31st Annual ADR Institute

2024

ADR INSTITUTE Co-hosted by: Georgia Office of Dispute Resolution State Bar of Georgia Dispute Resolution Section

THURSDAY, NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

OFFICIAL CONFERENCE PROGRAM

COPYRIGHT © 2024 BY THE GEORGIA OFFICE OF DISPUTE RESOLUTION (GODR). ALL RIGHTS RESERVED. NO PART OF THIS PUBLICATION MAY BE REPRODUCED OR REPRINTED, ELECTRONICALLY PUBLISHED, STORED IN A RETRIEVAL SYSTEM, TRANSMITTED, DISTRIBUTED, OR OTHERWISE, WITHOUT THE PRIOR WRITTEN PERMISSION OF GODR. THIS PROGRAM AND ITS MATERIALS HEREIN DO NOT CONSTITUTE LEGAL ADVICE. THE OPINIONS OF PRESENTERS AND PROGRAM MATERIALS ARE NOT NECESSARILY THAT OF THE GEORGIA OFFICE OF DISPUTE RESOLUTION, THE SUPREME COURT OF GEORGIA COMMISSION ON DISPUTE RESOLUTION, OR AFFILIATES; THESE ENTITIES DO NOT ASSUME ANY LIABILITY FOR INCORRECT INFORMATION OR ASSOCIATED DAMAGES OR LOSS. ALL INFORMATION PROVIDED IS CURRENT AS OF NOVEMBER 1, 2024.

COPYRIGHT © 2024 BY THE GEORGIA OFFICE OF DISPUTE RESOLUTION

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31ST ANNUAL ADR INSTITUTE

IN MEMORIAM

Robert Allen "Bob" Berlin September 4, 1939 ~ November 22, 2023 Full obituary at: https://www.hartsmort.com/obituary/RobertAllenBob-Berlin

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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TABLE OF CONTENTS

31ST ANNUAL ADR INSTITUTE

PREFACE Forward

5

Sponsors

7

Venue Information

19

Harold G. Clarke Award

23

Program Agenda

25

I. HIGH CONFLICT PERSONALITIES Session Information

27

Speaker Biography

28

Session Materials

29

II. APPLYING THE CARS METHOD Session Information

77

Speaker Biographies

78

Session Materials

79

III. INTEGRATING AI RESPONSIBLY Session Information

91

Speaker Biographies

92

Session Materials

93

IV. HANDS-ON WITH AI Session Information

189

Speaker Biographies

190

Session Materials

191

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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TABLE OF CONTENTS

31ST ANNUAL ADR INSTITUTE

V. ADVANCED PROBATE ISSUES Session Information

209

Speaker Biographies

210

Session Materials

213

VI. GA CHILD SUPPORT UPDATES Session Information

225

Speaker Biographies

226

VII. ARBITRATION - WHO DECIDES? Session Information

229

Speaker Biography

230

VII. ETHICS IN MEDIATION Session Information

232

Speaker Biographies

233

POSTFACE

233

GA Commission on Dispute Resolution

234

GCDR Committees

235

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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31ST ANNUAL ADR INSTITUTE

WELCOME TO THE 31ST ANNUAL ADR INSTITUTE Welcome to the 31st Annual ADR Institute, co-sponsored by the Supreme Court of Georgia Commission on Dispute Resolution and the Dispute Resolution Section of the State Bar of Georgia. For three decades, the ADR Institute has been the premiere dispute resolution conference in Georgia, drawing a variety of professional disciplines and featuring both local and national speakers. It has and remains our goal to provide our attendees with quality speakers, informative content, and concrete takeaways which you may implement into your practice.

We are delighted and honored to have well over 500 attendees for this event. We appreciate those who are attending in person and are grateful that those who, while unable to be with us in person, are watching the livestream.

The success of any conference depends on the people behind the scenes, and the ADR Institute is no different. There are many individuals who have contributed to the planning and execution of this event, and we would like to take this opportunity to give special recognition to a few: Shan Momin, Chair of the Dispute Resolution Section; Kriste Pope, Carole Griffith, and Jasmine Jackson of Judicial Council/Administrative Office of the Courts; the ADR Institute Planning Committee; our many

PREFACE

sponsors; the State Bar Conference Center Staff; and Karlie Sahs, Deputy Director of GODR - without her, none of this would be possible.

Please mark your calendars for November 20, 2025, as we are planning for the 32nd Annual ADR Institute. In the meantime, please let us know how we can be of service to you.

Kindest Regards, Tracy B. Johnson Executive Director Georgia Office of Dispute Resolution

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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31ST ANNUAL ADR INSTITUTE

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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31ST ANNUAL ADR INSTITUTE

SPONSORS

DIAMOND SPONSORS

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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Where Atlanta Lawyers Go To Settle The Significant Cases Since 1996, Atlanta lawyers have counted on Henning’s panel of experienced, award-winning neutrals to successfully take on over 35,000 cases. As the original pioneers in collective mediation, we know the importance of experienced mediators, state-of-the-art facilities, and a personal touch that makes the mediation process smoother for all involved.

Call 770-955-2252 today to schedule your next mediation – and see why Henning Mediation and Arbitration is the gold standard in dispute resolution.

770.955.2252

henningmediation.com

TRAINING

VIRTUAL

NEUTRALS

MEDIATION

8

Where Atlanta Lawyers Go To Settle The Significant Cases 770.955.2252

henningmediation.com

Since 1996, Atlanta lawyers have counted on Henning’s panel of experienced, award-winning neutrals to successfully take on over 35,000 cases. As the original pioneers in collective mediation, we know the importance of experienced mediators, state-of-the-art facilities, and a personal touch that makes the mediation process smoother for all involved.

MEDIATION

NEUTRALS

VIRTUAL

TRAINING

Call 770-955-2252 today to schedule your next mediation – and see why Henning Mediation and Arbitration is the gold standard in dispute resolution.

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*Winner will be announced via LinkedIn on , February 1 2025.

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31ST ANNUAL ADR INSTITUTE

PLATINUM SPONSOR

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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Daniel Serviansky Faculty Director Graduate Program in ADR adrcert@uga.edu law.uga.edu/ADR 14

31ST ANNUAL ADR INSTITUTE

GOLD SPONSORS

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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16

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31ST ANNUAL ADR INSTITUTE

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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31ST ANNUAL ADR INSTITUTE

STATE BAR OF GEORGIA CONFERENCE CENTER

VENUE INFORMATION

104 Marietta Street NW, Atlanta, GA 30303

CONFERENCE SPACE To access the conference space from the street, you will need to hit the door buzzer and tell security that you are there for a conference. You will then through the front lobby, make a left at the security desk, then take the stairs or elevator up to floor 3.

To access the conference space through the parking garage, enter through the South West door on garage level 6. There is an elevator in the center on each parking level.

The registration table will be set up outside of the Auditorium. You may check in on Thursday morning, beginning at 8:00 AM. Breakfast and refreshments will begin service at 8:00 AM. The program will begin promptly at 8:30 AM..

Track I sessions will be held in the Auditorium.

Track II sessions will be held in Room A. The Georgia Courts Registrar will be onsite to assist with neutral registration renewal (not required) in Room 5.

A floor map of the conference space has been provided to you in this conference program.

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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31ST ANNUAL ADR INSTITUTE

STATE BAR OF GEORGIA CONFERENCE CENTER

VENUE INFORMATION

104 Marietta Street NW, Atlanta, GA 30303

PARKING Covered (garage) parking is attached to the State Bar building. Vehicles can access the garage through a single lane on Ted Turner Drive NW or from the main entry on Marietta St. NW (driving south). Vehicles moving North on Marietta St. will need to pass the building, then turn around to avoid the street median. The Conference Center is on Floor 3 of the building, which is accessible from level 6 of the parking garage.

Parking can be validated at the security counter (to the right) after entering the building from the parking garage.

Please bring your parking ticket with you to receive a validation sticker.

Be sure to hang onto your parking ticket all day!

Upon exiting the building, you will simply enter your validated ticket into the machine and wait for the parking arm to raise.

Please note that overnight parking is not allowed.

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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LACTATI ON ROOM

Ladi es’ Room

Men’ sRoom

Ladi es’ Room

Audi t or i um

Room A

Tr ackI ISessi ons Men’ sRoom

Br eakf ast

Fr om Par ki ng

Room 5

Val i dat ePar ki ng

St at eBarofGeor gi a Conf er enceCent er Fl oor3

Neut r al Regi st r at i on Renewal

Conf er ence Regi st r at i on Checki n

Tr ackISessi ons

Gol d Sponsor Tabl es

Di amond& Pl at i num Sponsor Tabl es

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31ST ANNUAL ADR INSTITUTE

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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31ST ANNUAL ADR INSTITUTE

CHIEF JUSTICE HAROLD G. CLARKE AWARD

ABOUT GCDR and the State Bar Dispute Resolution Section created the Clarke Award in 2013 to honor the memory of the late Supreme Court Chief Justice Harold G. Clarke. From 1990 to 1994, when Clarke served as Chief Justice, he led the Supreme Court and the State Bar of Georgia in creating a system of processes- such as mediation, arbitration, and early neutral evaluation- that helped courts manage their heavy dockets and that offered litigants productive ways to resolve their legal disputes outside of litigation.

Past Recipients: 2013 – Ansley B. Barton, Esq., Registered Neutral, Approved ADR Trainer, and founding Director of GODR 2015 – Edith B. Primm, Esq., Executive Director of the Justice Center of Atlanta & former GCDR Chair 2016 – Douglas H. Yarn, Esq., Professor of Law at Georgia State University College of Law 2017 – R. Wayne Thorpe, Esq., ADR Neutral for JAMS 2018 – Raytheon Rawls, Esq., Senior Public Service Faculty at the J.W. Fanning Institute at UGA 2019 – Melissa C. Heard, MSSW, Registered Neutral, Approved ADR Trainer, and FEMA Reservist 2020 – Herbert H. (Hal) Gray III, Esq., Managing Partner of Ragsdale, Beals, Seigler, Patterson & Gray, LLP 2021 – John A. Sherrill, Mediator & AAA Arbitrator, Retired Senior Partner of Seyfarth Shaw LLP 2022 – Hon. Charles E. Auslander, III, Athens-Clarke State Court Chief Judge & former GCDR Chair 2023 – Terrence Lee Croft, Esq., arbitrator, mediator, and special master at JAMS

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31ST ANNUAL ADR INSTITUTE

2024 CLARKE AWARD RECIPIENT ELEANOR CROSBY LANIER, ESQ. Eleanor (Ellie) Crosby Lanier retired from the University of Georgia School of Law on July 1, 2020. She served as associate dean for clinical programs and experiential learning and was a clinical professor teaching General Civil Mediation and Elder Law. She also managed students participating in the law school's Mediation Clinic, which serves Athens-Clarke County.

Ellie is a registered mediator and arbitrator with the Georgia Office of Dispute Resolution and is qualified to mediate a wide range of disputes. Her teaching and mediation activities are informed by over 20 years of experience in providing and improving the delivery of legal services to older persons in Georgia, where she developed and managed the Georgia Senior Legal Hotline. She has been a pioneer in promoting the use of mediation in elder care disputes, providing training for mediators in several states and working with the Association for Conflict Resolution to develop training objectives for mediators in elder care, long-term care and adult guardianship cases. She has published law review articles on adult guardianship and the ethics of Medicaid estate planning as well as numerous articles for the Georgia Bar Journal and for ABA publications including the Commission's Bifocal and the Senior Law Division's Experience magazines.

A member of the State Bar Access to Justice Committee, she is passionate about increasing access to justice and finding ways to introduce law students to creative ways to address unmet needs for legal help. She is an active trainer at continuing legal education sessions and national conferences on topics ranging from ethics and professionalism to dual practice traps in mediation.

Ellie Lanier has devoted her entire career to serving the underserved and disadvantaged, making significant contributions to expanding access to justice. Most recently, her efforts have focused on enhancing probate mediation in Georgia, where she played a pivotal role in developing training curricula and assisting with the inaugural execution of training for mediators. Her work has ensured that mediators are well-prepared to handle complex probate matters, helping families navigate sensitive and emotionally charged disputes with professionalism and compassion.

In addition to her contributions to probate mediation, Ellie's leadership extends to close collaboration with courts, legal professionals, and mediation experts to create more inclusive and effective dispute resolution systems. She has consistently championed innovative approaches to make mediation services more accessible to those in need, particularly marginalized communities. Ellie’s unwavering dedication has resulted in the creation of sustainable training programs that continue to enhance the quality and availability of mediation services across Georgia. Her work has had a measurable impact, including an increase in the number of trained probate mediators, improved outcomes for families involved in probate disputes, and greater public awareness of the benefits of mediation.

As a panelist at the 31st Annual ADR Institute, you can read more about Ellie Lanier in the section which outlines her session Advanced Probate Issues: Beware of the Shadows.

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AGENDA APPROVED CLE HOURS: 6 GENERAL CLE HOURS, INCLUDING 2 ETHICS + 5 TRIAL

START

8:30 AM

END

TRACK I

TRACK II

LI V E - S T R E A ME D + RE CO RD ED

NO T LI VE -S TR E A ME D B UT RE CO RD ED

AUDITORIUM

ROOM A

NEUTRAL REGISTRATION RENEWAL Georgia Courts Registrar Staff

4:30 PM

ROOM 5

7:30 AM

8:30 AM

Registration & Breakfast

8:30 AM

8:45 AM

WELCOME AND PROGRAM OVERVIEW Justice John J. Ellington with Chief Judge Cindy Morris, Tracy B. Johnson & Shan Momin, Esq. AUDITORIUM

8:45 AM

Understanding and Managing High Conflict Personalities

9:45 AM

Bill Eddy, LCSW, Esq. AUDITORIUM

9:45 AM

10:00 AM

BREAK

10:00 AM

11:00 AM

Applying Four Techniques of the CARS Method in Dispute Resolution Bill Eddy, LCSW, Esq. AUDITORIUM

11:00 AM

11:15 AM

BREAK

11:15 AM

12:15 PM

Integrating AI Responsibly: The ASPEN Protocol for Ethical Practice Susan Guthrie, Esq. AUDITORIUM

Tha nk you to o ur d iamo nd s po ns or s

A D R I N S T I T U T E AG E N D A

PA G E 1 OF 2

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AGENDA APPROVED CLE HOURS: 6 GENERAL CLE HOURS, INCLUDING 2 ETHICS + 5 TRIAL

START

12:15 PM

END

TRACK I

TRACK II

LIVE-STREAMED + RECORDED

NOT LIVE-STREAMED BUT RECORDED

AUDIORIUM

ROOM A

Lunch & Harold G. Clarke Award Presented by: Edith B. Primm, Esq.

1:00 PM

AUDITORIUM

1:00 PM

2:00 PM

Hands-On with AI: Practical Tools for Advanced Probate Issues: Beware of Mediation Professionals the Shadows Panelists: Eleanor Crosby Lanier, Esq.; Hon. Susan Schaffer.; and Brian Carney, Esq.

