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Law Tips: Eliciting Change Talk in Mediation

Doug Noll, a fulltime peacemaker, emphasizes the importance of “micro-moments of emotion” when mediators should respond appropriately in order to bring the parties to an amicable settlement. Mr. Noll specializes in difficult, complex, and intractable conflicts and he trains others in those conflict resolution skills. A segment of his mediation training focuses on eliciting change talk. Today, Doug is generously providing an outline of how change talk can assist in a positive outcome in your clients’ settlement. Let’s learn about DARN C:

Eliciting Change Talk

Eliciting change talk, or self motivational statements, is an important component in mediationsettlements. This strategy helps to establish and resolve ambivalence and move forward.

Change talk is the party making statements that are in favor of resolution, which suggests that the party is becoming more ready, willing, and able to settle. However, although a mediator may want to hear change talk, she avoids imposing it. The goal is to elicit it from the party in a collaborative fashion. Eliciting change talk has to come about through a consensual, negotiated process between the mediator, the party, and counsel. Change talk can occur in several forms that make up the acronym DARN C.

D =Desire statements. Statements indicating a desire to make a change.

  • “I’d like to get this over with if I could.”
  • “I wish I could make my life better.”
  • “I want to take better care of my kids.”
  • “Getting past this would make me feel so much better about myself.”

A= Ability statements. Statements that speak to the party’s self-efficacy or belief in the ability tomake changes.

  • “I think I could do that.”
  • “That might be possible.”
  • “I’m thinking I might be able to do that.”
  • “If I just had enough money to survive until I got back on my feet, I could probably be OK.”

R = Reasons statements. Statements that reflect the reasons the party gives for considering a change.

  • “I have to settle because the stress and cost is driving me to bankruptcy.”
  • “To keep my sanity, I should probably figure a way out of this mess.”
  • “My marriage is over and I might as well just accept it and move on.”
  • “I don’t like my kids to see me like this.”

N = Need statements. Statements that indicate a need for change. These can be similar to R statements, but the emphasis is more affective or emotional than a more cognitive R statement.

  • “It’s really important to get my life back.”
  • “Something has to change or my marriage will break.”
  • “I’ll die if I keep going like this.”

These DARN statements are important to recognize and then emphasize through reflecting or directing the party to further elaboration. These statements are avenues to the most important part of change talk, the “C” in the DARN C.

C = Commitment language. Commitment language is the strength of change talk.

For example, aperson could say, “I might settle”, or “I could consider settling”, or “I’m planning to settle” or “I will settle”. The last two examples represent authentic commitment. The strength of the verb in the sentence corresponds with the strength of the commitment language.

An important mediator skill is addressing party commitment to change over the course of the mediation by recognizing and responding to change talk. The goal is to strengthen the commitment level.

Amrhein and Miller (2003), a linguist and a psychologist respectively, have shown that while allelements of change talk can be important in building commitment language, it is the stronger commitment statements that predict positive behavior outcomes. In other words, the more a party is making strong commitment statements like “I will do this” and “I am going to do that,” the more likely the party’s behavior is going to change.

I appreciate the contributions of Douglas Noll, both for Law Tips and as a faculty member for ICLEF. His DARN C pointers surely can help to recognize and strengthen the commitments of parties in various situations. I hope you have enhanced your mediation skills through his advice.

For further information on Mr. Noll’s training you may want to visit 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, J.D., M. A. In addition to being a keynote speaker and negotiation trainer, Doug 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. He is the author of  Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts (Prometheus Books, April 2011).

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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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

_________________________________________________________________________________

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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Law Tips: Estate Planning Does Not Include Just Grandma’s Cameo Brooch Anymore

Digital assets are working their way into everyone’s life…and afterlife…like it or not! Our estate law faculty member, Professor Gerry Beyer, advises that: “Estate planning attorneys need to comprehend fully that this is not a trivial consideration and that it is a developing area of law.” Gerry Beyer, Professor of Law at Texas Tech University School of Law, has timely information for Law Tips readers on the digital assets that are probably already in your clients’ possession:

For hundreds of years, we have viewed personal property as falling into two major categories – tangible (items you can see or hold) and intangible (items that lack physicality). Recently, a new subdivision of personal property has emerged that many label as “digital assets.” There is no real consensus about the property category in which digital assets belong. Some experts say they are intellectual property, some say they are intangible property, and others say they can easily be transformed from one form of personal property to another with the click of a “print” button. See Scott Zucker, Digital Assets: Estate Planning for Online Accounts Becoming Essential (Part II), The Zucker Law Firm PLLC (Dec. 16, 2010). In actuality, some accounts that we consider “assets” are simply licenses to use a website’s service that generally expire upon death. See Steven Maimes, Understand and Manage Digital Property, The Trust Advisor Blog (Nov. 20, 2009).

