Getting Ready to Mediate: A Blueprint for Success

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Upchurch Watson White & Max

Mediation Group

and the University of Florida

Levin College of Law

Institute for Dispute Resolution

are proud to cosponsor today’s

Webinar:Getting Ready to Mediate:A Blueprint for Success

Meet …

Our moderator, Sandy Upchurch

Mediation CounselUpchurch Watson White & [email protected]

Our presenter,John Upchurch

PrincipalUpchurch Watson White & [email protected]

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Getting Readyto Mediate

A Blueprint for Success

Setting the StageAdvance Planning and Preparation Are Key

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch

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Have a Written PlanO Analogous to “Trial by Notebook”O Detailed checklists for each elementO You wouldn’t show up for trial

without careful, thoughtful preparation for each stage

O Same rationale applies to mediation

Mediator Selection

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch

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O Subject matter expertise? Necessary?

O Reputation/referencesO Training/certificationO Credibility; gravitasO Availability; facilities, cost

The Advocate’s Preparation

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch

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Prepare the client

Prepare the mediator

Prepare adversary

Opposition Research

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch

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The client

• Personality type?• Business or financial

issue?• Opportunity to expand

pie?Opposing

counsel

• Experience?• Reputation?

Interests

• Financial• Other

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 9

Consider mediator involvement

during pre-mediation stageODiscovery issues – prod opponentOEncourage sufficient preparation;

attendance by parties with authority

O Invite pre-mediation oral briefings; discuss sensitive personality issues privately

Prepare Mediation Summary

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch

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Dete

rmin

e

purp

ose• Educate

mediator

• Inform client

• Influence opposition

• Shape negotiations

Dete

rmin

e

reci

pie

nts• Limitation

s on publication

• Confidential addendum?

• Lost opportunity to advocate if kept confidential

Pla

n c

onte

nt • Orient

mediator …• Be

objective …

• Demonstrate mastery …

• Disclose history …

• Decide timing …

More on mediation summaryOrientati

on:IdentifyObstacles

Personality issues

Insurance issues

Objectivity

Concise and calm

Diplomatic

Avoid bombast

TimingOpposing client to

review and digest before

mediation?

Mediator involved pre-mediation?

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch

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Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 12

GOALSO Avoid Impasse by

Anticipating Pitfalls

O Success = Total Elimination of Roadblocks to Settlement

Mediation Is the Process We Use to Erase Obstacles

O Identify your impasse threats in advance and work to overcome them at the mediation.

O Use this analysis in dealing with your client, your adversary and the mediator.

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 14

Factors Causing Impasse

O Lack of authorityO Greed, revenge,

ill feelingsO Urge to punishO Party cannot

let go of caseO Absent stakeholder

O Unrealistic expectations

O Collection problems

O Discovery unmet; too early

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 15

More from the partial listO Lawyer milking fileO Unexpected

increase in demandO Principal at stake/

fear of badprecedent

O Liens

O Mediator's frustration

O Unexpected time restraint

O Jealousy amongco-parties: "Looking sideways"

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 16

Prepare Your Introductory

Themes• Opening Presentation• Messages through

Mediator

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No “Perry

Mason” moment

Getting Ready to Mediate: A Blueprint for Success © John J.

Upchurch

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch

Suggest: “Go to the balcon

y”

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Perspectives are different

….Like a picture that can

be interpreted two ways

Getting Ready to Mediate: A Blueprint for Success © John J.

Upchurch

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch

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Set positive tone

presumptive mutual desire to

settle

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 21

Parties decide; lawyers advise

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 22

Concede both sides will

probably have to lower

expectations

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 23

Avoid emotional paralysis; warn of arduous

bargaining process

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 24

1) Win-Win

2) Lose-Lose

Or 3) "We can live with"– “We can live

with”

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 25

We can be creative; go beyond relief available through court

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 26

Mediation is an exercise in diplomacy; not warfare

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 27

difficult to follow with

You're a liar and a

cheat!

Would you be willing to_____?

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 28

Emphasize relief/freedom from heartache and worry

-- priceless

Getting Ready to Mediate: A Blueprint for Success © John J. Upchurch 29

Emphasize power vested in clients; fail to settle, then that power is transferred

“Getting Ready to Mediate: A Blueprint for

Success”

Florida Bar Course #

1404207N

CLE CreditsGeneral: 1.0

Thank YouFor Joining Us.

Upchurch Watson White & Max Mediation Group

Daytona Beach Maitland/Orlando Jacksonville Miami Fort Lauderdale/Plantation West Palm

Beach

Please email [email protected] with questions about course number, Webinar recording, etc.

Please contact John at [email protected] with questions or comments regarding content.

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