MULTIPARTY MAYHEM

1. MULTIPARTY MAYHEM NYSBA Dispute Resolution Section – Fall Meeting New York Law School October 26, 2017 Presenters: Hon. David A. Paterson (former NYS Governor) Michele Kern-Rappy (NY Supreme Court – Senior Settlement Coordinator) Simeon H. Baum (www.mediators.com) Simeon H. Baum, Esq. , Resolve Mediation Services, Inc. 1211 Avenue of the Americas, 40th floor, New York, NY 10036 (212)355-6527; fax (212) 753-0396 www.mediators.com SimeonHB@disputeResolve.com

2. Multi-Party Mayhem • VUCA • Representation Issues • Caucus Coalition Complexity • Multi-Interest, Multi-Issue, Multi-Personality • Timing on Agenda & Deal Term Solidification • Logistics – All in One Room; Stories Seriatim; String Set of Caucuses • Public Eye & PR • Group & Negotiation Definition – Where does it End? • How Maintain Quality over Clunkiness? • Group Dynamics • Micro Cultures

3. Multi-Party MayhemNYSBA DRS Fall Meeting October 26, 2017 Sausage Making Laid Bare – The Consensus Based Risk Allocation Model & Other Approaches to Multiparty Naysayers • Simeon H. Baum, Esq., Resolve Mediation Services, Inc., 1211 Avenue of the Americas, 40th Floor, New York, NY 10036 (212) 355-6527 www.mediators.com

4. Mutual Finger Pointing in the Multi-Party Case • Denial of Fault • Obsession with Percentage Share • Refusal to Pay More than X% • Insistence that other Party Must Pay Y% • Will pay up to X% if other Party Pays At Least Y%

5. Go with the Flow • Give the Parties What They Want – Opportunity to Express Their Views, Needs & Assessments • Rather than Oppose, Use This Information • Rather than Impose (Mediator’s View) Develop Consensus Based Risk & Case Value Assessment • Ultimately, with Parties’ Permission, this can be used to Resolve Case

6. Poll the Parties • What is the likelihood the Plaintiff will win at trial, and, if so, how much? • What percentage liability will be allocated to each Defendant? • How much will it cost to try this case? Take Notes

10. Develop Three (3) Pots • Trial Outcome & Transaction Costs • Probable Settlement Number • Graduated Lesser Offer Pots (GLOP)

11. Trial Outcome & Transaction Costs • A Collective, Predictive Exercise • Aided By Risk & Transaction Cost Analysis • Depends on Developing Trust in the Mediator & the Process

16. Divvy It Up • Collective View of Percentages • Overcoming Bias of Single Party with Law of Averages • Overcoming Gamesmanship by Single Party

18. Convert To $$$ • Move from Percentages • Shift from Comparative/Relational Contribution Analysis • Apply to Predicted Trial Outcome • Apply to Combined Trial Outcome & Costs

21. Power of Numbers • Collective Sense Overcomes Individual Party Skewing – Spinmeister, Hardball Negotiator, Low Profiler, Finger Pointer • Tyranny of the Majority? The Target Defendant • Finding “Fat”

25. Probable Settlement $$$ • Based on Conversations with Plaintiff • Guided by Conversations with Defendants, Crystallized through Caucuses and Spreadsheets • Can Be Seen As Percentage of Averaged Trial Outcome & Transaction Costs • Interesting to Compare to Predicted, Averaged Trial Outcome

26. Graduated Lesser Offer Pots (GLOP) • Permit Incremental Increases • Made as Percentage of Predicted Settlement Pot • Builds Trust with Defendants • Creates Sense of Control • Offers Stepped Approach to Gaining Contributions From Reluctant Defendants

28. Joint Defendant Conference Call • Explain Process • Get Permission - Confidentiality • Consensus Based Risk Allocation • Questions on Mediator Adjustments • Time for Consideration • Telephone Caucuses • Further Adjustments • All At Once or Pot by Pot

29. Divide & Conquer • Group 1 – The Gang • Remaining Party – The Reluctant Target

30. Multi-Party Fraud Matter

31. Multi-Party Fraud Matter • Family • Friends • Community • Counsel • Insurer • Court

32. Preparation

33. Preparation • Joint & Separate Conference Calls • Pre-Mediation Statements • Spreadsheets • Helpful Counsel • Power of Interpleader

34. Spreadsheets • Classes & Flexible Class “Keys.” Examples: • Collateral Assignments Recorded, Unrecorded • No Collateral Asst but Promissory Notes • No Note, but Other Documentation • Claim only; Latecomer • Space for Info Gathering

35. The Human Touch • Hand On Shoulder • Hidden Widow • Shared Suffering • Opening Statement • Food • Later Caucuses

36. Mediator’s Opening • Look Across the Table; All Suffering • Tragic Event • Chance to Resolve; All Must Agree • Resources Available; Cannot Be Made Whole; Limited Fund Just for You • Better to Resolve Now Than Litigate – Delays, Many Creditors, No Other Resources

37. Opening Statements & Joint Session • Counsel Suggest Their Party Has Top Rights • Pro Se • SHB Summary • Power of Spreadsheets • Resolve Fees with Insurers • Late Caucuses

38. Resolution & Crises • Enter the Widow • Counsel Assist • Power of the Group

39. Surprise SequelThe Power of One • World Traveler Returns • Notice Issue • Standards & Compassion • Capable Counsel as Friend of Deal • Drive to Completion, Desire for Finality • Momentum • New Spreadsheet Column

40. Working When Powerless Wu – Wei Non-Doing

41. Forum Selection Food Lunch Copenhagen

42. Representation Issues Hidden Constituency & Influencers Determining True Group Representative Principal/Agent Challenges Divergent Interests In Group or Groups Team Relations

43. Public, Publicity & PRThe Greatest Sized Multi-Party Symbolism Press Public Danger of Narrow Focus

44. Leverage in Multi-Party Negotiations & Mediations • Use and abuse. • Delicacy in communication.

45. Trust & ConfidenceEssential to Team Building • Corporate Coach Lessons • Beware Reactivity • Hold Dinners; Set Agenda • Create Space • Confidentiality is Key. Its absence Chills Effectiveness & Team Cohesion

46. Asymmetrical Demobilization

47. Power in Numbers

48. Tell Us Your War StoriesWe Are All Ears

49. Preparation

50. Opening Statement “Let’s start at the very beginning, it’s a very good place to start.”