Law School

Guest Post from Janene Tuniz: In Mediation Competitions: To Compete as a Mediator, Don’t Compete

76740566643093_1793720410773829_3189786036515373056_o

Competing as a mediator in a moot competition is a conundrum. What’s unique about selecting this particular puzzle is that you never meet your fellow competitors. You enter each session with fresh faces to your left and right and a row of important people in front of you, ready to judge your performance. Instead, unlike when you enter as a negotiator, it’s just you. There is no way to gauge how you are doing in comparison to the other mediators in the rooms next door and there is no way to know for sure if you are acting in the right way or saying the right things. You also only have some pieces of the picture, making it difficult to really know what’s going on from the onset. You may be tempted to speak loudly or ensure that your presence is felt but I assure you, that’s not the way.

Although I have never been in a real commercial mediation, I imagine there are ways in which a competition and real life are fundamentally different. For instance, in real life there is real money, real problems and ordinarily a real urgency to reach a settlement. In such instances people don’t necessarily behave in the way that we would like or need them to in order to find a party-driven solution. They may use positional bargaining or withhold information and they may not be sincerely seeking to re-establish trust and open communication. In the CDRC Mediation and Negotiation Competition it’s totally different. There may be some semblance of mistrust but since competitors are judged on their trust building and communication skills they are prepped to use information strategically and with all their might, share and identify real interests.

 

There are, however, many ways in which a competition and real life are exactly the same. At CDRC this year I learnt that it is in these areas the role of the mediator is paramount. To put it simply, like in real life, participants of a mediation competition are nervous and unsure. After training for months, it all culminates in that moment, face to face with the other party, ready to negotiate. The tension in the room before the timer starts is palpable and as a mediator, that’s your moment. What’s perplexing about that moment, however, is the fact that while you are in it, you are not competing.

 

I know it sounds contradictory to enter a competition to be an anti-competitive at the pinnacle moment, but since there are no other “opponents” in the room you are not contending against anyone else. Your job in that moment is not to outshine the negotiators by saying the most impressive things or flamboyantly flaunting the rules and regulations, check-listing through caucus guidelines or confidentiality requirements. It’s important to cover these things, of course, but as the mediator you need to do it in such a way that you address the tension in the room. You alleviate worries and make sure that those who are in direct competition, trust the process and trust you. The moment you open your mouth to speak, you need to settle nerves and establish certainty.

66766342_1792288687583668_3107737631287410688_o.jpg

Trusting the mediation process is something that happens automatically in a competition but getting parties to trust you is something different. Sitting at the head of the table it’s a challenge to take a step back and guide the process instead of leading it, but it is the best way to create an environment of trust. I found the training sessions prior to the competition to be incredibly useful in highlighting this fact. I remember writing down that I should listen for (and respond to) emotions in Tom Valenti’s session entitled “Mediator Tools and Behaviors.” Being able to gauge what people in the room are feeling and validating those feelings is a fundamental step towards developing that trust. I’m not saying that every emotion should be brought under the spot light and observed by everyone at the table, but as the mediator it is imperative that you are able to note changes in body language or tone and react appropriately.

 

It’s impossible to note how people are feeling without being present. Active listening and sincere, honest feedback are imperative in this regard. Summarizing and telling the facts back to the parties in a neutral way is also a great way to show progress and create consensus but proceed with caution – it’s also risky business. Personally, I’m guilty of putting a positive spin on just about everything anyone at the mediation table says. While reframing is a good tool, using it too frequently can quickly backfire if it’s the wrong moment or if the parties are angry and frustrated.

 

Competing as a mediator is riddle worth riddling. It involves a multitude of different skill sets and an ability to know when you are needed and when you are not. It’s also something that to a large extent is based on self-confidence. I learnt so much at the CDRC competition but the message that resonated most was the importance of being true to yourself. There are so many styles and ways of mediating that it’s easy to fit a mould but once you do, it’s difficult to have the flexibility and reactiveness that’s required of you when mediating. Make a concerted effort to be the best version of yourself when you are sitting in the mediator’s seat. If you don’t feel like the best version of you that day, there are a range of things you can do to get to that point – you can give Sabine Walsh and Aled Davies a call for power stance tips and loud clapping tactics.

 

One thing I can say for sure, or rather, one piece of advice I could give to future competitors in the mediator category is that you shouldn’t compete. Obviously don’t treat the mediation like a ping pong match, acting only as an observer (remember to listen for and respond to emotions) but don’t treat it like a competition and don’t treat the people in the room as your competitors. How do you do that in practice? It’s puzzling, I know.

