OVERVIEW OF TRAINING MODULES
| GENERAL MODULES AND MISCELLANEOUS |
A critical consideration of the current draft uniform mediation act to be presented to the national conference of commissioners on uniform state laws in July, 2001. Robert A. Creo has been active on behalf of the International Academy of Mediators taking positions on the proposed Act and represented IAM at drafting sessions. 101.2 ABA Ethics 2000 Commission
The ABA has undertaken its first comprehensive revision of the model code of professional responsibility in over 20 years. A review of the proposed model rules pertaining to neutrals and ethical issues such as conflict of interest for neutrals who later act in a representative capacity. Robert A. Creo presented to the drafting committee of commissioners in December, 1999 on behalf of the International Academy of Mediators and provided informal input to the Official Reporter during the drafting process. . 101.3 Credentialing, Certification And Qualification
Should mediators be credentialed or licensed; should there be a complaint procedure, and/or continuing education requirements? An update and exploration of where to go in the future. 101.4 Unauthorized Practice of Law
A review of the current status of issues involving non-lawyer mediators being deemed to be practicing law. The question of lawyers serving as mediators in jurisdictions where they are not admitted to the bar nor "certified" also will be addressed. Regulations distinguishing between providing "legal information" versus "legal advice" have been implemented or are under consideration in a number of jurisdictions. 102. Mediating With Ad Hoc Public Interest Groups And Associations
Public policy and disputes affecting a community, such as zoning and land use, often involve ad hoc groups of citizens with no formal organizational structure. This creates unique problems for the mediator in obtaining consensus and negotiating a binding and durable resolution. Methods and techniques on how to establish credibility, build rapport and provide continuity are addressed. 103. Creo Litigation Diamond & Mediation Funnel; Galanter Pyramid
An exploration of the dynamics of conflict and its relationship to the adversary system. The presentation illustrates a way of thinking about the polarizing effect of the adversary system of justice has on disputants. An explanation of how the effects of the diamond may be counter-acted by the "mediation funnel" or other form of intervention. Various manners of intervention are explored by the Socratic method. 104. Negotiation Theory And Practice
Mediation has often been called assisted negotiation. Negotiation and decision-making is a popular subject for lawyers, professors and other risk professionals to study and publish. Every month there are new articles and/or books exploring different models and/or cognitive behavior. This session reviews what's new and hot in the field from the Mediator's perspective. 105. The Jury System And Alterative Dispute Resolution
A review of the recent research and a discussion of the perceptions of juries of lawyers and disputants. Myths and reality collide in the jury room. How mediators can fashion appropriate strategies when mediating the litigated case is addressed in an interactive format. 106. Med-Arb, Arb-Med And Other Hybrid Processes
An exploration on how and why to combine processes. Many practical and ethical pitfalls exist for the neutral who is asked to serve duel roles as a mediator and the final arbiter of unresolved issues. Should more than one person be considered, with the arbiter being in a shadow or limited role during the mediative phases of the process? Format, timing, use of private caucus and other specific techniques are explored.
| THE MEDIATOR AND MEDIATION MODELS |
An exploration of the various mediation models from the myth of pure facilitative mediation to a consideration of the role of mediator as transformer, director, moderator and evaluator. 201.2 Values of The Mediator: Do They Matter?
