April 2020 Archives

A Tour in the Negotiation Process - By Mohamed Sweify

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A Tour in the Negotiation Process
By Mohamed Sweify

Mohamed Sweify_ A Tour in the Negotiation Process.pdf

Mohamed Sweify, Esq. is a bilingual dual qualified trained attorney in civil and common law jurisdictions and a Doctoral Candidate (S.J.D) at Fordham University School of Law. He has been involved in arbitration and ADR practices for years. Mohamed is also a teaching fellow of U.S. legal system and ADR practices and a lecturer of Islamic law at Fordham Law School.

The pandemic has created debate about the "best" virtual mediation/arbitration platform. There are several options, including Zoom, BlueJeans, Microsoft Teams, and Skype for Business, the last option exclusively selected by the New York State courts. Arbitral institutions defer to the parties' choice, with repeat use of Zoom.

Based on your experience, what are the pros/cons of these systems? If you designed a bespoke platform, what would it contain different from what is already in the market?

Please provide your thoughts/comments below.

Disputes Post Pandemic - What are your thoughts?

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Will there be a significant increase in arbitration and mediation matters post COVID-19? If so, what type of industry disputes do you anticipate and why?

Please provide your thoughts and comments below.

Disputes regarding online hearings - What are your thoughts?

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During the pandemic and beyond, how should a Tribunal handle a dispute between the parties regarding whether or not to conduct hearings online? What factors come into play?

Please provide your thoughts/comments below.

Steve Herz is Founder of IF Management, President of the The Montag Group, and a talent agent and career advisor. He is the author of the forthcoming book DON'T TAKE YES FOR AN ANSWER: Using Authority, Warmth, and Energy to Get Exceptional Results (Harper Business; June 16, 2020).


America's first reality TV show was a popular and long-running hit for over three decades. Its name and famous tag line - "you're on Candid Camera" - was known to nearly every American.

Suddenly, with the coronavirus pandemic quarantining businesses worldwide and videoconferences like Zoom replacing meetings and phone calls, we are all on candid camera. This requires rethinking how we all communicate, both in the near-term period of confinement and over the long-term - because Zoom is here to stay.

There are four things you must pay attention to in order to effectively connect and communicate with people in a Zoom meeting.

1. Visual. Make sure your camera is on direct eye level so that you're making virtual eye contact with your audience. As I learned the hard way, on an iPad with an external keyboard, the camera is tilted on a very high angle, giving the viewer a bottom up (and unpleasant) view. Also be conscious of your background and message you want to convey. Zoom has a variety of virtual backgrounds, but many of them can be distracting to your audience. Choose a background that is clean and professional (or at least not juvenile). If you're not utilizing the virtual background, pay attention what's behind you. Try not to sit in front of a bright window or anything that is distracting. A nice piece of art or bookcase are great background choices, because they convey a subtle yet unmistakable professionalism. If you're unsure of the impression you're conveying, ask a trusted friend or colleague.

2. Attention. Reading people is more difficult in a Zoom call and takes a greater effort than when in person. While you are speaking, look at the screen and watch people's reactions and take note if they are looking at you and/or giving you any non-verbal cues indicating attentiveness. If you see you're losing their interest, stop. Ask a question about the specific content to see if there is some skepticism or disagreement. If not, it's your delivery that is losing them. Better to stop and take a break than continue while people tune you out. If you're speaking to one person, make "eye contact" by looking at the listener. Pay careful attention to their facial reactions as it may not be possible to read their entire body language. If you are speaking to a group of people that is muted, it's all too easy to mistake their silence for interest, which leads you to ramble longer than you should. If it's a larger group, take the opportunity to call on people by name to solicit feedback. This will hopefully keep everyone more engaged with the anticipation of being called on. Another tool you can employ with Zoom is to move closer to the camera to emphasize a point. In person this might make people uncomfortable. Like any great performer, use the spatial freedom by mixing up your camera distance. Don't worry; you won't be accused of being a close talker.

3. Inflection. When you inflect with your voice, you infect the listener with your enthusiasm, which helps you connect with them - crucial when you're communicating on a second-best platform like video. You have three verbal tools to do this - Pitch, Pace and Volume (PPV). In a virtual setting this takes a greater level of importance. We all know people who bore us with their flat, emotionless delivery - and that is with the benefit of physical closeness. On Zoom, keep them interested by keeping them off balance by varying your volume (by mixing in a soft whisper for example) and your pace by pausing more frequently (even during your sentences). If you vary your volume and your level of excitement, your pitch should naturally follow suit. Be mindful to not let your pitch get too high for too long when you're excited. Home confinement is a great opportunity to utilize the myriad of free voice tips your can find online.

4. Engagement. Ask engaging questions and exercises to get people involved. Speak in shorter, declarative sentences. The longer you speak without pausing, the more likely you'll lose the listener's focus. Ask people for collective feedback with a thumbs up or down to a question or comment to get them engaged and to create a group dynamic to the extent possible. By stopping and asking questions and soliciting feedback, at the very least, you don't give them the chance to tune out.

