Only in my dreams….

A quick read of Joseph Markowitz’ recent blog about The Power of Metaphors at Mediation’s Place really got me thinking about metaphors and dreams and, believe it or not, my career choices.

I was a litigator for 15 years and really enjoyed it, or at least I thought I did. What I had not connected to my career choice was a recurring dream that I had that can only be called “anxiety-riddled.” In my dream my car was accelerating rapidly, I mean I was flying down the street, and despite the fact that I had my foot and all my weight on the brake, I simply could not stop. It was dreadful. It was terrifying. Luckily I always awoke before the inevitable crash and urban myths tell me that is a good thing. I had the dream at least once every few months and it was so real to me that it made me wonder sometimes when I got in the car if my brakes really were faulty.

Approximately one year ago I was asked to join the Upchurch Watson White and Max Mediation Group to become a full-time alternative dispute resolution practitioner and do you know that I have not had my faulty brakes dream since I changed careers? Obviously I felt out of control in litigation-mode and my dreams were trying in vain to tell me what now seems so clear.

It was at this point in my self-analysis that I had one of those Oprah Winfrey “aha! moments.” Whoops! Has Ms. Winfrey copyrighted that phrase yet? Regardless, isn’t litigation often like a speeding car racing out of control toward trial? Don’t the parties feel somewhat helpless as I did in my dream, trying desperately but ineffectively to avoid a possible disaster and the unknown? Well, yes, of course they do.

So there you have it, the birth of another version of my opening remarks at mediation. I used to share with the attendees some insight into how mediation fits into my family life as a soccer mom but now I will begin retelling the story of my faulty brakes dream and how litigation can grab hold of your life in an unexpected and uncompromising manner as it apparently grabbed hold of mine. I will share with the parties a piece of the calm that mediation has brought into my life and share with them my hope that our mediation session(s) can result in the same for them and allow them to leave their litigation and all the grief that comes with it in my office and in my conference room while they walk out with a little less weight on their shoulders due to the settlement agreement the parties were able to craft, create and negotiate. You see, litigation can feel like the speeding car and in the right situation the mediation can serve as the much needed brakes. Mediation allows parties to regain some control of the situation and certainly allows parties to write their own ending to the dream (or nightmare), as the case may be.

- Sandra C. Upchurch

supchurch@uww-adr.com

Curiosity – the overlooked/underrated trait of a great mediator

As I sat down today to rifle through my growing file of unread RSS feeds I stumbled upon Diane Levin’s blog post, “The why’s have it: teaching curiosity for effective negotiation and mediation.” Sheer genius I tell you ,sheer genius!

I cannot tell you how many articles I have read, webinars and seminars I have attended, and blogs I have written that list for us the most important qualities of a mediator. We all discuss “patience,” “perseverance,” “objectivity,” and “creativity” and we can all agree that those qualities are imperative. However, no list that I have read has mentioned “curiosity.” In truth and in fact, isn’t curiosity the most important quality of all? Of course it is. This is how you learn the motivating factors of the parties. This is how you get beyond impasse.

Diane ponders whether curiosity can be taught. I tend to think that curiosity cannot be trained. To be inquisitive is to have an instinctual need to learn more and get to the bottom of something. How do you teach that? It would be like teaching someone to have empathy or teaching someone to love cats. It’s simply not going to work. Either you have it or you don’t. Either you like cats or you don’t.

So, find a mediator that likes to dig deeper, that likes to ask questions and likes to learn about the parties and the underlying problems. Find a mediator that isn’t afraid to ask the all-important but very simple “why?” As we all know, litigation is the present problem but not the root of the problem.

- Sandra C. Upchurch

supchurch@uww-adr.com

2009-2010 Cumberland School of Law Mediation Fellow Selected

The Upchurch Watson White and Max Mediation Group is pleased to announce that third year law student Whitney Henry has been selected as the 2009-2010 Cumberland School of Law Rodney Max Mediation Fellow. Established by Rodney A. Max, principal at Upchurch Watson White and Max, nationally renowned mediator, and 1975 graduate of Cumberland School of Law, the fellowship recognizes the interest, achievements and scholarship of Cumberland students in the area of mediation.

