Hey! Where did the summer go???

I thought I’d share with you the summer reading I intended to do.
Here’s the list, some of which I wanted to re-read:

Bazerman and Neale, Negotiating Rationally

Cloke & Goldsmith, The Art of Waking People Up

Cloke & Goldsmith, Resolving Personal and Organizational Conflict

Conger, Winning ‘Em Over

Erickson and McKnight, The Practitioner’s Guide to Mediation

Goldman, The Science of Settlement

Lancaster & Stillman, When Generations Collide

LeBaron, Bridging Troubled Waters

Mayer, The Dynamics of Conflict Resolution

Mehta, 112 Ways to Succeed in Any Negotiation or Mediation

Morris & Fair, I’m Right, You’re Wrong, Now What?

Thompson, The Mind and Heart of the Negotiator

Instead, as a former client would say, I was OBE: Overcome By Events, including illness and a death in the family. So instead, this is what I actually read:

Laurie R. King, The God of the Hive. This is her latest Sherlock Holmes/Mary Russell novel and one of her best. A joy to read.

Robert B. Parker. I’ve devoured every Spenser novel, so this summer I cruised through all his westerns. I wish I could write dialog the way he did. I picked up and re-read the first two Spenser novels, and was interested to find that their dialog did not sparkle like his later books. There must be something to this notion that practicing writing makes you a better writer. I had missed some of his Sunny Randall and Jesse Stone mysteries along the way, so I read those, too.

J.A. Jance, the first 5 J. P. Beaumont mysteries. I had read all of her Joanna Brady mysteries and wanted to see what “Beau” was all about. I was pleasantly surprised to find a totally different protagonist and writing that was more playful than that portraying the serious Sheriff Brady. Then I read her Ali Reynolds novels. Ali ends up blogging . . . what’s not to like about that?

I also went back and picked up some books I had missed by these authors: John Grisham, Steve Martini, Stuart Woods, Perri O’Shaughnessy, Michael Connelly, David Baldacci, etc.

So as you can see, I spent the summer with some old friends and met some new ones.  Let me know what you read this summer.

When you’ve determined that a negotiated settlement or a mediation would be productive, the first step is to marshal the facts and put together your evidentiary documentation in a systematic way. Review the prima facie case you need to prove or defend against. Jury instructions make a great outline for this.

If it’s a personal injury case, whether you are representing a plaintiff or a defendant, put together a chart of the medical specials. If it’s a transactional or commercial case, put together all of the financial documents you need. Settlements are going to have a relationship to the actual damages, so you need to know what they are. This may sound simplistic, but I’ve sat as a judge pro tem for settlement conferences on the first day of trial and I have encountered lawyers who do not have their damages documented, even though if the case doesn’t settle, they will start trial later that day.

Meet with your experts personally so you can get a feel for how committed they are to their opinions. It will make a difference in determining the settlement value. Meet again with your clients. Go over the facts with them again. Will their testimony be unshakeable? Determining settlement value is an art and part of the art is developing a feel for the credibility of the witnesses, which affects the likelihood of prevailing, which affects your settlement posture.

When mediations I conduct have not settled, it tends to be because one side or the other had not been prepared enough to settle the case.

I've been thinking about strategies every associate should use to prepare for a mediation and to negotiate at the mediation.  It was challenging to limit myself to ten.  Here's the list:

1. Marshal the facts.

2. Select the mediator.

3. Evaluate the case.

4. Write an engaging mediation brief.

5. Negotiation preparation:  Where do you want to end up?

6. Negotiation preparation:  Where to start.

7. Negotiation preparation:  How to get to where you want to go.

8. Emotions:  Prepare your client. Prepare yourself.

9. At the Mediation:  Information gathering.

10. At the Mediation:  Information control.

Whether you have little formal negotiation training or experience or you’ve attended some mediations, I hope you’ll find this series useful. 

Thanks to all our men and women in the service for their service to our country.

