Mediation Choices for Effective Representation and Advocacy Monday, October 29, :00 a.m. 6:00 p.m. New York State Bar Association Program Agenda

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1 Program Agenda 8:30 a.m. Registration 8:45 a.m. - 9:00 a.m. Welcome and Introductions 9:00 a.m. - 10:30 a.m. Session 1: Preparing for Mediation and Selecting the Mediator 10:30 a.m. - 11:00 a.m. Refreshment Break Strategic preparation in advance of a mediation session is essential in order to efficiently settle a case. Through interactive vignettes and group discussion, this panel will discuss how to effectively prepare for a mediation session. The discussion will include how to engage the other side in a mediation, managing client expectations, strategically selecting a mediator, and developing a negotiation strategy tailored to the mediation process. Key Benefits of Mediation Managing Client Expectations Strategic Mediator Selection Developing Mediation Strategy Elizabeth Shampnoi, Esq., Mediator/Director of Mediation and Conflict Resolution, New York City Commission on Human Rights Lauren J. Wachtler, Esq., Co-Chair, Litigation Department, Phillips Nizer LLP. Lauren focuses her practice on commercial and business litigation with extensive representation of clients in a wide range of jury and non-jury trials. She is a former chair of the Commercial & Federal Litigation Section of the Robyn Weinstein, Esq., is the ADR Administrator at the United States District Court for the Eastern District of New York. Prior to her current role, Ms. Weinstein served as a fellow at the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, where she is currently an adjunct professor of mediation and negotiation. James M. Wicks, Esq., Partner and General Counsel of Farrell Fritz PC, Adjunct Professor at St. John s Law School, practice focused on commercial and business disputes. 11:00 a.m. - 12:30 p.m. Session 2: You Get Out of It What You Put Into It! Mediation Preparation Preparing for the mediation may be as important as the mediation session itself. When counsel and parties walk into a session without having necessary information or without having thought through positions, interests and how they will negotiate inevitable impasses, they risk wasting time and resources. You will learn how to effectively

2 12:30 p.m. - 2:00 p.m. Lunch prepare for a mediation so that you and your clients stand in the best possible position to find a resolution. From the moment mediation becomes a part of your case, there s a lot to consider. Our panelists will outline and provide guidance to advocates on how to begin the mediation process starting from the first phone call with the mediator to statements at the opening session. Developing strong pre-mediation checklists so as to prepare clients, adversaries, the mediator and most importantly, self. Utilizing submissions and pre-mediation phone calls to give and get information, demonstrate strength and flexibility. Using the joint session to set the foundation for the day and the resolution. Krista Gottlieb, Esq., After starting her practice as a litigator in New York City in 1980, she moved to Buffalo in 1986 where she became a managing partner at Mattar, D Agostino & Gottlieb, LLP until She is now expanding her appropriate resolution practice as a neutral, mediator, arbitrator, settlement counsel or resolutionary. Mark Morril, Esq., Morril ADR; he is an independent arbitrator and mediator who focuses on complex commercial disputes. He is a Fellow of the Chartered Institute of Arbitrators and is on the roster of leading alternative dispute organizations in the United States and other countries. He previously served as General Counsel of Simon & Schuster and as Deputy General Counsel of the global media company Viacom. Adam J. Halper, Esq., Director of the Legal Wellness Institute (LWI) at The Family Center where he leads a team of lawyers, paralegals and pro bono volunteers who represent vulnerable New Yorkers in a wide variety of litigation and transactional matters. Careful the Things You Say: Ethics for Negotiators 1:10 p.m. 2:00 p.m. New York Law School Prof. F. Peter Phillips will explore the thorny grounds of puffery, lying, client support, fraud, and other delights of negotiation in this entertaining and interactive presentation. F. Peter Phillips, Esq., Distinguished Adjunct Professor of Law, Director, Alternative Dispute Resolution Skills Program, NYLS 1.0 MCLE Credit in Ethics

