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Karyn Branco Early Conflict Resolution

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  • 1. Karyn A. Kennedy Branco, Esq. E. Richard Kennedy, Esq. Kennedy, Wronko, Kennedy Sea Girt, N.J.  08750 732.282.9100 [email_address] Early conflict resolution: “ The ugly duckling of Mediation Training.” November 11, 2005
  • 2.
    • INTRODUCTION
    • THE NEW JERSEY COURTS ADVOCATE RESOLUTION
    • THE N.J. LEGISLATURE ADVOCATES RESOLUTION
    • NOW WHAT
    • THE NUTS AND BOLTS
    • WHAT IS THE ROLE OF THE MEDIATOR
    • MEDIATION DOS AND DON’TS
    • MEDIATING YOUR WAY
    • KEYS TO COMMUNICATION
    • MEDIATION: both conflict resolution & conflict avoidance!
    • MEDIATOR TOOLS 
    • TOOLS FOR PARTICIPANTS
    • CONCLUSION
  • 3.
    • What lies behind the desire to close a claim before it even begins?
    • How do you do that?
    • Communication.
    • INTRODUCTION
  • 4.
    • The communication at the early points of conflict most often set the stage.
    • Imagine a lawyer has a client he has promised the moon to and you come along and remind him he will get less than the moon’s reflection in the puddle of water at his feet.
    • Will he agree?
    • Act reasonably?
    • Or will he becoming defensive needing to prove you wrong at any cost?
    • INTRODUCTION
  • 5.
    • It’s an age old tradition:
    • Saving face
    • Yet, saving face involves time, cost and pain it takes to put on the mask.
    • So when does conflict resolution begin?
    • It of course begins at the beginning, before we put on the mask.
    • INTRODUCTION
  • 6.
    • The majority of conflicts that occur in a community association occur because of set rules and regulations.
    • The enforcement of rules and regulations, or the lack of enforcement, often equals conflict.
    • Conflicts also occur because of emotions and the interplay of emotions with various personalities.
    • INTRODUCTION
  • 7.
    • Today there is an emerging new theme to disputes within community associations:
    Early Conflict Resolution!
    • INTRODUCTION
  • 8.
    • Communities and their inhabitants are recognizing that life isn’t static, as the days, weeks, months and years go on, the community and people that live within change.
    • Early Conflict Resolution fosters change, allowing the inflexible to become flexible.
    • Early Conflict Resolution allows for the creation, foundation and continuance of harmony.
    • INTRODUCTION
  • 9.
    • Early Conflict Resolution within communities can very well create a new path for the future. To do so, we need to dispense with the old ways of thinking, that there is in fact a right way and a wrong way, a right point of view and an wrong point of view.
    • Mediation is the melting pot of opinions, facts and ideas.
    • The ways in which early conflict resolution can effect communities for the better is vast and still unknown today. The one thing that is known is that resolution practice is a positive and litigation a negative.
    • INTRODUCTION
  • 10.
    • What is required to participate in early conflict resolution?
    Good faith!
    • INTRODUCTION
  • 11.
    • Do the parties need to come to the table in absolute good faith?
    • INTRODUCTION
  • 12.
    • Do the parties need to come to the table in absolute good faith?
    • No!
    • All that is really needed to begin is a small margin of good faith.
    • INTRODUCTION
  • 13.
    • Do the parties need to come to the table in absolute good faith?
    • No!
    • All that is really needed to begin is a small margin of good faith.
    • What is early conflict resolution?
    • INTRODUCTION
  • 14.
    • Do the parties need to come to the table in absolute good faith?
    • No!
    • All that is really needed to begin is a small margin of good faith.
    • What is early conflict resolution?
    • It is the step or steps before true mediation.
    • In order to understand “ECR” , it is first helpful to review the why and how of mediation. We will use “ECR” and “mediation” interchangeably.
    • INTRODUCTION
  • 15.
    • WHAT IS MEDIATION?
  • 16.
    • WHAT IS MEDIATION?
    • Mediation is the process of attempting to resolve conflicts.
  • 17.
    • WHAT IS MEDIATION?
