Mediation: Round Two

Given how little time I had to prepare for this round’s mediation, I felt it went extremely well. The mediation was Friday and I had a moot Monday, so the majority of my preparation was absorbing facts and doing some background information searches. I was completely frustrated in my legal research – this was a contract dispute and I wanted to find the statute of limitations in the target country, but with no luck.

This round I was paired with a BPTC student, which was an interesting experience because we had such different approaches. Given her natural inclination to rely more on the law, and mine to concentrate more on corporate realities, we decided she would be the attorney and I would be the client. I was fine with this choice, because firstly, I had played the attorney in the last scenario, and second the client character was an American woman.

And that, by itself, was a challenge. Unlike the last briefing, this one included behavioral and personality suggestions. My character, the president of a film distribution company, was arrogant, short-tempered, disinclined to be at mediation, and willing to hold her attorney personally responsible if they didn’t arrive at an immediate and favorable solution. I struggled in my preparation with how to balance out playing those character traits, and still be effective in the negotiation. Role-playing I have NO problem with and TONS of experience; but how to you come to an agreement when you’re playing someone who seems determined to have it all their way?

One of the ways I worked around this was by planning a reaction in advance with my partner. My character was extremely worried about criminal liability, and so before the mediation started we scripted a response I would have if the other side mentioned the possibility of jail time. It worked beautifully, though I think we should have focused more on making sure we used the ideas we came up with during the break once we resumed.

I also learned that throwing you into the deep end without any up-front instruction is intentional! The coaches and judges want to see how you’re going to prepare, perform and adapt to the format without any ore-conceived notions. With the national competition in January and the international one in February, I can see the rationale. In keeping with that thought, we received much more specific and structured feedback at the end of this session.

Here’s what I took away from the experience:

-Caucuses and breaks, even the ones you script in advance, still take place in character! They’re a chance to you to explore your side of the situation and your options with the mediator privately, such as when to use a key piece of information. They can also be used to break off a circular argument, or to reposition yourself and refocus. Make sure that when the caucus is finished, whatever you decide you USE!

-When preparing, emphasize your opening statement. Both the client and the attorney should take place, because it’s your first and only chance to state your position without potential interruption. The lawyer should focus on stating the legal position, and the client should concentrate on the corporate realities and emotions of the situation, such as feelings of being wronged.

-That being said, don’t lay out everything in your arsenal in the opening, and don’t come across as putting out an immobile position. You want to push the other side through a combination of strength and enticement, but you don’t want them to walk out. Put forward what you think might sound attractive to them, and say things that might cause them to react, especially in regards to their weak spots.

-Don’t overlook the cathartic aspects of starting the mediation off with looking backward in time. Your ultimate solution may lie in setting it aside and concentrating on the future, but giving everyone a chance to speak their peace and vent can take the tenseness out of the negotiation and allow people to concentrate on realities.

-Absorb and get entrenched in your facts, including doing non-legal research to help you understand the mindset of your characters at the time the events were taking place. This scenario took place in 2008, but was based on a movie contract from 1990, so I spent a lot of time reading about the development of residuals and royalties. You shouldn’t have to look at your briefing material at all once you start, and you should also have a good feel for places where you can improvise additional relevant facts to add flavor without straying from the brief. For example, this scenario involved a retired actress who through in references to “dinner with George and Leonardo” – harmless to her legal position, but completely appropriate for the character!

-The attorney’s role in a mediation is twofold. First, they should be keen listeners, and try to step in when a situation develops where there’s a break-down in communication, such as when what one party hears isn’t what the other is saying (apples and oranges). Second, their job is to protect the client by keeping an eye on the BATNA (best alternative to a negotiated agreement) and making sure their client, and ultimately both parties, understand what’s on the table to be worked with. They should also be defensive in terms of the other side’s legal position, and encourage the parties to explore the legal aspects in loose terms, but ultimately set them aside and concentrate on finding a workable corporate solution. After all, this is mediation – not a trial.

-Meanwhile the client’s role is to emphasize the emotional and corporate realities of the factual situation. They may be a victim, an aggrieved party, or a company that’s on the wrong end of a deal. More so than the lawyer, the client has to know the facts inside out and backward, and be able to improvise in response to new facts as they come up. Generally the legal positions are clear at the beginning, but each side usually has a factual trick up their sleeve.

Personally, this round I did a much better job of utilizing the breaks to absorb and respond to new information, as well as keeping up the open-ended, inclusive questioning. Using the words “we” and “us” is very effective when you want everyone to feel you’re working together on a solution to the problem. I also thought I did a very good job in picking up on the opposition’s client’s comments about wanting personal reassurances, and creatively weaving them into a potential solution.

I can’t wait to see what round three may bring!


Published in: on November 24, 2012 at 09:09  Comments (1)  
Tags: ,

The URI to TrackBack this entry is:

RSS feed for comments on this post.

One CommentLeave a comment

  1. […] Mediation: Round Two – How to deal with a negotiation when your character is a hothead. […]

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s