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Using ADR F. Peter Phillips Business Conflict Management LLC www.BusinessConflictManagement.com
The Driving Force <ul><li>“ The job of a judge is to assist the disputants to resolve their disputes.” </li></ul><ul><li>L...
The Goal of ADR <ul><li>Most Cases Settle, but… </li></ul><ul><li>…they settle too late for the court and for the parties....
The How and Why of Mediation <ul><li>Happens When Negotiation Fails </li></ul><ul><li>Neutral is Trusted as: </li></ul><ul...
How and Why (Cont’d) <ul><li>Assists to Focus on Business Problem </li></ul><ul><ul><li>Not Law </li></ul></ul><ul><ul><li...
The Environment of Mediation <ul><li>Confidentiality </li></ul><ul><li>Participation by Senior Business Principals </li></...
Basics of Mediator Skills <ul><li>Non-Judgmental Listening </li></ul><ul><li>Display of Empathy and Validation </li></ul><...
 
Examples of “Reality Testing” <ul><li>What do you see as the main weaknesses of your claim? </li></ul><ul><li>What do you ...
The Benefits of Settling TODAY <ul><li>If we don’t get an agreement today, what’s your best-case scenario? </li></ul><ul><...
Techniques of Probing <ul><li>Probe:   Why do you say that?  What do you base that on?   </li></ul><ul><li>Validate:   I  ...
Focusing on Business <ul><li>Why do you think that your co-venturer breached the agreement?  </li></ul><ul><li>How does sh...
Testing the Bid/Ask <ul><li>They’ll ask me how you came to that number – what should I tell them? </li></ul><ul><li>Why sh...
Testing the Bid/Ask (Cont’d) <ul><li>Does that number help us get to the parking lot? </li></ul><ul><li>How can I help you...
Breaking Impasse <ul><li>Re-Frame With Interests :  What is best proposal you can make that you think they would (not “sho...
Other Processes <ul><li>Lawyers and Clients Uncertain?   Try ENE or Advisory Arbitration </li></ul><ul><li>Lawyer Overconf...
F. Peter Phillips Business Conflict Management LLC www.BusinessConflictManagement.com (973) 509-9667
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ADR Skills for Judges