    • Mediation is the process of attempting to resolve conflicts.
    • The Merriam-Webster online dictionary defines mediation as follows:
    • Main Entry: me·di·a·tion Pronunciation: "mE-dE-'A-sh&n Function: noun : the act or process of mediating ; especially : intervention between conflicting parties to promote reconciliation, settlement, or compromise - me·di·a·tion·al /-shn&l, -sh&-n&l/ adjective
    • Mediation is the process of mediating .
  • 18.
    • What then is mediating?
  • 19.
    • The Merriam-Webster online dictionary defines MEDIATING as follows:
    • Main Entry: 2me·di·ate Pronunciation: 'mE-dE-"At, Function: Verb Inflected Form(s): -at·ed; -at·ing Etymology: Medieval Latin mediatus, past participle of mediare, from Late Latin, to be in the middle, from Latin medius middle, transitive senses
    • 1 a : to effect by action as an intermediary b : to bring accord out of by action as an intermediary
    • 2 a : to act as intermediary agent in bringing, effecting, or communicating b : to transmit as intermediate mechanism or agency intransitive senses 1 : to interpose between parties in order to reconcile them 2 : to reconcile differences
  • 20.
    • WHAT IS A CONFLICT?
  • 21.
    • WHAT IS A CONFLICT?
    • A conflict is an issue, a problem, any moment or time when two or more parties disagree and productive solutions have been stalled.
  • 22.
    • Merriam-Webster online dictionary defines CONFLICT as follows:
    • Main Entry: 1con·flict , Pronunciation: 'kän-"flikt, Function: noun Etymology: Middle English, from Latin conflictus act of striking together, from confligere to strike together, from com- + fligere to strike -- more at PROFLIGATE 1 : FIGHT , BATTLE , WAR 2 a : competitive or opposing action of incompatibles : antagonistic state or action (as of divergent ideas, interests, or persons) b : mental struggle resulting from incompatible or opposing needs, drives, wishes, or external or internal demands 3 : the opposition of persons or forces that gives rise to the dramatic action in a drama or fiction synonym see DISCORD - con·flict·ful /'kän-"flikt-f&l/ adjective - con·flic·tu·al /kän-'flik-ch&-w&l, k&n-, -ch&l, -shw&l/ adjective
  • 23.
    • A review of the definition of conflict shows that it is in part defined by opposing needs, drives, wishes or demands.
  • 24.
    • WHY RESOLVE?
  • 25.
    • WHY RESOLVE?
    • When discussing conflict in community associations, it would seem normal to resolve disputes, after all, the inhabitants of community associations are neighbors, living and sharing ownership.
    • Yet, for those very same reasons, it becomes difficult for residents of community associations to resolve conflicts.
  • 26.
    • Why not litigate?
    • Why not stand our ground and prove we’re right?
  • 27.
    • Why not litigate?
    • Why not stand our ground and prove we’re right?
    • Notwithstanding for the moment whether community residents, inclusive of board members, want to mediate or litigate, it is vitally important to note that the Courts and the Legislature want community residents to resolve conflicts.
  • 28.
    • Why not litigate?
    • Why not stand our ground and prove we’re right?
    • Notwithstanding for the moment whether community residents, inclusive of board members, want to mediate or litigate, it is vitally important to note that the Courts and the Legislature want community residents to resolve conflicts.
    • So? Why should that matter?
  • 29.
    • Why not litigate?
    • Why not stand our ground and prove we’re right?
    • Notwithstanding for the moment whether community residents, inclusive of board members, want to mediate or litigate, it is vitally important to note that the Courts and the Legislature want community residents to resolve conflicts.
    • So? Why should that matter?
    • Simply because if litigation is chosen, the Court and the jury will be the decision makers and will be looking to see if parties are reasonable and credible.
  • 30.
    • THE NEW JERSEY COURTS ADVOCATE RESOLUTION
  • 31.
    • THE NEW JERSEY COURTS ADVOCATE RESOLUTION
    • N.J. Court Rule 1:40
    • New Jersey Court Rules provide that after a complaint is filed a judge may send the parties to mediation.
  • 32.
