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This course teaches attorneys and their clients how to advocate for the clients' interests and needs through the "mediation process" in a manner that produces positive results for all parties. The course will enable them to feel positive about mediation being the appropriate forum to resolve certain disputes.
Many attorneys and their clients come to the mediation table not completely sure of what their specific role in the mediation should be. Some therefore persist unabated with their positional (adversarial) negotiation techniques. Others assume a passive role, attempting to glean from the mediator's conduct a sense of the proper protocol in the foreign setting. Still others are reluctant to enter into meaningful dialogue since they fear they might "give away the store."
If any one of the advocates, executives or principals meets any of these descriptions the mediation process is substantially impaired. If all or several participants fall into these categories the process is probably doomed to failure. This course solves these problems by teaching advocates, executives and principals effective negotiation tactics and how and when to apply them throughout the mediation process.
The course is taught by John W. Cooley and John A. Gromala. Mr. Cooley has extensive litigation experience and has authored the book "MediationAdvocacy" published by the National Institute for Trial Advocacy. Mr. Gromala is an attorney-mediator with extensive negotiating experience in banking, commerce and law.
The teaching methodology employed in this two-day program will be primarily "learning by doing" with brief interspersed lectures. On the morning of the first day, participants will:
- learn about their own approach to conflict by completing the Thomas-Kilmann conflict behavior questionnaire;
- engage in some inter-active warm-up communication exercises;
be familiarized with basic negotiation principles and techniques with an emphasison collaborative negotiation;
- and participate in a brief negotiation role-play exercise.
During the first afternoon, the participants will witness a "fish bowl" demonstration mediation with volunteers serving as the lawyers and clients on each side of the dispute. The participants will first watch one of the lawyers prepare his client for mediation and later observe the mediation as it unfolds. Critical issues in mediation will be built into the exercise and the team leader will stop the action at predetermined points to discuss with the observing participants the relevant points, or the strategy and tactics that are being or that should be employed by the advocates.
On the following day, during two role-play exercises, each non-mediator participant will have the opportunity to experience the mediation process as an advocate representing a client in mediation, as a client or both. Experienced mediators will serve as mediators in the role-play exercises.
The first role-play exercise will be factually simple, allowing the advocates to acclimate themselves to their advocacy roles in mediation and to feel comfortable experimenting with strategies and tactics of their choice. The second role-play will be more complex and more time consuming, requiring multiple caucusing and creative problem solving by advocates and clients alike.
Program Schedule
First Morning Session
| 8:30 - 8:45 |
Introductory Remarks |
| 8:45 - 9:00 |
Thomas-Kilmann Conflict Behavior Questionnaire (Participants learn their predominant negotiating style: competitive, compromising, collaborative, avoiding, or accommodating) |
| 9:00 - 9:15 |
Communication Warm-up Exercises |
| 9:15 - 9:30 |
Review of Thomas-Kilmann group results |
| 9:30 - 10:15 |
Facilitators: Explanation of the various negotiation styles, strategies, and tactics and when and how to use them effectively as a negotiator or an advocate in mediation; informational illusions operating in a negotiation or mediation. |
| 10:00 - 10:15 |
Break |
| 10:15 - 10:30 |
Facilitators: The "Getting to Yes" or Principled Approach tonegotiation and mediation advocacy |
| 10:30 - 11:30 |
Negotiation role-play Exercise: two on two; group discussion of styles, strategies, tactics, and outcomes. |
| 11:30 - 12:00 |
Facilitators: Overview of the mediation process. Stages of process; advantages and disadvantages; situations bestsuited for mediation. |
First Afternoon Session
| 1:30 - 2:00 |
Facilitators: Preliminary Premediation Considerations. Facilitative vs. evaluative;
Primary and secondary reasons for using mediation;
Selecting cases for mediation;
Choosing the appropriate mediator. |
| 2:00 - 2:15 |
Facilitators: Preparing the case for mediation. |
| 2:15 - 3:00 |
Demonstration of preparing the client for mediation. Facilitator will stop the action at various times to explain or emphasize teaching points. |
Teaching Goals of Demonstration:
1. Identify the principal topics to be covered when preparing a client for mediation.
2. Explain content to be covered.
3. Demonstrate a client-centered approach to interviewing and counseling.
|
| 3:00 - 3:15 |
Demonstration of Mediator's Opening Statement. Commentary by Facilitator. |
| 3:15 - 3:30 |
Break |
| 3:30 - 3:50 |
Demonstration of Plaintiff's Opening Statement |
Teaching Goals of Demonstration:
1. Present an example of a "runaway client".
2. Suggest ways to avoid it.
3. Show how an effective mediator can get and keep situation under control.
4. Demonstrate an opening statement made by an advocate using a highly competitive negotiating style.
|
| 3:50 - 4:10 |
Demonstration of a Defendant's Opening Statement |
Teaching Goals of Demonstration:
1. Demonstrate an opening statement made in a highly collaborative negotiating style.
2. Show how an effective advocate can begin to build rapport with the mediator and with the opposing side through the opening statement.
