone else's circumstances, viewpoints and stressors without having actually experienced the same thing they are sharing with you.
Many believe the EI doesn't come naturally. People develop their EI as they move through life experiences.
Here is wonderful resource to better understand Emotional Intellgence: https://professional.dce.harvard.edu/blog/how-to-improve-your-emotional-intelligence/
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Definition: MEDIATION: a voluntary informal process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences and interests. Mediation empowers parties to make their own decisions and develop mutually sustainable outcomes, agreements and resolutions.
Strengthes: Parties have full authority to mediate and settle. They are in mediation voluntarily. Parties expect to meet under confidential circumstances. Confidentiality is not guaranteed in every state and situation. Know your state’s Mediation guidelines. Rule 31 of the Tennessee Supreme Court Statute addresses confidentiality. Typically, Mediators are not called to testify in open court.
Unlike court (litigation), there is nothing to prove and no evidence to review. Attorneys trained in mediation know and understand that their role is as an advisor to their client and less as an adversary to the other party.
MEDIATION TYPICAL PHASES
A Mediator is mutually selected by parties. Attorneys are often familiar with specific Mediators and the Mediation style they tend to apply. Attorneys often recommend several trained Mediators to clients to review and consider. Mediators come from various backgrounds and domain spaces. Some Attorneys have formal training in Mediation. When choosing a Mediator, consider their professional background and expertise and ask what their dominant mediation style is (facilitative, transformative, narrative, evaluative). Ask yourself which style is a good fit for your negotiation.
For clients relying on Attorneys, Mediators usually speak with Attorneys and then clients individually (phone call; Zoom; something else?). Attorneys sometimes attend these initial meetings.
All Parties and the Mediator(s) sign an agreement to meet.
Based on the information shared, Mediators work with parties and attorneys to design the meeting for optimal comfort and reduced stress. Meeting styles include Joint (all parties in same room) and Caucus (parties separated with Mediator moving back and forth). In Joint format, parties usually break into Caucus to discuss information with Mediators. Everyone gets their time to talk and share. Mediations rely on flexibility to best capture the momentums gleaned in sessions.
2. Mediation Day
Mediator begins with process review, agenda and ground rules.
Optional opening statements (welcomed but no requirement for Lawyer statement)
*Breaks can come anytime during sessions. Anyone can call for a break. When sessions resume, Mediators summarize which stage of mediation parties are in and restate agreements and issues on the table.
Information gathering- Facts may be reviewed or not, depending on the reason for mediation. What is really going is a collaborative discussion on positions and interests. This is the space where Parties should be mindful and receptive to what the other side is sharing. As this is a collaborative effort, Parties often see new value in pivoting their own positions to get better outcomes for both Parties.
Take a Break when you feel like you need to take a break.
Bargaining with an open mind from a creative space. This can be difficult for some people. What-if scenarios are designed to float concepts and possible approaches to sustainable solutions and agreements. Parties must able to speak to their interest and not just their position.
*The mediation process isn't tied to a linear pathway. Parties often flow back and forth from creative talks to bargaining and even into possible developmental solutions. Throughout this process Parties are encouraged to keep ears open and actively listen to issues floating around the discussion.
Shakespeare said that all the world is a stage and we are merely players. Attorneys and Mediators are on this Mediation stage all the time. They have seen many outcomes. About 85% of mediations reach a sustainable resolution. For most Parties, the Mediation experience is entirely new. If not, previous Mediations they may have been a part of may lower some stress regarding the process. But with different mediators and different reasons for their current mediation Parties can often get stuck in stalled negotiation. When you realize that you are at an impasse it is the time to try to step away and outside of the role you are playing in Shakespeare's Mediation stage and view the current situation from a different position. Sometimes, taking a break and by returning and sitting in a different chair can reveal entirely new ideas and considerations. It can be that simple. In court you will either sit quietly next to your Attorney, sit on the stand or be told to sit outside until you are called back. Mediation works when Parties sit where they want and talk about what they want and through their own efforts move issues forward. Mediating Parties are encouraged to ask questions.
Completion: this may result in an agreement/settlement, an additional session
*Not all mediations are held with the intent of developing a Settlement/Agreement.
*Settlement/Agreements come from the Parties. They must be realistic, freely given, sustainable. For these requirements to be met, Parties can invest significant time clarifying their own interests to themselves.
GENERAL INFORMATION
Mediation is a voluntary, confidential informal approach used to address conflicts, negotiations, business deals and stalled conversations. For thousands of years, mediators with different backgrounds have used different mediation styles (evaluative, facilitative, transformative, narrative) to help people sort out business deals, troubled relationships, potential lawsuits, and other conflicts and disagreements.
What is a Mediator? A Mediator is a neutral party who does not give legal advice and does not “represent” any party. Mediators apply the Mediation process to a negotiation. A mediator does not go to court and argue for or against any party. One role the Lawyers hold is to be (on retainer) and duty bound to represent only one party, In Mediation, Hero Lawyers have completed formal Mediation training. Mediation-trained Lawyers can serve as Mediators between parties they do not represent. Mediators are intended to be omnipartial- empathetically supporting independent decisions of all a parties in a negotiation. Your Lawyer will advise you on the merits of your case, the strengths and weaknesses of your case, and will address strategies for litigation, mediation, arbitration, settlement conference and probably some other considerations altogether.