    • THE NEW JERSEY COURTS ADVOCATE RESOLUTION
    • N.J. Court Rule 1:40
    • New Jersey Court Rules provide that after a complaint is filed a judge may send the parties to mediation. ( See Appendix, N.J. Court Rule 1:40).
    • Billig v. Buckingham Towers Condominium Association, Inc., 287 N.J. Super. 551 (App. Div. 1996)
    • In 1996, the Courts and the Legislature were understanding the necessity for alternative dispute resolution forums for community Associations.
  • 33.
    • THE NEW JERSEY COURTS ADVOCATE RESOLUTION
    • In Billig v. Buckingham Towers Condominium Association I, Inc. , 287 N.J. Super. 551 (App. Div. 1996), the Appellate Division of New Jersey was compelled to review a case where the Association had denied an owner’s request to replace the HVAC system in a unit at the owner’s expense. The court examined the tenuous relationship between the owner and the association board and questioned whether the denial was made in the best interest of all owners. It considered the proposed work and whether it encroached on common elements. The court held that the denial was unreasonable, as the improvements did not materially or appreciably affect the property or rights of the collective unit owners. Id. at 564. Thus, the action of the board was deemed arbitrary and not made for the welfare of all. Id.
  • 34.
    • The Appellate Division also addressed the issue of “conflict resolution” as follows:
    • “ Clearly, before the unit owners can be burdened with the financial onus and other burdens of litigation , they must be assured that their elected board has made reasonable efforts otherwise to resolve the dispute, that the members of the board, with as full a briefing as possible, have made a collective decision, and that the decision is properly memorialized. Nothing less is required of both public and private corporations.”
    • Billig, supra., 287 N.J. Super. at 564.
  • 35.
    • THE N.J. LEGISLATURE ADVOCATES RESOLUTION
  • 36.
    • THE N.J. LEGISLATURE ADVOCATES RESOLUTION:
    • Condominium Associations
  • 37.
    • THE N.J. LEGISLATURE ADVOCATES RESOLUTION:
    • Condominium Associations:
    • “ N.J.S.A. 46:8B-14. Duties of the association. The association, acting through its officers or governing board, shall be responsible for the performance of the following duties, the costs of which shall be common expenses:
  • 38.
    • An association shall provide a fair and efficient procedure for the resolution of housing-related disputes between individual unit owners and the association, and between unit owners, which shall be readily available as an alternative to litigation. A person other than an officer of the association, a member of the governing board or a unit owner involved in the dispute shall be made available to resolve the dispute. A unit owner may notify the Commissioner of Community Affairs if an association does not comply with this subsection. The commissioner shall have the power to order the association to provide a fair and efficient procedure for the resolution of disputes.”
    • N.J.S.A. 46:8B-14(k) (amendment to the New Jersey Condominium Act effective July 25, 1996)
  • 39.
    • THE N.J. LEGISLATURE ADVOCATES RESOLUTION:
  • 40.
    • THE N.J. LEGISLATURE ADVOCATES RESOLUTION:
    • Homeowner Associations:
  • 41.
    • THE N.J. LEGISLATURE ADVOCATES RESOLUTION:
    • Homeowner Associations:
    • N.J.S.A. 45:22A-44. Powers of association.
  • 42.
    • THE N.J. LEGISLATURE ADVOCATES RESOLUTION:
    • Homeowner Associations:
    • “ N.J.S.A. 45:22A-44. Powers of association.
    • The association shall provide a fair and efficient procedure for the resolution of disputes between individual unit owners and the association, and between unit owners, which shall be readily available as an alternative to litigation.”
    • N.J.S.A. 45:22A-44(c).
  • 43.
    • So what do we do?
    • In order to understand early conflict resolution,
    • We must understand the importance of mediation
    • Our experience shows that the goal of all parties present at the table is to avoid litigation.
    • NOW WHAT?
  • 44.
    • Are we willing to stop inflicting pain?
    • When we inflict judgment into a situation, come up with a static solution or only one view of how situations occurred -
    • We become opponents to resolution.
    • The seed of conflict begins at the beginning with the claimants and involved parties and then grows with the adjusters, the attorneys and the Courts.