You can thank them, too, by going to Any Soldier dot com, and selecting a soldier/sailor/marine/air force or coast guard service man or woman to send a package to.

I’ve sent packages to Iraq and Afghanistan, but there are more than a dozen other countries on the list. I usually make up a “care package” of toiletries from hotels I’ve stayed in, paperback books, DVD’s and candies. The Post Office will accept Priority Mail boxes at the same domestic rate. (A medium-sized flat rate box costs $10.70.) It’s quite easy and very much appreciated.

If you're fairly new to mediation, here are some ideas to burnish your negotiation skills.

Read.  Getting to Yes, by Fisher, Ury and Patton, is the place to start. It’s the timeless book on how to negotiate. Less than 200 pages, it’s also an easy read. One of the features I like is that it has an “analytical” table of contents at the end, which contains an outline of the messages in each of the chapters. If you want to delve further into the field, I have made summer reading suggestions in the areas of negotiation and mediation and you can find those here and here.

Observe.  Ask a mentor or a lawyer whose negotiation skills are highly regarded at your firm to take you with him or her to the next mediation. If it’s not your case, offer to attend without billing the client. Ask questions before you go about his/her game plan. Watch and listen at the mediation. Debrief afterwards. You’ll learn a lot—and you’ll get kudos from the partner for wanting to learn on your own time.

Practice.  One of the pluses of wanting to be a better negotiator is that you’ll find opportunities every day to practice. Make use of the ordinary, from buying a bottle of gin to getting a smog checkup. You can read about my small triumphs: here and here. Approach a planning session about, say, your next vacation in the Fisher and Ury style:

• Separate the people from the problem

• Focus on interests, not positions

• Invent options for mutual gain

• Insist on using objective criteria

Let me know how your negotiations turn out!

There’s nothing like having the subject matter of the first international mediation and negotiation course you teach validated by the big boys at Harvard!

In the most recent newsletter from the Project on Negotiation at Harvard, Bruce Patton’s teaching of active listening “micro-skills” was featured. Professor Patton is the co-founder of the Project on Negotiation, the co-author of the second edition of Getting to Yes and the co-author of the ground-breaking, Difficult Conversations. Three micro-skills were highlighted:

• genuine inquiry

• paraphrasing logic or meaning

• demonstrating empathy with feelings

Professor Patton pointed out, “[These skills] help the other side actually feel like you have heard them, and that at some point you have understood them . . . because if you want someone to listen to you, it is necessary for them to feel listened to.”

Earlier this semester, I was privileged to teach Civil Negotiation and Mediation to Bulgarian law students and international relations students as a Visiting Professor at South-West University “Neofit Rilsky” in Blagoevgrad, Bulgaria. My teaching appointment was through the Center for International Legal Studies in Salzburg, Austria.

During my lectures we discussed:
• how listening was different from hearing (hearing requires no effort; listening does)
• how attending to the speaker and being fully present increases the quality of listening
• how reflecting back your understanding of the speaker’s factual content increases understanding and decreases misunderstanding
• how acknowledging the emotional content of the speaker’s story increases the depth of the conversation and can result in the speaker feeling fully heard
• how when the speaker feels heard, he/she is more able to listen in return

At my final lecture, I asked the students to role play these listening skills. Since I had about 50 students and no fellow mediators to help guide the students in these role plays, I told them they could speak Bulgarian (even though the classes were taught in English). As it turned out, this created an unexpected insight for me: I got to watch all of the students without listening to the content of what they were saying. The gestalt was riveting. Students leaned in to listen to each other, they had great eye contact, they sat still and attended, and they were truly present.

At the conclusion of the role plays, in which everyone got to be a speaker as well as a listener, we discussed what they experienced. They talked about the quality of their experience (how it was preferable to their normal, everyday conversations), the texture of their conversations (how they were deeper and richer), and the positive benefit of feeling heard and respected.

While I’ll never know how many students will ultimately go into mediation as a vocation, or even avocation, I do believe that for many of them, their subsequent conversations will be more meaningful for having learned these skills.