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Alternative Dispute Resolution
SUNY Buffalo Law School
Civiletto-Morris, Christen

ADR MORRIS FALL 2016
 
FOUR STEPS TO PRINCIPLED NEGOTIATION
SEPARATE THE PEOPLE FROM THE PROBLEM
Remove personal interest and emotions from the objective merits of the problem
Work only with accurate perceptions (you, your client and other side)
Force client to “try on” other sides view – helps dissipate false views or ideas (come to see themselves working side by side!)
Act contrary to expectations
Attack problem, not each other
Establish good communication between the parties
Listen, not just hear
Maintain Eye Contact
Do not be overly reactive
Control/deal with client’s emotions
Choose the correct words to convey the message/idea (i.e. avoid toxic words)
FOCUS ON THE INTERESTS NOT POSITIONS
Positions obscure what clients really want, doesn’t effectively take care of the human needs that led people to adopt those positions
Helps keep clients on track
Can be accomplished by probing (i.e. directly asking why the person is taking a specific position or indirectly asking the attorney), reading nonverbal cues, investigating, ignoring a continuing position on a specific issue, acknowledging and moving on, avoiding the use of “if” statements, using patience, focusing on minor issues first (acknowledge that parties have agreed to mediation), discussing opposing party’s interest, humor, taking a break and/or ordering food, bring in a third party that the two parties trust, discussing mutual interests, allowing parties to talk alone, asking client to consider the other party’s position, not responding to positions with counter-positions, flexibility, explaining the win-win solution, affirming a party’s valid position, giving positive feedback on progress
Communication is the “heart” of negotiation and the legal profession
INVENT OPTIONS FOR MUTUAL GAIN
Generate a variety of possibilities before deciding what to do – think of a wide range of possible solutions that advance shared interests and creatively reconcile differing interests
Find something else to divide, get all options of the table
Brain storm with client and/or opposing party (don’t comment on any suggestions, don’t commit to a position) – let parties sit side by side
Look at big picture
Class Assignment: come up with options on how to improve bathtub (money isn’t an issue)
Narrow down the different options on the table – use objective criteria
Blue books, research, cost/feasibility, agree on a principal
INSIST RESULT IS BASED ON SOME OBJECTIVE STANDARD
Fair standard such as market value, expert opinion, custom, law to determine outcome
Standards independent to will of parties – not just what parties want/are willing to give up
Discussing criteria rather than what parties are willing or unwilling to do, neither party need give in to the other
If major stalemate, deadlock or impasse than report to judge
Reality Testing: remind parties of why they are at negotiation in the first place, case law, take a break/get food, switch issues, get another opinion, call judge/judge’s clerk, establish a deadline, engage in more brainstorming (options), talk to opposing counsel, consider an expert’s opinion
Yield to principle, not pressure from other party or mediator!!
 
Confidentiality Agreements
Enforced under contract law
If breached, suit for money damages can be brought
Some courts will exclude evidence from mediation at trial
A confidentiality agreement will be enforced, so long as it does not violate public policy:
The relevant evidence contains important info that the jury needs
If the evidence proves that there was illegal conduct
Tower Acton Holdings v. LA County Waterworks (2002) Cali CoA
Facts: Plaintiff brought suit for breach of contract for violating a confidentiality agreement. The trial court allowed this evidence in, and was appealed. Contract had a clause that the confidentiality agreement would terminate until it is terminated by either party.
Holding:        
The court rules that it was error to allow the settlement negotiation agreement into evidence.
Reasoning:
The court rejects the argument that the confidentiality agreement was void when the plaintiff brought suit in the present case. Court found that the complaint did not mention the confidentiality agreement as terminated, and the evidence shows that the parties still sought to settle as the litigation continued.
Rule of Law:
A confidentiality agreement will be enforced, so long as it does not violate public policy:
The relevant evidence contains important info that the jury needs
If the evidence proves that there was illegal conduct

le.
Rule of Law:
Local Rule 33 states that info disclosed in the mediation process shall be kept confidential, and is required of all participants in the mediation process. No parties to the process shall disclose any statements or documents without first getting approval from the Court.
Exceptions to Confidentiality Agreements in Mediation
NJ v. Williams (2005) NJ Supreme Court   Question deals with info of criminal activity disclosed in a mediation. At a criminal trial, the mediator of a dispute between the defendant and another party was asked to testify about the mediation. The testimony seems to exculpate the defendant in the case. The trial judge kept this info out of evidence. Local Rule states that a mediator may not testify at trial in the same or any related matter.
Holding:        
The court rules that defendant has not met all 3 elements of the below test, and therefore the testimony should be excluded.
Reasoning:
The court cites the 6th amendment confrontation clause and the right to compulsory process as requiring a fair trial for a criminal defendant.
Court cites the UMA, which states that the protection is gone if the info from the mediation is needed in a criminal proceeding.
Court finds there is a substantial interest in protecting confidentiality here. This interest is weighed heavier than defendant’s interest in having the mediator testify. The testimony was uncertain, and the parties were frequently talking over each other, and he wasn’t certain about statements
Court also finds it strange that the mediator was present for the trial, as a neutral party would likely have no interest in the matter.
Court holds that this info does not meet the 3rd prong, and this info was otherwise available.
defendant could have cross examined the accuser to rebut the position that defendant used the shovel.