If you would like additional training in building a more profitable mediation practice while earning CLE/CME credits, check out our Mediation Mastery seminars.  

I wanted to share a Mediation Insight I hope may be useful that deals with the ways in which a mediator’s past personal and professional life experiences can serve to make us better mediators.

As an artist and a professional science fiction cartoonist, I have found that you sometimes get stuck when you are creating and may not know where to take your pencil or brush next.

Artists are trained to either:

A. Step back in order to gain perspective and/or see the piece from a different perspective.
B. Take a break and come back to the piece later.

By the same token, I have found this concept helpful as a mediator when the parties hit a roadblock on some issue during mediation. So when this happens in mediation, consider:

      1. Try moving onto another related issue as you try to get the parties moving forward again. Then as appropriate,              swing them back to the issue they were stuck on previously.

2. Try taking a break. Sometimes fresh air or getting something to eat and/or drink can also help to get parties moving again.

   And remember that being a well-rounded person with other interests and experiences makes us better mediators.

We have all had experiences that have shaped us into the people that we are today. For an attorney/mediator for instance, your Litigation experience, will probably use your negotiation experiences as a template to guide parties through mediation. Sometimes, even with a great Alternative Dispute Resolution strategy in place, you still hit a wall in which both parties seem to be stuck.

If you would like additional training in building a more profitable mediation practice while earning CLE/CME credits, check out our Mediation Mastery seminars.  

The right of self-determination in mediation and the parties’ first attempt at collaboration starts from the decision to mediate and the act of choosing an appropriate mediator.  

The right to self-determination – whether the choice of the right mediator is based on cost, qualification, experience, subject matter expertise, ability, effectiveness, perception, or on any other basis – is critical to framing the mediation and the parties’ hopes of success. Therefore, it is critical that the mediating participants, and their legal representatives, are comfortable with and confident in the mediator to help them resolve their dispute effectively, thoughtfully, compassionately – and at a reasonable price.  If there is any disagreement or discomfort, look for another mediator.   

Some of the issues mediating parties should consider during the process of selecting a mediator are as follows:

1. Tools in the toolbox. The mediator should have “more than one tool in his/her toolbox.”  If the mediator only has a hammer, that mediator will use it, and every issue will look like a nail.  Your mediator, staying with this analogy, instead must have a took chest with a variety of tools to use – i.e., be knowledgeable and skilled at multiple conflict resolution models, including, but not limited to the following eight (8) basic models:

1. The Thomas-Kilman Conflict Resolution Model – The mediator should understand the conflict between negotiating parties’ desire to satisfy their own interests and concerns, and the interests and concerns of their counter-part. This requires an understanding of the five basic conflict resolution styles and the pros and cons of using each style. It also requires a working knowledge of how to help the parties navigate from one conflict resolution style to the other in a fluid manner. The five styles are: 1) Competition; 2) Avoidance; 3) Accommodation; 4) Compromise; and 5) Collaboration.  A skilled mediator will be able to recognize the style used by each party (and their representatives) and help each of them individually, and all of them collectively, move from Competition to Collaboration, which exponentially increases the likelihood of reaching an agreement at mediation.

2. The Conflict House Model – The mediator should understand how to help the parties have difficult conversations in a constructive way without alienating each other with trigger words or acts, attacks, micro-aggressions, etc…  Using this model, a skilled mediator will be able to help the parties, and their lawyers, set a constructive and positive tone before the mediation starts in a confidential pre-mediation conference. Done effectively, on the date of the mediation, the parties can avoid derailing the mediation, and the opportunity to reach an agreement, at the beginning of the process. 

3. The Empathy Model – The mediator should understand how to help the parties recognize their inherent empathy for the other parties, and build on that empathy and understanding.  If done effectively, throughout the process the increased empathy will help the parties focus on the critical underlying interests, as opposed to positions. This also accelerates the potential for an agreement. 

4. The Value Creation Model – The mediator should understand how to help the parties use the information they know about each other (whether gathered before or during the mediation process) to create a value proposition that will help the mediating parties do the jobs they have to do regarding the conflict, reduce the pains experienced, and increase the opportunities for the mediating parties to get the gains they want.

5. The Speed of Trust Model – The mediator should understand that trust has several waves, including self-trust, relationship trust, organizational trust, market trust, and societal trust. With this understanding as the foundation, the mediator can effectively help the mediating parties demonstrate:

A.their integrity, while acknowledging the other side’s integrity;

B.their intent in a constructive way, while seeking to understand the other side’s intent without attacking or feeling attacked;

C.their capabilities and the other’s side’s capabilities, and hone in on the relevance; and

D.their ability to produce results on both sides.

If the mediator is able to do the above effectively, the parties will have a better chance of recognizing the elements of integrity trust in each other, and build upon it, which is necessary before embarking on the performance trust issues. Both are critical to facilitating a meaningful and lasting agreement between the parties.