 

*Janene Tuniz is an LL.M Sustainable Development candidate and mediator in the making. She won first prize in Mediation at the CDRC Mediation and Negotiation Competition in 2019 and is the Co-founder and Communications Director of Diciassette which is part of the UN Sustainable Development Solutions Network. She is also the Content Manager and Executive Editor for online publication, The Sustainable Development Watch and is currently completing an internship at the United Nations in Nairobi.

Guest Post : 7th NLIU INADR International Law School Mediation Tournament 2018 – A competition full of learning, many trophies to encourage better performance, and for us, a memory and victory to cherish forever!

I would take moment of deep breathing before I begin with the story of our team just like we did before every round during the tournament. Before being titled the “Overall Winners” and “Best Mediator Team” (for those who need to know, the two main titles) of 7th NLIU INADR International Law School Mediation Tournament, we were just another law students curious enough to learn, more than win. Being first time participants in a competition (I had mooted before in Antitrust Law but Rohan and Sanjhi were participating in a competition for the first time), we expected to learn from other students senior in experience to us but the titles we won debunked our own wrong beliefs.team picture

Institute of Law, Nirma University Team: Twinkle Malukani (3rd year), Rohan Bangia (2nd year) and Sanjhi Agarwal (2nd year)

The journey began with giving intra-murals in Nirma University and secure a good rank to forming a team and believing each other, which very well laid our foundation for team work. We talked and met beyond professional reasons and bonded well which really made our relationship improve. Now this is exactly how Mediation and Negotiation works, securing relationship and Getting a Yes! Now that we started working together on the problem, we initially couldn’t figure out how to prepare. We read a book “Getting to Yes” by Roger Fisher and William Ury and understood what exactly Negotiation and Mediation means, to be very correct “Principled Negotiation” both in practical day-to-day life and tournament understanding of course resembles it with some variations. Apart from reading the book, we watched many tutorial videos and mock sessions and videos of other competitions to understand better.

However, there is a reason why NLIU INADR is the best tournament in Asia and how it is different from other Negotiation-Mediation Tournament worldwide. It requires all 3 team members do all 3 roles of Client, Counsel (Negotiators) and Mediator in first three Preliminary Rounds. Now that is tricky but a lot of learning. We three made sure to make each other understand each role that we “thought” we were best at and it turned out that NLIU INADR taught us all three roles really well, especially because after very first preliminary round, there is scope for improvement because you listen to your own role’s feedback and then of others too in the room. Now it depends on how you internalize the feedback and suggestions of the judges after every round. The team, even if new to such competition, but internalizes the feedbacks better takes the title. During the tournament, the judges not only pointed out what we did incorrect but also mentioned what we should continue doing, those being our strengths (like Mr. Valenti, Mr. Rogula, Mr. Ellis and many other judges did). It is in best interest of participants to listen carefully and internalize the feedbacks, not only for this competition and other ADR competitions, but also when they actually go out as professional mediators and negotiate in daily life or for professionally cracking a deal.

This tournament taught us the right gesture and correct words in the right moment, to think twice before speaking, to speak only when necessary, to listen actively, be polite even when one wants to let off the steam, to do as negotiators what benefits you but doesn’t harm the other side, to be unbiased and so on. All this learning did not exclude the fun we all had dancing at the cultural night and interactions during training sessions and lunch breaks. NLIU INADR Tournament 2018 is what we will cherish to have been a part of and having performed great for which we extend our gratitude to amazing judges, NLIU tutorials, training sessions, Nirma University and mutually to each other, as a team! We will cherish not only the winning titles but the whole journey and 3 days of learning. Success is not a one-time thing, it is not a fluke. It is not just about the trophies, Learning and Improving and Growing as a person is a victory in itself.

-Twinkle Malukani, Rohan Bangia and Sanjhi Agarwal

Institute of Law, Nirma University Team: Twinkle Malukani (3rd year), Rohan Bangia (2nd year) and Sanjhi Agarwal (2nd year)

Reflections from Vienna via Florence on IBA-VIAC CDRC Competition 2018: “The Value of Active Listening in the Heat of the Moment. (When bringing a “taser” to a mediation can be a good idea.)

“How can I interject this question without interrupting?”

“This answer doesn’t satisfy me. How can I ask again without stalling the conversation?”

“I need to discuss privately with my client, but it is not appropriate to stop this joint session now.”