Susan Guthrie, Esq. AUDITORIUM

2:00 PM

2:15 PM

2:15 PM

3:15 PM

ROOM A

BREAK Recent Updates to the Child Support Guidelines

Arbitration - Who decides?

(And what happens when they don’t)

Panelists: Noelle Lagueux-Alvarez, Esq.; Kurt C. Bryan.; and Latoinna Lawrence

N.S. Ken Kendrick, Esq.

AUDITORIUM

ROOM A

3:15 PM

3:30 PM

BREAK

3:30 PM

4:30 PM

Ethics in Mediation Carole Griffith, Esq. AUDITORIUM

CLOSING

4:30 PM

AUDITORIUM

Tha nk you to o ur d iamo nd s po ns ors

AD R I N S T I TU T E A G EN D A

P A G E 2 OF 2

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HIGH CONFLICT PERSONALITIES

31ST ANNUAL ADR INSTITUTE

UNDERSTANDING AND MANAGING HIGH CONFLICT PERSONALITIES High conflict disputes are different. They usually involve one or more parties with a high conflict personality characterized by a preoccupation with blaming others, all-or-nothing thinking, unmanaged emotions, and/or extreme behavior. This plenary session will provide a brief overview of the conflict patterns of five high conflict personality disorders, including narcissistic, borderline, antisocial, histrionic, and paranoid. Four actions to avoid with those who have these personalities will be explained. Then, four key skills and techniques will be described, known as the CARS Method®: CONNECTING with empathy, attention and respect (EAR statements™); ANALYZING options and making proposals; RESPONDING to misinformation and hostility; and SETTING limits and imposing consequences.

Presented by: Bill Eddy, LCSW, Esq.

8:45 AM TO 9:45 AM 1 CLE HOUR, INCLUDING 1 TRIAL HOUR

In-person attendees can join the presenter in the Auditorium.

This session will be live-streamed to virtual attendees.

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Bill Eddy, LCSW, Esq. High Conflict Institute

Bill Eddy, LCSW, Esq. is the co-founder and Chief Innovation Officer of the high Conflict Institute in San Diego, California. He pioneered the High Conflict Personality Theory (HCP) and has become an expert on managing disputes involving people with high conflict personalities. He was the Senior Family Mediator at the National Conflict Resolution Center for 15 years, a Certified Family Law Specialist lawyer representing clients in family court for 15 years, and a licensed clinical social worker therapist with over 12 years of experience.

Bill serves on the faculty of the Straus Institute for Dispute Resolution at the Pepperdine University School of Law in California and was a Conjoint Associate Professor with the University of Newcastle Law School in Australia for seven years. He has been a speaker and trainer in over 35 U.S. states and 13 countries.

He is the author or co-author of over 20 books, manuals, and workbooks, most recently Our New World of Adult Bullies: How to Spot Them – How to Stop Them. He co-hosts the podcast It’s All Your Fault with Megan Hunter, MBA, and has a popular blog on the Psychology Today website with over 6 million views.

Learn more at https://highconflictinstitute.com/

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Understanding and Managing High Conflict Personalities

Hosted by: Hosted by: Georgia Office of Dispute Resolution, 31st Annual ADR Institute November 21, 2024

Presented by: Bill Eddy, LCSW, Esq. Chief Innovation Officer High Conflict Institute

©2024 High Conflict Institute

Overarching principles of today’s training:      

People-first approach Trauma-informed & Trauma Solutions Compassion & Empathy No Blame, No Shame Cultural Sensitivity Mental Health Sensitivity

HCI teaches methods and skills for dealing with high-conflict situations and personalities. Our background knowledge on personality disorders helps people understand how to work more effectively with those who they otherwise may not have served. Our goal is to support professionals to be able to engage all clients, customers and constituents with empathy, dignity and respect, free from labeling and discrimination.

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1

High Conflict Personalities

3

High Conflict Overlap with Personality Disorders Personality Disorders Interpersonal Disorders Enduring pattern of dysfunctional behavior Lack of self-reflection Rarely changes behavior

High Conflict Preoccupied with Target(s) of Blame All-or-Nothing Thinking Unmanaged Emotions Extreme Behavior

www.HighConflictInstitute.com ALL RIGHTS RESERVED (c) 2024 by High Conflict Institute LLC

(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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2

Clusters of Personality Disorders Cluster A

• Paranoid • Schizoid • Schizotypal

Tend to avoid people

Cluster B

• • • •

Borderline Narcissistic Antisocial Histrionic

Tend to be high-conflict

Cluster C

• Avoidant • Dependent • ObsessiveCompulsive

Tend to avoid conflict

Disclaimer

(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

•

This seminar does not train you to diagnose personalities.

•

It may be harmful to tell someone that you believe that they have a personality disorder or a high conflict personality.

•

Just develop a Private Working Theory that someone may have a difficult personality.

•

Just recognize potential patterns and adapt your approach accordingly.

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3

●

Borderline “Love-You, Hate You” Types

Fear of abandonment: clinging & manipulation

●

Seeks revenge and vindication

●

Dramatic mood swings

●

●

Sudden and intense anger, out of proportion Impulsive, risk-taking, selfdestructive behaviors

Specific Tips for “Love You – Hate You” Types • Listen with empathy. Stay calm and matter-of-fact when they get angry (and they will).

• Keep an arms-length relationship: not too rejecting and not too close • Have clear boundaries—when you’re available and when you’re not, etc.

• Be consistent and predictable.

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4

●

●

Narcissistic

●

“I’m Very Superior” Types ●

●

Fear of being inferior or powerless Believes in a very superior self-image Absorbed in self, own needs, own viewpoint Feels entitled to special treatment Lacks empathy for others

Specific Tips for I’m Very Superior Types • Be respectful and resist insulting them (even though you will be tempted because of their arrogance and insensitivity to others).

• Resist their efforts to receive special treatment. Reassure them they are important, but that you must follow the rules and policies.

• Praise them for some positive effort/skill.

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5

●

●

●

Antisocial “Con Artist” Types

●

●

Fear of being dominated Drive to dominate others in weaker positions Disregard for social rules and laws Constant lying and deception, even when easily caught (they don’t keep track of lies) Lack of remorse; Some enjoy hurting people

Specific Tips for “Con Artist” Types • Avoid trusting people who say “trust me” a lot. Maintain a healthy skepticism. Ask for documentation.

• Pay attention to your gut feelings—they often are the first to tell you to be wary.

• Sometimes they are dangerous. Don’t accept being bullied— get assistance.

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6

●

● ●

Histrionic “Always Dramatic” Types

●

●

Fears being ignored and left out Drive to be center of attention Constantly dramatic and theatrical Exaggerates and may make up stories Difficulty focusing on tasks or making decisions

Specific tips for “Always Dramatic” Types • Don’t get hooked by their stories. You can always interrupt the drama and move on to other important tasks.

• Plan to spend more time getting ordinary work done with them.

• Emphasize how they can help themselves. Give them a sense of empowerment.

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7

● ●

●

Paranoid “I’ll Never Trust You” Types

● ●

Fear of being exploited Endless doubts about friends, professionals, etc.

Misinterprets ordinary events or comments as demeaning or threatening Bears long-term grudges Misperceives others as attacking his/her character, so “counterattacks” first

Specific Tips for “I’ll Never Trust You” Types • Be as non-threatening as possible. Be reassuring, but don’t expect them to trust you.

• Don’t push them to open up about things. Respect their caution and desire to only reveal what they have to.

• Explain that policies require you to do certain things (so it feels less personal).

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2 Hemispheres of Brain (Flexible) Left Hemisphere • • • • • • • • •

“Logical Brain” Generally Conscious Language Thinks in words Planning Examines Details Rational analysis Systematic Solutions Positive Emotions: Calm, contentment, etc.

Right Hemisphere • • • • • • • • •

“Relationship Brain” Generally Unconscious Observes relationships Thinks in pictures Creativity, Art, Intuition Non-verbal Skills Facial recognition/cues Gut feelings Negative Emotions: Hurt, anger, fear, etc.

FORGET ABOUT: 1 Trying to give

Adapt your approach accordingly The 4 Forget About Its

them insight

2 Focusing on the past

3 Emotional

confrontations or asking about emotions

Instead, focus on choices Instead, focus on the future Instead, focus on thinking and doing

4 Telling them they have a high conflict conflict personality

Instead, focus on what to do 18

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C.A.R.S. Method®

4 Key Skills for Managing HCPs

1. CONNECTING WITH E.A.R. 2. ANALYZING Options 3. RESPONDING to Misinformation 4. SETTING LIMITS on Misbehavior 19

Skill 1: Connect

EXAMPLE of an EAR Statement :

Connecting with statements that show: Empathy Attention Respect

“I can understand your frustration – this is a very impactful thing in your life. Don’t worry, I will pay full attention to your concerns about this issue. I have a lot of respect for your commitment to solving this problem, and I look forward to solving it too.”

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Fears and EARS for HCPs YOUR EAR RESPONSE

THEIR FEAR For any of these: Being ignored Being inferior Being dominated Being abandoned Being betrayed

Skill 1: Connect

Cautions about EAR

Use any of these: • • • • • • • •

I want to help you I respect your efforts I’ll pay attention I’ll listen Its just rules we all have to follow I understand this can be frustrating I’ll work with you on this I know this can be confusing

Cautions: •

Avoid believing or agreeing with content.

•

Avoid volunteering to “fix it” for them (in an effort to calm down their emotions).

•

Be honest about EAR (find something you truly believe)

•

Maintain healthy boundaries.

•

Don’t do special favors or bend the rules when pressured to do so.

•

You don’t have to listen forever.

•

You don’t have to use words or these words. Use the EAR Statements that work for you.

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C.A.R.S. Method® CONNECTING with E.A.R. 2. ANALYZING options and dilemmas 3. RESPONDING to misinformation 4. SETTING LIMITS on behavior 1.

4 Key Skills for Managing HCPs

Skill 2: Analyzing

In high-conflict situations, don’t focus on feelings. You won’t resolve their emotional issues. Just acknowledge their frustrations. Talk to the right brain.

Instead, focus upset person on a choice.

•

The goal is to get the upset person focused on problem-solving, away from his or her emotions.

•

This puts responsibility on the person to help solve the problem; puts responsibility on the person for making the choice.

•

It gives them some power, when they feel powerless.

Analyzing options Give them a choice

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Skill 2: Analyzing

Don’t focus on feelings. You won’t resolve their emotional issues. Just acknowledge frustrations.

Instead, focus upset person on writing a list of problems and/or options.

Analyzing options Writing a list

•

If possible, have the client write the list.

•

The list can include any silly idea, realistic or not.

•

The goal is to get the client focused on problem-solving, away from his or her emotions.

•

This activates the brain’s rational thinking skills

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Skill 2: Analyzing

1. Propose: WHO will do WHAT, WHEN, HOW and WHERE. 2.

Ask questions: The other person then asks questions about the proposal, such as:

• “What’s your picture of what this would look like/how

3 Steps for Making Proposals

it would play out?”

• “What do you see me doing in more detail?”

• “When would that start, in your proposal?”

• “How many weeks seems reasonable to you?”

3. Structured response: o Yes o No o I’ll think about it If it’s a “No,” just make a new proposal.

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C.A.R.S. Method®

4 Key Skills for Managing HCPs

1. CONNECTING WITH E.A.R. 2. ANALYZING Options 3. RESPONDING to Misinformation 4. SETTING LIMITS on Misbehavior

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Skill 3: Responding

Responding to misinformation Maintain a healthy skepticism

• Remain skeptical of the accuracy of the person’s information. There may be many cognitive distortions.

• Let them know that you will never know the full story. It is possible the extreme statements they are making are true.

• “You might be right!” And possibly not true.

• But next steps can still be taken and decisions can still be made about the future.

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It’s Their Dilemma • Keep the burden of solving problems on the client. No matter how badly they want you to do it.

• Tell them “You have a dilemma. How do YOU want to resolve it?”

• Then, if they can’t think of options, you could suggest several, based on your knowledge.

• Be a role model of comfort with ambivalence.

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Teach BIFF Responses® Brief: Keep it brief. Long explanations and arguments trigger upsets for HCPs. Informative: Focus on straight information, not arguments, opinions, emotions or defending yourself (you don’t need to) Friendly: Have a friendly greeting (such as “Thanks for responding to my request”); close with a friendly comment (such as “Have a good weekend”).

Firm: Have your response end the conversation. Or give two choices on an issue and ask for a reply by a certain date.

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C.A.R.S. Method®

4 Key Skills for Managing HCPs

1. CONNECTING WITH E.A.R. 2. ANALYZING Options 3. RESPONDING to Misinformation 4. SETTING LIMITS on Misbehavior

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Skill 4: Setting limits ●

●

Setting limits on High Conflict Behavior

HCPs need limits because they can’t stop themselves With HCPs, focus on external reasons for new behavior (rather than focusing on negative feedback about past behavior): o

“Our policies require us to …”

o

“The law requires me to …”

o

o

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“It might appear better to _____________ if you…”

“I understand, but someone else might misunderstand your intentions with that action…”

o

“Let’s take the high road…”

o

“Choose your battles…”

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Skill 4: Setting limits

HCPs do not connect realistic consequences to their own actions, especially fear-based actions.

Imposing Consequences Educate about consequences

•

They feel like they are in a fight for survival, which blinds them to realities.

•

Their life experiences may have taught them different consequences than most.

•

Many are in survival mode.

•

They can be educated and helped by a caring person—YOU!

•

Imposing consequences is appropriate and necessary for many people to learn.

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Summary of Key HCP Skills 1. CONNECTING: Listen closely (briefly), then respond with Empathy, Attention and/or Respect (EAR statement) 2. ANALYZING: Talk about choices, options, make a proposal 3. RESPONDING: Be Brief, Informative, Friendly and Firm (BIFF Response ®) 4. SETTING LIMITS: Don’t make it personal. Use “Indirect Confrontations” by helping client deal with policies and procedures.

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CALMING UPSET PEOPLE WITH EAR

By Bill Eddy, LCSW, Esq. An EAR Statement™ shows Empathy, Attention, and Respect. This is especially helpful when you are dealing with someone who is really upset – possibly they are angry with you or someone else or they are sad, feeling helpless, or frightened.

EAR Statements touch people where they need to be touched when they are extremely emotional. These are especially effective with people who have high-conflict personalities because they are often terribly afraid or terribly angry. They can help you connect with such a person, so that you can then shift to problem-solving.

What’s An EAR Statement?

Essentially, an EAR Statement includes words and body language that show empathy, attention and/or respect for the listener. Ideally, these are done in-person or over the phone, but they can be put in writing as well. Here’s an example. Let’s pretend you’re talking to Cathy, who could be a family member, a friend, a co-worker, a client, or a customer: “I can see how frustrated you are by this situation, Cathy, and I want to help. Let’s talk about it so that I can really understand what’s happening. I have a lot of respect for the efforts you have made to deal with this problem.”

