By Regina Newson

TAPM's second annual conference ion March 28, 2008, was a great success featuring high quality speakers for the seminar component and an opportunity for members to spend time together and exchange ideas at the lunch/business meeting.  Attendees came from a wide range of career paths such as counseling, social work, human resources and labor unions as well as the legal community.  From talking with attendees at the conference, it is clear that TAPM is now reaching a very wide audience that includes full-time mediators as well as others that are interested in using alternative dispute resolution processes in their businesses and professions.  

The TAPM Membership accepted and voted in favor of the new TAPM Board for 2008-09, and the Board has subsequently approved new officers for the coming year.  The Slate of officers and directors are as follows:  (See accompanying photo that includes everyone  with the exception of Doris Brocker who was unable to attend the meeting.) 

Randal Mashburn - President
Leigh Ann Roberts - President Elect
Marietta Shipely  - Immediate Past President
Regina Newson - Secretary
Larry Bridgesmith - Treasurer
John Williams - Director
Paul DeHoff - Director
Emily Leonard - Director
Doris Brocker - Director

Getting Past Impasse:
Making Money Talk

Andy Little, nationally known author and speaker in the field of mediation, discussed the changing landscape of mediation in North Carolina where he practices and focused on techniques that he has found successful.  This summary could be used for Tennessee as well.  North Carolina has a system of mandatory mediation in its legal system that results in dramatically more cases being mediated than in Tennessee.  Hearing Mr. Little's insight was especially useful as this state considers ways to encourage more mediation.  

In his book Making Money Talk, Mr. Little talks about the three basic models of mediation – problem-solving, achieving understanding and traditional bargaining.   He stresses the importance of learning these models because the goal of the mediator is to facilitate the parties’ negotiations.  His discussion helped attendees have a better understanding of the negotiation process and how to assist the parties when their negotiations become difficult. 

When parties feel that they are not in control they quickly reach an impasse. As mediators, we help each side facilitate a case analysis; make sure that each party is being heard -- not just the attorneys but their clients -- and help determine what the needs of the parties are; control the flow of information and facilitate movement for decision making.  Mediators can encourage risk analysis and case evaluation by helping parties formulate the range of settlement and encouraging movement from the other side.  Sometimes it is the mediator’s job to push all the parties to look the B.A.T.N.A. (Best Alternative to A Negotiated Agreement).  It is a very simple question, “What will I do, what will I get, if I don’t settle this case?”  

Mr. Little explored the dynamics of traditional bargaining about money in the context of the mediation of litigated cases.  He offered creative ways to respond to advocates' statements that are very common in mediation such as, "They're just not here in good faith;" “It's not the money, it's the principle;" "I'm not going to bid against myself;" "We're not going to pay a dime more than the other companies" -- and other similar comments. Numerous helpful tips were provided for mediators and advocates alike.

The Messy Business of
Finalizing the Agreement

Ann Barker, a University of Tennessee professor, conducted the afternoon breakout session for family mediators using the principals learned in the morning session from Mr. Little.  Attendees received lots of helpful tips and how do address issues in the final agreements that arise out of a successful family mediation.

Family mediators can often use the attorneys involved to help in the process.  They can help formulate the BATNA for their clients.  They can help them drive home the merits of their cases.  “This is what the judge has done in previous cases when I have been before him” is often heard in these discussions.  They can remind clients of how the judge received them when they were last in Court.  Every mediator should see the clients as a team (disputants, lawyers, therapists, pastors, financial advisors and etc) and focus the communications within the team.  The purpose of the caucus is to find out what has been withheld that is blocking settlement.  This is true in family and civil cases.  Determine what causes the block and refocus the clients and what needs to happen to settle the case.  Use questions – reframe and summarize, use general questions in joint sessions, specific questions in caucuses.  Questions should come from what was said in the joint session.  Ask for help from the lawyers.  The advantage of having the lawyers present is that they can see their clients in action.  They may be able to talk with their clients and facilitate movement in the case.  Take the offer and divide it into sections.  Things that can be agreed on, take first.  Those that will require more discussion take last.  Be encouraging to both sides. Show them the movement.  Talk about what they have agreed on.  Ask the clients what they need to settle the case i.e. an admission of wrong doing.  Again go back and ask more questions, do more summaries, keep the communication going until they begin to see the settlement. 

Ms. Barker covered the Rule 31 Standards of Professional Ethics.  This generated a lot of questions and general discussion of the ethics from both the attorneys and the non-attorney mediators.  

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PRESIDENT'S MESSAGE

By Randal Mashburn, TAPM President

TAPM is poised to have another good year, and I look forward to efforts to continue strengthening the organization and looking for more ways to better serve our members’ needs.

As you know, TAPM is still a very young organization – we are just beginning our third full year of operation.  During that short time, I believe we have made great strides -- establishing a structure for the organization, obtaining a strong core membership group, hiring a part-time executive director, creating a web site and promoting individual members through profiles on the web site.  During the first two years, TAPM started a bi-monthly e-mail newsletter, established a regular schedule of monthly peer meetings, and has conducted quarterly CLE/CME lunch meetings.  Most importantly, we have had annual meetings that have featured nationally recognized speakers at a very low cost to our members.

Now TAPM is looking for ways to enhance its efforts on behalf of our members.  Recently the outgoing and incoming board members met together to brainstorm about the coming year.  There were lots of good ideas, and I hope we will be able to bring to fruition this year some enhancements that will make membership in TAPM even more important than ever for Tennessee mediators.  In the meantime, please pass along any thoughts you have on what TAPM can do to improve the organization or be of greater benefit to you.  My e-mail address is rmashburn@bakerdonelson.com and my direct phone number is 615-726-7336.  Please feel free to contact me at any time.