Third Thursday of the Month
January 15, 2009, Noon - 1:30 p.m.
Oasis Center
Second Tuesday of each month
January 13, 2009
7:30 a.m.
Lipscomb University
Institute for Conflict Management
Ezell Center - 3rd Flr.
TAPM Selects Speaker for Annual Meeting in March
The date is now set and the speaker has been selected for TAPM's annual meeting -- with the featured topic being dealing with high conflict personalities in mediation.
Each year TAPM conducts its annual business meeting combined with a full day of CLE/CME. This year's program will be March 27, 2009, and the TAPM Board recently approved inviting William A. ("Bill") Eddy to be the primary speaker. Mr. Eddy is the president and co-founder of the High Conflict Institute and is an attorney and mediator in California. He is a nationally recognized author and speaker on managing high conflict disputes.
More details will be forthcoming in the next newsletter, but please mark your calendar and plan on attending the annual meeting.
Materials from September Quarterly Meeting Available on Website
The Powerpoint presentation by Vanderbilt Professor Chris Guthrie from TAPM's September quarterly meeting is now available for members' review on TAPM's Website. Professor Guthrie gave a fascinating presentation on what goes on behind the scenes in negotiations and how certain negotiation tactics work and how others can backfire.
He discussed three stages of negotiation: opening, exchange and evaluation. Based on numerous studies, it is clear that the initial stage can have significant ramifications to the end result by creating an "anchoring" effect. While most mediators encourage parties to be reasonable in their opening demands, a number of studies indicate that the ultimate settlement in a damages case is usually higher when a higher demand was made at the beginning.
The presentation included many surprising points about the impact of demands in settlement and the effect they have on judges and mediators. Similarly, the other stages of negotiation -- "exchange" and "evaluation" -- have a psychology to it that can either enhance or hamper the resolution process. One component is the concept of "reciprocity" – the feeling that we are obligated to repay in kind what we have received from another. Another aspect is the natural tendency of all disputants toward loss aversion -- including looking at what they will gain by settling versus what they will lose if they settle. Studies confirm that everyone places a higher value on items they already possess than on items they are trying to acquire, and this basic tendency has huge implications for negotiation.
The discussion was chock full of interesting information and practical tools for mediator based on solid statistical information and studies of how people react in the negotiation process. Viewing the a copy of the handout from the presentation will not be the same as having actually attended the program, but there is a lot of useful material. Go to
www.mediate.com/tapm/docs/Chris Guthrie Presentation.pdf
Business Valuation:
A High Value Tool for both Civil and Family Mediators
Reviewed by Leigh Ann Roberts,
TAPM Vice-President
On October 14th, the TAPM Civil Peer Group enjoyed a packed room and an excellent presentation on the topic of Business Valuations in Mediation. Mediators of both civil and family cases were in attendance as well as several visiting attorneys and professionals who are considering joining TAPM. The topic of business valuations is an issue that surfaces in many different types of disputes, the most obvious of which are divorces and business partnership dissolutions.
Vic Alexander and Jennifer Bronco from Kraft CPAs, PLLC, provided an overview of the basic principles of valuations, how to select an expert and the key areas where experts and business people are likely to disagree on the topic of business valuations. In the mediation setting, it is not uncommon for parties to present two differing opinions from valuation experts on the value of the underlying business. In divorce cases, spouses will often argue that a business value is high in order to justify a higher support demand. In a business partnership dissolution, an exiting party may want to set their buy-out price much higher than the interest would be valued on the open market. These types of disputes can be both expensive and heated and are also excellent opportunities for mediators to make a difference.
As Mr. Alexander explained, even if experts disagree, there is typically not more than 20% difference between two balanced, well-formed business valuation opinions. If a mediator finds a larger gap between the opinions, the experts from Kraft suggest that the mediator use the mediation as an opportunity to ask some specific questions that might disclose these differences for the parties. Even when the underlying dispute is not resolved, mediation can be an opportunity for the parties to narrow the valuation issues in the dispute, thereby saving the parties time and money in the long run.
Mediators can also help parties in a dispute better understand and use valuations to resolve or narrow the issues in their dispute. If a mediator encounters parties grappling with valuation issues and the mediator suggests the use of a valuation expert as an option for the parties, the mediator should be prepared for various questions from parties on this topic. For example, “How much does a valuation cost?”. Mr. Alexander, who has over 20 years of experience in this area and has served as both an arbitrator and Special Master on valuation cases, said parties could be looking to spend anywhere from $4,000 to $40,000 depending on the expert selected and the depth of the valuation request.
