October 2 4 - 2 - PowerPoint Presentation

October 2 4 - 25 2017 Located at the Greater Richmond Convention Center

Mediation is not Litigation Preparing Your Client for Mediation Presented By:Deputy Commissioners Blevins, Culbreth, and Sherrill Alternative Dispute Resolution Department

In this seminar, we will discuss several tools to help you prepare your clients for mediation, including the elements of trust, theories of influence, emotional intelligence, and ethical requirements. First and foremost, the foundation of any successful relationship is TRUST. Your client needs to trust you and you need to prepare your client to trust the mediator, and possibly even the other party.“Contrary to what most people believe, trust is not some soft, illusive quality that you either have or you don’t; rather, trust is a pragmatic, tangible, actionable asset that you can create.” “Trust is the highest form of human motivation. It brings out the very best in people.”  Stephen M.R. Covey Preparing Your Client for Mediation

TrustTrust = Confidence Few things can help an individual more than to place responsibility on him, and to let him know that you trust him. Booker T. Washington Distrust = SuspicionOur distrust is very expensive. Ralph Waldo EmersonPlanting TrustThe best time to plant a tree is twenty years ago. The second best time is today. Chinese Proverb

TRUST

Trust – Myth v. Reality MYTH Trust is soft. Trust is slow.Trust is built solely on integrity.You either have trust or you don’t.Once lost, trust cannot be restored. You can’t teach trust.Trusting people is too risky. You establish trust one person at a time. The Speed of Trust – The One Thing That Changes Everything, by Stephen M. R. Covey with Rebecca R. Merrill (2006) REALITY Trust is hard, real and quantifiable. Nothing is a fast as the speed of trust. Trust is a function of both character and competence. Trust can be both created and destroyed. Though difficult, in most cases lost trust can be restored. Trust can be effectively taught and learned, and it can become a strategic, leverageable advantage. Not trusting people is a greater risk. Establishing trust with one, establishes trust with many.

So how do you build trust? What inspires trust in a particular relationship?The answer:COMMUNICATION CHARACTERCOMPETENCE Trust

Four behaviors contribute to whether a person is perceived as trustworthy: 1. Predictable and consistent behavior 2. Clear communications 3. Promises are treated seriously 4. Forthright and candid behaviorCommunication is essential to maintaining trust over the long term! The Leadership Challenge , 5th Edition, James M. Kouzes, Barry Z. PosnerTrust

Thinking About Trust Think about a high trust relationship you have: Who is it with? Why is it a high trust relationship?What is it like to work together? Think of a low trust relationship you have: Who is it with? Why is it a low trust relationship? What is it like to work together?

Because trust is a relational concept, good communication is critical. Not surprisingly, open and honest communication tends to support the decision to trust, whereas poor (or no) communication creates suspicion. Robert F. Hurley, from The Decision to Trust, Harvard Business Review (Sept. 2006). Communication

Self-Trust In The Speed of Trust, The Complete Summary, Stephen Covey and Rebecca Merrill discuss what they refer to as the Five Waves of Trust. The first two are most applicable to mediation. Wave 1 – Self-Trust We can all improve our credibility if we understand four key elements: Integrity , Intent , Capabilities and Results

Integrity A. Integrity – honesty, congruence, humility and courage How can you increase your integrity?Make and keep commitments to yourself.Engage in honest interactions.Stand for something – have clear values. Be open to learning.

Intent B. Intent – motive, agenda, behavior Motive is your reason for doing something. Agenda grows out of motive; it is what you intend to do or promote because of your motive. The intent that inspires the greatest trust is seeking mutual benefit. Behavior is the manifestation of motive and agenda. The behavior that best creates credibility and inspires trust is acting in the best interest of others. Examine and redefine (if necessary) your motives. Declare your intent. Choose abundance – Abundance means there is enough for everybody. The opposite – scarcity – says that there is only so much to go around, so if you get it, I won’t.