Does a Mediator have to be Lawyer? No. Practical history highlights Lawyers trained in Mediation and serving in roles as Mediators are more than capable of remaining neutral and omnipartial to all parties in a negotiation. While parties in conflict do not necessarily have to have an attorney as their private counsel, it is common for parties to have their own attorney advising them during Mediation. Is your Lawyer formally trained in Mediation? And while some Attorneys may not necessarily be trained in mediation, they may bring an immense experience load and expertise that is invaluable to a Party.
Legal advice needed in an active mediation session must be given by your own Lawyer. Mediators who are Attorneys are not ethically allowed to give participants legal advice. Non-Attorney Mediators draw from their unique knowledge, domain expertise, skills, abilities and other experiences. Choosing to attend a Mediation session alone is your option. I would encourage Parties to at least consult an Attorney before and after the Mediation sessions. In Mediation, Attorneys are the usually the heroes of the session. They are there to provide legal advice you cannot get from Google or some other source.
MEDIATION STYLES
Narrative Mediation: Relatively new and stemming from family therapy and counseling efforts, Narrative mediation promotes the value in storytelling from the perspective of each party. Think of the triangle relationship of the dragon, knight and princess. People in conflict often speak of their situation form the eyes of the princess in distress. Mediators prepare environments and set conditions so that all parties may express themselves in order to share what they experienced as well as promote dialogue where people try to appreciate the contextual experience of other parties. An agreement or resolution may or may not be an end result of this type of mediation.
WHAT A MEDIATION ISN’T
Mediation is not Litigation (court). Mediator are not Judges. Mediators do not make decisions or impose a solutions.
Mediation is not Arbitration. Mediators do not decide cases or impose solutions.
Mediation is not counseling and does not provide therapy. The mediation process can touch on past issues but is focused to move parties forward toward improved understanding and possibility an agreement or solution.
Mediators do not provide legal advice to an individual party or both parties. A Mediator is not one attorney for two people. If a Mediator happens to be an attorney, the Mediator role prohibits them from providing legal advice.
HOW DOES MEDIATION WORK?
Mediation sessions set informal conditions so each party can summarize their point of view, positions and more importantly, their interests. Parties can bring their attorneys or not. There is great flexibility in setting mediation meetings. All parties can meet together or Mediators can shuttle (caucus) between different rooms with parties (and as applicable, attorneys). Caucus formats all parties to share confidential information and vent away from the other parties. Agreements are usually put into writing and signed by the people involved (and of course, built with the advice of their attorneys if they choose). The language in a mediated resolution agreement is crafted by the parties (with attorney input as they desire). Mediators do not develop, author or construct settlement agreements. Settlement agreement statements typically showcase one of three mediation sessions outcomes. A mediation may be terminated with no agreement or settlement. An agreement may be reached with contingencies. An agreement may be reached with all parties in support. The mediation agreement/settlement document is the only document that is considered durable ( eligible for filing with a court, and all parties leave with a hard copy of the agreement/settlement. Parties have open options regarding resuming mediation for a stalled session or returning to mediation for new negotiations at a later date.
Mediation Meeting Duration
Here again, the informality of mediation is a great strength. Some conflicts, disputes, and impasses can be sorted in just a few hours. More complex concerns may require several sessions. either over days or weeks. The most important point of every mediation is that the mediation is a place of empowerment for all parties. The Mediator promotes the mediation process. Attorneys advise their clients. Parties have the main speaking roles and full decision authority.
WHO PAYS FOR THE MEDIATION?
The cost of mediation is shared equally by the persons involved unless they agree otherwise. You should know in advance what the mediator charges and when payment is expected. Payment for mediation sessions are typically sorted before a session initiates.
WHAT TYPES OF DISPUTES CAN BE MEDIATED?
WHAT ARE THE BENEFITS OF MEDIATION?
PARENTS GUIDE TO MEDIATION
Parents filing for divorce must submit a parenting plan. Mediation brings an immense power and efficiency to parenting plan development and stalled divorce negotiations.
Mediation:
The Mediator:
Attorneys are the Heroes in divorce mediation. Because Mediation is a process that falls outside of the courts, attorneys do not have to gather evidence and prove the facts of divorcing couples in an adversarial way. In Mediation, there is not fight against the other side. It is a collaboration to move forward through a divorce transition in a way that sets desired outcomes for the divorcing adults and the parent's best negotiated conditions for their children.
LAWYERS GUIDE TO MEDIATION
The Hero role of the attorney in mediation is a one of a counselor to their party over their court role of arguing facts and issues to a judge or jury. Effective mediation-oriented Attorneys bolster their clients abilities to speak to their positions and interests. In mediated divorces the intent is to move forward.