    • NOW WHAT?
  • 45.
    • Early conflict resolution is resolution before litigation
    • Or at the very start before it is necessary to spend money by a rendezvous at the table down the road when we are going to resolve matters anyway.
    • NOW WHAT?
  • 46.
    • So how do we begin?
    • How do we get not only the other parties but ourselves in the mindset to resolve issues before we pour gas on the flames of conflict?
    • First we need to understand what happens in community associations before a claim lands on our desk and how that understanding can help us shape our tools – Personal Tools – for conflict resolution.
    • NOW WHAT?
  • 47.
    • The first part then is understanding…
        • History of claim;
        • Personalities involved in claim;
        • Egos involved in claim; and
        • Desires involved in claim.
    • NOW WHAT?
  • 48.
    • Being willing to engage in early conflict resolution means being willing to:
        • not have all of the answers;
        • take part in an uncharted path;
        • discover that sometimes your first reaction to fight
        • (or to oppose) may only create further conflict even if you think you’re right;
        • know that you may not have the only right view;
        • believe that the claimant may not be nuts, out of their mind, greedy and/or faithless.
    • NOW WHAT?
  • 49.
    • What harm can there be in humoring them while you develop your own personal plan of resolution?
    • No one is suggesting that you don’t tend the fire, that you don’t do what needs to be done.
    • Assign out the file, cross your t’s and dot your i’s
    • But at the end of the day, ask yourself, do you get more bees with honey?
    • As an adjuster, is there a chance for a win-win scenario?
    • NOW WHAT?
  • 50.
    • NOW WHAT?
    Do we care what the value of our defense is? Does it really matter? Yes & No.
  • 51.
    • In the context of decisions of the board in the arena of directors and officers suits, our defense is a trampoline with walls of net around so it is harder for us to harm ourselves.
    • In the context of defense of personal injury suits there is no three foot wide trampoline, there are no walls of net only a small circle held by a bunch of firemen and we are twenty stories up.
    • We either hit the mark or we don’t.
    • NOW WHAT?
  • 52.
    • Director’s and Officer’s suits give us the ability to make mistakes.
    • Defense of personal injury suits do not.
    • That is why more than ever early conflict resolution techniques are important from the start.
    • From the word go!
    • NOW WHAT?
  • 53.
    • THE NUTS AND BOLTS
  • 54.
    • THE NUTS AND BOLTS
    • We now know that the presence of mediation, or alternative means of resolving disputes, is more than a choice, it is also a strong recommendation in our present legal environment.
  • 55.
    • THE NUTS AND BOLTS
    • The presence of mediation, or alternative means of resolving disputes, is more than a choice, it is also a strong recommendation in our present legal environment.
    • As a participant in the claims process, you will determine whether or not a case should be mediated.
  • 56.
    • THE NUTS AND BOLTS
    • We know that the presence of mediation, or alternative means of resolving disputes, is more than a choice, but is also a strong recommendation in our present legal environment.
  • 57.
    • THE NUTS AND BOLTS
    • There are general themes to help you get started on resolving issues or claims your way and efficiently:
  • 58.
    • THE NUTS AND BOLTS
    • There are general themes to help you get started on resolving issues your way and efficiently:
    • Become familiar with your role as a participant in early conflict resolution, as a “fact gatherer”
  • 59.
    • THE NUTS AND BOLTS
    • There are general themes to help you get started on resolving issues your way and efficiently:
    • Become familiar with your role as a participant in early conflict resolution, , as a fact gatherer
    • Become familiar with Dos and Don’ts
  • 60.
    • THE NUTS AND BOLTS
    • There are general themes to help you get started on resolving conflicts early and efficiently:
    • Become familiar with your role as a participant in early conflict resolution, as a fact gatherer
    • Become familiar with Dos and Don’ts
    • Resolve your way
  • 61.
    • THE NUTS AND BOLTS
    • There are general themes to help you get started on resolving conflicts your way and efficiently:
    • Become familiar with your role as a participant in early conflict resolution, as a “fact gatherer”
    • Become familiar with Dos and Don’ts
    • Resolve your way
    • Keys to communication
  • 62.