Capabilities C. Capabilities – talents, attitudes, skills, knowledge, style (TASKS) Talents are our natural gifts and strengths.Attitudes represent our paradigms – our way of seeing as well as our way of being.Skills are our proficiencies – the things we do well.Knowledge represents our learning, insight, understanding and awareness. Style represents our unique approach and personality. To enhance your credibility by enhancing your capabilities: Run with your strengths; keep yourself relevant; and know where you’re going. The goal is to develop your TASKS and “to create the best possible alignment between our natural gifts, our passions, our skills, knowledge and style and the opportunity to earn, to contribute, to make a difference.” The Speed of Trust – The Complete Summary, by Stephen M.R. Covey with Rebecca Merrill, Soundview Executive Book Summaries, Vol. 28, No.11 (3 parts), Part 1 (Nov. 2006)

Results Results – Results matter! In the words of Jack Welch, having results is like having “performance chits” on the table. They give you clout. There are three key indicators by which people evaluate results: Past performance Present performance Anticipated future performance So how can you improve your results? Take responsibility for results Expect to win Finish strong

Relationship Trust Wave 2 – Relationship Trust Relationship trust is all about consistent behavior. A balance of Character and Competence is vital to establishing trust. Character-based behaviors: Talk straight – communicate clearly so that you are not misunderstood. Demonstrate respect. Create transparency – be real and genuine and tell the truth. Right wrongs. Show loyalty.

Character and Competence Competence-based behaviors: Deliver results – Because it is often difficult to measure results, take time to define expected results up front and adjust expectations as needed. Get better – Learn and improve.Confront reality – Address tough issues head-on. Clarify expectations – Create a shared vision and agreement up front.Practice accountability – Hold yourself and others accountable.

Character and Competence Character and Competence behaviors: Listen first – Genuinely understand another person’s thoughts and feelings before trying to advise or persuade.Keep commitments.Extend trust – Extending trust leverages it to create reciprocity. The Speed of Trust – The One Thing That Changes Everything by Stephen M. R. Covey with Rebecca R. Merrill (2006)

Trust’s Enemies Inconsistent messages – Communicate clearly Inconsistent standards – Avoid playing favorites Misplaced benevolence – Don’t ignore troubling behaviorElephants in the room – Address painful/difficult issues Rumors in a vacuum – Be forthright Trust is a whole life choice, and the dividends of trust can significantly enhance the quality of every relationship.

Restoring Lost Trust Though it may be difficult, in most cases, lost trust can be restored – and often even enhanced. Trust repair must begin with a sincere acknowledgement and acceptance of responsibility for the violation. At the interpersonal level: Acknowledge that a violation of trust has occurred Determine the causes and admit culpability Admit that the act/statement was destructive Accept responsibility and the consequences

Influence Now that you know how to build trust, how do you influence others? Research has identified six fundamental principles of persuasion and influence. The Science of Influence by Robert Cialdini, Dispute Resolution Magazine (Fall 2002)LikingAuthority ScarcityConsistencyReciprocity Consensus

Influence Liking – This is the most important and easiest to implement. Attorneys can help the mediator identify potential similarities between the parties and between the client and the mediator. Identified similarities can be very useful in establishing confidence and trust in a short period of time. Authority – People are more easily influenced by those they perceive to be legitimate authorities. In preparing your client, it is helpful to discuss the mediator’s overall experience and your experience with the mediator.Scarcity – Opportunities become more desirable as they become less available . Explain to your client that mediation affords unique opportunities to discuss issues otherwise irrelevant at a hearing and to design a resolution best suited to their needs and interests. Presenting these advantages as what stands to be lost is more persuasive than emphasizing what stands to be gained. Consistency – People are more likely to live up to commitments that are active, public and voluntary. Prepare your client to make commitments before and during mediation, and to consider all options. Reciprocity - Prepare your client to reciprocate. By providing others with information, concessions and respect, you and your client will likely receive the same in return. Acknowledge what you can agree on up front and throughout the mediation. Consensus/Social proof – People tend to look for and follow the lead of similar others; this tendency is strongest in situations of uncertainty. In preparing your client, it is important to emphasize the positive consequences of mediation and settlement, but also that each case is unique.