Let’s break this down: Empathy “I can see how frustrated you are by this situation, Cathy, and I want to help.” This shows that you are connecting with the feeling that the person might be having, and also that you want to help. This shows empathy: caring and support, which high-conflict people especially are looking for. With high-conflict people, you need to go beyond reflective listening (repeating back the essence of what you heard) and give them something of yourself, such as your interest in helping them. You want to create a sense of “us” working together on a problem, rather than seeming to dispassionately distance yourself from the other person.

Attention “Let’s talk about it, so that I can really understand what’s happening.” By indicating that you are willing to pay attention to them and the problem, most people immediately calm down because they don’t need to persuade you to pay attention. This may be the opposite of what you feel like doing, but the more interested you are, the less amount of © 2018 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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time this usually takes. Of course, this is where your body language comes in. You need to look interested, perhaps leaning in, nodding your head slightly while you listen, keeping good eye contact and having relaxed (rather than tense or angry) arms and body. When we do this in our training for High Conflict Institute, the feedback we get is that the listener’s full attention is felt more because of their body language and tone of voice, than by the actual words they say.

Respect “I have a lot of respect for the efforts you have made to deal with this problem.” For a lot of people, this is what they really want: to be respected as a person and to be taken seriously when they have a problem. Whether you are a customer service representative, a friend or a stranger in a tough situation with an upset person, communicating your respect is often the key to moving forward to solve the problem. This can be really powerful if the person is upset with you, such as with high-conflict people who often attack those closest to them.

Any of these Three A good EAR Statement doesn’t even need to communicate all three of these. Just empathy is enough sometimes. Just paying attention often calms people down. Sometimes just giving a statement that shows respect is sufficient. Mostly, try one or more of these three types of statements (Empathy, Attention and/or Respect) and see how it comes across. From our experience, 90 percent of people calm down within 30 seconds of hearing an EAR Statement.

Of course, this often takes some practice, but for many people, it works right away.

Some Words of Caution Of course, this doesn’t work for everyone. Some people just want to stay angry and others are so overwhelmed it takes them several minutes of empathetic statements, concentrated listening and lots of respect to calm down. You can move on to using other methods if this one doesn’t work.

EAR Statements also don’t mean that you believe the person or agree with them. Some high-conflict people won’t let go until you say you believe them or agree with them. Don’t say that unless you really do. Otherwise, you will forever be held accountable for once saying you believed them or agreed with them. And they will tell the world that you are on their side, when this may be totally untrue. So, just say something like this: “I wasn’t there, so I’ll never know what exactly happened. What I do know is that I want to help you, so let’s see what we can do now.”

If you are in a dangerous situation, such as domestic violence or workplace bullying or sexual harassment, it may be best for you to just walk away and not even try an EAR Statement. Just get away! Safety first!

Conclusion From parenting, to coaching, to leadership, using a simple EAR Statement can usually calm an upset person enough to talk about solving a problem or help an upset person feel better. You © 2018 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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can use it when setting limits on misbehavior or a difficult conversation. You may have to use these statements more than once in a difficult conversation, but they can become quick and easy. They make your life easier. We have had success with EAR Statements for over a dozen years in several different countries and cultures. It’s a very human way of connecting.

An EAR Statement™ can be very brief and doesn’t cost you anything. It can help you connect with almost anyone. It’s even helpful when delivering bad news, such as a parent, a manager or a judge. You can use one in a business meeting, while managing a difficult relative, or when ending a relationship. It can be used to keep situations from escalating in the workplace or in the neighborhood. If more people would regularly use EAR Statements—even in response to hostility—it might just make the world a better place for all of us.

Bill Eddy, LCSW, Esq. is a lawyer, therapist, mediator, and the co-founder and Chief Innovation Officer of the High Conflict Institute, a training and consulting company focused on helping professionals and individuals learn better ways of handling high conflict disputes. For more, www.HighConflictInstitute.com.

© 2018 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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YES, NO, or I’LL THINK ABOUT IT Two Tips for Resolving Any Conflict

By Bill Eddy, LCSW, Esq. Whether in a divorce, a workplace dispute, or a conflict with a neighbor, it’s easy to get caught up in defending our own behavior and point of view. In a conflict, people can “push our buttons,” and it’s easy to react before we know it. The focus can quickly become personal and about the past.

To avoid this problem, there’s a simple, two-step method that seems to help, no matter what type of conflict you are in. If you think you are going to be in a difficult situation, remind yourself of these two steps before you start talking. And if you are in the middle of an argument, you can always shift to this approach.

1. First Person: MAKE A PROPOSAL Whatever has happened before is less important than what to do now. Avoid trying to emphasize how bad the problem is or criticizing the other person’s past actions. There’s nothing he or she can do about the past now. This just triggers defensiveness. Plus, people never agree on what happened in the past anyway. Instead, picture a solution and propose it.

For example, in a divorce dispute: “If you’re going to be late to pick up the kids on Fridays, then I propose we just change the pickup time to a more realistic time. Instead of 5pm, let’s make it 6:30pm.”

Or in a workplace dispute: “I propose that we talk to our manager about finding a better cubicle for you, since you have so many phone calls that need to be made and I often hear them.”

2. Second Person: YES, NO, or I’LL THINK ABOUT IT All you have to do to respond to such a proposal is say: “Yes.” “No.” or “I’ll think about it.”

You always have the right to say: “Yes.” “No.” or “I’ll think about it.” Of course, there are consequences to each choice, but you always have these three choices at least. Here’s some examples of each: YES: “Yes, I agree. Let’s do that.” And then stop! No need to save face, evaluate the other person’s proposal, or give the other person some negative feedback. Just let it go.

After all, if you have been personally criticized or attacked, it’s not about you. Personal © 2009 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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attacks are not problem-solving. They are about the person making the hostile attack.

You are better off to ignore everything else.

NO: “No, I don’t want to change the pickup time. I’ll try to make other arrangements to get there on time. Let’s keep it as is.” Just keep it simple. Avoid the urge to defend your decision or criticize the other person’s idea. You said no. You’re done. Let it drop.

I’LL THINK ABOUT IT: “I don’t know about your proposal, but I’ll think about it. I’ll get back to you tomorrow about your idea. Right now I have to get back to work. Thanks for making a proposal.” Once again, just stop the discussion there. Avoid the temptation to discuss it at length, or question the validity of the other person’s point of view. It is what it is.

When you say “I’ll think about it,” you are respecting the other person. It calms people down to know you are taking them seriously enough to think about what they said. This doesn’t mean you will agree. It just means you’ll think about it.

MAKE A NEW PROPOSAL: After you think about it, you can always make a new proposal. Perhaps you’ll think of a new approach that neither of you thought of before.

Try it out. You can always propose anything. (But remember there are consequences to each proposal.) And you can always respond: “Yes.” “No.” or “I’ll think about it.” (And there are consequences to each of those choices, too.)

AVOID MAKING IT PERSONAL In the heat of the conflict, it’s easy to react and criticize the other person’s proposals—or even to criticize the other person personally, such as saying that he or she is arrogant, ignorant, stupid, crazy or evil. It’s easy and natural to want to say: “You’re so stupid it makes me sick.” Or: “What are you, crazy?” “Your proposal is the worst idea I have ever heard.” But if you want to end the dispute and move on, just ask for a proposal and respond “Yes” “No” or “I’ll think about it.”

Bill Eddy, LCSW, Esq. is a lawyer, therapist, mediator, and the co-founder and Chief Innovation Officer of the High Conflict Institute, a training and consulting company focused on helping professionals and individuals learn better ways of handling high conflict disputes. For more, www.HighConflictInstitute.com.

© 2009 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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How to Write a BIFF® Response at Work: Responding to Hostile Mail at Work

By Bill Eddy, LCSW, Esq.

Hostile mail – especially email, texts and other electronic communications – has become much more common over the past decade. Most of this mail is just “venting,” and has little real significance. However, when people are involved in a formal conflict (a workplace grievance, a divorce, a homeowners’ association complaint, etc.) there may be more frequent hostile mail. There may be more people involved and it may be shown to others or in court.

Therefore, how you respond to hostile mail may impact your relationships or the outcome of a case.

Do you need to respond?

Much of hostile mail or email does not need a response. Email from irritating co-workers, (ex-) spouses, angry neighbors or even attorneys do not usually have legal significance. The email itself has no power, unless you give it power. Often, it is emotional venting aimed at relieving the writer’s anxiety. If you respond with similar emotions and hostility, you will simply escalate things without satisfaction, and just get a new piece of hostile mail back. In most cases, you are better off not responding. However, some letters and emails develop power when copies are filed in a court or complaint process – or simply get sent to other people. In these cases, it may be important to respond to inaccurate statements with accurate statements of fact. If you need to respond, I recommend a BIFF Response: Brief, Informative, Friendly and Firm BRIEF Keep your response brief. This will reduce the chances of a prolonged and angry back and forth. The more you write, the more material the other person has to criticize.

Keeping it brief signals that you don’t wish to get into a dialogue. Just make your response and end your letter. Don’t take their statements personally and don’t respond with a personal attack. Avoid focusing on comments about the person’s character, such as saying he or she is rude, insensitive or stupid. It just escalates the conflict and keeps it going. You don’t have to defend yourself to someone you disagree with. If your friends still like you, you don’t have to prove anything to those who don’t.

INFORMATIVE The main reason to respond to hostile mail is to correct inaccurate statements which might be seen by others. “Just the facts” is a good idea. Focus on the accurate statements you want to make, not on the inaccurate statements the other person made. © 2014 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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For example: “Just to clear things up, I was out of town on February 12th, so I would not have been the person who was making loud noises that day.”

Avoid negative comments. Avoid sarcasm. Avoid threats. Avoid personal remarks about the other’s intelligence, ethics or moral behavior. If the other person has a “high conflict personality,” you will have no success in reducing the conflict with personal attacks.

While most people can ignore personal attacks or might think harder about what you are saying, high conflict people feel they have no choice but to respond in anger – and keep the conflict going. Personal attacks rarely lead to insight or positive change.

FRIENDLY While you may be tempted to write in anger, you are more likely to achieve your goals by writing in a friendly manner. A friendly response will increase your chances of getting a friendly – or neutral – response in return. If your goal is to end the conflict, then add a friendly greeting and friendly closing. Don’t give the other person a reason to get defensive and keep responding. Make it sound as relaxed and non-antagonistic as possible. Brief comments that show your empathy and respect will generally calm the other person down, even if only for a short time.

FIRM In a non-threatening way, tell the other person your information or concerns about an issue. (For example: “That’s all I’m going to say on this issue.”) Be careful not to make comments that invite more discussion, such as: “I hope you will agree with me …”. This invites the other person to tell you “I don’t agree.” Just give your friendly closing and then stop.

However, if you need a decision from the other person, then end with two choices, such as: “Please let me know by Friday at 5pm if I should pick up those documents or you will send them to me.” By limiting it to two choices, you are less likely to trigger a new argument. By giving a response date and time, you avoid having to keep contacting the person. If he or she does not respond by then, you can choose whether to ask again or take other action.

Firm doesn’t mean harsh. Just sound confident and end the back-and-forth nature of hostile communications. A confident-sounding person is less likely to be challenged with further emails. If you get further emails, you can ignore them, if you have already sufficiently addressed the inaccurate information. If you need to respond again, keep it even briefer and do not emotionally engage. In fact, it often helps to just repeat the key information using the same words.

Example Roberta was terminated after a long progressive discipline process, with repeated failure to comply with the company rules. There had been several incidents in which she was believed to have harassed other employees, although none of the incidents ever resulted in legal claims (fortunately). After being counseled by the Human Resources © 2014 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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department several times without any change in her behavior, she was terminated. Since she was not a member of a union and there was no contract for her position, she was let go “at will” of the company, without justification necessary (although the company had plenty of it).

Jerry is the Human Resource manager who dealt with her in the termination process.

Jerry has remained in contact with Roberta by email, in order to be helpful to her and to help keep her calm during this transition in her life. Here is an example of the emails he gets from her: Hi Jerry, I had another job interview this week. This is good, because my medical benefits are running out, thanks to you. You had no right to ruin my career and make it impossible for me to get a good letter of reference. Your corrupt company will be exposed sooner or later. By the way, I need a copy of that last list of job duties that I had. I’ve asked you three times for it, and you refuse to respond. Let me know if I need to drop by to pick it up.

Your old friend, Roberta Here’s the email that Jerry is thinking of sending. What do you think? Is it a BIFF Response?

Hi Roberta, First of all, it will not benefit you at all to make threats about “exposing” our company. We have done nothing wrong and are ready to refute any claims you may raise against us.

I was not aware of you ever asking for a list of your job duties. Please see it attached. As a reminder, you are not allowed to return to our company, nor allowed to set foot on our grounds. We will have you arrested if you attempt to do so. I hope that this message is clear.

Sincerely, Jerry Butler Human Resource Manager Is it a BIFF? ●

Brief? Yes, it’s fairly brief.

●

Informative? Yes and No. It goes beyond straight information and sounds defensive.

●

Friendly? Not really. It focuses on her negativity, unnecessarily. Nowhere does he make an attempt to connect in a friendly way. You can tell that he’s pretty angry with her, by emphasizing the negative and purely setting limits, rather than trying to have a calming

© 2014 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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influence on her. While his anger is understandable, it won’t help him bring an end to having conversations with her. ●

Firm? Yes, somewhat. It sounds very firm, in that he is telling her the consequences of various actions. However, it’s not firm in terms of ending the conversation. It is defensive and will reinforce her defensiveness with him and trigger even more communication from her.

Would the following be a BIFF Response?

Dear Roberta, I’m glad you’re making progress and getting interviews. I really want you to find a company that’s a good fit for you.

I am attaching a copy of your job duties. I hope that helps!

Best wishes!

Jerry Is it a BIFF? ●

Brief? Yes, it’s very brief.

●

Informative? Yes, it explains how he wants her to find a good fit, and he attaches her job duties. There is nothing in this that sounds defensive or would trigger defensiveness for her.

●

Friendly? Yes, he expresses his positive wishes and responds to her request with straight information.

●

Firm? Yes, in that he does not invite a response to anything. He has put an end to that conversation, even though he knows there will probably be more. But his response took a minimum of time and effort – and calmed the conflict.

Conclusion Whether you are at work, at home or elsewhere, a BIFF Response is an easy way to save yourself time and emotional anguish, while you look good to your co-workers and supervisors.

The more people who handle hostile mail in such a manner, the less hostile mail there will be.

Bill Eddy, LCSW, Esq. is a lawyer, therapist, mediator, and the co-founder and Chief Innovation Officer of the High Conflict Institute, a training and consulting company focused on helping professionals and individuals learn better ways of handling high conflict disputes. For more, www.HighConflictInstitute.com.