Digital assets may represent a sizable portion of a client’s estate. A survey conducted by McAfee, Inc. revealed that the average perceived value of digital assets for a person living in the United States is $54,722. McAfee Reveals Average Internet User Has More Than $37.000 in Underprotected ‘Digital Assets’, McAfee.com, (Sept. 27, 2011) (the $37,000 figure is the global average).

While estate planners have perfected techniques used to transfer types of property that have been around for a long time, most estate planners have not figured out how to address the disposition of digital assets. It is important to understand digital assets and to incorporate the disposition of them into clients’ estate plans.

What are digital assets:

The term “digital asset” does not have a well established definition as the pace of technology is faster than the law can adapt. One of the best definitions is found in a proposed Oregon statute:

“Digital assets” means text, images, multimedia information, or personal property stored in a digital format, whether stored on a server, computer, or other electronic device which currently exists or may exist as technology develops, and regardless of the ownership of the physical device upon which the digital asset is stored. Digital assets include, without limitation, any words, characters, codes, or contractual rights necessary to access the digital assets.

Digital Assets Legislative Proposal, OREGON STATE BAR (May 9, 2012).

Digital assets can be classified in numerous different ways, and the types of property and accounts are constantly changing. People may accumulate different categories of digital assets: personal, social media, financial, and business. The individual may also have a license or property ownership interest in the asset. See Laura Hoexter and Alexandra Gerson, Who Inherits My Facebook? Estate Planning or Digital Assets (June 25, 2012). Although there is some overlap, of course, clients may need to make different plans for each.

Personal

The first category includes personal assets stored on a computer or smart phone, or uploaded onto a web site such as Flickr or Shutterfly. These can include treasured photographs or videos, e-mails, or even play lists. Photo albums can be stored on an individual’s hard drive or created through an on-line system. (They also can be created through social media, as discussed below.) People can store medical records and tax documents for themselves or family members. The list of what a client’s computers can hold is, almost literally, infinite. Each of these assets requires different means of access – separate passwords.

Social Media

Social media assets involve interactions with other people on websites, Facebook, MySpace, Linkedln, and Twitter, as well as e-mail accounts. These sites are used not only for messaging and social interaction, but they also can serve as storage for photos, videos, and other electronic files.

Financial Accounts

Though some bank and investment accounts have no connection to brick-and-mortar buildings, most retain some connection to a physical space. They are, however, increasingly designed to be accessed via the Internet with few paper records or monthly statements. For example, an individual can maintain an Amazon.com account, be registered with PayPal, Bitcoin, or other financial sites, have an e-Bay account, and subscribe to magazines and other media providers. Many people make extensive arrangements to pay bills online such as income taxes, mortgages, car loans, credit cards, cell phone and trash disposal.

Business Accounts

An individual engaged in any type of commercial practice is likely to store some information on computers. Businesses collect data such as customer orders and preferences, home and shipping addresses, credit card data, bank account numbers, and even personal information such as birth dates and the names of family members and friends. Physicians store patient information. eBay sellers have an established presence and reputation. Lawyers might store client files or use a Dropbox.com-type service that allows a legal team spread across the United States to access litigation documents through shared folders.

Domain Names or Blogs

A domain name or blog can be valuable, yet access and renewal may only be possible through a password or e-mail.

Loyalty Program Benefits

In today’s highly competitive business environment, there are numerous options for customers to make the most of their travel and spending habits. Airlines have created programs in which frequent flyers accumulate “miles” or “points” they may use towards free or discounted trips. Some credit card companies offer users an opportunity to earn “cash back” on their purchases or accumulate “points” which the cardholder may then use for discounted merchandise, travel, or services. Retail stores often allow shoppers to accumulate benefits including discounts and credit vouchers. Some members of these programs accumulate a staggering amount of points or miles and then die without having “spent” them. For example, there are reports that “members of frequent-flyer programs are holding at least 3.5 trillion in unused miles.” Managing Your Frequent-Flyer Miles (last visited Oct. 21, 20 12). See also Becky Yerak, Online Accounts After Death: Remember Digital Property When Listing Assets, CHICAGO TRIB., Aug. 26, 2012.

The rules of the loyalty program to which the client belongs plays the key role in determining whether the accrued points may be transferred.

Other Digital Assets

Your client may own or control virtually endless other types of digital assets. For example, your client may own valuable “money,” avatars, or virtual property in online games such as World of Warcraft or Second Life.

Yes, complications surround planning for digital assets, but all clients need to understand the ramifications of failing to do so. Cases will arise regarding terms of service agreements, rights of beneficiaries, and the success of online afterlife management companies. Until the courts and legislatures clarify the law, estate planners need to be especially mindful in planning for these frequently overlooked assets.

I thank Professor Beyer for providing this overview of the developing world of digital assets and their importance in estate planning.