    • WHAT IS THE ROLE OF THE MEDIATOR
  • 63.
    • WHAT IS THE ROLE OF THE MEDIATOR
    • The role of a mediator is to “promote” compromise.
  • 64.
    • WHAT IS THE ROLE OF THE MEDIATOR
    • The role of a mediator is to “promote” compromise.
    • In mediation, the mediator is the advocate of resolution.
  • 65.
    • WHAT IS THE ROLE OF THE MEDIATOR
    • The role of a mediator is to “promote” compromise.
    • In mediation, the mediator is the advocate of resolution.
    • What do you as a mediator need to understand the conflict presented?
    • What are the evaluation tools you need to get started on the process of mediating?
  • 66.
    • WHAT IS THE ROLE OF THE MEDIATOR
    • The role of a mediator is to “promote” compromise.
    • In mediation, the mediator is the advocate of resolution.
    • What do you as a mediator need to understand the conflict presented? What are the evaluation tools you need to get started on the process of mediating?
    • The mediator, when at all possible, should be prepared with knowing the facts of the case or issue presented. One way to be prepared is to require that you receive submissions prior to the mediation date.
  • 67.
    • WHAT IS THE ROLE OF THE MEDIATOR
    • The role of a mediator is to “promote” compromise.
    • In mediation, the mediator is the advocate of resolution.
    • What do you as a mediator need to understand the conflict presented? What are the evaluation tools you need to get started on the process of mediating?
    • The mediator, when at all possible, should be prepared with knowing the facts of the case or issue presented. One way to be prepared is to require that you receive submissions prior to the mediation date.
  • 68.
    • Yes, it can be helpful to simply ask each party to the dispute for any and all documents necessary to “prove” their case, but a generic checklist which you can circulate to the parties will save you time and energy and allow for not only the parties, but for yourself, to be as fully prepared as possible to obtain resolution.
    • Keep in mind when requesting documents that there are many type of “documents” in this computer age. Document sources can be “file tracking”, which is the retrieval of physical documents within physical files.
    • Document sources may also be computer databases: accessing information contained within computer files, inclusive of e-mail communication. The following list is a suggested list of what type of documents to look for or ask for when beginning each mediation session. The following is a list which provides illustration of some types of association documents which you will need to evaluate issues. Depending on the type of dispute you are involved in, the list is subject to change:
  • 69.
    • THE LIST:
    • Homeowner v. Association dispute:
    • 1. Homeowner file:
    • Some but not all documents that will be necessary to evaluate the issues will be within the homeowner file. These documents obviously will tend to be copies of direct correspondence from the owner to management or the Board. Perhaps the physical folder may also contain handwritten notes.
    • 2. Work logs:
    • Work logs show what was requested to be done; when it was requested to be done; if work was completed; if corrective work or follow up work was deemed necessary, etc.
  • 70.
    • 3. Complaint logs:
    • Demonstrate whether similar complaints have occurred and the type of action taken.
    • 4. Telephone logs:
    • Telephone logs kept in good order can provide background to communication prior to or during a dispute.
  • 71.
    • 5. Invoices:
    • Easy. This is proof that work is claimed to be performed. Payment is proof that work was accepted and deemed satisfactorily performed. If there are objections to the work performed, same should be noted on the invoice and/or on corresponding letters sent to the contractor disputing the amount invoiced or the work claimed to be completed.
    • 6. Check register/cancelled checks:
    • Proof of payment.
    • 7. Budget:
    • A budget can demonstrate how much money the Association has allocated for services. While this may seem like a “no-brainer” it is again a concrete demonstration of acts taken by management and the board in furtherance of the fiduciary duty to administer and govern the association.
  • 72.
    • 8. Minutes:
    • Need I explain this? It tells the story of what the Board decided and why. A particularly troublesome aspect of directors and officers’ claims is that the Plaintiff is entitled to obtain proof of the “thinking” of the Board. What does this mean? It means that if a Plaintiff challenges the action of the Board, the Board has the opportunity in most circumstances for two types of defenses: 1. Reasonableness; and 2. the Business Judgment Rule. Both defenses require proof that the Board has taken action in its fiduciary capacity and has evaluated the reasons for the decisions made. The minutes demonstrate the reasons that Boards take certain actions and not others, again, the minutes “tell the story”.