6. The Behavioral Model – The mediator should understand how his/her behavior and the behavior of the mediating participants affect the mediation process, and consciously work towards modeling the right behaviors, and encouraging the same with the mediating parties.   Here is a list of the behaviors:

A.Taking Straight

B.Demonstrating Respect

C.Creating Transparency

D.Righting Wrongs

E.Showing Loyalty

F.Delivering Results

G.Getting Better

H.Confronting Reality

I.Clarifying Expectations

J.Practicing Accountability

K.Listening First

L.Keeping Commitments

M.Extending Trust

N. Inspiring Trust

7. The Action Plan Model – The mediator should understand how to help the parties create a reasonable and workable action plan.

8. The Transformative Model – The mediator should be able to help the parties transform from feeling victimized to feeling empowered during the mediation process. Effective mediation requires self-determination, therefore, it is critical that the mediator understand how to help the mediating parties graduate from victimhood to empowerment. A skilled mediator understands that when a mediating party feels like a victim, it is likely that he/she will not be very productive or constructive during the mediation process. There is also a risk that the other party, recognizing the vulnerable state of the victimized party, may take advantage of the “victim”.   Therefore, the ability to help each party transition from the feeling of being a victim to the feeling of being empowered is critical and necessary to help them meaningfully participate in the mediation process.  Once empowered, the parties can transition in to a healthier conflict resolution state, allowing them to meaningfully transition from competition to collaboration.   

2. The EQ Factor. The mediator also should have a high degree of “emotional intelligence.” He/she must be able to regulate his/her own behavior in such a way to take a leadership role during the mediation, understand how to regulate his/her relationship with the parties and their counsel, and help the parties regulate their relationship so that they do not alienate each other, but work constructively towards a common resolution.
3. The Impact of Life Cycles.  Where the mediating parties are in their personal, relationship, family, professional and business life cycles affect how they view the world, how they relate to each other, and how they resolve disputes. Therefore, mediators should have a basic understanding of each life cycle, the stages of each life cycle and the expected skills, knowledge, abilities experiences, focus, needs, emotions, maturity level, and key relationships which are normal and predictable during each stage.  With this knowledge, the mediator will be in a better position to:

A.“read” the parties, 

B.understand each party’s points of view, 

C.identify each party’s underlying interests,  

D.understand the jobs each party has to do during the mediation process, 

E.identify the pains that each party experiences related to those jobs, and

F.identify the gains each party wants from the mediation.

This will help the mediator help the mediating parties not only address the obvious issues raised during the mediation, but also the underlying and collateral issues that can be just as, or even more so important. 

4. The Importance of Experience. The mediator also should have relevant and extended experience as a mediator. A novice mediator, including a mediator who is transitioning into mediation as a second career (such as a retiring attorney or retiring judge) usually do not have the knowledge, skills, experience and abilities to be as effective as a mediator who has been mediating for several years.   In their professional life cycle as a mediator, they are, in essence, baby mediators.  While these mediators may have the core subject matter knowledge and experience, they still need to develop their mediation knowledge, skills and abilities to be effective.  Ideally, the mediator should be entering the prime of his/her professional career as a mediator.

5. The Role of Gravitas. A mediator also should have some “gravitas.” An experienced attorney, a retiring attorney or retiring judge would have gravitas earned from their years of experience and/or former profession, which can be helpful to instill a sense of confidence in the parties and their lawyers. This gravitas can be especially helpful in cases where the parties are looking for “parental” guidance in the process, or will rely on the mediator for an evaluative approach.

6. The Subject Matter Expert. Will a subject matter expert be helpful during the mediation process? This is an important question to answer before making a list of potential mediators.  In some instances, a subject matter expert will be necessary to understand the vernacular and language of the mediating parties. For example, if the mediating parties are discussing the intricacies of a jet engine, it will be helpful if the mediator has a mechanical engineering background. In the majority of instances, however, an understanding of the subject matter of the mediation is not as relevant. For example, a mediator does not have to have any restaurant operation experience to mediate a dispute between two partners who own a restaurant and are dissolving their business relationship.  Before choosing a mediator, it is a good idea to discuss the subject matter issue with the opposing party or his/her representative before developing a list of possible mediators.  If a subject matter expert is critical, then only select mediators with that expertise. If it is not as critical, but still important, if the mediator you would like to use has the skills, knowledge, experience, gravitas, EQ, and has the ability to add value, consider providing educational information to him/her so that he/she can be familiar with the subject matter. This will help the mediation process flow constructively. 

7. Fighting the Urge. When selecting a mediator, the lawyer should fight the urge to retain a colleague or friend as a mediator based upon personal or professional relationship only.  Instead, selection of a mediator should focus on the above factors, as well as any other factors the parties and their representatives believe are important to help them navigate the mediation process as constructively as possible.  