Ms. Henry was selected as this year’s recipient because she demonstrated not only a strong interest in mediation but also a desire to pursue mediation as a career. Her application was certainly very impressive. As this year’s Rodney Max fellow Ms. Henry will receive a $5,000 fellowship award for the 2009-2010 academic year. She will work under the direction of the Director of the Cumberland Community Mediation Center with primary responsibilities including; managing the Samford Residence Life Mediation Project, co-mediating disputes, and researching and writing projects. Ms. Henry is certainly a rising star in the field of mediation.

The Cumberland School of Law and Upchurch Watson White and Max look forward to following her career as it develops over the next few years.

We are very proud of Rodney for creating this fellowship opportunity and of Ms. Henry as the 2009-2010 fellowship recipient.

Mediation Strategies from the Defense Attorney Perspective

Many thanks to James F. Bleeke of SweetinBleeke in Indianapolis. He provided me with the article Mediation Strategies: What Plaintiffs Really Want that was very insightful for many reasons, not the least of which is that it suggests depositions can be used as a mediation tool. Counterintuitive…Right? Not really…

Jim points out that there are many key motivating factors for plaintiffs as they struggle through the litigation process and head toward mediation and trial. He suggests that those factors are as follows:

• Money
• Being heard
• Getting an explanation of what happened and why
• Vindication
• Helping future individuals avoid the same fate
• Punishment/revenge
• Teaching the defendant a lesson
• Assuaging personal guilt
• Wanting the whole thing to be over
• Avoiding trial

Jim feels that it is important to figure out which factor is of primary importance to the plaintiff and he sometimes utilizes depositions to figure this out. He is not suggesting the use of “gotcha” questions and coercive tactics during deposition. Rather, he encourages the use of feeling or emotive questions which put the plaintiff at ease and may encourage the plaintiff to open up.

For example, questions such as “how did the incident make you feel” and “what led you to initiate this lawsuit,” even if objected to, may allow the plaintiff to recognize that their feelings are valued, respected and sought and that the defense may not be as horrible as expected. This can serve to open doors at mediation that might otherwise have been slammed shut and may allow mediation day to be productive from the very beginning. Now wouldn’t that be nice?

There is much more to Jim’s piece and I invite you to read it in its entirety. Thanks again, Jim.

- Sandra C. Upchurch
supchurch@uww-adr.com

Blogging – Have you gone there yet?

When I became a mediator at Upchurch Watson White and Max I am not sure that I fully appreciated the fact that I would be helping the firm launch their Web 2.0 efforts but now that am fully engaged in mediation AND online marketing, the aspect of Web 2.0 that I truly appreciate and enjoy the most is blogging. Our blog, the Strategic Mediator, is quickly becoming a “player” in international ADR blogging circles, if I do say so myself, and it is thrilling to watch it happen.

For those of you that don’t know, blogging is not simply sitting down at a computer and writing about a topic of interest to you and your firm and posting it on your firm website. Blogging is a way to connect in a meaningful way with potential clients and like-minded people around the world.

To blog, you first need to lurk. Get on the internet and Google your area of practice followed by the word “blog”. You will be inundated with blogs that you will find intriguing, helpful, insightful, infuriating, and so much more.

The next phase of blogging is a bit more bold and requires that you become interactive. Once you have lurked to your satisfaction, begin posting comments at those blogs. Let the author know that you agree or disagree and why. Praise or condemn the piece but be constructive after all you are trying to build an online reputation and some street cred for you and your firm, you really don’t want to become that Facebook friend that everyone eventually blocks because of all the garbage they post.

Lastly, put pen to paper or in this case fingers to the keyboard. Begin writing a blog at your website. Your tech people that host your website will be able to get it set up for you so that you can post as often as you like. Comment about books you have read. Comment about an interesting thing that happened to you at work that day. Poll your partners on an issue and write about their feedback. Write an article about a specific legal problem you have encountered and solved. But, most important of all, begin linking to others’ blogs. In your blog refer to how an online colleague has addressed an issue and link to that blog. Those authors will begin returning the favor and that is how it all begins.

At our firm website we have three blogs: The Strategic Mediator, The Family Business and Wealth Mediation Blog and the Local Government Charette. If you would like to give blogging a try, consider becoming a guest writer on any of our blogs.