    • 9. Board packets:
    • Board packets demonstrate what issues are presented to the Board, when they are presented, action requested or needed to be taken, etc. Board packets fill in the history.
  • 73.
    • 10. Manager reports:
    • Manager reports detail the issues presented to managers, the information conveyed to Board members, the action requested to be taken, etc.
    • 11. Correspondence/e-mail/data communication:
    • Depending on the type of issue or issues presented, your specific list can and will vary with each mediation; however, once you are provided with the type of issue involved, you should be cognizant of the type of materials that would best aid you in mediating the dispute with the goal of expedient resolution.
    • 12. Contractor documents/engineering reports/accountant reports, etc.:
    • Any time there is a dispute as to whether work was done or not done, necessary or not necessary, performed correctly or not, you will need to obtain the back-up documentation, which often includes information from contractors or engineers or architects.
  • 74.
    • Any time there is a dispute as to monies expended or not expended, a possibility exists that an accountant’s report has been completed and will be important for you to review.
    • If a Plaintiff claims a loss of value to a home, you need to find out if there is a real estate appraisal report discussing the claim.
    • There is not “one” list to work off for every dispute. It is helpful to become familiar with the types of documents normally encountered in certain disputes, rather than relying on parties to simply provide you with what they think is important.
  • 75.
    • MEDIATION DOS AND DON’TS
  • 76.
    • MEDIATION DOS AND DON’TS
    • Very much like anything you encounter in life, there is no one right way to approach each situation.
  • 77.
    • MEDIATION DOS AND DON’TS
    • Very much like anything you encounter in life, there is no one right way to approach each situation.
    • As you become more experienced with mediating, you will develop your own style and rules as to what works best and you will create your own list of what works and doesn’t work while mediating.
  • 78.
    • MEDIATION DOS AND DON’TS
    • Very much like anything you encounter in life, there is no one right way to approach each situation.
    • As you become more experienced with mediating, you will develop your own style and rules as to what works best and you will create your own list of what works and doesn’t work while mediating.
    • In the meantime, keep in mind some simple guidelines to foster effective resolution environments.
  • 79.
    • MEDIATION DOS AND DON’TS
    • DO:
    • read your audience
    • be flexible
    • be amiable
    • keep the faith
    • be patient, with quiet urgency
    • use non-judgmental speech
  • 80.
    • MEDIATION DOS AND DON’TS
    • DON’T:
    • don’t show off
    • don’t criticize parties, attorneys, experts, etc.
    • don’t play favorites
    • don’t tell too many war stories
    • don’t be judgmental
    • don’t play God
  • 81.
    • MEDIATION DOS AND DON’TS
    • Example of flexibility
  • 82.
    • MEDIAITON DOS AND DON’TS
    • Example of flexibility
    • Example of not losing faith
  • 83.
    • MEDIATING YOUR WAY
  • 84.
    • MEDIATING YOUR WAY
    • What makes a person a mediator?
  • 85.
    • MEDIATING YOUR WAY
    • What makes a person a mediator? Do they need to go to seminars or take classes?
  • 86.
    • MEDIATING YOUR WAY
    • What makes a person a mediator? Do they need to go to seminars or take classes?
    • Can mediators be found within each and every one of us?
  • 87.
    • MEDIATING YOUR WAY
    • What makes a person a mediator? Do they need to go to seminars or take classes?
    • Can mediators be found within each and every one of us?
    YES!
  • 88.
    • MEDIATING YOUR WAY
    • People mediate every day whether they are aware of it or not.
    • You mediate with yourself:
    • You go to the grocery store intent on buying Brand X for dinner. There is no Brand X when you arrive, there are only Brands Y and Z. What do you do? In choosing a different brand, you have resolved a conflict, or in some cases, have avoided a conflict before it could occur. Perhaps you decide to order dinner and ask the manager of the grocery store to restock Brand X so you can make that special dinner another night. Either way, you have avoided conflict which is just one form of mediating.