|
| 4:10 - 4:30 |
Demonstration of Mediator's Caucus with Plaintiff |
Teaching Goals of Demonstration:
1. Show importance of reasonable first offer.
2. Show inadvisability of revealing your bottom line to the mediator too soon.
3. Show importance of advocate taking charge of the caucus.
|
| 4:30 - 4:50 |
Demonstration of Mediator's Caucus with Defendant |
Teaching Goals of Demonstration:
1. Show importance of advocate taking charge of the caucus.
2. Show how advocates can use creativity to devise joint gain solutions.
3. Show importance of advocate caucusing with client at appropriate times.
4. Show how confidential information can provide leverage in a mediation.
|
| 4:50 - 5:00 |
Summary and Overview of Next Day's Sessions |
Second Morning Session
| 8:30 - 9:30 |
Group meeting and orientation on day's role-play exercises. Advocates prepare clients to mediate a non-complex dispute. Mediators will serve as observers of preparation sessions but the participants they observe will not appear before them in the subsequent mediation. |
| 9:30 - 9:45 |
Working coffee break. Mediator-observers facilitate self-critique of preparation session. Clients give feed-back to advocates about the advocate's counseling style, how they felt about the clarity and completeness of their explanations and about their level of confidence in the advocate's advice. |
| 9:45 - 10:45 |
Mediation of non-complex dispute. |
| 10:45 - 11:20 |
Group meeting, debriefing, and discussion |
| 11:20 - 11:40 |
Facilitators: Creative Problem Solving: Lateral and Vertical Thinking |
| 11:40 - 12:00 |
Advocates begin preparing clients for mediation of complex dispute. Mediator-observers are present during preparation session. The participants who mediators observe will not appear before them in subsequent mediation sessions. |
| 12:00 - 1:15 |
Lunchtime is flexible. Plaintiff advocates are encouraged to lunch with other plaintiff advocates to discuss specific strategies and tactics; defendant advocates, likewise. |
Second Afternoon Session
| 1:15 - 1:30 |
Advocates meet with their clients to discuss any modifications to their strategies or tactics. For remainder of time, mediator-observer facilitates self-critique of preparation session. |
| 1:30 - 3:30 |
Mediation of complex dispute. |
| 3:30 - 4:00 |
Mediators facilitate self-critique in separate mediation sessions |
| 4:00 - 4:50 |
Group meeting, debriefing, and discussion of lessons learned. |
| 4:50 - 5:00 |
Facilitators: summary and closing remarks. |
JOHN W. COOLEY
2106 Orrington Avenue
Evanston, Illinois 60201
847-328-7285
FAX 864-1586
John W. Cooley is a former United States Magistrate, Assistant United States Attorney, Senior Staff Attorney for the United States Court of Appeals for the Seventh Circuit, and a partner in a Chicago law firm. He is a past Chairman of the Chicago Bar Association's Arbitration and ADR Committee, and presently he is the President of the Chicago Chapter of the Society of Professionals in Dispute Resolution.
In private practice in the Chicago area, he currently serves on the Panel of Judicial Dispute Resolution, Inc. as a mediator, arbitrator, and consultant in thedesign of dispute resolution systems for governments and corporations. He is an Associate of the Dispute Resolution Research Center, Kellogg Graduate School of Management, Northwestern University. Additionally, has served as a SpecialMaster for federal judges and as an arbitrator and mediator in a wide variety of complex, multi-million dollar commercial, manufacturing, insurance, banking, communications, and construction disputes, both domestic and international in character. An internationally recognized trainer in alternative dispute resolution, he has recently conducted a five day mediation and arbitration training program in Brazil at the invitation of the U.S. Embassy.
An Adjunct Professor of Law at Loyola University of Chicago School of Law, he has co-designed and co-taught an innovative course on Alternatives to Litigation. He is the author of Mediation Advocacy (NITA, 1996), ArbitrationAdvocacy (NITA, 1997, co-authored by Professor Steven Lubet), The AppellateAdvocacy Manual (Clark Boardman Callaghan, 1989) and numerous articles on litigation, judicial, and ADR topics.
Mr. Cooley is a graduate of the United States Military Academy at West Point and the University of Notre Dame Law School, receiving a year of his legal training at the School's Centre for Legal Studies in London, England.
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