What blogs do we read? Well, we spend most of our time with Diane Levin at Mediation Channel Blog, Victoria Pynchon at Settle It Now Negotiation Blog, Tammy Lenski at Making Mediation Your Day Job, Christopher Annunziata at CKA Mediation and Arbitration, John DeGroote at Settlement Perspectives, Steve Mehta at Mediation Matters and Phillip J. Loree, Jr., at Loree Reinsurance and Arbitration Law Forum. In my mind these are the blogging world’s best of the best in all things ADR. With any luck maybe someday people will say the same about our firm’s blogs. Only time will tell…

Sandra C. Upchurch
supchurch@uww-adr.com

Early Mediation Is Particularly Well Suited For Self-Insured Companies and Claimants

We all know that mediation, when taken seriously and done meaningfully can save time, save money and avoid risks. It follows that early mediation can increase the cost and time savings. Self-insured companies that have taken the steps to implement a program of early mediation have seen improvements in various metrics tied to their costs and risk exposure. More and more self-insured companies are mediating early since it is, after all, their money from dollar one that is at stake. But the benefits are not one-sided. Claimants benefit as well, both psychologically and monetarily.

Sooner or later, the typical case is settled. Since "later" rarely happens without increases in economic, opportunity, and psychological costs, it rarely makes sense to wait for someone else to suggest mediating or wait until discovery is complete. If the case gets settled early, litigation costs that occur when in suit can not become an impediment to settlement. A company's reserves, employee costs, litigation costs, claims administration costs, future risk, and premiums for excess insurance are all positively impacted by early resolution. Claimants typically want to be dealt with fairly and the longer it takes to get to mediation, the harder it may be for them to think that anything said or done in mediation is truly tied to someone else's concern for their situation. Thus, by waiting, what it takes to be "fair" or "reasonable" often goes up. Delay does not benefit either side in most cases since it will drive up everyone's investment in the process of disagreeing, ties up more of a company's resources, and delays the day a claimant who likely has real concerns actually has them addressed in a practical way.

Most of the information you need to evaluate a matter can be obtained in a less costly manner than through discovery after suit is filed. An informal exchange of information, under the umbrella of a mediation process, can be a suitable substitute for formal discovery. Too much time in litigation is spent seeking information through a slow and costly process. And lets face it, discovery typically doesn't deliver risk avoidance or closure.

It may not be right for every case, but it is wise in most, especially when the prospective defendant is in the customer service business and good will can be gained. At worst, the parties start the inevitable and necessary dialog. For the above reasons, and perhaps many more, it makes sense to consider mediating early, preferably before suit is filed.

- Richard B. Lord
rlord@uww-adr.com

There is no substitute for being (and having them) there

Really, there isn't. People ask too often, "Can I appear by phone?" Mediators and attorneys both should ask, "Why would you want to?" It can't be because you want to increase the odds of making a sound decision or of having the other side make one.

We have 5 senses. Sometimes we need inputs from more than one to accurately assess a situation. The same is true for mediation as it is for just about anything else. And how can we get the real flavor of a dynamic exchange of information, ideas, suggestions and proposals if we are only getting one sensory input. We all know that reading a deposition hardly imparts the subtleties, and even sometime misses major revelations or tones. Having someone listen-in to the mediation is always a less than ideal development.

If someone is unable to be there, it should be rescheduled. If someone doesn't want to be there, and it is your client, you have to ask, "Does this person have the perspective I want them to have?" Being present allows a problem solver to say "I am taking this seriously and I am going to give this my / our best shot, so you should as well, before we have no choice but to let a jury or judge decide." It also let's the decision maker respond to the things that are unspoken, or perhaps misinterpreted by others who convey the information to the decision maker in some other city, inevitably with distractions. Avoiding these inefficiencies or inadequacies increases the soundness of the ultimate decision. And the key to resolution may ultimately hinge on the other side's appreciation for their adversary being there, listening, and working on getting something accomplished. Think about it, if it is hard for you to negotiate beyond your preferred zone, does it help if the other side isn't there?

If it is the other side who doesn't want to attend, you should consider trying to get someone higher up to attend in person to take the process, and what you have to add to the analysis and problem solving, seriously. Otherwise, what you say may just fall on deaf ears.

While attending by phone can be adequate in some cases, there really is no substitute for being there. It can also keep the mediator's charges lower than if everyone has to wait for all of the calling back and forth to be accomplished.

- Richard B. Lord

rlord@uww-adr.com