Mediation Advocacy - Cumberland School of Law - Professor V. Michelle Obradovic

Mediation Advocacy

Cumberland School of Law

Law 803

Spring 2009

Wednesday

8:00 a.m. – 9:50 a.m.

Room 101

Exam

5/1/09 - 9 a.m.

Moot Court Room

Adjunct

Professor:

V. Michelle Obradovic, Esq.

Wise Resolution, LLC

2100A SouthBridge Parkway, Ste. 650

Birmingham, AL 35209

205-414-7589 direct office

205-602-5014 cell phone

Michelle@WiseResolution.com

Room 540 – Jefferson County Courthouse

*Attendance is required.

Grading:

1/3 Attendance, Preparation and Class Participation

1/3 Mock Mediation - Position Statement and Performance

1/3 Mediation Observation and Analysis Paper

· Students earn points by attending classes and demonstrating thorough preparation. Interactions with guest lecturers, participating meaningfully in class discussions and group exercises and thoughtful reflective essays counts for 1/3 of the final grade.

· Students will be given fact scenarios, group assignments and role assignments for a mock mediation exercise that counts for 1/3 of the final grade. Students should appear in professional dress for the two mock mediation sessions. Prior to the mediation, each Plaintiff team and each Defense team will prepare a position statement. Mediators will be responsible for coordinating the logistics of the sessions and for conducting pre-mediation planning meetings and for journalizing the progress made between sessions. After the mediation is concluded; the group will compile a notebook. This notebook represents the work product of all students for the entire mediation exercise.

· Students must complete a mediation observation and submit an observation and analysis of same. The analysis must be prepared according to the attached format and include citations to the textbooks. Students should appear in professional dress, and plan to stay for the entire mediation. Students may observe a court mediator or alternatively make their own arrangements to observe a mediator in private practice. Only two students may observe a particular mediation. The observation and analysis counts for 1/3 of the final grade.

Texts:

Mediation Representation: Advocating in a Problem-Solving Process

by H. I. Abramson

Getting to YES

by R. Fisher and W. Ury

Purpose:

Conflict resolution skills have become a vital part of the practice of law; whether a trial lawyer, a transactional attorney, an in-house counsel or a government attorney, knowledge of how to productively manage conflict is essential. This course examines a variety of approaches to conflict resolution, ranging from problem-solving to adversarial.

Students will learn the methods of traditional analysis of a case from the perspectives of rights, obligations and precedent, and will also learn to look beyond those criteria to a search for solutions that can benefit both sides. Students will learn how to develop a collaborative relationship with others and will learn to use the mediator as a tool to overcome impediments and to counter unproductive adversarial tactics.

Week / Date: Topics /Assignments:

Week 1

01/7/09

Course Introduction / Communication Basics / Negotiation Basics

Week 2

01/14/09

Introduction to the Mediation Process

Week 3

01/21/09

In Class Exercise

Debrief Exercise

Week 4

01/28/09

DUE: Mediation Representation: Introduction and Chapters 1 through 2

Week 5

02/4/09

Counseling Your Client About Mediation

Negotiating an Agreement to Mediate

Preparing Your Case for Mediation

DUE: Mediation Representation: Chapter 3 through 5

Week 6

02/11/09

Guest Lecturers:

Plaintiff’s Counsel - Hare, Wynn, Newell and Newton

Defense Counsel - Lightfoot, Franklin & White

Week 7

02/18/09

Preparing Your Client for Mediation

Appearing in Pre-Mediation Conferences, Mediation Sessions, and Post Sessions

DUE: Mediation Representation: Chapter 6 through 7

Week 8

02/25/09

Breaking Impasses

DUE: Mediation Representation: – Chapter 8

Week 9

03/04/09

Interest Based Bargaining (part 1)

DUE: Introduction through Chapter 5 of Getting to YES (pages xvii – 94).

* Begin preparation for Mock Mediations.

Week 10

03/11/09

Interest Based Bargaining (part 2)

DUE: Chapters 6 through 8 of Getting to YES (pages 95 through 144) plus Sections IV and V (pages 145-200).

* Continue preparations for Mock Mediations.

Week 11

03/25/09

Mock Mediations – Opening statements / Engage in Caucuses

Week 12

04/01/09

Mock Mediations - Complete Caucuses and Close the Mediation

Week 13

04/08/09

Debrief Mock Mediations

Week 14

4/15/09

Ethical Issues / Bringing It All Together

Samford University complies with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. Students with disabilities who seek accommodations must make their request through Anne Sherman in Disability Support Services. This office is located in Counseling Services on the lower level of Pittman Hall, or can be reached at 726-4078 or 726-2105. A faculty member will grant reasonable accommodations only upon notification from the DSS.