Does it matter who the mediator is for a particular case? What impact does the values of the mediator have on the process? What concepts of impartiality and neutrality are essential to the mediation process? What information should the mediator convey to the parties about their qualifications, experience, personality and value? Do mediators have a personal philosophy of mediation? Is mediation an appropriate process to enact social change? This workshop explores these questions from the perspective of the mediator. The literature in this area will be surveyed and discussed. 201.3 Transformative Mediation
An introduction and review of the transformative model of mediation in theory and practice. Bush and Folger, in their popular book, The Promise of Mediation, advocating "transformative" mediation, recommend that mediators reflect in their opening statements their dominant model of mediation. 201.4 Transparency in Mediation
Should the Mediator inform the parties of mediation strategies and tactics being utilized? The Five Ws of a Transparent Mediation Model. 201.5 Storytelling And Narrative Mediation
A model with the focus on narration and illustration of themes, choices and principles based upon myths, perceptions, popular culture and stories. How to reframe experience and overcome barriers and resistances. 201.51 Metaphors, Parables, Proverbs, Quotes, Epigrams & Aphorisms
The use of metaphors and illustrations to assist people in making choices
202. Interaction Between The Court And The Mediator (202 - 202.4) An exploration of the appropriate interaction between the state or federal judges and the mediator. Cases are often referred to mediation via established court programs or by a judge via a consent or other court order. What limits are there on communications between the bench, the mediator and the parties? Does it matter if a statute, regulations on a court order mandates "good faith" participation in the mediation process. What role, if any, does the mediator play in contempt, enforcement of or other settlement motions involving the parties? 202.1 Court Programs
Numerous jurisdictions such as Colorado, Florida, Maryland, Massachusetts, Oregon, Virginia, and federal court and agency programs have established guidelines and regulations of the mediation process and/or mediators. Specific subject areas of the law, such as domestic relations and custody, have established separate and unique programs by statute or court order. 202.2 The Order to Mediate
Consideration of appropriate content of court orders involving mediation. 202.3 The Issue of "Good Faith" Participation in Mediation
How voluntary is "voluntary" mediation? What minimum participation levels are recommended or mandated? Does it matter if mediation is pursuant to a court program? How have courts in California, Florida and Texas addressed the issue of good faith? 202.4 Confidentiality And Its Limits
Role playing and discussing hypothetical ethical dilemmas facing the mediator. 203. Business Aspects of Mediation: The Nuts And Bolts of Practice
This workshop provides practical information about establishing and maintaining an independent practice as a mediator. The economics of practice, marketing yourself, professional enhancement, forms and procedures to be utilized are among the issues addressed in an informal manner. The resources available, including conferences and the Internet are explored. 204. Ask The Mediator
Mediators propose specific questions, issues in advance and/or from the floor for consideration. 205. Oops! I Did That?
This is an informal peer review process. The moderator/trainer and audience of peers provide constructive criticism. Mediators provide 3-5 minute "confessions" of blunders or mistakes they have made.
| BEFORE THE TABLE |
Tips on obtaining full participation by the necessary individuals to reach global settlement. An exploration on how to bring the reluctant party to the table. Pre-session exchange of information and logistical issues will be addressed. 302. The Agreement to Mediate
What provisions should be bo ilerplate? Who should execute the agreement? Is a court order a substitute for an agreement? What status or regulations impact the document? 303. Pre-Session Mediation Communications And Written Submissions
Oral and written communications are an integral customary aspect of mediation. An exploration of the timing, context and method of communication before the mediation session. How to get the most out of pre-session submissions. What to ask for and to expect. How to utilize the submissions in joint sessions and private caucus.
| AT THE TABLE |
Reap what you sow. Laying impasse breaking seeds in the openings. How to avoid preaching to the choir. An analysis and consideration on how to get the most out of opening statement in each type of case. The mediation must be spontaneous, sincere and address the interests of specific participants. The opening statement. 402. Managing The Joint Session Presentations
Opening is critical and sets the tone for the entire mediation. Tips on how the mediation may orchestrate communicators at joint sessions. Exploration of the importance of the disputants speaking in their own words and the mediator's role to create dialogue. Bush and Folger, in their popular book, The Promise of Mediation, advocating "transformative" mediation, recommend that mediators reflect in their opening statements their dominant model of mediation. This workshop is a critical, and intended to be personalized, assessment of what our openings are intended to do and are actually doing to the process. 403. Logistical Concerns and Time Management
