An Alternative to Litigation: “Preparing for Negotiations: Do a S.W.O.T. Analysis”

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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

“Mediate, Like Water My Friend – Reflecting on Bruce Lee”

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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

Article_Legacy Sept 2022 Mediate like Water Bruce LeeDownload

Quotes from “The Importance of Diversity in Alternative Dispute Resolution” June 2021

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Baros, Eunice, Palm Beach County Bar Bulletin on Diversity.Mediation

Notable article quotes: (Click here for article)
“Diversity pervades our entire existence …Diversity goes beyond cultural characteristics. If affects our socio-economic, gender, geographical, and financial status.”
“The Covid-19 pandemic has forced us all to be aware of others and not just ourselves. We need to emphasize fairness, equity, values, empowerment and self-determination at every level of our interaction and in every situation in our lives now.”
“We are diverse. We want to be valued, we want to be recognized, we want to be respected. Diversity is what we are. It’s part of the human condition.”

 

MEDIATION-PTSD. IS THAT A THING?

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Post-Traumatic Stress Disorder can develop after a person is exposed to
a traumatic event…

“… You’re a what!?! Did you say a Mediator?!” As I tried to understand his repulsed face he continued. “Sorry I didn’t mean to interrupt your conversation Stanley, but as I passed by and heard you say you’re heading to do a mediation my stomach turned, my blood ran cold and I was immediately brought back to 8 years ago when I meditated for 12 hours! It was horrible! I HATE mediation, and mediators are worse than lawyers! I mean my lawyer, said that this retired judge was pushy and often was used because she was good at getting deals done. And she can give us a look at what another judge might do. It was the worst decision of my life. Well second worst, staying in my marriage 9 years to long was the 1st. And after 12 hours NOTHING got done. 12 hours man! And, I tell you what. If the judge, I mean mediator, always came in beating me up on me and saying, ‘As a judge, I would rule this way or that- way, or, ‘You know she could get permanent alimony due to her disability… I would strongly consider that when I was on the bench’. I mean come on! Talk about against the man in a divorce. I refused to settle after that… No! she was completely biased and on my wife’s side. It was a pity-party that didn’t need to be done because my ex only uses her disability issue when she wants. And the mediator never wanted to hear that. My ex was a complete bully to me and her family which is why they were all my witnesses at the trial 8 months later. Sorry. But I just hate mediation…”
Wow! I was shocked at how expressive Mr. Jay was. Since I’ve known him for about 18 months and after many conversations after the gym, he never had such a harsh tone… So, with an empathic-understanding tone, I said. “I hear you, Jay. And yeah, many mediators are not well trained in conflict resolution but rather stay within their adversarial-approach to conflict resolution even as they mediate. But I know some fantastic former judge mediators, so do not lump them all the same. And I am sorry you feel that way about mediation. Mediation really is an awesome process and is supposed to be a balanced process. Even in our Florida ethical rules, like 10.200, it promotes the ‘…use, understanding and satisfaction of the process for the parties’”.
Jay shook his head saying, “What I experienced should be illegal. It’s too late now, and I should have done something before, but what, I do not know. I was so distraught from the hurricane of the divorce. I didn’t think I could do anything anyway, she was a judge, what could I do. I was in no place mentally or emotionally to deal with it. Divorce is just such a terrible thing. But now I am thinking, how many other people did she do that too… it’s just wrong…”
We continued to speak where I hopefully showed him that although his experience was not exclusive, and it does happen quite often, it is not the process or the profession that is at fault, it’s the practitioner and lack of training.

MEDIATION IS NOT ABOUT THE DEAL…
WE HAVE A DUTY TO THE PARTIES, PROCESS, PROFESSION & COURT…
TRAINING MATTERS…

Learning to CoParent As You Divorce/Separate: Step 1

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It is unfortunate when couples can no longer stay together and find themselves separating and filing for divorce. Parenting is difficult becomes exponentially more challenging when it is being done in 2 different ways, in 2 different households. This is a brief clip as to how someone can start the process of divorcing and CoParenting. As a Certified mediator, I have helped many couples develop their own way to CoParent as they were divorcing (and post-divorce) and it is tough! BUT CAN BE DONE IF YOU BOTH WANT IT TO WORK… I specialize in complex high-conflict families and I use a multi-level approach that can help couples create constructive solutions.

May 2019 New Administrative Order! Fresh, New & Responsive

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From Anticipated Changes to Innovative Responses, This New Administrative Order Responds to What Many Have Been Waiting For….

A new administrative order governing the certification and renewal of mediators has been issued and is effective immediately.  Some changes you will note:

  • Allowing mentorship activities (up to four hours) and lecturing to count as a live method of continuing mediator education (CME);
  • Elimination of the four-hour appellate specific CME requirement for certified appellate mediators;
  • Including attendance at court alternative dispute resolution (ADR) committee and board meetings for time spent on mediation topics as a live method of CME;
  • Inclusion of pre-suit homeowner association (HOA) disputes, within the jurisdiction of the circuit court, mediated by a certified circuit mediator, to qualify for circuit mentorship;
  • Inclusion of the process for the Florida Department of Law Enforcement (FDLE) background screening for mediators seeking certification and certified mediators adding an area of certification;
  • Adoption of the expanded interpersonal violence (IPV) definition for CME activities; and
  • Consolidation of administrative orders AOSC11-1 and AOSC12-48.