Emotional Intelligence – Dealing with Difficult Clients Emotional Intelligence is the capacity for recognizing our own feelings and those of others, for motivating ourselves, for managing emotions well in ourselves and in our relationships. Across industries, research has shown that emotional intelligence predicts job performance 2 to 1 over any other skill. So how does this apply to mediation?The fundamental basis of negotiation and mediation is not merely the cognitive analysis of competing interests and the rational development of a desired outcome, but also the acknowledgment of the underlying emotional factors at play.

Emotional Intelligence -Preparing Your Client Emotionally Take the time get to know your client and to recognize and understand your client’s emotional response to the situation and the basis therefor. Let the mediator know in advance if there is a particularly difficult issue or if you are dealing with an especially difficult client. Prepare your client to communicate and discuss their emotions in a constructive and respectful way. Prepare your client to listen.Encourage your client to show empathy for others and to acknowledge the positions and the feelings of others. Remind your client that mediation is not litigation and that your approach will be different – more friendly, open and empathetic.

Emotional Intelligence

Emotional Intelligence It is important to understand that we can choose to feel differently and that by literally feeling differently, we allow ourselves to think differently about a given situation. Thus, in practice, if we can empathize with others and help them to manage their negative feelings and emotions, we can help them to think and perceive differently and to consider other points of view and other options. Understanding that mediation is often as much about an emotional resolution as it is about material redistribution, will help you prepare your client and obtain the best result possible. Emotional Intelligence in Mediation by Trip Bartel (August 2009)

Different Mediator Styles PREPARING THE CLIENT FOR THE MEDIATOR: DIFFERENT MEDIATOR STYLES

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the  nominal  winner is often a  real loser—in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.Abraham Lincoln

Tips for Mediation Preparation Examine your weaknesses Honestly assess your opponent’s position Don’t wing it Prepare as for trial; Don’t make mediation a “dry run”This may be your client’s only opportunity to be heard Know the dates, diagnoses, projected costs, etc. Focus your opening statement on areas of agreement Mediation is a conversation, not combat

Tips (cont’d) Make sure someone with decision making authority is available Don’t rely on the mediator to manage your client’s expectations Don’t just come with a bottom line Be flexible, be creative, be willing to compromise Don’t use the opening as a weapon or be unnecessarily aggressive. Make a demand/ respond before the mediation

Tips (cont’d) Know your client & know your mediator With difficult clients, seek out mediators with skill sets best suited to address the personalities and issuesSome clients need hand-holding and some need a more blunt approach Each mediator has a different personality, style, practice backgroundRobin Williams – Dr. Maguire in “Good Will Hunting” (caring/ funny) or Anthony Hopkins – Dr. Hannibal Lecter in “Silence of the Lambs” Make sure your client’s needs are being met, not just yours

Different Mediation Approaches

Neutral Facilitation The mediator uses a more facilitative approach. The mediator guides the parties’ conversation and discussion of issues that are important to them, without providing an opinion or judgment regarding the merit of the claim or the likely judicial outcome. The mediator will assist the parties in assessing the strengths and weaknesses of their case. The mediator will not tell the parties what to do or suggest a particular outcome.

Neutral Evaluation A process in which the parties present their case to a neutral mediator. This mediator may provide an objective, non-binding assessment, if requested, of the strengths and weaknesses of a claim or defense, or the value of a claim settlement. With an objective evaluation, the parties may have a realistic view of their respective positions or settlement value.

Both Neutral Evaluation & Neutral Facilitation Check both boxes on the form. The mediation begins as Neutral Facilitation and switches to Neutral Evaluation if either party requests it during the mediation.

Ethics Ethics They really do matter!

Ethical Concerns for Mediators Mediator’s Ethics E (3) – Self-Determination “The primary role of the mediator is to facilitate a voluntary resolution of a dispute. The mediator may not coerce a party into an agreement, and shall not make decisions for any party to the mediation process.”  Mediator’s Ethics F (2, 3)– Professional Information “A mediator may give information only in those areas where qualified by training or experience and only if the mediator can do so consistent with these Standards. When providing information, the mediator shall do so in a manner that does not interfere with the mediator’s impartiality or the self-determination of the parties.”