Lunch, anyone? Physical environment should be a positive factor contributing to voluntary resolution of disputes. Practical concerns such as expenses, location, room size, duration of mediation, food and other refreshments must be considered. Use of technology for calls and video conferences. Use of timers, schedules, deadlines, breaks and meals. How to use the limited time most efficiently and avoid losing momentum and the energy of the participants. 404. Use of Visual And Demonstrative Tools (404 & 404.1) Exploration of presentation and demonstrative tools such as photos, flip charts, pie charts, graphs, blow-ups of exhibits, powerpoint and slide presentation, video and other audio-visual devices. 404.1 Use of Pie Charts to Identify Interests and/or to Apportion Liability This model places a premium on accuracy because to miss the centerline by any discernable amount yields an advantage to the chooser; there is incentive to divide the pie fairly if not squarely. This "negotiation" is the ultimate "Zero-sum" bargaining since every crumb out of balance will be claimed by the other party to the detriment of the cutter. As any experienced advocate or mediator knows, eventually every negotiation boils down to elements of distributive bargaining or apportionment of value, loss or risk. Borrowing from the social and mental health professions, I have adapted the use of pie charts as an aide to understanding issues and breaking impasse when mediating multi-party and/or multi-issue cases. 405. Communication in Mediation and Conflict Resolution (405.1 - 405.3)
405.1 How People Process Information And Decision Making
A workshop on cognitive processes and how this impacts on the mediator at the mediation session. 405.2 Framing, Linguistics, Body Language and Non-Verbal Communication
A workshop on the manner and form of oral communications and how it affects perceptions and choice. In face-to-face communication, content of the words themselves usually comprise less than 15% of the meaning being conveyed and received. This workshop also explores theories and approaches to sending and understanding the full message. 405.3 Use of Questions
Exploring different ways to communicate in mediation and conflict resolution. Preambles as foundations, a revue of the nature, form and various purposes of questions. Laying the proper foundation for a query enhances the likelihood of obtaining a response which transforms viewpoints and/or moves the parties closer to resolution.
406. The Squish in Mediation: Touchy-Feely Aspects (406.1 - 406.3) 406.1 Empathy And Sympathy
Active listening skills are critical for the mediator and/or the negotiator to be effective. This workshop explores the importance of empathy in resolving conflict. 406.2 Apology, Gratitude and Mutual Respect
Explores the importance of apology, gratitude and mutual respect in mediation. Strategies for how the mediator recognizes these elements and how to utilize them to erode barriers and resistance will be addressed. 406.3 Emotions: Fear, Anger And Loathing in Mediation
Emotions often rule decision-making and blind people to rational choices. Venting is important in mediation. How much is enough? When does it become counter-productive? A workshop exploring the nature of emotion and what to do about it as a mediator.
407. Building Rapport And Creating Dialogue in Mediation (407.1 - 407.3) 407.1 Dialogue: The Yankelovich Approach
Brevity is the soup of wit but fails as a tool of the mediator. What, when and how the mediator speaks affects the perception of him/her by the participants. Techniques and approaches to establish credibility and trust while avoiding inflating unreasonable expectations. Mediation is a vehicle for informal communication and breaking down barriers. Conflict polarizes disputants and has a "demonizing" effect. Humanizing adversaries is a critical step on the stairway to resolution at the highest levels. 407.2 Use of Small Talk in Mediation
Mediation is a vehicle for informal communication and breaking down barriers. Conflict polarizes disputants and has a "demonizing" effect. Humanizing adversaries is a critical step on the stairway to resolution at the highest levels. 407.3 Humor in Mediation
Use of humor in mediation. 408. Establishing The Bargaining Model
An exploration of the various models and methods for exchange of economic proposals. These include: auction, what if?, soft numbers: ranges:, blinds: almost there?; boulwarism; calculator for multi-party cases; mediator floats, including double blinds. Concepts of negotiation theory and reciprocity, including strategies and cultural expectations of exchange.
409. Managing The Relationship Between Agent & Principal (409.1 - 409.5) 409.1 Identifying The Decision-makers And Their Agendas
Creating a consensus with the people at the table representing a party or multiple parties have diverse viewpoints. What is a monolith? Rarely are all minds and agendas aligned on one side of the table. The true decision makes their interests and may not always be obvious. Tips on how to pierce the veil. 409.2 Dealing With Negotiators With Limited Authority
How to handle the absent decision-maker, including necessary language in the agreement to mediate or court order. 409.3 Working With Disputants Outside The Presence of Their Counsel
An exploration of benefits and ethical and practical limitations of the mediator communicating directly with disputants outside the presence of counsel. Techniques on how to arrange private meetings and the what to say and avoid in these sessions. 409.4 Saving Face For The Advocate And Disputant
In all conflicts and negotiations, participants take strong positions and make opposing arguments which are not reconcilable. No one likes to lose, or be perceived to have lost. Cognitive behaviorists have long proven that people have an "irrational" bias manifested in an aversion to loss. This workshop explores psychological issues and proposes strategies for saving face. 409.5 Gaming The Mediator: How to Manage Sophisticated Advocates
As more and more lawyers and risk professionals become familiar with the mediation process tactics and approaches common to litigation and "hardball" bargaining are increasing used in the mediation process by the parties. This is especially true of "repetitive players" who have formal early dispute resolution systems which utilize mediation. This workshop discusses these trends and makes suggestions on how the mediator may attempt to avoid being gamed by the parties.
