Archive for year: 2022
An Alternative to Litigation: “Part 2, The Basics of Online Negotiation/Mediation: Creating Value Through COVID-19” By Stanley Zamor
“Thank you for allowing me to be your mediator. If you can clearly see/hear me, please give the thumbs up signal… Thank you. You are all not muted and I will do my best to make this feel comfortable and familiar. Thumbs up if you have participated in mediation and/or negotiations using an online platform. Good. Well mediation is a process and technology allows for more flexibility… I am a third party impartial neutral without the authority to impose a decision/solution… All of the rules of confidentiality apply, and all named parties are present correct?… Now, there may come a time where I may need to meet with the parties and their attorneys privately, or the attorneys privately, or even in rare circumstances just both parties together…You are encouraged and empowered to create your own solution that best satisfies your needs today and craft a Mutual Acceptable Agreement… Are there any questions. Let’s begin.”
Part 2 – Creating Mutual Gains and Value
Recently I facilitated an online mediation where both attorneys expressed a frustration with the case and how the matter was being litigated during COVID-19. Everything was an issue, from document production requests/responses, to communicating with multiple revolving attorneys on the case. Nothing was consistent. The above are excerpts from my Mediator’s Orientation Statement (aka the “Opening Statement”) where I addressed the attorneys’ frustrations. IT WORKED!!!! During the process I used the online platform functions to meet separately various times with the attorneys alone and their clients. I was able to create trust in the process, between the attorneys/parties and build perspectives that led to shared mutual goals and a willingness to create an mutually satisfied agreement.
Not enough value is placed on the opening statement (and using an online platform makes is more difficult). Depending on the case & participant specifics, negotiators need to be flexible in their approaches and be prepared to reserve the “Harsh-Tactics” for face-to-face interactions or court!
So, as you negotiate through online platforms think about the following:
1) What do you want out of the process and how will you approach it differently than the usual face-to-face interactions?
2) How have you responded to conflict or the adverse opinions/positions of the other side?
3) How will you participate differently when online?
4) Prepare a brief and concise opening statement that also captures your expectation with online negotiation, AND YOUR LIMITATIONS!
5) Be honest about what you want, and where you are willing to go, save ego for court.
Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the ATD (Agree2Disagree) Mediation & Arbitration, PA throughout Florida. As an ADR consultant he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.
szamor@effectivemediationconsultants.com; www.effectivemediationconsultants.com
www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600
An Alternative to Litigation: “Preparing for Negotiations: Do a S.W.O.T. Analysis”
By Stanley Zamor
So after three intense hours of negotiations where I shuttled between private rooms, I decided to bring the lawyers together in the hallway and I asked them, “Well we have tried for quite some time to find common ground and you both are debating business/legal positions that neither want to move from. If you allow me to, can I approach the remainder of our time in a different way? Both attorneys looked puzzled, yet agreed. I proceed to use an S.W.O.T Analysis approach and after 90 minutes they began to draft a mutually agreement.
So what is a S.W.O.T. Analysis? This acronym stand for Strengths, Weaknesses, Opportunities and Threats. In the late 1960’s Albert S. Humphrey developed this framework to better analyze business/organizational decisions-making. A S.W.O.T Analysis is a tool that can be used in a variety of industries.
The S.W.O.T Analysis has typically been used in a business and marketing context; I like to suggest that it can also be applied in a variety of areas including that law. It is a helpful guide to analyze and review positions, strategies, ideas or approaches towards a challenging issue. This article is limited and cannot describe the specifics and intricacies of creating a S.W.O.T Analysis (the literature online is abundant). Consider the following:
Strengths:
Strengths are internal factors that influence your position. List five reasons why you feel your position is strong. Explain why and how you feel that way.
Weaknesses:
Weaknesses are internal factors that influence your position. List five things that are risks for you. Why?
Opportunities:
Opportunities are external factors that influence your case or current position. Opportunities are not as easy to identify as some may think. You must spend time researching your business industry and be honest with yourself about your wants, needs and walk-away points.
1) Identify 5 positives that motivate you to proceed?
2) Identify any interesting trends or similar issues in your industry or legal position that you can imitate or rely on?
Threats:
Threats are usually external factors that influence how to proceed. To review what your threat are a variety of questions should be developed. The following are not exhaustive:
1) List 5 risks you face if you go forward with your position.
2) Should you not prevail as anticipate, does the loss change your position in the marketplace or industry? If so, how?
3) Will your reputation be harmed if you do not obtain a favorable result? If so how?
4) What is your financial risk tolerances?
Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultants he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.
szamor@effectivemediationconsultants.com
www. effectivemediationconsultants.com
www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600
An Alternative to Litigation: Addressing the Imbalance of Power in Mediation
Published : May 2017
Turning Water Into Wine
Turning Water Into Wine[1]
By John S. Freud
“Be like water making its way through cracks. Do not be assertive, but adjust to the object, and you shall find a way around or through it. If nothing within you stays rigid, outward things will disclose themselves…”
–Bruce Lee
Miracles don’t just happen. They occur, and are then revealed. For many if not most of us, we must take a giant leap of faith to even begin to be open to the possibility that Miracles can, or could, happen. Others might argue that Miracles are present for those that choose to acknowledge or recognize the “miraculous” for what it is, or may be – an unexplained phenomenon for which there is no easy answer as to how or why it seemingly, or simply, is.
Christ’s Turning Water Into Wine story (John 2:1-11) is, to his believers, a seminal example of the “miraculous”. But whether miraculous or not, is interestingly, not the point. It’s the Belief in the metaphorical outcome of the story that provides the enduringly powerful message to all of us, rather than its historical accuracy or its factual efficacy. And that message is, anything is possible.
Which leads us to Bruce Lee. The analogy is not a stretch. Imaging we are “ water making its way through cracks” might seem at first blush farfetched. Just like Jesus turning water into wine. But the sentiments underlying both images are the same. Anything is possible. What Lee does – and what Jesus omits – is how to make anything possible:
“Do not be assertive, but adjust to the object…nothing within you stays rigid…”
Lee’s “how to” admonitions may be summed up thusly – when adversity comes calling, rather than stiffening your response, soften your resolve. One “shall find a way around or through” adversity or deep conflict in mediation – “like water finding its way through cracks” – until suddenly “outward things will disclose themselves”.
In a negotiation in mediation, the disclosure of “outward things” – drivers of decision making by principals, motivation of lawyers and insurers, and the like – must reveal themselves in order to find the space necessary for compromise. Belief – and its discontents – must give way to decision-making that opens parties in deep conflict to the possibility for “anything is possible”, which in mediation includes voluntary resolution of the dispute.
Is the mediation environment a crucible for miracles, or as the saying goes, “mediation magic”? No. However, it can be, with fully engaged participants and a skilled mediator committed to “anything is possible”, an environment where unexpected, voluntary resolutions for parties in conflict “disclose themselves”.
If that is Turning Water Into Wine, I’ll have a glass of your finest!
[1] This is a companion piece to “Mediate, Like Water My Friend – Reflecting on Bruce Lee” By Stanley Zamor, September 2022
“Mediate, Like Water My Friend – Reflecting on Bruce Lee”
By Stanley Zamor
The Defense and the Plaintiff’s attorneys exchanged smiles and pleasantries while the agreement was being signed, then someone stated, “How did we get here. I never settle these cases so early…”. I immediately interjected, “Well, it’s because we mediated like water. And from the orientation (opening statement) forward, you allowed the process to be what it needed to be for the litigants”. I asked the Defense’s attorney, why was his first offer much higher than what they anticipated? Then, I asked the Plaintiff’s attorney, you said the Defense lost their Summary Judgement Motion which would have ended the case before the trial, you have a stronger case, and your 3 recent trial wins mirrors this case exactly. Why demand so much less when you said you are due so much more? They seemed more attentive, and I continued; you both expressed a choice to negotiate differently, so we did. Although we initially went through the merits of your case, how much time did we spend debating the usual arguments showcasing your strengths and highlighting the others weakness? Not much. With this case there was no need to mimic the evaluative style mediators/neutrals use; its mundane, often unethical, and very limiting. You did not need that, so I played the role I was supposed to and encouraged creative negotiations. Instead of it being only about who is a better lawyer, whose case is stronger, it became about what solutions can work today. I mediated like water my friends.
“Empty your mind, be formless. Shapeless, like water. If you put water into a cup, it becomes the cup. You put water into a bottle, and it becomes the bottle. You put it in a teapot, it becomes the teapot. Now, water can flow, or it can crash. Be water, my friend.”
— Bruce Lee
The Promise of Mediation
Mediation is a unique process with subtle nuances; it is not a court event. And when facilitated with process-knowledge and a command of varying negotiation techniques the parties can craft/achieve solutions that the court cannot offer. Mediators who remain tied to their litigation roots often neglect the promise of mediation, for the profit of mediation. They rarely invest in expanding their skills/techniques or becoming “comfortably-uncomfortable”, an advanced state. Participants can get more out of mediation if they understand the possibilities of mediation.
“Conflict/Mediation is Constructive…”
Bruce Lee’s words were about resilience. I find them far deeper and use them as a metaphor and as an approach for creating unique solutions that encourages flexibility, creativity, empowerment, barrier reducing communication, relationship-building, and self-determination.
Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultant he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, and Family/Business relationships.
ZamorADRExpert@gmail.com ; www.effectivemediationconsultants.com; www.LinkedIn.com/in/stanleyzamoradr (954) 261-8600