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ADR Skills for Judges

  1. 1. Using ADR F. Peter Phillips Business Conflict Management LLC www.BusinessConflictManagement.com
  2. 2. The Driving Force <ul><li>“ The job of a judge is to assist the disputants to resolve their disputes.” </li></ul><ul><li>Lord Chief Justice (Ret.) Harry Woolf </li></ul>
  3. 3. The Goal of ADR <ul><li>Most Cases Settle, but… </li></ul><ul><li>…they settle too late for the court and for the parties. </li></ul><ul><li>The Goal of Court-Annexed ADR: “Move the Needle to the Left” </li></ul>
  4. 4. The How and Why of Mediation <ul><li>Happens When Negotiation Fails </li></ul><ul><li>Neutral is Trusted as: </li></ul><ul><ul><li>Confidante </li></ul></ul><ul><ul><li>Substantive Value-Add </li></ul></ul><ul><ul><li>Procedural Expertise </li></ul></ul><ul><ul><li>Sophisticated </li></ul></ul>
  5. 5. How and Why (Cont’d) <ul><li>Assists to Focus on Business Problem </li></ul><ul><ul><li>Not Law </li></ul></ul><ul><ul><li>Not Irritating People and Lawyers </li></ul></ul><ul><li>Encourages Creative, Business-Rational, Mutually Beneficial Outcomes </li></ul><ul><ul><li>Not Legal Remedies </li></ul></ul><ul><ul><li>Forward, Not Backward </li></ul></ul><ul><li>“Single-Blind” Structure </li></ul><ul><ul><li>The Parable of the Oranges </li></ul></ul>
  6. 6. The Environment of Mediation <ul><li>Confidentiality </li></ul><ul><li>Participation by Senior Business Principals </li></ul><ul><li>“Without Prejudice” </li></ul><ul><ul><li>Inadmissible </li></ul></ul><ul><ul><li>Not Discoverable </li></ul></ul><ul><ul><li>Mediator Testimonial Incompetence </li></ul></ul><ul><li>No Report Back to Court </li></ul>
  7. 7. Basics of Mediator Skills <ul><li>Non-Judgmental Listening </li></ul><ul><li>Display of Empathy and Validation </li></ul><ul><li>Display of Mastery of Business Issue </li></ul><ul><li>Deference to Counsel </li></ul><ul><li>Encouraging Recognition of the Validity of Each Disputant’s Perspective…. </li></ul>
  8. 9. Examples of “Reality Testing” <ul><li>What do you see as the main weaknesses of your claim? </li></ul><ul><li>What do you see as the main strengths of their defense? </li></ul><ul><li>What do you think they perceive as the biggest weakness in your claim? Do they have a logical basis for that? In other words, do they have a point (however misguided it may be?) </li></ul><ul><li>If you were in their position, how would you attack the logic (or the facts or the conclusions) that underlie your demand? </li></ul><ul><li>Do you think that, from their perspective, they are behaving rationally when they offer XXXX? </li></ul>
  9. 10. The Benefits of Settling TODAY <ul><li>If we don’t get an agreement today, what’s your best-case scenario? </li></ul><ul><li>What’s the worst thing that might happen to you if we don’t get this done today? </li></ul><ul><li>How much does your counsel project it will cost to take this matter to the end of discovery? Through a motion for summary judgment prior to trial? To the eve of trial? To the end of trial? To appeal, in the event that the trial doesn’t go as you expect it will? </li></ul><ul><li>How much of your own time is being spent on this case and away from your business? Do you expect that will decrease or increase if we fail to end it today? </li></ul><ul><li>Do your other customers and competitors and vendors know that you have this lawsuit going? What impact do you think it will have on your good will and your business reputation if this has to go to trial? </li></ul><ul><li>Does your boss have a view on this? Does your wife? </li></ul>
  10. 11. Techniques of Probing <ul><li>Probe: Why do you say that? What do you base that on? </li></ul><ul><li>Validate: I think I understand how you’re going about this, and I follow you . </li></ul><ul><li>Empower: “Well, you know your business better than I do, so let me just ask you…” or “Your counsel has given you a far more reliable piece of advice on this than I could, so let me just ask what your sense is of….” </li></ul><ul><li>The goal is to provoke a change of the party’s assessments and assumptions , not to give the party the fruits of your own wisdom. They have legal counsel already. </li></ul>
  11. 12. Focusing on Business <ul><li>Why do you think that your co-venturer breached the agreement? </li></ul><ul><li>How does she think she might profit by making that move? </li></ul><ul><li>What have you heard on the street about the possibility of a bankruptcy filing? </li></ul><ul><li>Would the other side consider it attractive to lower the unit price but extend the term of the agreement? Why? Why not? How did you come to that conclusion? </li></ul><ul><li>What if the other side concludes differently, rightly or wrongly – what would the consequences be for you? </li></ul>
  12. 13. Testing the Bid/Ask <ul><li>They’ll ask me how you came to that number – what should I tell them? </li></ul><ul><li>Why should they take that number? </li></ul><ul><li>How do you think they’ll respond? Is that the response you want? </li></ul><ul><li>If they respond as you expect what will your next move be? </li></ul><ul><li>Can you sweeten that with anything other than money? </li></ul>
  13. 14. Testing the Bid/Ask (Cont’d) <ul><li>Does that number help us get to the parking lot? </li></ul><ul><li>How can I help you explain to them how they misapprehend the value? </li></ul><ul><li>Can you offer some gesture of cooperation to signal that you want to end this today? </li></ul><ul><li>The number we’re looking for isn’t the “right” number – it’s the one the other side would be nuts to refuse. </li></ul>
  14. 15. Breaking Impasse <ul><li>Re-Frame With Interests : What is best proposal you can make that you think they would (not “should”) accept? </li></ul><ul><li>Linked Moves : If they were at $XXX, where would you be? </li></ul><ul><li>Simultaneous Moves : Can we go forward with you at $XXX and them at $YYY? </li></ul><ul><li>Modify the Table : Only lawyers, only clients </li></ul><ul><li>Silver Bullet : Give each side an “equal pain” number and ask privately if they would accept it. </li></ul><ul><li>Final Written Offer : Ask for “bottom line” to determine existence of overlap. Modification: parties authorize mediator to pick a binding number if there is overlap </li></ul>
  15. 16. Other Processes <ul><li>Lawyers and Clients Uncertain? Try ENE or Advisory Arbitration </li></ul><ul><li>Lawyer Overconfident? Try Nonbinding Summary Jury </li></ul><ul><li>Over-Lawyering? Try Mini-Trial Before Senior Executives </li></ul><ul><li>Transactional Dispute (i.e., Asset Sale)? Try Arb-Med </li></ul><ul><li>Collaborative Lawyering </li></ul>
  16. 17. F. Peter Phillips Business Conflict Management LLC www.BusinessConflictManagement.com (973) 509-9667

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