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About our Law Tips faculty participant:
Prof. Gerry W. Beyer is the Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law, Lubbock, TX. He joined the faculty at Texas Tech in June 2005. Previously, Prof. Beyer taught at St. Mary’s University and has served as a visiting professor at several other law schools. He was also the recipient of the 2012-2013 Outstanding Researcher Award from the Texas Tech School of Law. As a state and nationally recognized expert in estate planning, Prof. Beyer is a highly sought after lecturer. He has authored and co-authored numerous books and articles focusing on various aspects of estate planning, including a two volume treatise on Texas wills law, an estate planning casebook, and the Wills, Trusts, and Estates volume of the Examples & Explanationsseries. Professor Beyer received his J.D. from the Ohio State University and his LL.M. and J.S.D. degrees from the University of Illinois.

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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Law Tips: Do You Understand Conflicts of Interest?

What are the areas of ethics that are often misunderstood by practicing lawyers? According to our long-standing ethics experts, one of them involves the lawyer’s duty of loyalty to the client, or conflicts of interest. Chuck Kidd and Kevin McGoff, ICLEF ethics faculty, bring essential reminders to practitioners of the most common ways in which lawyers get themselves sanctioned. “Conflicts of Interest” is on the list of top ten grievance complaints they often discuss. Here’s their advice on the subject:

Conflicts of Interest

This is one of the areas of ethics that concerns practicing lawyers the most, but appears to be one of the least well understood by the bar. In essence, the conflict of interest rules govern different aspects of the lawyer’s duty of loyalty to the client. Some rules act to protect the client from conflicts with other clients, other rules act to protect the client from their own lawyer and still others act to protect former clients from some of the dangers of conflicting interests after the representation is over.

Cases are legion which explore all the contours of this area of ethics. Certainly any written work exploring this subject would be a respectable tome. In the final analysis, these cases revolve around the question: “to whom does the lawyer’s loyalty run?” If the answer isn’t unequivocally, “the client,” then a conflict of interest almost undoubtedly exists. One case illustrates the extent to which conflict questions can be simultaneously complex and very apparent.

In Matter of Watson, 733 N.E.2d 934 (Ind. 2000), Respondent wrote a will for an 85-year-old man who was the largest single shareholder in an Indiana telephone company. The Respondent’s mother was the second largest shareholder in the company. Subsequently, Respondent prepared for the testator a codicil which granted an option to the company, upon the testator’s death, to purchase these shares at a price reflecting the stated book value. After the testator died, the board of directors elected to exercise the option to purchase the estate’s shares at the listed book value.  About two years later, Respondent, his mother, and the company’s remaining shareholders sold all of the company’s stock, realizing an amount per share in excess of two times that paid to the testator’s estate for the shares.

The Supreme Court found that the Respondent knew or should have known that the option for the company to buy the shares at book value was setting a price which could be substantially less than fair market value. Respondent was found to have violated Prof. Cond. R. 1.8(c) because he drafted the codicils when it was reasonably foreseeable that the instruments had the potential for providing a substantial gift to him and his mother. As a result, Respondent was suspended from the practice of law for sixty days.

Following are additional cases Mr. Kidd and Mr. McGoff offer as examples of conflict of interest issues:

  • Matter of Godshalk, 987 N.E.2d 1095 (Ind. 2013)
  • Matter of Ross, 982 N.E.2d 295 (Ind. 2012)
  • Matter of McKinney, 948 N.E.2d 1154 (Ind. 2011)
  • Matter of Pugleise, 941 N.E.2d 1044 (Ind. 2011)

Knowing that keeping abreast of ethics issues is of paramount importance to all Indiana lawyers, we are grateful to Chuck Kidd and Kevin McGoff for their contributions. Their enjoyable mode of presentation adds that special element that isn’t included in all ethics programs. You have opportunities to experience their most current ethics updates as Kidd and McGoff appear again as the kickoff presentation for the 36th Annual Judge Robert H. Staton Indiana Law UpdateTM at the Indiana Convention Center in Indianapolis, September 23-24. Also, the popular Vignettes of Legal EthicsTM program is scheduled live in two locations around Indiana in October and November.

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About our Law Tips faculty participants:
Charles M. Kidd, Staff Attorney, Indiana Supreme Court Disciplinary Commission, is a former Indiana Deputy Attorney General (1988-1991). He is author of numerous continuing legal education works including the Survey of Recent Developments in Professional Responsibility in volumes 26 through 28 and 30 through 36 of the Indiana Law Review.

Kevin McGoff, Bingham Greenebaum Doll LLP, Indianapolis, is an experienced professional liability and litigation attorney. He represents attorneys and judges in professional licensure matters, assists lawyers and law firms on issues pertaining to firm management, law firm dissolution and organization, malpractice, legal ethics and related litigation. Kevin has more than 32 years of experience defending lawyers and other professionals in state and federal court at trials and on appeal.

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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