Mediators suggesting valuation as an option are also often asked how long a valuation would take. The experts at Kraft stated that, in routine cases, it takes anywhere from thirty to forty-five days from the date they receive all the requested documents and information from the parties for their office to turn around a valuation opinion. The key point to emphasize to parties is that the document and information requests parties will receive from valuation experts can be extensive and the experts can only begin the work of valuing the business once they have all the information they need.
Mr. Alexander and Ms. Bronco had several final points for our mediators. When selecting a valuation expert, parties should do their research and find reputable, credentialed professionals. Credentials parties should be on the look-out for are membership to ASA (American Society of Appraisers), accreditation in business valuation or “ABV” status with AICPA (the American Institute of Certified Public Accountants. There are also special certifications and designations for professionals who work with restructuring and bankruptcy issues and forensic accounting.
While valuation principles vary from state to state based in large part to the case law of that state, much of what is available in Tennessee on this topic comes out of divorce and dissenters’ rights cases. Mediators looking to review some of the legal discussions around business valuation in Tennessee can check out some of the following cases: Anderson v. Anderson, 2006 WL 2535393; Koch v. Koch, 874 S.W.2nd 571 (Tn.Crt.App. 1993); Powell v. Powell, 124 S.W.3d 100 (Tn.Ct.App. 2003); Blasingame v. American Materials, Inc., 654 S.W.2d 659 (Tenn. 1983); Hazard v. Hazard, 833 S.W.2d 911 (Tn.Crt.App. 1991); Smith v. Smith, 709 S.W.2d (Tn.Ct.App. 1985); Witt v. Witt, 17 TAM 15-6(Tn.Ct.App. 1992); and, Harmon v. Harmon, 25 TAM 15-22 (Tn.Ct.App.2000).
Interested in learning more about a particular area or tool for your mediation practice? Let us know. The TAPM Civil Section meets the second Tuesday of every month. This section is dedicated to providing practical feedback, discussion and skills for the civil practice mediator. Whether you are an experienced mediator or newly trained, these discussions offer help at every level. December’s meeting will include a presentation on structured settlements: how they work and how mediators can help parties use them to reach resolutions. We hope you will join us. Whether it is a formal presentation or a group discussion tackling issues such as convening, impasse, ethics, marketing, and more, these meetings are not to be missed.
Meet the Mediator:
Robert L. Sullivan
(The TAPM Newsletter continues its series of profiles of its members .)
Each year TAPM conducts its annual business meeting combined with a full day of CLE/CME. This year's program will be March 27, 2009, and the TAPM Board recently approved inviting William A. ("Bill") Eddy to be the primary speaker. Mr. Eddy is the president and co-founder of the High Conflict Institute and is an attorney and mediator in California. He is a nationally recognized author and speaker on managing high conflict disputes.
More details will be forthcoming in the next newsletter, but please mark your calendar and plan on attending the annual meeting.
Materials from September Quarterly Meeting Available on Website
The Powerpoint presentation by Vanderbilt Professor Chris Guthrie from TAPM's September quarterly meeting is now available for members' review on TAPM's Website. Professor Guthrie gave a fascinating presentation on what goes on behind the scenes in negotiations and how certain negotiation tactics work and how others can backfire.
He discussed three stages of negotiation: opening, exchange and evaluation. Based on numerous studies, it is clear that the initial stage can have significant ramifications to the end result by creating an "anchoring" effect. While most mediators encourage parties to be reasonable in their opening demands, a number of studies indicate that the ultimate settlement in a damages case is usually higher when a higher demand was made at the beginning.
The presentation included many surprising points about the impact of demands in settlement and the effect they have on judges and mediators. Similarly, the other stages of negotiation -- "exchange" and "evaluation" -- have a psychology to it that can either enhance or hamper the resolution process. One component is the concept of "reciprocity" – the feeling that we are obligated to repay in kind what we have received from another. Another aspect is the natural tendency of all disputants toward loss aversion -- including looking at what they will gain by settling versus what they will lose if they settle. Studies confirm that everyone places a higher value on items they already possess than on items they are trying to acquire, and this basic tendency has huge implications for negotiation.