8. Price vs. Value Added.  Finally, consider the value of a mediator who can give you the best chance of resolving your dispute before going to court.  Paying a “good” mediator at a higher hourly rate saves tens of thousands of dollars that would be expended in litigation.  A day of mediation can cost the parties approximately $2,000.00 each (the average cost of a “good” mediator – one who is skilled, knowledgeable, high in IQ, experienced, and has some gravitas – is $500.00 per hour).  While prosecuting or defending a lawsuit, can cost, at the low end, up to $25,000.00 in lawyers’ fees, plus costs (excluding court-mandated mediation before trial), in many cases, litigation costs easily can exceed $100,000.00 before a final resolution.  In addition to the financial costs, there are the emotional costs, lost opportunity costs, the costs associated with lost time, and the costs of lost or deteriorating relationships.  These all add to the expensive litigation financial price tag.  A “good” mediator may be able to help the mediating parties eliminate or mitigate these non-financial costs during the mediation process.

If you are interested in learning about my mediation skills, knowledge, experience, EQ, and how I can add value to your mediations, please email me at attorneypersad@cplspa.com or call me at 407-647-7887. I have experience mediating a wide range of Federal, State, and Territorial cases before and during the litigation process, including:

1. 1. 1. Ad Valorem Taxes between Counties and Businesses/Individuals
      2. Bankruptcy-related matters (objection to claims, adversary proceedings, etc….)
      3. Business Relationship and Contract issues (partners, shareholders, joint ventures, employees, vendors, contractors, suppliers, investors, debtors, creditors, etc…)
      4. Closely Held Small & Medium-Sized Business (“SME”) and Family Business Disputes
      5. Class Action (experience as certified class counsel)
      6. Civil Rights
      7. Commercial Landlord/Tenant- pre and post-litigation
      8. Complex Litigation (complex issues and multiparty) 
      9. Complex Family Law cases 
      10. Construction Cases (including claims involving owners, subs, bonds, and indemnity agreements)
      11. Government Related Disputes – Federal, State, County, and City
      12. HOA/COA cases, pre, and post-litigation
      13. Insurance Cases – coverage, real property, high-value personal property, and personal injury.
      14. Intellectual Property
      15. Probate Administration and Distribution Disputes
      16. Professional Malpractice  
      17. Property Disputes 
      18. Religious Organizations Disputes 
      19. Trust Administration and Distribution Disputes

Intellectual property (“IP”) is a complicated field of law, as anyone who practices in that area knows. Intellectual property disputes are often intricate – and each one is unique, since many disputes hinge on how multi-factor tests would be applied or interpreted by a jury. Therefore, IP disputes need a specific kind of mediator who is prepared to handle that type of case. 

For many intellectual property practitioners, it can be challenging to find a mediator who’s experienced in that field. Even most retired judges were not on the federal bench and do not know much about IP law.

Qualifications of IP Mediators

The laws are changing as technology changes, so intellectual property practitioners need a mediator who is up to date with the latest changes and who understands the latest technology (especially for copyrighted code and/or patent cases). Sometimes, that can be hard to find when you are also looking for someone with legal training (particularly because intellectual property law is not tested on the bar exam, so not all attorneys are knowledgeable about that field of law). 

Therefore, it is important for intellectual property practitioners to search for mediators who are experienced attorneys who know about the type of IP the dispute centers around (e.g., trademarks, copyrights, or patents). An attorney who is experienced in prosecuting trademarks/patents and handling infringement issues will be able to give both parties in the mediation the best perspective on the case in order to move the mediation forward – and lead the parties toward settlement. 

A mediator who knows the elements of IP prosecution and/or infringement can go through each relevant element with the parties in detail and help them weigh the pros and cons of their cases (e.g., the fair use defense, consumer confusion questions, etc.). 

Also important, though, is the mediator’s skills in helping parties communicate. A mediator who knows how to reality check with the parties regarding likely outcomes post-mediation so parties can make informed decisions during mediation is a huge asset when you are looking to settle a case. 

Moreover, intellectual property practitioners are often searching for a mediator who will understand the created IP is like someone’s baby because of how much time and effort likely invested in it. Mediators who respect that the disputed IP is part of who the clients are will be able to communicate most effectively with the parties and, thus, will be most likely to help the parties reach a settlement. 

Furthermore, it’s helpful if the selected mediator practices IP law because then that mediator will know what elements an intellectual property settelement agreement should include and can be prepared to draft an appropriate settlement agreement if a resolution is reached at mediation. 

Conclusion

At CPLS, we understand the importance of selecting a mediator who is experienced in intellectual property law. Christy L. Foley is a mediator with a decade of experience who has focused her legal practice on IP issues for the past 9 years. She’s experienced in copyright and trademark prosecution as well as infringement issues, has a biotech background, and remains abreast of the latest trends in intellectual property law. If you need a trustworthy and knowledgeable IP mediator, then please give us a call at (407) 647-7887 or email Christy directly at CFoley@CPLSPA.com.