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Law Tips: Exploring Ambivalence and Moving Toward Settlement

Missing the moment often is a precursor to impasse. As mediators, we are frequently faced with micro-moments of emotion. To the degree we can recognize the moment and respond appropriately, we build trust, de-escalate conflict, restore cognitive functioning, and provide compassion to the parties and their counsel. All of these events lead to settlement.

This introduction to mediation is offered by Douglas E. Noll, a full time peacemaker and mediator and ICLEF mediation training participant. He specializes in difficult, complex, and intractable conflicts. Today we have the opportunity to garner a few tips from Doug on understanding ambivalence so that settlement can be attained.

Exploring Ambivalence

A key assumption we must make as mediators is that people do not usually come to mediation ready to negotiate a settlement. Generally, the lawyers agree upon and organize the mediation and tell the parties to show up. Some lawyers have pre-mediation conferences with their clients, but most do not. The parties have been living with the lawsuit for months, if not years. It has become a part of their life. They have usually built up expectations about how winning will change their lives for the better. Now they’re coming to end it all through mediation. They don’t know how they feel about settling their case.

On the one hand, people generally dislike lawsuits and lawyers, which drives them towards settlement. On the other hand, people have strong feelings about justice, fairness, and the need for vengeance and vindication, which pushes them away from settlement. These feelings are reinforced by a number of cognitive biases that distort decision-making away from settlement. As a result, people are often ambivalent about settlement. This is a natural and expected phenomenon that baffles newer mediators.

Do not challenge the ambivalence, but rather acknowledge that people feel two ways about it: They want to change and they want things to stay the same. Staying the same often represents comfort, familiarity, and certain pleasures (especially the anticipatory pleasure of vengeance). The emotional reasons to settle need to be stronger than the reasons for staying the same in order to “tip the balance” for settlement.

Why Is Ambivalence Common?

Ambivalence happens because the party feels two ways about change. When trying to be convinced of all the reasons to make a change, a party feels the need to present the other side of the story. Lawyers are the same way. They will always argue why they will win and will rarely argue in favor of settlement until late in the process. Psychologically, the arguments for winning are just as important as the reasons for settlement being reflected by the mediator, even if the arguments make no sense. The stronger the mediator argues his or her point for settlement, stronger resistance he will get from the person that doesn’t want to change. The correct practice is to acknowledge the ambivalence and “come along side” the party or counsel. Parties and counsel must be given the freedom to talk about the side that doesn’t want to change.

For example: Tony says he has a prescriptive easement over Tom’s property. He says his dad used to drive cattle along the road for 40 years. He considers his use of the road as part of his lifestyle. On the other hand, he is worried about the continued cost of the lawsuit and the stress is causing on his family and business. If you encourage Tony to settle because he needs to end the stress of the lawsuit, he is likely to tell you all the reasons why he should continue to litigate. Ultimately, he will tell you that he would rather pay his lawyers everything he has rather than concede anything to Tom in settlement.

In contrast, if you explore the status quo and acknowledge how much he enjoys using Tom’s road, he receives the message that you are listening and are not rushing to change him. You learn more about the thoughts and feelings that underlie his strong feelings. You have signaled that you are concerned with exploring his view of the world. After talking about staying the course of the lawsuit, he will feel the itch to talking about the other half of the story, the reasons he wants to settle.

Ambivalence is not always a circle cut exactly in half. For someone in pre-contemplation (who is not considering settlement), the part that doesn’t want to change might be much larger than the part that does want to change. However, both parts are still represented. At times, such as when a person is moving through the stages of change, the side that wants to change may get bigger and bigger. It may also shrink down again. This can happen from session to session or even minute to minute. The most important point about ambivalence is that having it is normal and fluctuation is normal.

Thank you to Doug Noll for his insights into recognizing ambivalence and assisting clients at moving through the settlement stages. For further information on Mr. Noll’s training you may want to investigate his website: www.legalpronegotiator.com. There are two quality seminars available live from ICLEF in the coming months that offer you the opportunity to earn Civil Mediation Education hours. Click a title below for full details:

CME for Family Mediators – 6 CLE / 6 CME - November 13

Epic Change: The Evolution of the Legal Profession – 3 CLE / 3 CME / .5 E - December 3

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About our Law Tips faculty participant:
Douglas E. Noll, Esq. is a full time peacemaker and mediator. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. He is a Fellow of the International Academy of Mediators, a Distinguished Fellow of the American College of Civil Trial Mediators and on the American Arbitration Association panel of mediators and arbitrators. With his colleague Laurel Kaufer, Mr. Noll, co-founded the award-winning pro bono project, Prison of Peace, training life inmates in maximum security prisons to live lives of service as peacemakers and mediators.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014

Indiana Law Update 2014: The Tradition of Excellence Continues

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014

Last week on September 23-24, a record attendence gathered in six locations around the state to experience this year’s Judge Robert H. Staton Indiana Law UpdateTM program. This was the 36th year for the program. It has become known for its scholarly and enjoyable review of the substantive trends, changes and developments in Indiana Law.

