|
My background or
qualifications
1.
Any
questions you have for me or about my background, qualification or
impartiality.
2.
Availability
or fee structure.
The “A, B and
C's” of the conflict – “C” = conflicting goals or demands
3.
Who
are the parties and what are the parties' conflicting goals or
demands? Can you
provide a short non-argumentative summary statement?
4.
What is the history of these conflicting goals?
5.
What
are/were the triggering events that led to the conflict?
6.
Status of
adjudicatory matters. What is ongoing? Any pending court deadlines?
The “A, B and
C's” of the conflict – “A and B” = attitudes and behaviors
7.
What
attitudes exist among the parties (counsel) that may be unproductive in
this effort? How to best address those attitudes?
8.
What
historic behaviors have contributed to or been demonstrated in this
conflict? How to best address those?
9.
Are there
any historic or personal conflicts that we need to take into consideration
in this mediation?
“System” effects
– external pressures, limitations, actors or trends
10.
What
external non-party actors, factors or pressures affect our ability to
resolve this conflict?
11.
What trends
or systemic factors affect the actors in this settlement effort? Such as
economic, political or other pressures, legal limits, administrative
authority, chains of command, approval mechanisms, insurance, collateral
agreements, accounting issues, external finance, related litigation or
precedential issues or other factors that bear upon or limit one or more
of the parties?
The mediation session
12.
Who are the
best persons to attend and participate in mediation?
13.
Would any
other person(s) make the mediation process go more smoothly or faster?
Need anyone available by phone?
14.
Is it
advisable to have or establish some mediation guidelines or ‘code of
conduct”?
15.
What
documents, maps or plans would be useful to have at the mediation?
16.
Have we
found a date, time and venue for the mediation?
Data needed
17.
What
informational exchange is needed (if any) to get parties prepared for the
mediation?
18.
Documents
(if any) that you think I should review before the mediation to get an
overview
Preparing for mediation
19.
What other
actions will get us best prepared to identify settlement options?
19.1.
In what
ways, if any, may we be stuck in “cash” only approaches to bargaining?
19.2.
What, if
any, are the potential future relationships among the parties? None,
limited, re-engaged?
19.3.
What
creative ideas or approaches would open up some settlement options?
19.4.
What, in
any, contingencies bear upon the settlement terms? Can any such
contingencies be built into the settlement?
20.
Can we make
a tentative list of issues for resolution in mediation?
21.
If you
reached a full resolution, what would constitute the components of a
comprehensive agreement for resolution?
22.
Use of a
mediation agreement (sample can downloaded at http://www.jpmcmahon.com/Mediation%20agreement-Word.doc
)
23.
How should
your clients be best prepared for participation in this mediation?
Attitude and
willingness to negotiate - barriers
24.
What
barriers exist, if any, to a productive discussion towards settlement? Are
clients willing to participate in such a process?
25.
What could
you say to brief your clients in preparation for mediation?
Attitude and
willingness to negotiate – What zone are you in?
26.
With what
goals and expectations do the parties and their counsel approach this
mediation?
27.
What steps
could move a nonnegotiable conflict into a negotiable conflict?
|
Zone
1
Offers
and counters
|
Zone
2
Mid-zone
|
Zone
3
We
are here to learn, be creative and consider options
|
|
·
We
each know the other’s case; this is a place to exchange offers and
try to persuade them that they should make concessions.
·
The
options for resolution are fixed and limited; not much room for
creativity.
·
We
have a rather solid idea of what is reasonable and fair. If
something was heard that concerned us, we could make modest
adjustments in what we think is fair.
·
Let’s
get to exchanging offers and counters quickly.
|
·
Although
we have studied this case, we are also here to listen. We are
willing to listen to the other party’s views.
·
Although
the options for resolution seem known, we can listen to what
develops.
·
Although
no new or creative ideas have emerged, we are willing to listen.
Something creative could emerge.
|
·
We
are open to discussion and consideration of new data.
·
Although
having ideas about fair resolution, we will also look for and at new
approaches. We are willing to consider creative options.
·
We
could learn from the other party and are willing to listen.
·
This
case could perhaps benefit from creative approaches.
|
Avoiding settlement
decision errors
28.
What
decision errors are most likely in working toward settlement? Perhaps
relating to the attitudes and behaviors above?
29.
What steps
can we take to reduce the likelihood of decision errors?
30.
What steps
can we take to avoid avoidable impasse?
Agenda for the
mediation session. What
is a good agenda for the mediation session? As a starting point, consider
modifying the following:
31.
Introductions,
agreement on goals for the mediation, ground rules, confidentiality
32.
Questions
from parties or counsel on the mediation process
33.
Discussion
– the “legal realities”:
33.1.
What are
the legal realities of this matter?
33.2.
If you do
not settle, what will be presented to the court/arbitrator?
33.3.
What
decisions must the court or arbitrator make?
33.4.
What drives
those decisions?
34.
Discussion
– the “settlement opportunities”:
34.1.
What are
the interests of each party? What interests must be adequately satisfied
to prefer settlement over litigation?
34.2.
What should
be included in a comprehensive resolution? What are all of the elements of
a settlement agreement?
34.3.
In what
ways does each party value these elements differently?
35.
Exchange
packages for settlement.
36.
Decision
making: how does litigation compare for each party with the settlement
options developed?
Any other questions?
|