  • 89.
    • MEDIATING YOUR WAY
    • Your family wants to go on vacation.
    • John wants to go skiing and Tara wants to swim.
    • What do you do?
    • Neither one is willing to give on their position and time is running out. You go online and search for locations where you can ski and enjoy a heated pool, or you find a location that offers beaches and waterskiing and remind John that he has always wanted to learn how to water ski. No matter how you resolve the conflict, the point is, you have participated in informal mediation.
  • 90.
    • MEDIATING YOUR WAY
    • The key ingredient to being a good mediator is being yourself. The best skills you can bring to the table are the ones that are naturally yours.
    • “ It wasn’t until she became part of a negotiating team that she realized she was just using skills she’s been honing her whole life. ‘Negotiating actually comes easily,’ she learned to her amazement.  ‘it dawned on me that people negotiate every day of their lives; there’s nothing mysterious about it at all.  Shoot, I used to negotiate with my mother.’”
    • - The Good Girl’s Guide to Negotiating, by Elizabeth Austin and Leslie Whitaker, © 2001, p. 17.
  • 91.
    • KEYS TO COMMUNICATION
  • 92.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
  • 93.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
    • Counsel the participants to leave judgment at the door.
  • 94.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
    • Counsel the participants to leave judgment at the door.
    • While it is true that most conflicts arise because someone needs to be heard, the true wisdom in being heard is picking the appropriate time and location.
  • 95.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
    • Counsel the participants to leave judgment at the door.
    • While it is true that most conflicts arise because someone needs to be heard, the true wisdom in being heard is picking the appropriate time and location.
    • Example:
  • 96.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
    • Counsel the participants not to make empty offers.
  • 97.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
    • Counsel the participants not to make empty offers.
    • Example:
  • 98.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
    • Make recommendations
  • 99.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
    • Make recommendations
    • Don’t leave parties sitting around wondering what to offer. If you have an idea as to how to resolve the conflict, tell the parties.
  • 100.
    • KEYS TO COMMUNICATION
    • As a mediator, you will also act as a counselor.
    • Make recommendations
    • Don’t leave parties sitting around wondering what to offer. If you have an idea as to how to resolve the conflict, tell the parties.
    • Example:
  • 101.
    • Mediation is both conflict resolution and conflict avoidance
  • 102.
    • Mediation is both conflict resolution and conflict avoidance.
    • Mediation can and does arise before an “actual” or “formal” conflict begins, i.e. litigation.
    • An example of a standard understanding of conflict avoidance is as follows:
  • 103.
    • Mediator Tools 
  • 104.
    • Mediator Tools 
    • We have reviewed tools for mediators, tools to being yourself, dos and don’ts and keys to communication. As a mediator though, you can also provide tools for the participants.
  • 105.
    • Mediator Tools 
    • Tools for participants
  • 106.
    • Mediator Tools 
    • Tools for participants
    • Knowing your audience is a plus when mediating, it gives you a sense of what direction to take or not to take while shaping resolution.  However, knowledge without action will get you nowhere. 
    • Ask yourself questions when you first meet the parties and try to understand them:
  • 107.
    • Mediator Tools 
    • Tools for participants
    • Knowing your audience is a plus when mediating, it gives you a sense of what direction to take or not to take while shaping resolution.  However, knowledge without action will get you nowhere. 
    • Ask yourself questions when you first meet the parties and try to understand them:
    • Are the parties expressive?
    • Are the parties shy or withdrawn?
    • Do the parties gesture toward documents to make their points?
    • Are the parties strongly opinionated?
  • 108.
    • Mediator Tools 
    • Play to your audience at all times while remaining true to yourself.  Make sure your input or recommendations are heard and understood.  Not all people process information in an auditory fashion. 
  • 109.
    • Mediator Tools 
    • Play to your audience at all times while remaining true to yourself.  Make sure your input or recommendations are heard and understood.  Not all people process information in an auditory fashion. 