The discussion was chock full of interesting information and practical tools for mediator based on solid statistical information and studies of how people react in the negotiation process. Viewing the a copy of the handout from the presentation will not be the same as having actually attended the program, but there is a lot of useful material. Go to
www.mediate.com/tapm/docs/Chris Guthrie Presentation.pdf
Business Valuation:
A High Value Tool for both Civil and Family Mediators
Reviewed by Leigh Ann Roberts,
TAPM Vice-President
On October 14th, the TAPM Civil Peer Group enjoyed a packed room and an excellent presentation on the topic of Business Valuations in Mediation. Mediators of both civil and family cases were in attendance as well as several visiting attorneys and professionals who are considering joining TAPM. The topic of business valuations is an issue that surfaces in many different types of disputes, the most obvious of which are divorces and business partnership dissolutions.
Vic Alexander and Jennifer Bronco from Kraft CPAs, PLLC, provided an overview of the basic principles of valuations, how to select an expert and the key areas where experts and business people are likely to disagree on the topic of business valuations. In the mediation setting, it is not uncommon for parties to present two differing opinions from valuation experts on the value of the underlying business. In divorce cases, spouses will often argue that a business value is high in order to justify a higher support demand. In a business partnership dissolution, an exiting party may want to set their buy-out price much higher than the interest would be valued on the open market. These types of disputes can be both expensive and heated and are also excellent opportunities for mediators to make a difference.
As Mr. Alexander explained, even if experts disagree, there is typically not more than 20% difference between two balanced, well-formed business valuation opinions. If a mediator finds a larger gap between the opinions, the experts from Kraft suggest that the mediator use the mediation as an opportunity to ask some specific questions that might disclose these differences for the parties. Even when the underlying dispute is not resolved, mediation can be an opportunity for the parties to narrow the valuation issues in the dispute, thereby saving the parties time and money in the long run.
Mediators can also help parties in a dispute better understand and use valuations to resolve or narrow the issues in their dispute. If a mediator encounters parties grappling with valuation issues and the mediator suggests the use of a valuation expert as an option for the parties, the mediator should be prepared for various questions from parties on this topic. For example, “How much does a valuation cost?”. Mr. Alexander, who has over 20 years of experience in this area and has served as both an arbitrator and Special Master on valuation cases, said parties could be looking to spend anywhere from $4,000 to $40,000 depending on the expert selected and the depth of the valuation request.
Mediators suggesting valuation as an option are also often asked how long a valuation would take. The experts at Kraft stated that, in routine cases, it takes anywhere from thirty to forty-five days from the date they receive all the requested documents and information from the parties for their office to turn around a valuation opinion. The key point to emphasize to parties is that the document and information requests parties will receive from valuation experts can be extensive and the experts can only begin the work of valuing the business once they have all the information they need.
Mr. Alexander and Ms. Bronco had several final points for our mediators. When selecting a valuation expert, parties should do their research and find reputable, credentialed professionals. Credentials parties should be on the look-out for are membership to ASA (American Society of Appraisers), accreditation in business valuation or “ABV” status with AICPA (the American Institute of Certified Public Accountants. There are also special certifications and designations for professionals who work with restructuring and bankruptcy issues and forensic accounting.
While valuation principles vary from state to state based in large part to the case law of that state, much of what is available in Tennessee on this topic comes out of divorce and dissenters’ rights cases. Mediators looking to review some of the legal discussions around business valuation in Tennessee can check out some of the following cases: Anderson v. Anderson, 2006 WL 2535393; Koch v. Koch, 874 S.W.2nd 571 (Tn.Crt.App. 1993); Powell v. Powell, 124 S.W.3d 100 (Tn.Ct.App. 2003); Blasingame v. American Materials, Inc., 654 S.W.2d 659 (Tenn. 1983); Hazard v. Hazard, 833 S.W.2d 911 (Tn.Crt.App. 1991); Smith v. Smith, 709 S.W.2d (Tn.Ct.App. 1985); Witt v. Witt, 17 TAM 15-6(Tn.Ct.App. 1992); and, Harmon v. Harmon, 25 TAM 15-22 (Tn.Ct.App.2000).
Interested in learning more about a particular area or tool for your mediation practice? Let us know. The TAPM Civil Section meets the second Tuesday of every month. This section is dedicated to providing practical feedback, discussion and skills for the civil practice mediator. Whether you are an experienced mediator or newly trained, these discussions offer help at every level. December’s meeting will include a presentation on structured settlements: how they work and how mediators can help parties use them to reach resolutions. We hope you will join us. Whether it is a formal presentation or a group discussion tackling issues such as convening, impasse, ethics, marketing, and more, these meetings are not to be missed.
Meet the Mediator:
Robert L. Sullivan
(The TAPM Newsletter continues its series of profiles of its members .)