© 2014 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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SLIC Solutions: Setting Limits and Imposing Consequences in 2½ Steps

By Bill Eddy, LCSW, Esq. We live in a rapidly changing world, with rules and standards frequently in flux. However, most people are sufficiently self-regulated to maintain civility and cooperation in the midst of vagueness and uncertainty. Not surprisingly, setting limits on those with misbehavior has become one of the most important skills to have in today’s world, especially in high conflict situations. This is especially true since the pandemic and the increase in high conflict behavior worldwide. But in today’s world, Setting Limits is often ineffective if it isn’t combined with Imposing Consequences (thus the acronym: SLIC). People often say: “But I told him to stop!”

Or: “I’m sure she’ll come to her senses.” As I describe in my new book—Our New World of Adult Bullies: How to Spot Them – How to Stop Them—some people really do lack the ability to stop themselves, so others have to do it.

While most of us dread imposing consequences, it doesn’t have to be complicated. Since 2008, High Conflict Institute has been developing and teaching simple techniques for managing high conflict behavior. These skills can be learned by almost anyone with practice. SLIC Solutions is the last of four simple techniques that we teach for any conflict situation in our overall CARS Method® of conflict resolution: CONNECTING includes a simple EAR Statement® for calming upset people and connecting with them. ANALYZING options includes Making Proposals in 3 Steps™ for making decisions large and small. RESPONDING with a BIFF Response® can be used with emails and other written communication when someone is hostile, demanding, or misinformed. Now, for SETTING limits. we suggest SLIC Solutions™ which can be applied in 2½ steps. This article will explain how you can gain confidence in setting limits and imposing consequences in any situation.

Step 1: Setting Limits Setting limits simply means defining the behavior you want or don’t want another person to do.

It’s good to emphasize the positive—what you want someone to do—although sometimes saying what you don’t want may be just as important. For example: “Please be quiet in the hallway or move your discussion somewhere else. We’re trying to have a meeting in here.” This is always better than yelling “Shut Up out there.”

It helps to set limits in a matter-of-fact or just slightly-raised tone of voice, even if you’re upset.

When you vent intense emotions on another person, it tends to trigger their defensiveness and they may react to your tone rather than thinking about how to fulfill the limit you requested. Try not to make it personal, so that the person doesn’t feel that their life, reputation, or credibility are being challenged. Instead, make it clearly about the specific behavior you want. “Please refrain from discussing with Fred the confidential information I gave you yesterday.” This is much better than: “Shut the “f” up about what I said yesterday, you a—hole!” People often confuse being aggressive and profane with being firm. Showing that you are in control of yourself, and that you can be calm and reasonable are usually more effective and you will be respected more for it. © 2024 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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Including a Credible Threat of Imposing Consequences Setting limits without the credible threat of imposing consequences is often pointless when serious behavior or high conflict people are involved. They don’t like being told what to do. At first, when you are setting limits, you might put it as a request or an order, if you are a parent, a judge, or administrator. But if it is important to you and it is ignored, then the second time you say what the limit is it helps to notify the person of what the consequence will be. “If you keep talking about my mother in those terms, then I’m going to have to end this conversation.”

“If you keep interrupting me in front of my supervisor, then I’ll have to meet with him without you.” “If you keep scheduling events for our child during my parenting time, then I’ll have to talk with my attorney about next steps.” “If you keep talking after your three minutes are up at this community meeting, then I’m going to have to turn off your microphone and have you escorted out of the meeting.”

Amazingly, a credible threat of serious consequences may at least give a high conflict person pause to think about their behavior. They really don’t routinely think about consequences as they are so emotionally preoccupied in the moment. It can be especially impactful if your tone of voice and history of setting limits show that you are very likely to impose the consequence if necessary.

Step 2: Imposing Consequences If the person continues engaging in the behavior you set limits on, then it’s time to impose the consequences. Sometimes you may decide to go more quickly to the consequence or give the person a third chance. But be careful not to continue to make empty threats. That’s the surest way to teach the person that you do not mean what you say for now and in the future. Setting limits without imposing consequences can make things worse.

When you are imposing the consequence, make sure it is something you have control over.

Telling someone that they should feel guilty or ashamed of themselves for their behavior, or telling them that they are being inappropriate, is not effective limit-setting. Yet people say this all the time as a substitute for real limit setting. It just doesn’t work because you don’t have control over how another person thinks or feels. With high conflict people, they may believe that their behavior is normal and necessary even when no one else does (because it has been part of their personality possibly from birth or at least early childhood.

Think your consequence through ahead of time, especially before you announce it. Don’t be surprised when the other person argues with you and resists the consequence. Be prepared.

Either have an answer ready for each possible argument, or simply repeat your consequence and implement it. “I won’t be discussing this further. Remember, I told you that I would do XYZ if you continued to do ABC.” “You have arrived an hour or more late to pick up our child twice now. Therefore, I will leave after 30 minutes and not wait for you in the future.” (Other parent says that’s a violation of the parenting plan.) “Actually, you are the one violating our plan, which gives the exact time you should be picking up our child. This is simply the consequence for your violation.”

© 2024 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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If it’s appropriate, point out that this was their choice. If the other person did not respect the limit you set, then they have chosen to have the consequence—since you warned them ahead of time. But it is a judgment call for you in terms of whether to point this out or not.

For a judge, SLIC might look like this: Sir, If you continue to avoid attending the 52-week domestic violence treatment group I ordered, then I am likely to stop your parenting time until you get started. Your prior behavior poses a danger to the child as well as his mother until you get treatment for it.

Ma’am, If you continue to avoid bringing your child to the father for his parenting time, then I am likely to make a change of custody to the father and impose a 30-day no-contact period so they can return to the positive relationship they had before the separation. There has been sufficient investigation to make it clear that the father has done nothing inappropriate.

In the workplace, SLIC might look like this at a meeting: Mr/Ms Smith, If you continue to disrupt this meeting with personal negative comments about other members, then I will have to stop the meeting and determine whether you can remain and speak civilly, or whether you will have to be removed from the meeting, or whether the meeting will have to be ended. The business at hand in this meeting can easily be discussed without resorting to personal negative comments. Can you agree to stop?

Step 2½: Give the person an EAR Statement (in about half of SLIC situations): EAR Statements include a statement showing empathy, attention and/or respect. (See my little book: Calming Upset People with EAR: How Statements Showing Empathy, Attention and Respect Can Quickly Defuse a Conflict.) In many situations, an EAR statement can help you connect with someone in the most difficult circumstance.

Often it can be helpful to add an EAR statement at the beginning, middle, or end of setting limits and imposing consequences. This can be especially helpful with children and vulnerable adults who just acted badly and aren’t able to reflect on their own behavior. “I can see that this is not what you wanted and hopefully it won’t be necessary next time.” (Empathy) Or: “I’m not being helpful to you if I let you get away with this. Even I have limits. I’m paying attention to how I can help you succeed.” (Attention) Or: “I respect your efforts to comply with my expectations.

However, it is not enough and therefore I must impose this consequence.” (Respect) But in other circumstances it may not be helpful to give an EAR statement, such as with bullies, narcissists, and antisocial personalities. People with narcissistic personality traits (lack of empathy) or antisocial personality traits (lack of remorse) will simply manipulate your EAR statement and use it against you. “You said you cared about me and had empathy for me. How can you care about me and yet refuse to allow me to do ABC? You’re a hypocrite. I’m going to tell people that you really aren’t the nice person you appear to be.” Or: “If you really paid attention to what I have told you, you would sign this paper here.” Or: “If you really respected me, you wouldn’t insult me with this consequence. You’re a little person and no one respects you.”

Rather than getting into such arguments and manipulations, skip the EAR statement altogether if you anticipate such a response. Set your limit, impose your consequence if necessary, and then stand firm. Be prepared for such a response if you think the person may have a lack of © 2024 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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empathy or remorse and will use your kind words against you. Don’t get stuck defending yourself or your consequence.

If you are dealing with a bully, then you are facing someone who has a drive to dominate or destroy you and others. If you give a bully an EAR statement, they will use it to put you down and dominate you—and try to wiggle out of the consequence. Therefore, it’s better to be prepared and focus on setting your limits and, if necessary, imposing your consequences. Stand firm and get help if necessary. If you’re dealing with a bully, it often takes more than one person to stop them.

Conclusion SLIC solutions are often necessary in today’s world. Everyone can get better at the skill of Setting Limits and Imposing Consequences on a regular basis. It’s always easier to do this consistently on a small scale, rather than waiting until problems have become really large. Fit the consequences to the limit violation. In families, at work, and in our communities, everyone can play a part in setting limits (making rules, policies, laws) and supporting appropriate consequences.

In half the cases, it can help to gain cooperation and maintain relationships by including a statement that shows empathy, attention and/or respect (EAR statements). Yet in the other half of cases, it’s better to avoid EAR and stay focused on setting limits and imposing consequences without allowing yourself to be manipulated or talked out of it. In modern times, this skill is more necessary than ever. The more people who regularly do this, the safer and happier the world will be for all of us.

Bill Eddy, LCSW, Esq. is a lawyer, therapist, mediator, and worldwide trainer for professionals

managing high conflict situations and personalities. He is the author of over twenty books, including Our New World of Adult Bullies: How to Spot Them – How to Stop Them, released in June 2024, which emphasizes successfully setting limits and imposing consequences in many of the 60 examples described.

© 2024 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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NEW WAYS FOR MEDIATION™ © 2009 Bill Eddy, LCSW, Esq.

Mediating high-conflict disputes requires a more structured process than that used in most ordinary conflicts. This is especially true when disputes involve ongoing relationships, such as parenting issues in divorce, elder law decision-making, business conflicts, workplace disputes and neighbor disputes. When these relationship disputes become “high-conflict” (extremely intense or prolonged), it is usually because one or more individuals lack conflict self-management skills, because of being temporarily overwhelmed or having a long-standing high-conflict personality pattern. This article explains New Ways for Mediation, a new, highly-structured method I have been developing in my professional family mediation practice over the past five years. It is specifically designed for mediating high-conflict disputes by guiding the parties in using simple selfmanagement skills to their maximum ability, but can be used with any clients.

Mediation Self-Management Skills People engaged in high-conflict disputes appear to lack the four key skills that are listed in the chart below on the left, and their resulting high-conflict behaviors are on the right.

Self-Management Skills:

High-Conflict Behaviors:

Reflecting on one’s own behavior

Preoccupation with blaming others

Flexible thinking and solutions

All-or-nothing thinking and solutions

Moderate negotiation behaviors

Extreme negotiation behaviors

Managed emotions

Unmanaged emotions

Everyone gets upset sometimes and may display some of these high-conflict behaviors. However, some people appear to have high-conflict personalities, so that they repeat these behaviors over and over again in their lives because they lack these self-management skills. I believe it is helpful to think of them as high-conflict people (HCPs) so that your expectations for conflict resolution are not based on them managing themselves.

Therefore, mediators need to provide a more structured process for them, rather than operating on the assumption they can manage themselves if they just try hard enough or are reprimanded or are allowed to speak until they get it off their chests.

Important Note: Mediators don’t need to determine whether someone’s lack of skills is personality-based or just situational in using the New Ways for Mediation method. (In fact, it may be harmful to tell someone you think he or she has a high-conflict personality.) The New Ways for Mediation method can be applied with anyone in any case. The principles involved in this method are intended to be in addition to the mediator’s toolbox of methods and skills, rather than a replacement. If the parties manage well, the structure can be easily loosened. It’s easier to start with too much structure than it is to tighten up when there has been too little structure.

The focus of the New Ways for Mediation method is on the working relationship with the parties, rather than on the actual outcome – the decisions – of the dispute. By letting go of the outcome, mediators avoid the power struggles of trying to drive the parties toward a quick settlement – or any settlement – just to get them out of the mediator’s office. High-conflict people pick up on this frustration and quickly develop adversarial relationships with mediators (and other professionals) © 2011 William A. Eddy, High Conflict Institute. All rights reserved. This non-exhaustive list of trademarks or service marked owned by William A. Eddy, exclusively licensed to High Conflict Institute LLC: High Conflict Institute®; New Ways for Families®; BIFF Response®; The CARS Method®; New Ways for Work℠; New Ways for Mediation℠; EAR Statement℠.

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who push them in directions they don’t want to go. This method avoids fighting with high-conflict clients by giving them clearer responsibility for making their own decisions, while the mediator focuses more clearly on maintaining a positive and productive relationship with the clients at all times.

Structured Steps The basic steps for New Ways for Mediation are common to many mediation methods. The main difference is the structure within each step, which guides the parties in using simple selfmanagement skills and blocking the use of high-conflict behaviors.

Pre-Mediation Coaching The parties need to be oriented to the “structure and skills” approach of New Ways for Mediation in advance, for it to be most successful. This can be done in separate sessions by the mediator, by an intake staff member, by a lawyer for each party, by a counselor or by a conflict coach. For a more detailed description of this pre-mediation step see the article: Pre-Mediation Coaching by Bill Eddy (2012).

Step 1: Signing Your Agreement to Mediate This step generally takes longer than in other mediation formats, as the mediator is bonding with the parties through the process of questions and explanations, as well as establishing that the mediator has tight control of the process. For example: “Welcome to mediation. Before we get started I want to emphasize three key aspects of the mediation process. #1: You folks are the decision-makers. I won’t make decisions for you, I won’t pressure you to make decisions and you don’t have to persuade me of anything. #2: I may have information on the subjects you are trying to decide today, and I am happy to share what knowledge I have about how other people have handled similar issues – but it is all information and not advice. #3: If you are dealing with a court case, it is helpful to know that the courts encourage mediation and will accept almost any out-of-court agreements you make, because you have more flexibility than a judge has so long as you both agree. Do you have any questions about these key aspects of mediation before we proceed?”

This introduction reinforces the importance of the parties as decision-makers and the mediator’s role as not that of the ultimate decision-maker. Most parties don’t have any questions at this point and say they like these aspects of mediation. But if they do have questions about these three aspects, they can be thoroughly discussed. Some high-conflict participants are very anxious, so that discussing and resolving their concerns at this very fundamental level of the process can be kept simple.

Next, the mediator should have the parties review and sign the Agreement to Mediate together, which clarifies specific issues, such as confidentiality, how the mediator is to be paid, communication between sessions and so forth. This often raises concerns for clients and discussing these procedural matters allows further opportunity for questions and answers – additional opportunities for the mediator to connect with the parties.

Up to this point, the mediator has redirected complaints, proposals, questions about their specific cases and so forth for later discussion. This reinforces that the mediator is in charge of the process and has a plan to really hear from each party at the appropriate time.