Suggested Considerations for Position Statements

1. A recitation of the facts that gave rise to the litigation.

2. The present posture of the case (any matters pending in court or in any related litigation).

3. Any recent developments that may impact on the resolution of the case.

4. The history of any efforts to settle the case including any prior offers or demands.

5. A summary of the parties’ legal positions and a candid assessment of their respective strengths and weaknesses.

6. Identification of parties, representatives and counsel who will be directly involved in the mediation discussions; and a confirmation of their authority to settle the case.

7. Description of any sensitive issues that may influence any settlement negotiations

8. The nature and extent of any prior or future relationship between the parties that may affect the mediation.

9. The negotiating strategy of the parties and counsel.

10. Any suggested approach you would like me, as your mediator, to take in an attempt to settle the case.

11. Any creative solutions.

NOTE: To the extent possible, position statement should be shared with your opposition (the more your opposition understands about your position, the better able your opposition will be able to negotiate with you). You may make your statement confidential in whole or in part with those confidential portions presented in a p.s. not copied to opposing counsel.

Pre-Mediation Planning Letter

Date of the Letter

MEDIATION COMMUNICATION—STRICTLY CONFIDENTIAL

VIA HAND DELIVERY and E-MAIL

Plaintiff’s Counsel

Mail Box #

e-mail address

Defense Counsel

Mail Box #

e-mail address

Re: Style of the Case

Dear Attorneys:

This will confirm my conversation with each of you on day , date , 2008 relative to the parameters for our date of mediation session 1 and date of mediation session 2 mediation sessions in the above-styled case. At that time, the following was agreed:

The mediation shall begin at start time .

The mediation will take place at location .

Position statements shall be provided to me and will or will not be exchanged on or before date .

Plaintiff’s and Plaintiff’s Counsel’s opening statement shall not exceed time .

Defendant’s and Defense Counsel’s opening statements shall be not exceed time .

It is my understanding that we begin the negotiations with the Plaintiff at $ and the Defendant at $ .

I have suggested that each side be prepared to negotiate to their respective goals in three to five moves. (I have advocated that these negotiations not be based on traditional ‘bottom line’ relationship bargaining, but rather be based upon reasonable moves in relation to your respective goals for settling the case. These goals, having been based upon your evaluation of a reasonable settlement range, were in turn based on a reasonable verdict/judgment analysis. Each move in relationship to your goal should also have some clear basis. At the point in the mediation where both sides have identified respect goals, I would then ask each of you for the opportunity of exploring common ground, should your goals be different.

I am committed to being in touch with each of you over the next several weeks to assist you as you prepare for the mediation sessions, and should anyone have questions, please do not hesitate to contact me. Otherwise, I look forward to the opportunity of working with each of you toward the final resolution of this case.

Sincerely,

Mediation Observation Report Requirements

Citations to Mediation Representation and Getting to Yes as applicable are required for each section listed below as well as a thorough analysis of the strategy or technique.

1. Style of the case, venue, judge, attorneys and parties.

2. Evaluate Position Statements (a) Did it assist the mediator? (b) Did it assist opponent in preparing for mediation? (c) Did it assist the process?

3. Opening Statement (a) Evaluate the attorneys regarding the substance of the presentation. (b) What was the effect on the other side? (c) Did it aid in resolution? (d) How did it interfere or become an obstacle in mediation?

4. Opening Offers (a) How realistic were each side’s respective opening offers in light of their ultimate goals? (b) How did opening offers and or ultimate goals become an obstacle to resolution?

5. Negotiations (a) Did the parties negotiate based upon the other sides position, i.e. relationship moves? (b) Did the parties negotiate based upon their own evaluation of a reasonable settlement range? (c) Both / Neither? Explain.

6. Home plate – Did the parties get to the ballpark? How? Did they achieve resolution? By what method? i.e. private caucuses, mediator’s proposal, meetings between attorneys.

7. Conclusion (a) Was the mediation concluded with a mediation agreement? What were the components of the agreement and the reasoning behind each. (b) If mediation did not resolve the case, how was the session concluded? To what extent did mediation make it possible for the parties to have further negotiations at a later date? Explain. (c) Did mediation become an obstacle to future discussions. (d) What aspects of the case require judicial resolution?

8. Compare and contrast the attorneys’ performances, the parties’ participation and influence on the process and describe the mediator’s approach to the overall process and in each room.

Link to Final Exam:

To be posted on 04/15/2009

Getting to Yes Exercise - Spring 2009.pdf

Getting to Yes Exercise - Spring 2009.docx

Links to Lecture Slides:

Spring 2009 Lecture slides.pdf

Links to Handouts:

Spring 2009 Syllabus for Mediation Advocacy.pdf

Getting to Yes.pdf

Getting Ready to Negotiate.pdf

Oil Pricing Exercise.pdf

Situational Conflict Styles Assessment.pdf