Ten Quick Leadership Goals

Let’s see a quick show of hands. Who is stressed? Who is busy? Forget the nice expression “Zoom fatigue,” who is Just. Over Zoom. Period.? If the answer is yes to one  or more questions, you’re not alone.

But chances are, you neither have the time or energy to read a “touchy-feely” piece about how we’re all in this together and brighter days are ahead. Rather, here are ten quick, straightforward tips that were chosen from the ABA Bar Leadership Institute featured as “Making the Most of the Moment: 40 Tips for Bar Leaders’ that took place last week. And, yes, only a quarter of the tips are being featured in the interest of time. If you want to know more, just let me know.

1. Be authentic.
2. Put on your own oxygen mask first.
3. What’s your mantra?
4. Communicate to build trust.
5. Lead with compassion. Show people some grace, and start with yourself first.
6. Laughter is good.
7. Communication is the key to a successful and unplanned year.
8. Communicate clear boundaries about what you can and can’t do at any given time.
9. Double down on connection.
10. It doesn’t matter if you fall down 7 times, as long as you get up 8.

Simple enough, right? Maybe a little too simple and maybe harder to actually put into practice, all at the same time. Nevertheless, as leaders, advocates, counselors, and life learners, let’s pause and seek to implement the advice above. It can’t hurt to do so. Most importantly, let’s move forward implementing tip 5.  Show others grace but start with yourself first.

That’s all.

Kristina Bilowus

Michigan State University College of Law

East Lansing

Mediation Methodology: What to Avoid Doing

As a follow up to a posting a couple weeks ago, I indicated there would be a second article detailing what not to do at mediation. Scott Brinkmeyer was one of the speakers who presented during the joint webinar on 2/18/21 between the ADR Section and the YLS. Read on to learn more about what Scott says are “no-nos” during mediation.  (The following material has been found in Scott Brinkmeyer’s handout entitled “Seven Highly Unsuccessful Habits of Mediation Advocates.”)

First and foremost, he cautions about the danger of not involving the client in planning and strategizing the mediation session. Rather, the attorney advocate should explore the client’s expectations about possible outcomes to determine if the client’s vision of the end result is realistic and attainable. Additionally, time should be spent counseling the client concerning risks at trial, cost of litigation, and analyzing the other side’s position. Secondly, to ensure a well-developed strategy, Scott advises that the advocate should create a series of possible moves, similar to a chess game strategy, rather than leaving the process up to the mediator. Rather the well-prepared advocate develops a detailed strategy, incorporates the client’s opinion regarding the same, and analyzes the opponent’s position.

Scott’s third tip flows naturally from the second where he encourages attorneys to prepare for mediation as if they were preparing for trial. You wouldn’t “wing it” for trial, why do so for mediation? While considering your plan of action and preparation, Scott encourages zealous advocacy to be kept in moderation. Mediation is about compromise and facilitative behavior. Therefore, be prepared to advocate for your client but also be prepared to make some concessions.

The next tip? Avoiding joint sessions at all cost. During mediation, Scott advises that joint sessions between the parties and attorneys can be helpful. Rather than head straight into caucus, consider keeping everyone in the room for part of the session.  As a mediator, Scott indicates the following  scenario as middle ground, “begin the session by listing on a board all of the issues I’ve gleaned from the parties’ documents and pre-mediation calls, verbally summarize my understanding of their respective positions and either confirm that the list is complete or add what may missing.”

The last two tips are fairly straightforward but are also worth their weight in gold. Lack of effective listening is tip number six. Scott indicates that “too many of us fail to listen effectively, and becoming an effective listener is not only good advice in social discourse, it can be critically important for mediation advocates.” As advocates, we must learn how to ask good, open-ended questions as well as listen closely. Both skills will help advance the chances of developing a nuanced settlement. Additionally, the last habit to avoid is “not putting your cards on the table.” While sometimes it is important to withhold information until a more advantageous time in the case strategy, Scott warns against duplicitous behavior as well not sharing enough information that can help move the case forward. Clients should be prepared by their attorneys for all stages of mediation and actively participate in the negotiation process.

In sum, Scott provides several valuable and insightful tips for preparing the client for mediation as well as navigating the process. By incorporating both Shell’s and Scott’s techniques, we can advance as lawyer advocates in our ADR practice.

Kristina Bilowus

Michigan State University College of Law

East Lansing

Meet ABA YLD Chair-Elect Choi Portis!

As previewed on Facebook, SBM YLS is excited to bring you an in-depth interview with American Bar Association Young Lawyers Division (ABA YLD) Chair-Elect, Choi Portis. Read on to learn about how she got involved and her upcoming plans for the Division!

How long have you been involved in the ABA?  What prompted your interest?  I have been involved in the ABA since 2014. I became interested in being involved after attending a Midyear Meeting as a Delegate for the State Bar of Michigan Young Lawyer Section. I ran and was elected as our District Representative and have been involved ever since. 

What can you tell us about the process that led you to become the almost-Chair? The YLD "chair-line" is a three-year process. A person who is interested in becoming YLD Chair must run for YLD Secretary. They serve as Secretary for a year, the following year, they serve as Chair-Elect, and then Chair of the Division.