There were no increases to the fees for certification or renewal.

AOSC19-26 Governing Certification of Mediators

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An Alternative to Litigation: “3 Effective Negotiation Strategies”

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“Ultimate excellence lies not in winning every battle, but in defeating the enemy without ever fighting…” –Sun Tzu.

 

As a mediator I continue to study the Sun Tzu’s the “Art of War”. Not because I support War/conflict but rather, I believe that to effectuate collaborative solutions one must be prepared for multiple manners of “warring”. The Art of War offers a great amount of wisdom that can be used in a variety of industries.  As a mediator I have observed disputants being counterproductive throughout a mediation conference because they are too focused on winning, although they both were very interested in avoiding a trial.  It takes a great amount of awareness to help those achieve what they say they want, without them feeling like they gave up what they need…

 

Negotiation opponents often think that the only way to negotiate is to intimidate and by a show of power.  There are a multitude negotiation approaches/styles and they all have distinct advantages and disadvantages. The following are the 3 that I’ve seen initially be more effective:

 

3 Negotiation Strategies

 

  • Reduce the Conflict – Conflict is expensive.  Before you engage in a lengthy litigation matter or negotiation effort, be honest and strategize on the business of conflict.  If there are a multitude of issues, try reducing them to the most essential points of conflict. Often when you have a chance to narrow down the issues that need to be address, you narrow down the cost/time that may be incurred.

 

  • “Enlarge the Pie”– A rarely used technique is to creatively broaden the options of agreeable outcomes. Often disputants only come to negotiate with limited ideas of what is owed or due to them. So, in turn they negotiate with a limited view of possible outcomes.  When you negotiate from a position of having plenty of outcomes you tend to be more flexible and reach agreement easier.  By “enlarging the pie” you create the tone that greater options are available to those with the willingness to seek greater options.

 

  • Separate the Person from the Issue – “If it is only business, keep it that way!” Behavior during negotiation is key, and perception is everything. When parties state “…it is just business, this is a simple case…”, I always expect more much more.  We are all human and therefore what should be simple can easily turn into frustration and lashing out when the other side just doesn’t see how wrong you think they are. Be mindful of harsh negotiations turning into name-calling or personality trait bashing.  To reduce the frustration/emotions, it is always better to objectively remain on the matter in dispute and not who is doing the negotiating.

 

Mediation is artfully delicate process and should be facilitated by a professional neutral with the unique skill sets that promote collaboration, party self-determination while encouraging negotiations.

 

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 has a private mediation and ADR consulting company.  He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.

 

3 Effective Negotiation StrategiesDownload

A New Year of Resolve:  Saying Goodbye to LAST-YEAR’S Litigation and Hello to THIS-YEAR’S Agreed Settlement

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By Stanley Zamor                                                                                                                                                            

“It’s 20XX.  Time to let LAST-YEAR go!  You decide.  It is time to accept and expect THIS-YEAR to be the year of RESOLVE!”  During the various mediations I facilitated in 20XX, a common theme I heard by participants to explain their discourse, was that 20XX was a year of build-up, peculiarity and conflicts that seemed to spiral out of control; so the parties (and their attorneys) were ready to settle.  Although parties, and their counsel, self-described the dispute(s) as being “simple”, as the mediation process progressed, simple issues revealed themselves more intractable.  As a professional neutral I am not surprised by parties being unrealistic about the simplicity of their issues (and their resolve).  Managing expectation is not a problem, and it is what a trained professional neutral is trained to do.

 

So, how do mediation participants leave the past and the old year behind (analogous to litigation);  and move forward like a New Year’s Eve countdown, eager to see the ball drop in Times Square, and at the stroke of midnight, be ready to usher in a new year, a new resolve, an agreed settlement?  The anticipation and expectations of a new year bring new hopes, new dreams, and the achievement of new goals.  But timing is the key; and unless participants are ready to reach a resolution, they will not settle.  To gauge unsure participants and their preparedness to settle, after their 2013 cynical statements, I offered for consideration, “…Preparing a mediation settlement agreement is like preparing for a new year, with New Year’s resolutions.  You craft your goals, and how you want your present and future to be; while litigation focuses on the past year that is now gone.  Litigation forces you to relive regrets, wrongs, missed opportunities and hurts.  Although litigation is your right, and allows you to receive a decision, others ultimately assign a value to your position, with which you may not agree.  Your hurt feelings and intangible concerns are rarely addressed in litigation; and the ‘I SHOULDAS, I WOULDAS, I COULDAS…But I DIDN’T…’ do not get expressed.  However, during a mediation session, there is usually an opportunity to address such concerns and that is when it becomes easier to start fresh, new, and agree to resolve the matter through an agreed settlement…”

 

After further dialogue and self-assessments, most of the participants saw the value of reaching a settlement agreement that day and were ready to resolve the matter.  I was told that after the mediation session, the settlement agreement created gave them the ability to move forward, onward and upward.  Holding on to the past through litigation felt like dwelling on the “yesterday”, it held them back; and also, living to litigate a case, continued to hurt more than help.  While creating and preparing a settlement agreement, helped set clear future goals, let them be heard and more importantly, allowed for forgiveness and the acceptance of an, “I’m sorry…”.  HAPPY NEW YEAR!

 

(updated, 2018)