After signing the Agreement to Mediate, the mediator explains the general process of the mediation, such as the following: “The focus of mediation is on the future, so that we will spend most of our time on each of you making proposals and refining your proposals until they can become agreements. I will help you with this process and explain more about this as we go. Also, when you hear a © 2011 William A. Eddy, High Conflict Institute. All rights reserved. This non-exhaustive list of trademarks or service marked owned by William A. Eddy, exclusively licensed to High Conflict Institute LLC: High Conflict Institute®; New Ways for Families®; BIFF Response®; The CARS Method®; New Ways for Work℠; New Ways for Mediation℠; EAR Statement℠.

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proposal, try to focus on responding simply with a ‘Yes,’ ‘No,’ or ‘I’ll think about.’ Again, I will help you with this process. Think of me as responsible for the process and the two of you as responsible for making your decisions. Any questions about any of this?”

There can be more explanation of the process, including ground rules for communicating (trying not to interrupt, taking breaks and so forth) and other house-keeping matters (such as note pads for writing ideas while others are speaking and so forth). Usually the parties – even high-conflict parties – are mostly listening by now, because the mediator has made it clear that their concerns will be respectfully listened to momentarily, but these introductory explanations will help them be more effective.

If high-conflict parties (one or both parties) are insisting that the mediator vary his or her process by moving forward more quickly or making evaluative comments or deviating in some other way, the mediator can calmly reaffirm that this is what he or she has learned is most effective in helping people manage their disputes and that the structure will free them to focus on their concerns in a step by step manner towards resolution. This step does not need to take a long time (it can be as short as 5 minutes or up to half an hour). It just needs to be used to demonstrate that the mediator is in control of the process, is very interested in working with the parties and is happy to answer questions and provide guidance and information that may help along the way as they focus on making proposals to resolve their dispute.

Step 2: Making Your Agenda This step puts the responsibility directly on the parties to raise issues and agree on which issues they will discuss, including the order in which they will discuss them. By keeping this responsibility on the parties, rather than on the mediator, it builds momentum for them making proposals and agreements. Each step of this process reinforces practicing small skills of communication and decision-making. This is especially important with people with high-conflict personalities, because they tend to demand that professionals take responsibility for their problems and decisions – then blame them for doing it wrong. By instead emphasizing that it is the parties’ dispute and decisions to be made, the mediator reinforces the expectation that they will be responsible for the outcome, not the mediator.

Within this step is the mediator’s opportunity for listening to each party’s concerns and questions.

The mediator encourages each party to look at and speak to the mediator (in the presence of the other party), so the mediator can really concentrate on the party who is speaking. This also discourages sniping comments back and forth, as the parties are not looking at each other and simply reacting to each other. This further trains the parties to take turns and listen without interrupting throughout the process. It is also a time to predict and normalize disagreement – and that disagreements can be resolved. The mediator can introduce this as follows: “Now is when you can each tell me the concerns you wish to discuss today and any questions you may have for me about them. This is often the hardest part of the process because you may hear points of view that you disagree with. That’s fine and normal at this stage, as most people start out disagreeing and most people eventually reach agreements in mediation. So if you have a reaction or idea while the other person is talking, feel free to make a note of anything you wish, so that you can just listen without interrupting. After I hear from each of you, we will make our agenda of what you jointly agree you wish to discuss. You can raise any issue for discussion, and you can say “no” to any issue you do not wish to discuss. Who wants to go first?”

Then, the mediator really takes time to focus on each person’s concerns and understanding them, while still having good “eye contact” with each party, rather than focusing exclusively on the person speaking. If the mediator tends to say something like “Okay” as he or she listens to a person, it © 2011 William A. Eddy, High Conflict Institute. All rights reserved. This non-exhaustive list of trademarks or service marked owned by William A. Eddy, exclusively licensed to High Conflict Institute LLC: High Conflict Institute®; New Ways for Families®; BIFF Response®; The CARS Method®; New Ways for Work℠; New Ways for Mediation℠; EAR Statement℠.

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helps to mention to both parties that saying “Okay” just means that the mediator hears what you are each saying, without agreeing or disagreeing.

With high-conflict people there will be a lot of interrupting during this step, even though they have been instructed not to interrupt. (Remember, unmanaged emotions are common for some.) It is helpful at this point to show comfort with managing the process and calmly reinforce the benefit of each person speaking thoroughly, so that the mediator can really understand each one’s point of view. “This helps me think more effectively of ways that I might help the two of you resolve the problems you want to address today.” It’s important not to show anger or irritation with the interrupter, but rather to take an educational approach to explaining how important this step is in the process. “It’s normal to feel frustrated at this stage of the process, yet it usually helps each of you in thinking about the proposals that you’re going to make and most people eventually reach agreement in this process.”

After each party has had an opportunity to state their concerns and questions, the mediator can take a turn at summarizing what each party said and/or educating the parties on standards that relate to the issues they have raised. For example, in divorce mediation, the mediator can explain the basics of parenting plans, property division, child support and other issues, so that the parties narrow their expectations and get to ask more questions. By focusing on issues, questions and answers, the process itself blocks sniping back and forth over each other’s past behavior or angry positions about the future – replacing these with information.

Rather than getting angry with the parties, the mediator can simply interrupt at such times and say: “You’ve raised an important subject and here’s how it is commonly handled…” By focusing on explanations of standards and options before the parties make their proposals, it saves them embarrassment and unrealistic expectations. It also helps the mediator avoid appearing to take sides.

For example, if a mediator says that community property laws state that spouses shall share any retirement benefits earned during the marriage, then it makes it slightly less likely that an employee-spouse will demand sole ownership of the retirement benefits and slightly less likely that the employee-spouse will claim that the mediator has taken the other person’s “side” by sharing this information. It helps to know that such information will often have to be repeated several times before an upset party absorbs it.

Don’t let these issues become power struggles. Instead, say that you are simply sharing information you believe will help them understand their options and make proposals that can become agreements. Encourage them to seek the advice of separate lawyers to get more detailed information on what you are generally telling them.

Step 3: Making Your Proposals Once there has been a discussion of issues and standards, and the parties have set their agenda priorities, it is time for making proposals. This may seem premature to many mediators who are used to spending a lot of time on discussing each party’s feelings about the dispute or identifying their interests. However, the New Ways for Mediation reverses somewhat these other approaches, based on the realities of high-conflict people. HCPs usually start out with a clear idea of what they want and don’t want. They are usually too upset to manage discussions of feelings productively (they just get more flooded with emotion) and too rigid to recognize both parties’ interests.

Therefore, this method lets them present their proposals, but then the mediator assists them with understanding the underlying parts (essentially “interests”) to the extent that the parties disagree.

A structured way to do this is for the mediator to really focus on understanding a proposal before allowing the other person to officially respond. For example:

© 2011 William A. Eddy, High Conflict Institute. All rights reserved. This non-exhaustive list of trademarks or service marked owned by William A. Eddy, exclusively licensed to High Conflict Institute LLC: High Conflict Institute®; New Ways for Families®; BIFF Response®; The CARS Method®; New Ways for Work℠; New Ways for Mediation℠; EAR Statement℠.

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“Hang on, Dan. Don’t respond yet to Emily’s proposal until I really understand it. I want to make sure I’m absorbing all the parts of her proposal, which may help me help you two refine your proposals until you are ready to reach an agreement. Sometimes a proposal itself is not agreed to, but it helps us find another solution that will work for you both. So, Emily, tell me what it would look like if your proposal was put into action. What would your picture be? What you would do, what would Dan would do and anyone else involved.”

Then, after hearing Emily’s proposal in depth and making some notes about it, the mediator can turn to Dan and say: “Do you have any questions for Emily about her proposal? Do you think you understand it pretty clearly? Ok, then what are your thoughts about it? Would this be a ‘Yes, I can do it!’ ‘No, I won’t do it.’ or ‘I’ll think about it.’ And if you want to think about it, when do you think you’ll have an answer for her? And if your answer is a “No,” then of course I’ll be asking you next what your proposal would be.”

By making this process go so thoroughly, each party learns that what is important is making proposals and responding to proposals slowly and respectfully. By being confident in this structure, the mediator helps the parties grow more confident that their proposals will be taken seriously and that sniping at each other just doesn’t fit. By ignoring interruptions and negative comments, and focusing on this proposal process, the mediator can manage the parties’ conversations without having to reprimand them or feel responsible for solving their problems.

In the New Ways for Mediation method, the mediator is clearly managing the process with a very direct approach, while not taking any responsibility for the outcome. That belongs to the parties.

Ironically, by taking this highly-structure approach, the mediator actually makes the process simply and more user friendly for the parties, while also protecting them from each other’s (and their own) negative impulses.

Step 4: Finalizing Your Agreements This step often feels like the easy part, but it can take as long as the whole mediation process leading up to it in high-conflict cases. This is often a written process and may involve several edits and several people involved in the editing process, such as lawyers and other advisers.

It is important for the mediator to remain calm and steady throughout this final step. Reminding oneself that “the mediator is responsible for the process and not responsible for the outcome” can be helpful. High-conflict people can resolve most of their disputes, but we have learned that they often take twice as long – if not longer– to reach final agreements. In a sense, they have two conflict resolution processes: one is focused on logical problem-solving and the other is focused on relationship defensiveness. These seem to be associated with different parts of the brain.

Therefore, after they have done logical problem-solving with professionals, they often go home and start thinking alone about relationship defensiveness and become upset again as they interpret their agreement negatively in terms of the relationship (feeling abandoned, disrespected, ignored, dominated, etc.). Then, when they are around their reasonable advisers again, their tentative agreements look reasonable again. But then, on their own again, they feel a personal loss again.

This process sometimes has to go round and round several times before both parties will actually sign a settlement of their dispute.

Conclusion Using this highly-structured – yet simple – four-step process, mediators can help even high-conflict parties (or any parties) reach agreement. By making it repeatedly clear that the mediator is responsible only for the process and that the parties are responsible for making decisions, © 2011 William A. Eddy, High Conflict Institute. All rights reserved. This non-exhaustive list of trademarks or service marked owned by William A. Eddy, exclusively licensed to High Conflict Institute LLC: High Conflict Institute®; New Ways for Families®; BIFF Response®; The CARS Method®; New Ways for Work℠; New Ways for Mediation℠; EAR Statement℠.

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everyone involved can be more effective and less frustrated. In many ways, this process is an educational one in which the parties’ interactions are focused on answering questions, asking questions, gathering information, discussing options, considering consequences – and then repeating and repeating this process until there is a resolution. Efforts to blame and criticize each other, and to focus too heavily on the past, are blocked by simply re-directing the parties into making proposals and gathering more information to make more refined proposals.

In some cases, it is helpful to ask the parties to bring in outside advisers, including lawyers, financial advisers, parenting experts and others to the mediation sessions. This teamwork can add to the momentum of settling the disputes, even though it continues to be up to the parties to make the final decisions. Sometimes with high conflict cases, it is necessary to have a more thorough, collaborative process, before the parties feel comfortable reaching resolution. Fortunately, as mediators and collaborative professionals become more comfortable working with each other, some high-conflict clients are able to stay completely out of court with cases that looked impossible for settlement in the past.

In some ways New Ways for Mediation may seem like nothing new. In other ways, this may be a huge paradigm shift for mediators. New Ways for Mediation is focused on the mediator’s relationship with the parties, rather than on the outcome of their dispute. By letting go of the outcome, mediators focus more strongly on the process and how they communicate with the parties. When a mediator can effectively structure and manage this relationship with high-conflict clients, the parties themselves can use their skills to make the decisions they need to move forward in their lives – and get the credit for their success. Ironically, the less the mediator focuses on the outcome, the more positive and lasting the outcome. ________________________________________ Bill Eddy is a lawyer, therapist, mediator, and the co-founder and Training Director of the High Conflict Institute, a training and consulting company focused on dealing with difficult people in highconflict disputes. He has written 13+ books. For more, www.HighConflictInstitute.com.

© 2011 William A. Eddy, High Conflict Institute. All rights reserved. This non-exhaustive list of trademarks or service marked owned by William A. Eddy, exclusively licensed to High Conflict Institute LLC: High Conflict Institute®; New Ways for Families®; BIFF Response®; The CARS Method®; New Ways for Work℠; New Ways for Mediation℠; EAR Statement℠.

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When Storytelling Hurts Conflict Resolution Tips for Dispute Resolvers

By Bill Eddy, LCSW, Esq. One of the most common aspects of dispute resolution methods is hearing each party’s story of the case at the start of the process. In court, in mediation, in arbitration and in other settlement negotiations, this “opening statement” gives us a background on the nature of the case and how each party sees the problem(s). Then, most dispute resolvers (judges, mediators, arbitrators, negotiating lawyers and others) immediately start thinking to themselves of solutions for resolving this particular dispute.

With the majority of parties to a dispute, this process is constructive and efficient. However, after three decades of experience as a mediator, therapist and family lawyer, I would suggest that we need to re-think this storytelling process when it involves one or more parties with high-conflict personalities.

Preoccupation with the Past People with high-conflict personalities (HCPs) tend to be preoccupied with the past – defending their own past behavior (which is often a significant part of the problem) and intensely blaming others involved in the dispute (who may or may not have contributed to the problem at all – since some high conflict cases involve only one HCP and others have two or more HCPs).

Ironically, giving them an uninterrupted opportunity to tell their stories reinforces staying in the past and avoiding responsibility for the future – whether the story is about what happened yesterday, last month or years ago.

Many HCPs get intensely emotional when telling their stories, which reinforces staying stuck in crisis emotions which make it harder for the brain to engage in logical, future-focused problem-solving. Their emotions can also be self-stimulating, such that some HCPs seem to get a “high” from telling their stories, just as addicts get a “high” from telling stories of their past experiences using drugs.

Not Healing and Moving Forward Of course, most dispute resolvers have learned that allowing people to “get it off their chest” by telling their stories makes it easier for them to move on to resolving their dispute and I believe that this is an important step in dispute resolution for ordinary people. Court research shows that parties to a legal dispute feel better if they feel that the judge (and jury, when there is one) respectfully listened to their story and gave them time to say everything they felt was important.

© 2013 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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With so many people representing themselves in legal disputes these days, it is important to recognize the importance of this listening process – especially for the average person who actually benefits from stating their case in a problem-solving manner.

Sadly, however, this “getting it off their chest” process does not work for HCPs, as they do not seem to grieve and heal the past, but rather stay stuck in their stories and repeat them over and over again to whomever will listen – especially people they perceive as being in positions of authority who may become advocates for their viewpoint. Such “negative advocates” are usually hooked by their emotions, rather than their information, and most HCPs have experienced the success of this emotional storytelling – at least in the short-term until their negative advocates abandon them after becoming more informed.

Avoiding Responsibility for Problem-Solving In addition to trying to persuade dispute resolvers to become negative advocates with their storytelling, HCPs also reinforce their own chronic sense of helplessness, powerless and feeling like a total victim by telling their stories. This is usually the outcome of their stories: “Now you see why I feel like such a helpless victim – there’s nothing that I can do.” This theme of helplessness appears to relieve them of all responsibility for problem-solving.