410. Breaking Impasse (410.1 - 410.3) 410.1 Techniques & Tools
Momentum has built towards the settlement all day. The mediation is at a critical junction and one or both of the parties are on the fence. These are some last ditch attempts to narrow the gap. Many of these approaches reflect the values of the disputants. This workshop illustrates fifteen specific techniques to break impasse in commercial and personal injury cases and other legal disputes. These are:
| 1. Russian Roulette | 6. Insurance | 11. Time is Not On Your Side |
| 2. Buyer's Remorse Avoidance | 7. Trade of Body Parts | 12. Be the Bigger Person (Schindler's List; Film Clip; Power Book Story) |
| 3. Stock Market | 8. Jury Justice? | 13. Mano & Mano |
| 4. Lottery | 9. Blind Final Proposal | 14. Jeopardy |
| 5. Child's Education | 10. Buy Back Case | 15. The Directive Speech |
Use of Quantitative models to illustrate risk and choice, including decision trees, bell curves and other methods of assessing settlement options. 410.3 The Written Mediator Proposal
Although the parties have moved closer together, they have a gap or authority necessary is not at the table. The mediator may believe that one or both of the parties have not properly assessed their litigation or other risks. This workshop explores when and how to draft a post-mediation document which may form the basis of a future resolution. 410.4 Structured Settlements Trojan Horse, Plaintiff, Defendant, Neutral 411. International Cultural Issues Gender And Diversity
Cultural, gender and other demographics impart in the conduct of the mediation.
| AFTER THE TABLE |
A workshop on when and how to finalize any resolution reached orally at or after a mediation session. The uniform mediation act draft, statutes and court cases from various jurisdictions will be reviewed and considered. 502. Effective Follow-up When Impasse Is Reached
Techniques for effective follow-up when impasse is reached in mediation.. 503. Mediating The Agreement to Arbitrate Unresolved Issues
Mediating the agreement to arbitrate unresolved issues. 504. Taxation Aspects of Settlements
Update on the inclusion of attorney fees in gross income case law, the impact of the alternative minimum tax and the case law affecting settlements. Court cases from tax court and the federal circuits will be reviewed and discussed.
| MEDIATING SUBSTANTIVE AREAS OF PRACTICE |
Review of the law and tactics for resolving construction claims. 602. Employment Claims
Review of the law and tactics for of resolving employment claims. 603. Environmental Claims
Review of the law and tactics for resolving environmental claims. 604. Family And Domestic Relations
Review of the law and tactics for of resolving family and domestic issues. 605. Healthcare Relationships And Disputes
Review of the law and tactics for resolving healthcare claims. 606. Personal Injury & Product Liability Claim
Review of the law and tactics for resolving personal injury and product liability claims.
| NEGOTIATION AND MEDIATION FOR THE ADVOCATE |
Developing negotiation theory and skills. 702. Settlement Counsel
Assisting the client in considering and using all forms of dispute resolution processes and techniques to resolve disputes efficiently. 703. Tips for Effective Advocacy in Mediation
How to prepare for mediation. How to manage client expectations and participation. What mediators look for from advocates.
| POPULAR CULTURE, NEGOTIATION, MEDIATION, AND JUSTICE |
An audience brainstorming session on titles of movies, songs and books which describe the mediator or some aspect of the process. A lighthearted approach to defining the role of mediator. 802. Mediation and Game Shows
Viewing mediation via the prism of game shows.
803. Scenes from the Screen: Negotiators (803 & 803.1) Viewing media portrayals of negotiation tactics of disputes in film. An analysis of which succeed and which fail. 803.1 The Godfather Trilogy: An Analysis of Power-Based Negotiation and Impasse Breaking Techniques