In my upcoming book, I introduce the concept of AWE - Authority, Warmth and Energy - as the three communication strategies that are vital to one's success. This is especially true on Zoom. It's hard to establish authority in a virtual setting. By speaking forcefully with a strong voice and eliminating filler words (ums, likes, you knows) you can overcome the obstacles. By inflecting and speaking with energy and engaging your colleagues, you'll be able to replace the missing energy usually found in person and keep everyone immersed in the conversation.

Communicating in person will always be the best way to get your message across, but video is our best alternative right now. To create a sense of connection, be mindful that what worked for you in the "real" world likely won't in this new world. By using these tips and creating a little more self awareness you can still Zoom your way to the top.

Response to COVID-19 by the ADR Providers

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Each ADR provider is offering several online resources, including online e-filings and platforms for online mediations and arbitrations.

To find out more, please see the following:

AAA-ICDR COVID-19 Update

CPR COVID-19 Resource Center

ICC-SICANA COVID-19 Messages

JAMS Coronavirus Resource

ABA COVID-19 QUICK REFERENCE GUIDE

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CONTEMPLATING LITIGATION ALTERNATIVES DURING A PANDEMIC

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By Ronald J. Levine

Ronald J. Levine is General Counsel of Herrick, Feinstein LLP and an arbitration neutral. He can be reached at rlevine@herrick.com; (212) 592-1424

With the Coronavirus pandemic, the entire world is suffering tremendous personal and economic stress and harm. Many are not only experiencing a form of grief for the impact on their lives, they are also grievants. As they sit at home, many people are contemplating taking action concerning the jobs they have lost, the services which they purchased but are not being provided, and for those who are unfortunately ill, the cause of their sickness. As with other mass injuries, the lawyers are ready and willing to step in. We are already seeing suits filed against a wide variety of defendants, from cruise lines, to gyms, to banks, to consumer product manufacturers.

While they are sitting in their remote locations, in addition to drafting complaints on their laptops, now is a good time for lawyers to brush up on their skills in utilizing alternatives to litigation, such as arbitration, and mediating settlements. Many courts have limited access, and countless lawsuits have been put on hold during the pandemic crisis. The last thing our overburdened court system needs is an influx of mass COVID-19 class actions, and legal battles in which the only winners may be the lawyers.

In order to achieve the least costly resolution of legal disputes, lawyers must encourage their clients to seek alternatives to litigation, through mediations and arbitrations (which can be done virtually on-line), rather than trying to get in the courthouse (after it has been sanitized).

In my 40 years of practice as a litigator, I have found that the reactions of litigants mirror those explored in depth by Elisabeth Kübler-Ross in her book, On Death and Dying. Ms. Kübler-Ross introduced the "Five Stages of Grief". Those stages are known by the acronym DABDA -- Denial; Anger; Bargaining; Depression; and finally, Acceptance. I have found that my clients tend to pass through the five stages as well as they journey through the litigation landscape. We know that, for better or worse, in the vast majority of cases the final stage is acceptance, or settlement.

Attorneys often have a hard time both doing battle and trying to settle at the same time. The failure to discuss an early resolution can lead to increased litigation, and unrealistic expectations. Too much time may be spent at the denial/anger and bargaining stages. Precious time and dollars will be lost before depression and acceptance set in, and a settlement is ultimately reached.

Armed with that knowledge, for years I have been advocating that counsel should be able to do a better job guiding their clients through these stages, and reaching a resolution more quickly and efficiently. Unfortunately, too many attorneys and their clients fixate on two of the early stages of the client's reaction to a lawsuit -- denial or anger. They do so almost instinctively, without evaluating the final stage -- acceptance -- at the commencement of the engagement. Studies have shown that accepting a pre-trial settlement offers may well result in a better financial outcome than proceeding to trial.

While we are being encouraged to wash our hands frequently, we need not wash our hands of drawn out litigation gamesmanship. A hard- fought litigation may be just what the doctor ordered. But, in addition to prescribing a strong prosecution or defense, it is necessary and ethically required that attorneys evaluate all alternate courses of action at the very outset of the litigation, and if appropriate, prepare the client (especially one who is a litigation novice) for the fact that settlement, like death, may be the inevitable outcome. The only question will be: Now or later? At the very least, lawyers should spend the time educating clients about alternatives to burdening the stressed court system with the client's claims.

Lawyers will be doing their clients, and the greater public, a real service if they vigorously pursue alternatives to litigations. When the storm passes, our courts will have plenty to do without having to process hundreds of thousands of lawsuits which will last far longer than the pandemic, and inflict continued pain on the litigants.

A lot has been discussed over the last few weeks about virtual arbitration/mediation hearings? Are they working, is this the right substitute for in person hearings, will this be the new norm? Are there big differences between conducting a virtual arbitration in comparison to mediation? Are you concerned about security and confidentiality breaches if you conduct a virtual hearing?

Please provide your thoughts/comments below.

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This page is an archive of entries from April 2020 listed from newest to oldest.

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