This year’s program presented comprehensive updates in 18 areas of practice. Led by the Hon. Melissa S. May from the Indiana Court of Appeals, the program featured 21 presenters, 8 of which were new to the program for 2014. The mix of personalities, presentation styles, topical variety and humor sprinkled in along the way help to make it one of the most popular CLE events each year.

One of the hallmarks of the Indiana Law UpdateTM program is the law student scholarship contribution. Each of the four accredited law schools in Indiana benefit from the program.

If you missed this year’s live program, there are still many opportunities to attend it through a multitude of video replays occurring around the state. Click Here for the site nearest you. The planning for next year’s program is already well underway. It will occur on September 9-10, 2015. The live in-person session will be in the Sagamore Ballroom of the Indiana Convention Center. As was the case the last two years, there will also be many live group webcast locations available around the state. Make plans now and mark your calendars for the Original Indiana Law UpdateTM program for 2015!

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014: An ICLEF 12 CLE Seminar

 

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Best of ICLEF 2014 – A Special Video Replay/Webcast Presentation – October 8

ICLEF has assembled a special video replay and webcast event that includes some of our more popular CLE presentations thus far in 2014 for an event entitled Best of ICLEF.

The topics vary with multiple disciplines of the practice represented, but the quality of the presentations remains consistently high. This compilation of well regarded ICLEF faculty and presentations includes discussions in the areas of Estate Planning, Charitable Giving, Auto Accident Litigation, Family Law and Bankruptcy.

A great way to survey the finest ICLEF has to offer, the Best of ICLEF is a great opportunity to catch up on the issues of the day, relevant to your practice, taught by some of the best Indiana practitioners.

BEST OF ICLEF
Up To 6 CLE / 1 E. – Wednesday , October 8

IN-PERSON SEMINAR
-ICLEF Conference Facility, Indianapolis

INDIVIDUAL WEBCAST
- From your home or office computer

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Hon. Melissa S May accepts the Excellence in CLE Award from ICLEF President Alan Hux

The Hon. Melissa S. May and Robert C. Beasley Receive the Excellence in CLE Award

At a special dinner prior to ICLEF’s most recent Board of Directors meeting, ICLEF President Alan M. Hux took the occasion to present the Excellence in Continuing Legal Education Award in recognition of two extraordinary people to ICLEF, the Honorable Melissa S. May, Indiana Court of Appeals, and Muncie attorney Robert C. Beasley.

ICLEF's Excellence in CLE Awards presented to the Honorable Melissa S. May and Robert C. Beasley, July 2014

The Excellence in Continuing Legal Education Award is not presented annually, but is presented only when merited. In fact, this award has been presented only once before, to the former Chief Justice to the Supreme Court of Indiana, the Honorable Randall T. Sheperd upon his retirement from the state’s highest bench.

The Honorable Melissa S. May
Our first recipient of the evening was the Honorable Melissa S. May. Judge May has been a long-time friend of ICLEF and has served the organization and the CLE community in many capacities over the years.

In addition to serving as a member of Indiana’s Continuing Legal Education Commission for several years, she has also served on the Board of Directors of ICLEF, has been an ICLEF Committee Chairperson, a program faculty member and a Program Chairperson.Hon. Melissa S May accepts the Excellence in CLE Award from ICLEF President Alan Hux

Currently, she continues to lead ICLEF’s annual Trial Advocacy Skills College; a four-day intensive workshop that seeks to strengthen Indiana’s trial litigators.

Perhaps most notably, however, Judge May serves as program chair of ICLEF’s flagship seminar, the annual Indiana Law Update. The Robert H. Staton Indiana Law Update seminar requires a chair that can lead it into the future, while maintaining the tradition, integrity and quality the seminar and its namesake have long held.

“When we approached Judge May with the invitation to chair Indiana Law Update,” stated President Alan Hux, “she did not hesitate and simply asked How can I help?”

Judge May has provided great leadership and a tireless effort in fulfilling the goals for this most significant CLE seminar.

Robert C. Beasley
While Bob Beasley continues to actively serve on the ICLEF Board of Directors , a role he has served before, Bob continues to do much to help guide ICLEF in the most appropriate and effective direction. Most significantly, Bob was recognized for being one of ICLEF’s most loyal and trustworthy friends over the years.

Beasley Awarded Excellence in CLE Recently, Bob stepped down as the Program Chair of ICLEF’s Year in Review seminar, a position he had held since the inception of the seminar over 20 years ago. Since its humble beginnings, the Year in Review seminar has become one of the most well respected ICLEF seminars and the first to be provided by live, simultaneous broadcasts long before the concept of distance learning became a reality in continuing legal education.

We Owe Much Gratitude
ICLEF is proud to present these two individuals with our highest honor as we offer the gratitude of Indiana’s lawyers for the efforts of innovative leadership and the pursuit of excellence in our state’s continuing legal education.

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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