The stories also tend to place 100% of the responsibility on others – especially the other party or parties to the dispute – including prior dispute resolvers, including their complaints about prior lawyers, mediators, judges, etc. By the end of the story, they hope that you will be persuaded: A. That they are totally not responsible for the problem or the solution.

B. That the other party is totally the source of the problem.

C. That you are the only one who can help them.

The result of hearing this intense storytelling process is that you, as the dispute resolver, feel stressed, angry and/or helpless, and eager to get the case over with to relieve your frustration.

What We Can Do I don’t want to suggest that storytelling be forbidden in dispute resolution processes with HCPs. Instead, I have four suggestions for shifting the emphasis of the process onto future problem-solving.

1. Structure the Process for Problem-Solving From the start of the dispute resolution process, tell the parties that the emphasis will be on future problem-solving. While you might want to hear some background about the situation, you are especially interested in hearing their goals and requests. This is true, whether you are a judicial officer in court: “Before you tell me about your case, I want to know what orders you’re requesting.” Or, if you are a mediator: “I’m interested in knowing what topics you want to address and what you hope to accomplish today.” This gets them focused on the goal of the dispute resolution process, rather than on storytelling.

© 2013 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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If you don’t do this from the start, you risk having the parties become focused on reacting to each other’s story and getting hooked into an “attack-defend” cycle, as each party is offended by the words the other used, by how much time they took, by how you seemed to acknowledge what the other said, etc. By making the process focus on future problem-solving, you can minimize the initial storytelling – or even eliminate it all together! (See suggestion #3.)

2. Avoid Getting Emotionally Hooked Make a strong effort to not get emotionally hooked by their storytelling. For example, when one person says that the other has acted badly in the past, don’t turn to look at the other person (this tends to give the appearance that you have adopted the speaker’s concerns). Instead, keep looking at the speaker with interest.

By showing frustration, anger, exasperation and so forth, you join in the crisis emotions which block logical problem-solving in our brains. Instead, respond with interest. It helps to give them an EAR Statement℠, which shows empathy, attention and respect – without joining in their emotions or point of view.

It also helps to shift their storytelling to problem-solving with gentle statements, like: ● ● ● ● ●

You don’t need to respond to that.

There’s nothing to defend here – I focus on what to do now.

How I can help you today is to focus on …

I suggest we move on to …; is that okay with you?

I hear how frustrated you have been. Let’s see what we can do.

3. Ask for Proposals One of the easiest methods of shifting the focus away from storytelling and onto future problem-solving is to ask the speaker: “Then, what do you propose?” As I suggested in #1, you can eliminate storytelling altogether by saying that the dispute resolution process is structured around their proposals and decisions about what to do now to solve the problem(s). For example, in our method New Ways for Mediation℠ we structure the process around making proposals in four steps: 1. Committing to being responsible for proposal-making in the process.

2. Proposing topics for discussion and information-gathering.

3. Making proposals, asking questions about them and responding.

4. Making decisions and writing up the decisions in sufficient detail.

Now, you might say that I have skipped over gathering the facts of the case from the parties in this approach. Yet HCPs rarely agree on the facts of the case and easily get stuck arguing the facts of the case. It’s better to focus them on making proposals, because they will use their knowledge and perceptions of the case in their proposals anyway – and it reinforces being responsible rather than being helpless about the past.

© 2013 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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Or, you might say that a finding needs to be made about past behavior. If that’s true, such as in court or arbitration, you can still make the future the emphasis while acknowledging or making decisions about how to phrase the finding about the past behavior.

Or, you might say that I have skipped over identifying “interests” in this process. However, HCPs have too much difficulty seeing their own viewpoint as merely “interests” and seeing the other person as having any valid “interests.” It’s easier to get them to make proposals and then you can ask them questions to help them understand their own proposals and each other’s proposals – especially telling them what’s important to the other person in making their proposals (which is actually their interests, but put in simpler terms of being what’s important).

4. Consider Coaching Before Decision-Making Since shifting potential HCPs away from storytelling about their case can be very difficult, it often helps to meet with each party individually beforehand to help them prepare for focusing on the future and away from their stories. It can also be a time when you can hear their story and provide Empathy, Attention and Respect (EAR Statements), without the other party present to feel that you have taken sides. Then, you can teach the party about how the dispute resolution process will go and their role in focusing on the future. That way you have heard enough storytelling to bond with them and focus forward.

Conclusion Whether you are a judge, an arbitrator, a mediator, a lawyer, therapist or even a family member, you will find that shifting the focus to future problem-solving and away from storytelling about past horrible behavior by others will help you in helping parties in conflict to resolve their own dispute. While this might seem obvious, I have been a trainer for many dispute resolution professionals and students, and this is a huge problem that I have observed when there is one or more high conflict people (HCPs) involved. It’s easy for dispute resolvers to become openly frustrated, to become overly directive toward a specific resolution (the professional’s, so the parties’ have no ownership in it) or to become helplessly passive (while watching the parties stay stuck).

Instead, gently, but firmly, shift the emphasis away from storytelling about the horrible past and onto future problem solving, making proposals and making decisions. This can apply, even in cases of abuse and clearly bad behavior by one person. Both parties have experienced the behavior problem, they both own the dispute and they will have more success in planning for the future (individually or jointly) than staying stuck in the past – even if it involves restraining orders, financial penalties and so forth.

HCPs always feel like victims (and many have been at one time), but we don’t help them to allow them to hear their own stories over and over again. Let’s teach problem-solving in a respectful way by guiding them to learn that they can move forward in their lives – and helping them do it with a sense of success that they can own.

Bill Eddy, LCSW, Esq. is a lawyer, therapist, mediator, and the co-founder and Chief Innovation Officer of the High Conflict Institute, a training and consulting company focused on helping professionals and individuals learn better ways of handling high conflict disputes. For more, www.HighConflictInstitute.com. © 2013 Bill Eddy, LCSW, Esq. Copying of this article is permitted in its original form only.

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Should Mediators Make Proposals

By Bill Eddy, LCSW, Esq. When working with high-conflict cases in mediation – or any mediation – it’s not unusual for the parties to turn to the mediator and ask: “What would you propose?” While we all know that the parties should be the ones to make proposals in mediation, they often don’t have much knowledge or experience in resolving the types of disputes that bring them to mediation.

Family disputes, neighbor conflicts, small claims cases, business and workplace disputes, construction defects, personal injury claims, and others are often confusing and stressful for the parties involved – so they often seek a quick solution from the mediator.

Yet agreements that the parties themselves make are well-known to be more workable and longer-lasting. High-conflict individuals often fight against any decisions or directions that seem to come from others, so that they need to participate in making decisions as much as possible in order to follow them. While “evaluative” mediators and settlement judges may say specifically how they think a case should settle, the follow ideas can help to establish a stronger agreement with more “thinking” by the parties.

In many cases nowadays, people come to mediation without lawyers or other advocates, so that they rely on the mediator for legal information, examples of what others have done in similar situations and a quick (and inexpensive) resolution of their dispute. In more formal disputes, lawyers often participate in the mediation with the parties but they rely on the neutral mediator to come up with solutions when their own clients seem stuck in their positions and, out of loyalty to their clients, they are limited in how flexible they can appear to be in making proposals to the other “side.” The discussion below can apply whether the parties meet together for the whole mediation or most of it (my preferred approach) or are separated all of the time with the mediator going back and forth.

Not So Fast First, it’s important for a mediator to help the parties exhaust their own efforts at making proposals – especially in high-conflict cases. If they are going to make an agreement work and last, they have to have a sense of ownership in it. Helping them become more engaged in settling the issues can be done by teaching them a 3-step process for making proposals. This engages their own creative thinking and shifts them from quickly reacting and blaming to problem-solving: 1. Make a proposal which includes: WHO will do WHAT, WHEN and WHERE.

© 2014 Bill Eddy, LCSW, Esq. and Randi Kreger Copying of this article is permitted in its original form only.

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2. The other party then must ask at least two questions about the proposal. This should not include WHY questions, because they are usually really criticisms. The proposing person should answer these questions as matter-of-factly as possible.

3. Then, the responding party should say “Yes.” “No.” Or: “I’ll think about it.” If he or she says “I’ll think about it,” ask how much time they will need (such as 5 minutes, a day, a week).

The mediator should also ask some questions about the proposal, to help demonstrate an objective search for solutions. The mediator should discourage the parties from quickly saying “No” to each other’s proposals, and instead say: “I have some questions also, which will help me to help you understand where you might find room for agreement.” This slows down the rapid-fire rejection and appearance of impasse that often occurs, especially with high-conflict parties.

By training them in this 3-step method (which you can do before or during the mediation), you get them thinking about the future and picturing solutions to their problems. This is necessary in helping them make more realistic proposals. Often the parties simply want to rehash their positions and complaints about each other. With this rational 3-step process, you avoid getting “hooked” into their helplessness and you can often redirect them into thinking about their future options at least.

Suggest Sources of More Information If they appear to be at an impasse, for a while stick with the idea of exhausting their efforts to come up with proposals first. Ask them where they might find more information with which to make more proposals, or who they might consult individually or jointly. You can suggest possible sources they could consider, as they may be unfamiliar with resources you know well.

If there will be another mediation session, encourage them to consider preparing two proposals for the remaining issues, so that they have a backup plan if their first one is not readily accepted by the other person.

Suggest Three Options Others Have Done Once the parties have exhausted their efforts to make proposals, the mediator might offer three alternatives that others have done. The benefit of offering “what others have done,” is that there is less appearance that you are actually taking over responsibility for resolving the dispute by saying what you propose that they do. If you do that with high-conflict parties, you are guaranteed to do it “wrong,” they will blame you for it and resist it anyway.

If you only provide one option, there is a great risk that one party will like it and the other party will dislike it – and you will appear to have taken sides with the party who likes it. This is especially a risk when one or both parties have high-conflict personalities.

Avoid offering just two scenarios, as you will risk that one party likes one and the other party likes the other. Therefore, it’s best to offer three options, which gets them to really think about the pros and cons of each, and whether there is something in these three options that might help them resolve their dispute. These options could be very specific, based on your experience, or could be very general. © 2014 Bill Eddy, LCSW, Esq. and Randi Kreger Copying of this article is permitted in its original form only.

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Suggest General Approaches to Consider The following are other general ways the mediator can avoid resolving the dispute, while giving the parties more guidance for their proposals. One or more of these approaches can be suggested, without specifying how it should be used in the case at hand. “Does this approach sound like it would be helpful to you? Why don’t you picture what some of your proposals might be using this approach, then decide if it’s helpful or not.” This helps focus the parties more narrowly, without taking over their role in resolving the dispute.

1) Phased-in plan. Starting with what one proposes now and ending up with what the other proposes over time. This can help with finding compromises regarding payment plans, pay raises, child support, transferring job responsibilities, a timeline for a big project and so forth.

2) Splitting the difference. This simple approach has resolved millions of financial disputes over the years. It’s very common knowledge that financial settlements end up approximately in the middle of the parties’ first proposals. Of course, some people make extreme proposals based on this idea, which alienates the other person who then refuses to negotiate further. So keep original proposals within the “ballpark” of what is reasonable under the circumstances.

3) Refining their proposals and then flipping a coin. While this is not elegant, it is quick and simple. This is the “Last Best Offer” approach and sometimes a third party (but not the mediator) picks the one that seems the most reasonable. It is also similar to what may happen in court in those cases where the outcome is quite unpredictable.

4) Getting a recommendation. With some issues, there are experts who could be consulted who will make a recommendation, which the parties can bring back to mediation. Such a recommendation can be a reality check, which often puts the parties into the same “ballpark” from which they can negotiate more realistically. The mediator can then help them “tinker” with the recommendation to make it their own agreement.

5) How far will you go? One method occasionally used is to have both parties write down on a separate piece of paper (so the other party can’t see) how far they are willing to go to resolve their dispute (dollar amount, parenting percentage, etc.). Then they fold these up and hand them to the mediator, who looks at them under the table out of sight of the parties. The mediator then announces that it looks likely they will reach an agreement (if these “bottom lines” overlap), and then asks for new proposals; or announces that it looks unlikely they will reach an agreement, but does either party want to make a last effort to bridge the gap? Sometimes, people are still able to make new proposals and reach agreements, even when their “bottom lines” didn’t overlap. Of course, try to avoid using the term “bottom line” out loud, because it risks locking the parties into what they wrote down – when in fact most parties are still willing to go a little farther to settle their dispute.

By suggesting one or more of these approaches, the mediator gives the parties more guidance, without directing the outcome. However, sometimes I have found it necessary with high-conflict parties to spell it out for them in greater detail. For example, saying: “What would it look like if © 2014 Bill Eddy, LCSW, Esq. and Randi Kreger Copying of this article is permitted in its original form only.

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child support started out at the level Mary has proposed and then after some period of time – that you two agree on – it ends up at the level John is proposing?”

On rare occasion, usually in a separate caucus, I will say: “Some people split the difference, which in your case would be around $1000. If the other party were to agree to that number (and I don’t know if they will), would that be something that could work for you? Don’t tell me now, just think about it while I speak to the other party.” Then I ask the other party the same question.

Coming from me, they usually say it could work for them. I only use that in extreme cases, because they are usually able to reach agreement using the three options approach or the general approaches I have described above.

Conclusion Mediation is based on principles of self-determination, voluntary consent to specific terms and client empowerment (among other values, such as confidentiality, neutrality of the mediator, full disclosure of any conflicts of interest and competence to mediate the issues at hand). When parties in mediation ask the mediator to make a proposal or recommendation, it is important to show empathy and understanding for their request, while at the same time resisting the urge to simply tell them what to do.

This is especially important when one or more of the parties has a high-conflict personality. They tend to get angry when told what to do, even when they ask for it. To them relationships are inherently adversarial and they feel compelled to resist direction from others, sooner or later.

The better way to help them is to give them three alternatives to consider or general approaches to resolve their dispute. Then they get the credit and often fill in the details much more appropriately than the mediator could possibly do. While it takes patience, even high-conflict people can resolve their disputes in mediation in the majority of cases.

Bill Eddy, LCSW, Esq. is a lawyer, therapist, mediator, and the co-founder and Chief Innovation Officer of the High Conflict Institute, a training and consulting company focused on helping professionals and individuals learn better ways of handling high conflict disputes. For more, www.HighConflictInstitute.com.

© 2014 Bill Eddy, LCSW, Esq. and Randi Kreger Copying of this article is permitted in its original form only.

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APPLYING THE CARS METHOD

31ST ANNUAL ADR INSTITUTE

APPLYING FOUR TECHNIQUES OF THE CARS METHOD IN DISPUTE RESOLUTION This session will provide examples of applying techniques of the CARS Method briefly mentioned in the Plenary Session. First, giving EAR Statements during angry exchanges will be demonstrated. Then, the 3-step process of Making Proposals will be described as a way of managing the parties while also giving them greater credit for developing solutions. The BIFF Response® method will be shown for responding to hostility in writing or in person.