In the world of Media and Entertainment law, Robert L. Sullivan believes “Mediation gives the parties opportunities to create business solutions to matters in dispute and fashion remedies that are not available if the matter goes to trial. The parties in entertainment law disputes often interact with each other on a regular basis. Mediation enables the parties to preserve business relationships that would be damaged by pursuing litigation.”
Robert L. Sullivan is a Partner at Loeb & Loeb LLP, a national law firm that has a reputable history in the entertainment and media industry with more than 300 lawyers in four offices located in Los Angeles, New York, Chicago and Nashville, and an affiliation in Asia and Europe. Mr. Sullivan has been a Rule 31 Listed General Civil Mediator since 2001.
When asked if a mediator in a copyright dispute involving music needs to know how to read music, Mr. Sullivan recommends that “Being able to read music is not essential, but some formal musical training is helpful in analyzing the expert witness reports that are generally at the heart of most copyright infringement disputes.”
Preparing for a mediation concerning a copyright dispute requires listening to the music. Mr. Sullivan explains that “One of the issues in a copyright infringement action is whether the allegedly infringing song is "substantially similar" to the Plaintiff's work. The test generally applied by the finder of fact to determine whether substantial similarity exists is the "Audience Test." Part of preparation for the mediation involves both reviewing any expert reports and listening to the songs at issue.”
Mr. Sullivan earned his Bachelor of Arts degree, magna cum laude, from Vanderbilt University in 1974. He earned his Juris Doctor from Vanderbilt University Law School and was admitted to the Tennessee Bar in 1977. Robert Sullivan’s practice focuses on entertainment transactions primarily in the music field, as well as litigation and mediation in entertainment and intellectual property areas. He represents major recording artists, songwriters, publishing companies and record companies. Mr. Sullivan is also knowledgeable in employment law and general business litigation. In recent years, he has represented employers in disputes involving contracts, covenants not to compete, executive compensation and sexual harassment.
He has written and spoken frequently on topics dealing with entertainment, sports, music and intellectual property. He serves on the Board of Directors for the Copyright Society of the South, the Tennessee Volunteer Lawyers For the Arts, and the Music City Community Chorus. He has lectured at Emory Law School, Cumberland Law School, Stetson University Law School, Practicing Law Institute, and the Nashville Bar Association. Mr. Sullivan has been an instructor at Nashville School of Law and Belmont College.
PRESIDENT'S MESSAGE
By Randal Mashburn, TAPM President
As we approach the end of the year, it is a good time to assess what we have done in our mediation practices in 2008, and I would like to encourage you to focus especially on whether you have done all you should in connection with pro bono work.
Section 18(d) of Rule 31 provides as follows regarding pro bono service for mediators:
"As a condition of continued listing, each Rule 31 Mediator must be available to conduct three pro bono mediations per year, not to exceed 20 total hours. At the initiation of a mediation, the court may, upon a showing by one or more parties of an inability to pay, direct that the Rule 31 Mediator serve without pay. No Rule 31 Mediator will be required to conduct more than three pro bono proceedings or serve pro bono for more than 20 hours in any continuous 12-month period."
Although most mediators would likely say that they are "available" to conduct pro bono mediations, only a limited number of us actually seek out opportunities to fulfill our obligations. In reality, the technical legal requirement of being "available" is much less stringent than what I would contend is a moral obligation to be active and agressive in looking for chances to utilize our mediation training for the benefit of the community.
If you have not been taking your pro bono obligations as seriously as you should, I would urge you to undertake a new commitment in the coming year. In that regard, TAPM will help by beginning a new series in the January newsletter that will focus on a different non-profit organization in each newsletter that has the need for volunteer pro bono mediators. While this will provide more information about specific non-profit organizations that need help, we all should look for opportunities in our communities to carry out our obligations. Aside from any rule that may apply, it is simply the right thing to do and can be immensely rewarding.
Sixth Annual Advanced Mediation Techniques Workshop Presented by the Tennessee Supreme Court’s Alternative Dispute Resolution Commission
Reviewed by Regina B. Newson,
TAPM Secretary
Marvin E. Johnson, Esquire, was the featured speaker at this year's Alternative Dispute Resolution Commission program on October 10. The title of the program was "Assessing Our Internal GPS when Navigating the Transitions through Cutltural Diversity, Conflict, and Change in our Personal Lives and When We Serve as Mediators."
Mr. Johnson has over 30 years of experience in the field of mediation. He has mediated cases in the field of employment, labor management, consumer, business, and community affairs. He has trained over 10,000 people in various forms of dispute resolution including mediation, joint problem solving, arbitration, facilitation and interest based bargaining. Mr. Johnson has provided conflict resolution training to leaders in Russia, Africa and Central and Eastern Europe and has written numerous articles on cultural diversity in alternative dispute resolution.