Ethical Concerns for AttorneysRules of Professional Conduct for Lawyer-Client Relationship Rule 1-1 Competence Comment [2a] Another important skill is negotiating and, in particular, choosing and carrying out the appropriate negotiating strategy. Often it is possible to negotiate a solution which meets some of the needs and interests of all the parties to a transaction or dispute, i.e., a problem-solving strategy.

Ethical Considerations for Attorneys Rules of Professional Conduct for Lawyer-Client Relationship Rule 1-2 Scope of RepresentationComment[1] Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by the law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. In that context, a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives. . . In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.

Ethical Considerations for Attorneys Rules of Professional Conduct for Lawyer-Client Relationship Rule 1-3 DiligenceComment[2] Additionally, lawyers have long recognized that a more collaborative, problem-solving approach is often preferable to an adversarial strategy in pursuing the client's needs and interests. Consequently, diligence includes not only an adversarial strategy but also the vigorous pursuit of the client's interest in reaching a solution that satisfies the interests of all parties. The client can be represented zealously in either setting.

Ethical Considerations for AttorneysRules of Professional Conduct for Lawyer-Client Relationship Rule 1-4 Communication Comment[1] This continuing duty to keep the client informed includes a duty to advise the client about the availability of dispute resolution processes that might be more appropriate to the client's goals than the initial process chosen. For example, information obtained during a lawyer-to-lawyer negotiation may give rise to consideration of a process, such as mediation, where the parties themselves could be more directly involved in resolving the dispute.

Ethical Considerations for AttorneysRules of Professional Conduct for Lawyer-Client Relationship Rule 2-1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Pre-Mediation Statements USE OF PRE-MEDIATION STATEMENTS Pre-mediation statements can be a helpful tool for the mediator and potentially the other party as well. If a case is particularly involved or complicated factually, has a lengthy procedural history, or involves unique issues of law, a pre-mediation statement offers the opportunity to inform and educate the mediator accordingly . It is also helpful to attach limited, relevant medical records and case law you want the mediator to review prior to the mediation. To the extent that the information in the pre-mediation statement is not confidential, sharing it with the other party prior to the mediation can also be useful, as it may eliminate surprises at mediation. Surprises at mediation are often counter-productive and sometimes even foreclose the potential for a settlement. Confidential pre-mediation statements may be web-filed and will be accessible only to the mediator in a given case, and the attorney who uploaded the ADR Confidential Document. If ADR Confidential Documents are sent to the Commission in any other fashion, and marked confidential, they will be accessible only by the mediator .

Negotiation Issues NEGOTIATION ISSUES

Alert opposing counsel and the mediator if the last demand/offer is going to change dramatically Address present value with your client before the mediation Stress to your client that compromise does NOT equal weaknessAddress a reasonable settlement range before the mediation, not just a bottom line Be realistic factoring in strengths, weaknesses, case law, prior expenditures, actual medical recommendations, etc. Negotiation Issues

Don’t negotiate based on a worst case/ best case scenario Address the other party directly, not the mediator Treat all parties with respect and courtesy Try to promote a sense of collaboration and cooperation rather than confrontation Try to put aside the zero sum game mentality Both sides really can “win” Identify financial AND non-financial factors important to your client Certainty v. risk aversion Immediate financial distress Preservation of work/social relationships Desire for recognition of a loss Apology Avoiding bad precedent and/or publicity Negotiation Issues

ENGAGING THE CLIENT Engaging the Client

The Art of Active Listening Listen to reflect, not respond. Engage nonverbal behaviors to acknowledge message. Don’t interrupt!

Questions & CommentsDeputy Commissioners Deborah W. BlevinsWilliam R. CulbrethJimese P. Sherrill Virginia Workers’ Compensation Commission1000 DMV Drive Richmond, Virginia 23220877-664-2566 l questions@workcomp.virginia.gov l workcomp.virginia.gov