Lastly, the 2 ½ steps of SLIC Solutions will be explained for setting limits and imposing consequences. Each of these four techniques was designed for high conflict disputes, but can be used in any conflict situation.

Presented by: Bill Eddy, LCSW, Esq.

10:00 AM TO 11:00 AM 1 CLE HOUR, INCLUDING 1 TRIAL HOUR

In-person attendees can join the presenter in the Auditorium.

This session will be live-streamed to virtual attendees.

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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Bill Eddy, LCSW, Esq. High Conflict Institute

Bill Eddy, LCSW, Esq. is the co-founder and Chief Innovation Officer of the high Conflict Institute in San Diego, California. He pioneered the High Conflict Personality Theory (HCP) and has become an expert on managing disputes involving people with high conflict personalities. He was the Senior Family Mediator at the National Conflict Resolution Center for 15 years, a Certified Family Law Specialist lawyer representing clients in family court for 15 years, and a licensed clinical social worker therapist with over 12 years of experience.

Bill serves on the faculty of the Straus Institute for Dispute Resolution at the Pepperdine University School of Law in California and was a Conjoint Associate Professor with the University of Newcastle Law School in Australia for seven years. He has been a speaker and trainer in over 35 U.S. states and 13 countries.

He is the author or co-author of over 20 books, manuals, and workbooks, most recently Our New World of Adult Bullies: How to Spot Them – How to Stop Them. He co-hosts the podcast It’s All Your Fault with Megan Hunter, MBA, and has a popular blog on the Psychology Today website with over 6 million views.

Learn more at https://highconflictinstitute.com/

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Breakout Session Applying CARS Method in Dispute Resolution Hosted by: Georgia Office of Dispute Resolution, 31st Annual ADR Institute November 21, 2024

Presented by: Bill Eddy, LCSW, Esq. Chief Innovation Officer High Conflict Institute

©2024 High Conflict Institute

C.A.R.S. Method®

4 Key Skills for Managing HCPs

1. CONNECTING WITH E.A.R. 2. ANALYZING Options 3. RESPONDING to Misinformation 4. SETTING LIMITS on Misbehavior 2

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1

Skill 1: Connect

Connecting with statements that show: Empathy Attention Respect

EXAMPLE of an EAR Statement : “I can understand your frustration – this is a very impactful thing in your life. Don’t worry, I will pay full attention to your concerns about this issue. I have a lot of respect for your commitment to solving this problem, and I look forward to solving it too.”

3

C.A.R.S. Method® CONNECTING with E.A.R. 2. ANALYZING options and dilemmas 3. RESPONDING to misinformation 4. SETTING LIMITS on behavior 1.

4 Key Skills for Managing HCPs

(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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2

Skill 2: Analyzing

1. Propose: WHO will do WHAT, WHEN, HOW and WHERE. 2.

Ask questions: The other person then asks questions about the proposal, such as:

• “What’s your picture of what this would look like/how

3 Steps for Making Proposals

it would play out?”

• “What do you see me doing in more detail?”

• “When would that start, in your proposal?”

• “How many weeks seems reasonable to you?”

3. Structured response: o Yes o No o I’ll think about it If it’s a “No,” just make a new proposal.

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C.A.R.S. Method®

4 Key Skills for Managing HCPs

1. CONNECTING WITH E.A.R. 2. ANALYZING Options 3. RESPONDING to Misinformation 4. SETTING LIMITS on Misbehavior

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(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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3

It’s Their Dilemma • Keep the burden of solving problems on the client. No matter how badly they want you to do it.

• Tell them “You have a dilemma. How do YOU want to resolve it?”

• Then, if they can’t think of options, you could suggest several, based on your knowledge.

• Be a role model of comfort with ambivalence.

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Teach BIFF Responses® Brief: Keep it brief. Long explanations and arguments trigger upsets for HCPs. Informative: Focus on straight information, not arguments, opinions, emotions or defending yourself (you don’t need to) Friendly: Have a friendly greeting (such as “Thanks for responding to my request”); close with a friendly comment (such as “Have a good weekend”).

Firm: Have your response end the conversation. Or give two choices on an issue and ask for a reply by a certain date.

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(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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4

Coaching Clients for BIFF Responses® 10 Questions

Is it Brief?

Is it Informative?

3. Is it Friendly?

4. Is it Firm?

5. Does it contain any Advice?

6. Does it contain any Admonishments?

7. Does it contain any Apologies?

8. How do you think the other person will respond?

9. Is there anything you would take out, add or change?

10. Would you like to hear my thoughts about it?

1.

2.

(Don’t give your thoughts until they have answered all 9 questions.)

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Lawyer and Client Dear Mr. Smith: I still have not received my copy of the settlement proposal that the other side sent you last week. They have had it and you have had it, but NEVER A COPY TO ME!!! You are irresponsible and unethical.

And don’t try to tell me you were busy with more important clients!

You have not been protecting me at all from the defendant’s lawyer’s manipulations. He’s running circles around you. Are you competent or not?

Your disgruntled client 10

(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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5

Lawyer & Client Dear Client: Thank you for calling my attention to this oversight. My assistant was out sick on Friday. Here is a copy of the settlement proposal attached.

Let me know when you have read it and are ready to discuss it.

Best wishes, Mr. Smith

Is this a BIFF Response?

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Mediator & Disgruntled Client Dear Mediator, You met with us on Sept. 9th for our divorce mediation and we scheduled another meeting for Oct. 15th. We are now cancelling that meeting, because both my wife and I (and my attorney) believe that you did not govern our mediation properly. You allowed many criticizing and blaming comments to be made and we accomplished nothing. I paid for the mediation session and I would like my money back. Please respond promptly. We have found another mediator who does it correctly.

Sincerely, Very disgruntled client

(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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Mediator & Disgruntled Client: Draft Mediator Response Dear Client: Thank you for letting me know how upset you were about our mediation session and that you are cancelling the next session.

Please read my policy that there are no refunds for services rendered.

It’s in my contract you signed. You should be attentive to what you sign and keep a copy.

Good luck with your new mediator.

Sincerely, Mediator Is this a BIFF Response?

Mediator & Disgruntled Client: 2nd Mediator Response Dear Client: Thank you for your letter expressing your concerns about our mediation session. After doing about a thousand mediation cases, I have learned that people have different styles. I am glad that you have found a mediator that fits you. Best wishes in completing your divorce.

Sincerely, Mediator

Is this a BIFF Response? (c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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C.A.R.S. Method®

4 Key Skills for Managing HCPs

1. CONNECTING WITH E.A.R. 2. ANALYZING Options 3. RESPONDING to Misinformation 4. SETTING LIMITS on Misbehavior

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Skill 4: Setting limits ●

●

Setting limits on High Conflict Behavior

HCPs need limits because they can’t stop themselves With HCPs, focus on external reasons for new behavior (rather than focusing on negative feedback about past behavior): o

“Our policies require us to …”

o

“The law requires me to …”

o

o

(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

“It might appear better to _____________ if you…”

“I understand, but someone else might misunderstand your intentions with that action…”

o

“Let’s take the high road…”

o

“Choose your battles…”

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8

Skill 4: Setting limits

HCPs do not connect realistic consequences to their own actions, especially fear-based actions.

Imposing Consequences Educate about consequences

•

They feel like they are in a fight for survival, which blinds them to realities.

•

Their life experiences may have taught them different consequences than most.

•

Many are in survival mode.

•

They can be educated and helped by a caring person—YOU!

•

Imposing consequences is appropriate and necessary for many people to learn.

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Summary of Key HCP Skills 1. CONNECTING: Listen closely (briefly), then respond with Empathy, Attention and/or Respect (EAR statement) 2. ANALYZING: Talk about choices, options, make a proposal 3. RESPONDING: Be Brief, Informative, Friendly and Firm (BIFF Response ®) 4. SETTING LIMITS: Don’t make it personal. Use policies and procedures to Set Limits and Impose Consequences (SLIC) when necessary.

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(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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New Ways for Mediation® A Simple Structure

Stage of Mediation Process

Client Mediation Task

Stage 1: Establishing the Process

Asking Questions

Stage 2: Making the Agenda

Making Their Agenda

Stage 3: Making Proposals

Making Their Proposals

Stage 4: Making Decisions

Making Their Decisions 19

EXAMPLE of an EAR Statement :

Use a lot of EAR Statements: Empathy Attention Respect

“I can understand your frustration – this is a very impactful thing in your life. Don’t worry, I will pay full attention to your concerns about this issue. I have a lot of respect for your commitment to solving this problem, and I look forward to solving it too.”

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10

Proposals are at the center of high conflict negotiations/mediations:

1. Propose: WHO will do WHAT, WHEN, HOW and WHERE. 2.

Ask questions: The other person then asks questions about the proposal, such as:

• “What’s your picture of what this would look like/how it would play out?”

3 Steps for Making Proposals

• “What do you see me doing in more detail?”

• “When would that start, in your proposal?”

• “How many weeks seems reasonable to you?”

3. Structured response: o Yes o No o I’ll think about it If it’s a “No,” just make a new proposal.

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Resources

BOOKS

HighConflictInstitute.com

https://www.highconflictinstitute.com/store or anywhere books are sold.

(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

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Upcoming New Ways for Mediation Training

CONTACT US

info@highconflictinstitute.com HighConflictInstitute.com 530 B Street San Diego, CA 92101

(c) 2024 High Conflict Institute ALL RIGHT RESERVED www.HighConflictInstitute.com

FOLLOW US

facebook.com/highconflictinstitute twitter.com/highconflict instagram.com/highconflictinstitute linkedin.com/company/high-conflict-institute

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INTEGRATING AI RESPONSIBLY

31ST ANNUAL ADR INSTITUTE

INTEGRATING AI RESPONSIBLY: THE ASPEN PROTOCOL FOR ETHICAL PRACTICE In this session, Susan Guthrie will guide you through the ethical and professional challenges of integrating artificial intelligence (AI) into mediation practice using the ASPEN Protocol. Designed to help mediators maintain the highest standards of professionalism, this protocol provides a structured approach for managing risks and ethical considerations while adopting any new technology, including AI Tools.

Attendees will learn the five key elements of Susan’s ASPEN Protocol, including awareness, strategies, preparation, education, and notice, and how to apply these elements to ensure AI is used in compliance with ethical obligations. This session will empower you to confidently embrace AI, and any new technologies now in the pipeline, while upholding the integrity of your mediation practice.

Presented by: Susan Guthrie, Esq.

11:15 AM TO 12:15 PM 1 CLE HOUR, INCLUDING 1 ETHCS AND 1 TRIAL HOUR

In-person attendees can join the presenter in the Auditorium.

This session will be live-streamed to virtual attendees.

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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Susan Guthrie, Esq. Susan E Guthrie LLC

Susan Guthrie, Esq., is a leading attorney, mediator, and expert in technology integration with over 30 years of experience in law, dispute resolution, and business development. Currently serving as the Chair of the ABA Section of Dispute Resolution, she is a pioneer in leveraging artificial intelligence (AI) for mediation.

Susan’s earlier work includes founding Learn to Mediate OnlineTM, a groundbreaking program that helped mediators transition to virtual practice during the pandemic, training thousands of professionals globally.

Susan is also the host of the top 1% Divorce & Beyond Podcast and Make Money Mediating Podcast, and the author of the #1 bestselling book Building the Practice of Your Dreams: One Month of Daily Tips for Finding Success.

Frequently appearing on major outlets like News Nation, CNBC, WGN, and Chicago Today, she shares insights on technology, legal trends, and best practices. Her work empowers mediators and legal practitioners to harness AI tools for greater efficiency, enhanced case management, and improved client communication. With a dynamic style and practical approach, Susan delivers valuable takeaways, equipping professionals with the skills to confidently integrate AI into their practices and embrace innovation.

Learn more at https://susaneguthrie.com/

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11/11/2024

31st Annual ADR Institute November 21, 2024

Integrating AI Responsibly: The ASPEN Protocol for Ethical Practice

with Susan Guthrie

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SUSAN GUTHRIE

susan@susaneguthrie.com www.susaneguthrie.com

ATTORNEY | MEDIATOR | SPEAKER | TRAINER | CONSULTANT | COACH | LEGAL TECHNOLOGIST CHAIR ABA SECTION OF DISPUTE RESOLUTION

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THE TECHNOLOGY CONUNDRUM BENEFITS Enhance Your Practice

CHALLENGE Safeguard S Your Practice

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IMPROVED CLIENT COMMUNICATION: AI tools like chatbots and automated updates keep clients informed and engaged, enhancing communication throughout the mediation process.

ENHANCED DECISION SUPPORT: AI-driven insights provide data-backed support for decision-making, helping mediators explore potential outcomes and solutions.

DEEPER INSIGHT GENERATION: AI tools analyze complex data sets, enabling mediators to gain deeper insights into case dynamics and client needs, supporting more informed and balanced resolutions.

What are the benefits?

SCALABLE PERSONALIZED SERVICES: AI allows mediators to tailor services for each client more effectively, scaling personalized approaches that increase client satisfaction.

EFFICIENCY BOOST: AI can streamline case preparation and analysis, saving mediators valuable time on administrative and repetitive tasks.

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ERRORS AND HALLUCINATIONS I don’t want to be the “ChatGPT Lawyer”

CONFIDENTIALITY AND SECURITY Too many things can go wrong with client confidential information and cybersecurity

BIAS AND IUNFAIRNESS have heard that AI can perpetuate bias resulting in unfair answers and information

What are the main challenges?

LOSING THE HUMAN TOUCH Mediation requires the deft hand of a human neutral which cannot be replicated by technology

TECH FEAR | EXHAUSTION I’m tired of having to learn new tech or I’m just not “tech savvy.”

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ALL VALID AND REAL CONCERNS! AWARENESS OF THE CHALLENGES IS THE FIRST STEP TO INTEGRATING ANY TECHNOLOGY INTO PROFESSIONAL PRACTICE

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STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY FORMAL OPINION 512 Generative Artificial Intelligence Tools July 29, 2024

Dispute resolution professionals must exercise due diligence when using generative AI tools to ensure they meet ethical obligations, including competence, confidentiality, client communication, supervision, meritorious claims, tribunal candor, and reasonable fees.

One sentence summary provided by ChatGPT

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WHAT ELSE DO YOU NEED TO DO WHEN YOU INTEGRATE TECHNOLOGY INTO YOUR PRACTICE? 8

MARCH 15, 2020 PRESENT DAY 9

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3

11/11/2024

• Switched to Remote Work • Utilized Technology for Communication • Embraced Online Dispute Resolution (ODR) • Adopted Digital Document Management and E-Signatures

What did you do to get here?