    • Imagine speaking to a group of people attempting to convince them why a case should settle for one million dollars.  Then imagine half of the people in the room are staring at you while their hands are placed over their ears.  Now you’re confused.  Can they hear you?  Do they want to hear you?  In many cases, it has nothing to do with the desire to listen, rather it is the ability to listen.
  • 110.
    • Mediator Tools 
    • Some of your participants may be more visually oriented.  Be prepared.  Set the mediation in a room with a blackboard, a whiteboard, or at the very least, a place where a large pad can be drawn upon. 
  • 111.
    • Mediator Tools 
    • Some of your participants may be more visually oriented.  Be prepared.  Set the mediation in a room with a blackboard, a whiteboard, or at the very least, a place where a large pad can be drawn upon. 
    • As you reach stumbling blocks in the negotiation, write them down.  Allow the parties to see what’s going on.  Just because you have spoken about what the problem is doesn’t mean your audience has heard you. 
  • 112.
    • Mediator Tools 
    • Some of your participants may be more visually oriented.  Be prepared.  Set the mediation in a room with a blackboard, a whiteboard, or at the very least, a place where a large pad can be drawn upon. 
    • As you reach stumbling blocks in the negotiation, write them down.  Allow the parties to see what’s going on.  Just because you have spoken about what the problem is doesn’t mean your audience has heard you. 
    • Many people cannot comprehend what it is you are saying unless they see something, i.e. a picture, a chart, a diagram, a photograph, a list, etc.
  • 113.
    • Mediator Tools 
    • Don’t let communication become lost because you have not used available communication tools.  Understanding of the elements of a conflict and potential resolutions may need to be both spoken about and visually displayed. 
  • 114.
    • Mediator Tools 
    • Don’t let communication become lost because you have not used available communication tools.  Understanding of the elements of a conflict and potential resolutions may need to be both spoken about and visually displayed. 
    Be Prepared!
  • 115.
    • Conclusion
  • 116.
    • Conclusion
    • You are your own best source to effective mediation. 
  • 117.
    • Conclusion
    • You are your own best source to effective mediation. 
    • Draw on your natural talents and tendencies. 
  • 118.
    • Conclusion
    • You are your own best source to effective mediation. 
    • Draw on your natural talents and tendencies. 
    • Know your audience. 
  • 119.
    • Conclusion
    • You are your own best source to effective mediation. 
    • Draw on your natural talents and tendencies. 
    • Know your audience. 
    • You don’t need to be an expert in every field imaginable to help parties reach resolution.
  • 120.
    • Conclusion
    • “ Moral:  Don’t give up just because you weren’t raised to be a shark.  You don’t have to choose between being a good person and getting a good deal.  A negotiation is truly successful when both sides feel they’ve struck and equitable bargain, one that feels good to you the day you make it, and when you look back years later.” 
    • - The Good Girl’s Guide to Negotiating, by Elizabeth Austin and Leslie Whitaker, © 2001, p. 5.
  • 121.
    • Conclusion
    • “ In fact the notion that good negotiators start honing their haggling skills in the cradle is a myth, says Leigh Thomson, author of The Mind and Heart of the Negotiator. ‘Good negotiators are self-made,’ she writes.  ‘Effective negotiation depends on practice and study.’”
    • - The Good Girl’s Guide to Negotiating, by Elizabeth Austin and Leslie Whitaker, © 2001, p. 8
  • 122.
    • Conclusion
    • “ Following my peaceful preference doesn’t assure me an outcome that my ego, or ‘little mind,’ will like.  But it does join me with the source of peace, which is independent of assessments and interpretations.”
    • Spiritual Notes to Myself, by Hugh Prather, © 1998, p.11.
  • 123.
    • Conclusion
    • “ In a good negotiation, all sides win.”
    • Trump:  How to Get Rich, by Donald J. Trump, © 2004, p. 128.
  • 124. Early conflict resolution: “ The ugly duckling of Mediation Training.” Presentation to CAU November 11, 2005 Karyn A. Kennedy Branco, Esq. E. Richard Kennedy, Esq. Kennedy, Wronko, Kennedy Sea Girt, N.J.  08750 732.282.9100 [email_address]