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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.
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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
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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"
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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
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Parties decide; lawyers advise
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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”
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We can be creative; go beyond relief available through court
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Mediation is an exercise in diplomacy; not warfare
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difficult to follow with
You're a liar and a
cheat!
Would you be willing to_____?
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Emphasize relief/freedom from heartache and worry
-- priceless
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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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