“Perhaps I would need something to… tase my client, so that he could remember to consider my opinion as well!”

female taser

During mediation a lot of questions come to your mind, but it is usually not easy to get an answer quickly and keep track of the conversation. When you attend negotiation courses or you study the theory of mediation at home, it is fairly common to overlook the practical implications of such questions, but trust us, they are very relevant.

However, let’s start with some brief introductions first: we, the two writers of this hopefully interesting article, are Elisa Menichini and Emanuele De Napoli, two law students from the University of Florence, Italy. Together with two other students (Francesco Lichen Wang and Marzia Montinari), we were part of the only italian negotiator team at the 4th IBA-VIAC CDRC Mediation and Negotiation Competition in Vienna this July. We were coached by the experienced Professor Paola Lucarelli.
Florence Team
The CDRC Competition was a very formative experience, a melting pot of creative law students from all over the world ready to compete and learn under the guidance of legal experts and professionals willing to share their expertise and ideas. Mediation is a rather recent Dispute Resolution method in Italy (2010) and we, as future legal practitioners, felt that this competition was the right opportunity to grow both personally and professionally.

During the many rounds, carefully and masterfully directed by Claudia Winkler and the CDRC Staff, 33 teams of negotiators and mediators proved their skills in mock disputes based on the 2018 Willem C. Vis International Commercial Arbitration Moot Problem.

There would be so much to describe and write about the competition itself, the wonderful staff and the friendships that were born this year in Vienna, but we will concentrate on a specific event that we truly believe captures one of the key aspects of mediation and conflict in general. Something that we all need to remember.

During one of the rounds we were facing the Istanbul ŞEHİR University, while the mediator was coming from Maharastra National Law University in Mumbay. The negotiation process was lively and dynamic since the beginning. Our team was divided as such: Elisa = Legal Counsel; Emanuele = Client. Bargaining techniques were followed by quick responses, numbers were soon flying across the table and the two opposing clients were dragged into the heat of the negotiation. The trusty legal counsel (Elisa) tried more than once to calm and reassure her competitive client (Emanuele), but he was too focused on his business goal to be “stopped” by his lawyer.

The agitated legal counsel even tried touching her client, but he would just uncounsciously move away. Even trying to hit his legs wouldn’t work, since he was conveniently keeping them under the other side of the table. The now fuming lawyer wrote down on her papers in capital letters “NO”, as a concise but effective way to express her disapproval of a certain proposal. Not even this last resort seemed to restabilish the connection between the two. The businessmen were at work and they didn’t want to be bothered!
Im-not-Listening
Eventually a break was called and we were able to breath, relax and get back into our two combative characters after having shared briefly our ideas and views. The rest of the session went smoothly.

Once the round was finished and the feedbacks by the expert assessors had already been given, we had the opportunity to receive further insights from the judges. When we told this “comic” situation to Thomas P. Valenti, one of the experts who offered us precious suggestions and tips, he recommended (as an obvious but very clever joke) an innovative technique to force active listening and to calm down for a while an overachieving client: using a taser. When caresses, stares and kicks in the legs fail, go harder and use a taser.

Even if it was only meant as a joke, it truly made us think of the value of mediation, active listening and teamwork. During this competition as well as during similar events that we took part in, we noticed how conflict can be like a tornado, drawing the parties into the fight and making them lose sight of their true interests, even if they’re well-prepared. The legal counsels might feel that they need to manage their clients and sometimes thwart their emotions. But the role of the legal expert is changing and a lawyer should be able to understand and compensate for his clients’s whim as well.

That’s exactly why you need mediation, why you need a third party that can redirect you to the right path. The legal counsel should be the “trusty companion” that can grant a proper reality check when necessary and the needed aid when in doubt.

In conclusion, mediation can be considered a “metaphorical taser”: a ground-breaking method among the dispute resolution procedures. It shakes the way we perceive conflict in nowaday society, it changes the rules. The CDRC Vienna Competition was the perfect context to see how effective mediation can be.

We, as young students and future professional, are active witnesses of an epochal change in the way people face conflict: an opportunity instead of a danger to be avoided at all costs.

And if sometimes we’ll need to be “tased” to achieve this results, so be it.

By Emanuele De Napoli and Elisa Menichini,
University of Florence (School of Law),
Italy.