3 2:00 p.m. - 3:30 p.m. Session 3: Negotiating Within the Mediation 3:30 p.m. - 3:40 p.m. Refreshment Break This panel will explore how you can apply negotiation theory and skills to maximize value for your client during the middle stages of a mediation. Learn how best to use the mediator to gather, analyze and communicate information; handle choppy emotional waters; assess risk; deliver tough news to the other party; determine what matters most to you and other parties; and help you move towards a deal during the middle, core, phases of mediation. You will be brought face to face with one of the toughest questions in case bargaining: how to handle the spigot of disclosure knowing when and how much information to disclose, both to the mediator and to the other parties. Client counseling and role division Adjusting the spigot of disclosure delivering the right information at the right time in a well-crafted message Building effective risk and transaction cost analyses Simeon Baum, Esq., President, Resolve Mediation Services, Inc. has conducted over 1,000 mediations since He is Founding Chair of NYSBA's Dispute Resolution Section, and for over 20 years has written on ADR, and taught and trained mediators, law students, and counsel, including those on the Commercial Division's ADR panels. Ed Frischling, Esq., is an Assistant General Counsel for a Fortune 500 global beauty company, providing employment law advice, counseling and support for the North America region. He is also a Lecturer-in-Law on Negotiation at Columbia Law School. Yun G. Lee, Esq., is Associate General Counsel with AIG Investments, and has been with AIG s Corporate Litigation Department since At AIG, Ms. Lee is involved in pre-litigation dispute resolutions as well as litigation, arbitration, and regulatory matters in the U.S. and abroad. Prior to her in-house role at AIG, Ms. Lee spent over ten years in private practice in New York. Paul Sarkozi, Esq., is Co-Chair of the Litigation and Dispute Resolution Department at Tannenbaum Helpern Syracuse & Hirschtritt LLP, a former Chair of the NYSBA's Commercial and Federal Litigation Section and a Lecturer-in-Law on Negotiation at Columbia Law School.

4 3:40 p.m. - 5:10 p.m. Session 4: Speed Bumps Along the Road to Resolution: Avoiding Impasse and Closing the Deal This panel will discuss what to do when a mediation appears to be falling apart and resolution of the dispute seems further away than at the outset. The panel will also discuss how to ensure that a successful mediation ends with a binding agreement. The first half of this segment will explore how to determine the factors at play in a stalled mediation and what you can do about them. The panelists will talk about tools you have for getting your adversary, the parties and the mediator back on track, including: Identifying stumbling blocks and redefining goals Using arbitration techniques Strengthening the mediator s hand Calling for a break In the second half, the panelists will discuss how to ensure that you walk away with a binding deal including: The terms and conditions of a binding MOU Using the mediator to assist in drafting Keeping everyone in the room until the sign off David M. Brodsky, Esq., Brodsky ADR LLC (Mediations and Arbitrations); he is a full-time neutral, after having been a federal prosecutor, partner in three law firms, and general counsel of an international investment bank over a 50-year career. Stephen A. Hochman, Esq., a full-time mediator, arbitrator and ADR trainer, after having specialized in corporate, commercial and securities law in several law firms for over fifty years. Michael Kreitman, Esq., Senior Counsel, Law-Employment, Macy s, Inc.; Supporting the stores and support operations of Macy s and Bloomingdale s brands in all aspects of employment and labor law, and is a mediator on the SDNY Panel for Employment cases. Barbara S. Mehlsack, Esq., Partner, Gorlick, Kravitz, & Listhaus, P.C.; she leads her law firm s employment, employee benefits, and labor litigation practice, as well as engages in an active mediation practice. 5:10 p.m. - 6:00 p.m. How Mediation Works in Practice A Discussion of the Advocate s best overall approach to the Mediation Process, with emphasis on the important themes raised

5 6:00 p.m. Adjournment during the day s discussion. What is best for the client and how should the advocate s approach vary depending on the venue, the style of the mediator, and the matters at issue? Building on the tools provided during the day Mediating with lawyers you know versus those you do not effect on the negotiation and your approach. Balancing a desire not to be aggressive with the need to effectively convey your position Change in negotiating tactics when in-house and outside counsel are present Darya Geetter, Esq., Executive Vice President, Deputy General Counsel, Head of Litigation, Privacy, and Insurance, LPL Financial, is responsible for managing all litigation and arbitration matters impacting the company and its advisors, and uses mediation in most matters. Prior to that she has served as Deputy General Counsel for MF Global, UBS and Bear Stearns. She was an Assistant U.S. Attorney for the District of Columbia, a Senior Trial Attorney at the US Department of Justice, and clerked on the federal district court. Robert N. Holtzman, Esq., Kramer Levin Naftalis & Frankel LLP Chair of the Commercial and Federal Litigation Section. Mr. Holtzman represents employers in employment law and executive compensation matters and is Co-chair of Kramer Levin s Executive Compensation practice. He regularly employs alternative dispute resolution, including both mediation and arbitration, in connection with employment disputes. Daniel F. Kolb, Esq., Davis Polk & Wardwell LLP, Litigation Partner at Davis Polk for over forty years, now Senior Counsel, serving very frequently as a mediator. Immediate Past Chair of the NYSBA Dispute Resolution Section and current Co-Chair of the New York City Bar s President s Committee on the Efficient Resolution of Disputes. 9.0 MCLE Credits: 1.0 in Ethics, 8.0 in Skills