Mr. Johnson started his seminar by having each of us put our names in the center of a coin. Around that center, we had to list where we are currently in our lives. On the second circle, we had to list the influences that had brought us to where we are today. Then, we broke into groups of fours. We had discussions about who we are and what made us the way we are. Interestingly, we discovered that many of us had shared experiences; i.e. public education, military backgrounds, or parents who had been public servants. This commonality was also true of the larger group when we came together. The importance was that each of us begin to understand who we are in relationship to our clients. We needed to become aware of our own GPS.
The second exercise involved simple road signs. Stop, Dead End, No Passing Zone, No Outlet, No Left Turns, Uneven Pavement were just a few of the signs that were shown in the exercise. The important question was, “Which road sign represented you?” This exercise generated a lot of lively discussion. Some participants had two or three road signs depending on where they saw themselves. The road signs change as we change in our lives. Some were running at 70 miles an hour speed limits, while others were at 30 or on uneven pavement.
These exercises were important because they got us ready for the hard work of thinking about where we as individual mediators stand on issues of race, gender, cultural diversity, ethnicity, and disabilities. However we feel about these issues, we bring them to the table as mediators with our tone of voice, demeanor, and attitude. The larger question becomes, “Can we set aside how we personally feel about a particular issue in order to effectively mediate the situation?” We cannot mediate these situations effectively unless we are aware of our own internal GPS. Mr. Johnson spoke of acknowledging our own biases. If we refuse to acknowledge our personal biases, we do a disservice to ourselves and others.
Mr. Johnson spoke of transitions as ‘the way through’ our personal issues. Transitions are not the same as change. Transitions are the inner process through which people come to terms with a change. They let go of the way things used to be and reorient themselves to the way that things are now.
Meghan Clarke, the second featured speaker continued Mr. Johnson’s themes on transitions. Ms. Clarke is an Associate of The ARIA Group where she works on community reconciliation projects – environmental, religious based conflicts, educational inequities and police community relations.
Conflict is situational and external to us. Transitions are what happens inside of us as we adapt to the conflict triggered by the change. There are three phases of transition: endings, neutral zone and new beginnings. Each of these phases has certain characters that are peculiar to them. In endings, there is a sense of loss, letting go, getting closure and saying good bye. In the neutral zone, there is fear, resentment, uncertainty and opportunity. Finally, there is a new beginning, which allows for feeling connected, commitment, and renewed. There is no time limit on any of these phases. The discussion by Ms. Clarke provided a lot of very useful information about resistance to transitions and what can be done to understand their roles in our lives and in the mediation process.
Other portions of the program included a panel representing various community dispute resolution programs to discuss the types of disputes dealt with, training for mediators and pro bono mediation. The final item on the seminar was "Communicating with and about people with disabilities,” which provided important tips on dealing with parties having to cope with disabilities.
Overall. this seminar was about the mediator’s struggles with personal values and belief systems. What we believe affects the mediation, and what is said in the mediation in turn affects us and our ability to be neutral. It was a very insightful exercise for mediators.
WHAT IS TAPM?
WHAT IS MEDIATON?
The Tennessee Association For Professional Mediators exists to promote mediation as a valuable and effective process empowering people in resolving disputes.
Mediation is a voluntary, consensual process that uses a trained, neutral third party to facilitate the negotiation of disputes with the goal of reaching a binding settlement agreement. Almost any case, civil or family, is amenable to mediation. With the exception of cases where the parties are attempting to make new law or cases in which there is no precedent, the ability to tap into the creativity of multiple persons is more satisfactory to the parties involved, rather than finding one answer from a judge or jury. It often means that in cases where it is important to preserve the relationship of the parties, such as family cases, construction cases, employment cases, that relationship is strengthened, rather than severed by a court decision.
What are the benefits of mediation?
It is a voluntary process. Parties are free to leave at any time.
It is a confidential process. The only public record is an order which states that the parties have settled the case.
It is usually less expensive and time consuming than a trial in court. Most mediations range from four hours to a day. In family cases, there may be several sessions over several days or with periods of time inbetween.
The parties retain control of the outcome.
The parties are more satisfied with the outcome. If the parties are able to settle, the outcome is final with no appeals, and immediate. If the parties do not settle on the day of the mediation, the issues are narrowed and likely the case will settle before trial.
If the settlement involves money, parties are more likely to comply with an agreement, they helped forge.