A week of ADR events in Sao Paolo, Brazil

Monday started with a radio interview highlighting the events of the upcoming Mediation Congress in Sao Paolo. Alexander Palermo Simoes and I were featured on Ana Pretel’s weekly radio show covering interesting legal topics. You can listen to the show here:

From there we paid a visit to The IV Pan American Arbitration Congress, hosted by CAM-CCBC on 23 to 24 October 2017 in Sao Paulo saw close to 500 attendees listen and participate in a broad range of panels dealing the unique problems associated with arbitration in the region. While focusing on Pan-American countries, the event draws global participation and showcases comparisons of practices with an eye toward sharing best practices in international arbitration. CAM_CCBC, under the leadership of Carlos Forbes, as organizer of the event has demonstrated a commitment to improving the quality of arbitration services,
and making Sao, Paolo Brazil, a hub for international arbitration in South America and the region. aFOTO-MARCOS-MESQUITA--45

Immediately following the Pan American Congress, on October 25th, was the first ever International Mediation Congress in Brazil — Congresso Internacional de Mediação Empresarial – GEMEP I CBAr held at AASP – Associação dos Advogados de São Paulo. The organizing committee – Alexandre P. Simões, Claudia Frankel Grosman and Patricia Freitas Fuoco created a sold out event of stellar debates, workshops and networking events that highlighted the growth of mediation in Brazil under the 2015 law.22815150_10155027876923443_5943122743707166741_n

The following days were highlighted by the “VIII Competição Brasileira de Arbitragem e Mediação Empresarial da CAMARB” – a mediation and arbitration competition in partnership with Mackenzie Presbyterian University. Participation by 57 arbitration teams, 18 mediation teams, 80 assessors, 250 arbitrators and approximately 400 listeners resulted in the biggest event of its kind in Latin America! 22886002_1944929519165165_4585326340301035114_n

Here is a link to the CAMARB Competition website: LINK

Here is a link to a newspaper story “Brazil hosts greater arbitration and mediation competition in Latin America” describing the tournament : LINK

Book Review: STRUCTURED NEGOTIATION, A Winning Alternative to Lawsuits, Lainey Feingold, 2016

225x225bb

Early in her legal career, Lainey Feingold was fired from a law firm. The day before she was scheduled to become a partner, the head of the firm told her she would never become a partner at the firm, stating “You lack grace and equanimity.” Feingold went from hearing those words turn her desired destiny upside down to letting them lead her to towards a career of practicing law with those and many other collaborative practices, detailed in Chapter 16. Her work has formed the basis of a methodology she and her practice colleagues coined “Structured Negotiation.”

In her book, Feingold introduces us to this alternative dispute resolution methodology, defined by one big firm lawyer as mediation without a mediator. The book is neatly organized into Seven Stages, from Stage One: Preparing a Structured Negotiation Case to Stage Seven: Post-Settlement Strategies, over 16 Chapters. It includes Templates and Sample documents, and details of several Stuctured Negotiations that Feingold and her practice colleagues ( primarily Linda Dardarian) handled over the past 20 years.

While many of the examples focus on Feingold’s advocacy for members of the blind community seeking access to ATMs, talking prescription labels, and baseball, the book has broad application to any practitioner who recognizes that certain types of claims, even very large ones, can provide opportunities for many disputants to be better served by the use of this process. While some claims need a Court system and the formal legal process, many do not. As Feingold puts it:

“But filing a complaint should not be the only option for claims resolution. The legal profession – and the public it serves- deserves alternatives that are less costly, less stressful, and more cooperative. Clients need a forum where thier stories matter and they can be ( and feel) heard.”

Whether you believe this or not, you should be aware of this alternative. Many think that those who represent big institutions are reluctant to participate in this out of court process. Yes, this is true. But Feingold has paved the way. She and her colleagues have spent years , patiently, working with many of the largest of these — Bank of America, Walgreens, Target, Safeway, TransUnion, Charles Schwab, others, and even Major League Baseball. And in her work, she provides information on all of these Structured Negotiations, so that you can use her success to contribute to yours.

If you take away nothing from this book, you will no doubt benefit from Chapter 16 which is invaluable. The legal profession is now undergoing a mindset change, where there is a real focus on “soft skills.” These are interpersonal skills, stress management, self confidence, mindfulness, optimism, the ability to convey empathy, and others.

Law students, lawyers young and old, law professors — read the book, but do not put it on the shelf until you have spent some time reading and self – reflecting on the collaborative tools that are discussed in Chapter 16.

You will be better at everything you do, if you can incorporate some of the Structured Negotiation collaborative practices into your life and your life’s work.

Buy the book on iBooks