What are you looking forward to during your Chair year?  What are your plans/goals for the year? I am looking forward to continuing the good work that previous Chairs have put in place, but also serving the Division and leaving my own legacy for the Division. The theme of next year is Resilience in the Face of a New Renaissance. I have three specific plans that I hope to see executed next bar year. First, continuing the work of Past Chair Tommy Preston with the Men of Color Project, I am looking to conduct a longitudinal study on Men of Color in the Profession. Second, this will be the Division's inaugural year for the Women of Color Project, which will highlight Women of Color in various areas of the legal profession, such as corporate counsel, and the judiciary. Lastly, I am very excited to roll out my Public Service Project, entitled Operation Second Chance, which will be a two-part project. The first part will focus on providing resources and tools to YLD affiliates across the nation to implement and host expungement fairs. The second piece will be a collaboration with the policy side of the YLD in which we will provide information and advocate for the restoration of voter rights for returning citizens. 

How do you believe your YLS involvement has helped prepare you for your YLD leadership?  I believe my YLS involvement definitely prepared me for YLD leadership. Planning programming and networking in the SBM YLS started the foundation for my path to YLD leadership.

As an attorney, mother, & active bar member, do you have any advice for folks who want to get the most out of all aspects of their lives?  My first piece of advice is to make time for yourself. As lawyers, so much is required and you simply cannot pour from an empty cup, you have to make time to restore yourself. My second piece of advice is to show yourself some grace. We often try to be superhuman in our efforts to wear all the hats that we wear as lawyers, parents, partners, and community members. You have to show yourself some grace and realize that you are only human, things will happen, but show yourself some grace. My third piece of advice is to make sure you are taking care of yourself physically and mentally. Just like a car cannot operate if it needs maintenance, neither can you. Make sure you are fueling your body and your mind with things that will keep you firing on all cylinders. 

What's been your favorite thing about the YLD so far? My favorite thing about the YLD has been the ability to connect with lawyers from all across the country. Many of whom have become not only colleagues in the profession, but friends.  

What's your favorite thing about Michigan?  Do I have to pick just one? If I had to pick one thing, my favorite thing about Michigan would be Detroit! Detroiters have heart, grit, drive, swag, and extreme resilience.

Mediation Methodology: Tips for a Successful Session

 

On February 18, 2021, the ADR Section and YLS came together for a joint webinar concerning effective advocacy at mediation. As many know, mediation may be the closest a client gets to “having their day in court.” For various types of cases, the end result is often in some form of a negotiated settlement, as only a small percentage of cases actually go to trial.

For this specific webinar, mediation was the highlighted form of alternative dispute resolution (ADR). The panel featured Sheldon (“Shel”) J. Stark, Scott Brinkmeyer, and Nakisha Chaney. All three speakers are truly “giants” in the Michigan field of ADR and brought a wealth of experience.

The interactive discussion tackled different topics such as mediator selection, preparing clients for mediation, overcoming hurdles to settlement, effective written mediation practices, and developing an overall negotiation strategy. As the presentation was interactive in nature, questions were answered throughout the discussion as well at the end. Thus, it created an ongoing dialogue between the audience and the panel. While virtual, one almost had the feeling as if gathered in one physical place, as there was a strong spirit of collegiality.

In addition to the content presented, both Scott and Shel shared written resources with the attendees. For the purposes of today’s edition, Shel’s information is being featured with Scott’s advice to follow next week.

Specifically, Shell identified thirteen areas attorneys should focus on preparing for mediation as well as steps to take during the mediation session as outlined in his article, Making an Effective Presentation at Mediation: A Guide to Crafting and Presenting Your Preliminary Remarks.

First, he indicates preparation is key as “experience teaches that the more you prepare, the better your presentation will be.” He then goes on to indicate how preparation sets the stage for the various steps in a mediation by being sincere and true to oneself, while also knowing the audience at mediation by directing remarks to the decision maker (i.e. the other party).

From a logistical standpoint, Shel advised that opening remarks should be concise, he encouraged notetaking throughout the session, and suggests putting together an agenda for the mediation. From a humanistic standpoint, he advised against speaking strictly from notes. Rather, he encourages eye contact and using a first-person narrative.

Substantively, Shel advised attorney advocates to recognize that there will be conflicting viewpoints between the oppositional parties. Therefore, honesty and credibility are crucial elements at the mediation table. As advocates, recognition of your case’s weaknesses as well as crafting a plausible story for your client is important. Furthermore, the role of the attorney, is important. Unlike the more traditional “zealous” approach to advocacy one often sees in court, an attorney that is advocating in mediation comes to the bargaining table as a “joint-problem solver” – seeking to understand where the other side is coming from. While the advocate still represents their client’s interests, they should also be prepared to make reasonable concessions and act diplomatically.

Shel’s final two points are golden nuggets of straightforward, yet often forgotten, common sense. He encourages the attorney advocate to listen to both their client, the other side, and understanding the various aspects of the case. Moreover, he encourages us to make use of what is learned. As he puts it, “[t]he more you know and understand the better able you will be to decide” … and “whether to manage your risks and reach an agreement with which all sides can live.”

As one may gather, there are many considerations when acting in the role as an advocate in mediation. Stay tuned for next week’s follow up by flipping the script as Scott explains what NOT to do at mediation!

Kristina Bilowus

Michigan State University College of Law

East Lansing