• Adapted Our Marketing and Client Interaction • Created Regulatory Adaptations and Protocols • Undertook Professional Development and Training

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THE EMERGENCY IS OVER . . .

HAVE WE GONE BACK? 11

THE BENEFITS OUTWEIGH THE CHALLENGES WE HAVE MASTERED AND IMPROVED THE TECHNOLOGY AND BECOME COMFORTABLE WITH IT.

THE TECHNOLOGY HAS BECOME COMMONPLACE EVERYONE IS USING IT.

WE HAVE ESTABLISHED PROTOCOLS FOR MANAGING THE CHALLENGES

IN OTHER WORDS, WE HAVE LEARNED HOW TO SAFEGUARD OUR PRACTICE SO THAT WE CAN ENHANCE IT WITH THE BENEFITS OF THE TECHNOLOGY

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EVERYTHING WE NEED TO KNOW TO INTEGRATE TECHNOLOGY

WE LEARNED DURING THE PANDEMIC 13

APPLY WHAT WE LEARNED FROM FROM ZOOM TO AI Identify Uses for Technology

Shifts in Skill Requirement s

Changes in Client Expectations

Enhanced Efficiency and Accessibility

Need for Continuous Learning

Need to Mitigate Ethical Challenges

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AWARENESS OF THE CHALLENGES WITH AI Privacy, Confidentiality and Data Security y Technological

Complexity and Accessibility

Bias and Fairness in AI Systems

Impact on Human Judgment and Decision-Making

Cost of Implementatio n

Regulatory and Legal Compliance

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AWARENESS AND EDUCATION

STRATEGIES AND PROTOCOLS

PREPARE AND PRACTICE

The ASPEN Protocol

EDUCATION AGAIN

NOTICE AND REGULATION

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HERE’S THE GOOD NEWS: ARTIFICIAL INTELLIGENCE CAN SUPPORT US IN IMPLEMENTING THE ASPEN PROTOCOL We can use Generative AI to support us in all aspects of ethically integrating ANY technology into our mediation practice.

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USING AI TO IMPLEMENT ASPEN Awareness and Education: Perplexity what are the benefits and challenges of using AI as a mediation professional?

Strategies and Protocols: ChatGPT help me to create strategies and protocols for managing the challenges that AI presents for mediators.

Practice and Preparation: Gemini, create a list of prompts to help me to prepare and practice different ways that I might integrate AI into my mediation practice.

Education Again: Mistral please give me an update on the latest developments in the use of AI in professional practice.

Notice and Transparency: Claude, draft a letter notifying my mediation clients that I use AI in my practice and providing transparency and accountability.

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USING AI TO IMPLEMENT ASPEN Awareness and Education: What are some ways that AI Tools can assist me in my ADR practice?

Strategies and Protocols: Help me to create strategies and protocols for managing the challenges that AI presents for mediators when it comes to _____________________.

Practice and Preparation: Create a list of prompts to help me to prepare and practice different ways that I might integrate AI into my mediation practice.

Education Again: Please give me an update on the latest developments in the use of AI in professional practice that dispute resolution professionals should be aware of.

Notice and Transparency: Draft a letter notifying my mediation clients that I use AI in my practice and providing transparency and accountability. Be sure to provide a clear opt out option and statement of the pros and cons of our use of AI Tools.

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DEMOS ChatGPT what can you do for me?

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HOW AI TOOLS CAN ENHANCE YOUR PRACTICE Business Support • Business Planning and Strategy • Personalized Marketing Content • Scheduling and Task Management Efficiency Practice Support • Case Preparation Assistance • Client Education Materials and Support • Data Analysis for Trends and Patterns • Client Communication and Updates In the Process • Risk Analysis • Option Generation and Review • Term Sheet Drafting

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AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY

Formal Opinion 512

July 29, 2024

Generative Artificial Intelligence Tools To ensure clients are protected, lawyers using generative artificial intelligence tools must fully consider their applicable ethical obligations, including their duties to provide competent legal representation, to protect client information, to communicate with clients, to supervise their employees and agents, to advance only meritorious claims and contentions, to ensure candor toward the tribunal, and to charge reasonable fees.

I.

Introduction

Many lawyers use artificial intelligence (AI) based technologies in their practices to improve the efficiency and quality of legal services to clients.1 A well-known use is electronic discovery in litigation, in which lawyers use technology-assisted review to categorize vast quantities of documents as responsive or non-responsive and to segregate privileged documents.

Another common use is contract analytics, which lawyers use to conduct due diligence in connection with mergers and acquisitions and large corporate transactions. In the realm of analytics, AI also can help lawyers predict how judges might rule on a legal question based on data about the judge’s rulings; discover the summary judgment grant rate for every federal district judge; or evaluate how parties and lawyers may behave in current litigation based on their past conduct in similar litigation. And for basic legal research, AI may enhance lawyers’ search results.

This opinion discusses a subset of AI technology that has more recently drawn the attention of the legal profession and the world at large – generative AI (GAI), which can create various types of new content, including text, images, audio, video, and software code in response to a user’s prompts and questions.2 GAI tools that produce new text are prediction tools that generate a statistically probable output when prompted. To accomplish this, these tools analyze large amounts of digital text culled from the internet or proprietary data sources. Some GAI tools are described as “self-learning,” meaning they will learn from themselves as they cull more data. GAI tools may assist lawyers in tasks such as legal research, contract review, due diligence, document review, regulatory compliance, and drafting letters, contracts, briefs, and other legal documents.

1 There is no single definition of artificial intelligence. At its essence, AI involves computer technology, software,

and systems that perform tasks traditionally requiring human intelligence. The ability of a computer or computercontrolled robot to perform tasks commonly associated with intelligent beings is one definition. The term is frequently applied to the project of developing systems that appear to employ or replicate intellectual processes characteristic of humans, such as the ability to reason, discover meaning, generalize, or learn from past experience.

BRITTANICA, https://www.britannica.com/technology/artificial-intelligence (last visited July 12, 2024).

2 George Lawton, What is Generative AI? Everything You Need to Know, TECH TARGET (July 12, 2024), https://www.techtarget.com/searchenterpriseai/definition/generative-AI.

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GAI tools—whether general purpose or designed specifically for the practice of law—raise important questions under the ABA Model Rules of Professional Conduct.3 What level of competency should lawyers acquire regarding a GAI tool? How can lawyers satisfy their duty of confidentiality when using a GAI tool that requires input of information relating to a representation? When must lawyers disclose their use of a GAI tool to clients? What level of review of a GAI tool’s process or output is necessary? What constitutes a reasonable fee or expense when lawyers use a GAI tool to provide legal services to clients?

At the same time, as with many new technologies, GAI tools are a moving target—indeed, a rapidly moving target—in the sense that their precise features and utility to law practice are quickly changing and will continue to change in ways that may be difficult or impossible to anticipate. This Opinion identifies some ethical issues involving the use of GAI tools and offers general guidance for lawyers attempting to navigate this emerging landscape.4 It is anticipated that this Committee and state and local bar association ethics committees will likely offer updated guidance on professional conduct issues relevant to specific GAI tools as they develop.

II.

Discussion A.

Competence

Model Rule 1.1 obligates lawyers to provide competent representation to clients. 5 This duty requires lawyers to exercise the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,” as well as to understand “the benefits and risks associated” with the technologies used to deliver legal services to clients.6 Lawyers may ordinarily achieve the requisite level of competency by engaging in self-study, associating with another competent lawyer, or consulting with an individual who has sufficient expertise in the relevant field.7 To competently use a GAI tool in a client representation, lawyers need not become GAI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations 3 Many of the professional responsibility concerns that arise with GAI tools are similar to the issues that exist with

other AI tools and should be considered by lawyers using such technology.

4 This opinion is based on the ABA Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2023. The Opinion addresses several imminent ethics issues associated with the use of GAI, but additional issues may surface, including those found in Model Rule 7.1 (“Communications Concerning a Lawyer’s Services”), Model Rule 1.7 (“Conflict of Interest: Current Clients”), and Model Rule 1.9 (“Duties to Former Clients”). See, e.g., Fla. State Bar Ass’n, Prof’l Ethics Comm. Op. 24-1, at 7 (2024) (discussing the use of GAI chatbots under Florida Rule 4-7.13, which prohibits misleading content and unduly manipulative or intrusive advertisements); Pa. State Bar Ass’n Comm. on Legal Ethics & Prof’l Resp. & Philadelphia Bar Ass’n Prof’l Guidance Comm. Joint Formal Op. 2024-200 [hereinafter Pa. & Philadelphia Joint Formal Opinion 2024-200], at 10 (2024) (“Because the large language models used in generative AI continue to develop, some without safeguards similar to those already in use in law offices, such as ethical walls, they may run afoul of Rules 1.7 and 1.9 by using the information developed from one representation to inform another.”). Accordingly, lawyers should consider all rules before using GAI tools.

5 MODEL RULES OF PROF’L CONDUCT R. 1.1 (2023) [hereinafter MODEL RULES].

6 MODEL RULES R. 1.1 & cmt. [8]. See also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 477R, at 2–3 (2017) [hereinafter ABA Formal Op. 477R] (discussing the ABA’s “technology amendments” made to the Model Rules in 2012).

7 MODEL RULES R. 1.1 cmts. [1], [2] & [4]; Cal. St. Bar, Comm. Prof’l Resp. Op. 2015-193, 2015 WL 4152025, at *2–3 (2015).

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of the specific GAI technology that the lawyer might use. This means that lawyers should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others who can provide guidance about the relevant GAI tool’s capabilities and limitations.8 This is not a static undertaking. Given the fast-paced evolution of GAI tools, technological competence presupposes that lawyers remain vigilant about the tools’ benefits and risks.9 Although there is no single right way to keep up with GAI developments, lawyers should consider reading about GAI tools targeted at the legal profession, attending relevant continuing legal education programs, and, as noted above, consulting others who are proficient in GAI technology.10 With the ability to quickly create new, seemingly human-crafted content in response to user prompts, GAI tools offer lawyers the potential to increase the efficiency and quality of their legal services to clients. Lawyers must recognize inherent risks, however.11 One example is the risk of producing inaccurate output, which can occur in several ways. The large language models underlying GAI tools use complex algorithms to create fluent text, yet GAI tools are only as good as their data and related infrastructure. If the quality, breadth, and sources of the underlying data on which a GAI tool is trained are limited or outdated or reflect biased content, the tool might produce unreliable, incomplete, or discriminatory results. In addition, the GAI tools lack the ability to understand the meaning of the text they generate or evaluate its context.12 Thus, they may combine otherwise accurate information in unexpected ways to yield false or inaccurate results.13 Some GAI tools are also prone to “hallucinations,” providing ostensibly plausible responses that have no basis in fact or reality.14 Because GAI tools are subject to mistakes, lawyers’ uncritical reliance on content created by a GAI tool can result in inaccurate legal advice to clients or misleading representations to courts and third parties. Therefore, a lawyer’s reliance on, or submission of, a GAI tool’s output—without 8 Pa. Bar Ass’n, Comm. on Legal Ethics & Prof’l Resp. Op. 2020-300, 2020 WL 2544268, at *2–3 (2020). See also

Cal. State Bar, Standing Comm. on Prof’l Resp. & Conduct Op. 2023-208, 2023 WL 4035467, at *2 (2023) adopting a “reasonable efforts standard” and “fact-specific approach” to a lawyer’s duty of technology competence, citing ABA Formal Opinion 477R, at 4).

9 See New York County Lawyers Ass’n Prof’l Ethics Comm. Op. 749 (2017) (emphasizing that “[l]awyers must be responsive to technological developments as they become integrated into the practice of law”); Cal. St. Bar, Comm.

Prof’l Resp. Op. 2015-193, 2015 WL 4152025, at *1 (2015) (discussing the level of competence required for lawyers to handle e-discovery issues in litigation).

10 MODEL RULES R. 1.1 cmt. [8]; see Melinda J. Bentley, The Ethical Implications of Technology in Your Law Practice: Understanding the Rules of Professional Conduct Can Prevent Potential Problems, 76 J. MO. BAR 1 (2020) (identifying ways for lawyers to acquire technology competence skills).

11 As further detailed in this opinion, lawyers’ use of GAI raises confidentiality concerns under Model Rule 1.6 due to the risk of disclosure of, or unauthorized access to, client information. GAI also poses complex issues relating to ownership and potential infringement of intellectual property rights and even potential data security threats.

12 See, W. Bradley Wendel, The Promise and Limitations of AI in the Practice of Law, 72 OKLA . L. REV . 21, 26 (2019) (discussing the limitations of AI based on an essential function of lawyers, making normative judgments that are impossible for AI).

13 See, e.g., Karen Weise & Cade Metz, When A.I. Chatbots Hallucinate, N.Y. TIMES (May 1, 2023).

14 Ivan Moreno, AI Practices Law ‘At the Speed of Machines.’ Is it Worth It?, LAW360 (June 7, 2023); See Varun Magesh, Faiz Surani, Matthew Dahl, Mirac Suzgun, Christopher D. Manning, & Daniel E. Ho, Hallucination Free?

Assessing the Reliability of Leading AI Legal Research Tools, STANFORD UNIVERSITY (June 26, 2024), available at https://dho.stanford.edu/wp-content/uploads/Legal_RAG_Hallucinations.pdf (study finding leading legal research companies’ GAI systems “hallucinate between 17% and 33% of the time”).

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an appropriate degree of independent verification or review of its output—could violate the duty to provide competent representation as required by Model Rule 1.1.15 While GAI tools may be able to significantly assist lawyers in serving clients, they cannot replace the judgment and experience necessary for lawyers to competently advise clients about their legal matters or to craft the legal documents or arguments required to carry out representations.

The appropriate amount of independent verification or review required to satisfy Rule 1.1 will necessarily depend on the GAI tool and the specific task that it performs as part of the lawyer’s representation of a client. For example, if a lawyer relies on a GAI tool to review and summarize numerous, lengthy contracts, the lawyer would not necessarily have to manually review the entire set of documents to verify the results if the lawyer had previously tested the accuracy of the tool on a smaller subset of documents by manually reviewing those documents, comparing then to the summaries produced by the tool, and finding the summaries accurate. Moreover, a lawyer’s use of a GAI tool designed specifically for the practice of law or to perform a discrete legal task, such as generating ideas, may require less independent verification or review, particularly where a lawyer’s prior experience with the GAI tool provides a reasonable basis for relying on its results.

While GAI may be used as a springboard or foundation for legal work—for example, by generating an analysis on which a lawyer bases legal advice, or by generating a draft from which a lawyer produces a legal document—lawyers may not abdicate their responsibilities by relying solely on a GAI tool to perform tasks that call for the exercise of professional judgment. For example, lawyers may not leave it to GAI tools alone to offer legal advice to clients, negotiate clients’ claims, or perform other functions that require a lawyer’s personal judgment or participation.16 Competent representation presupposes that lawyers will exercise the requisite level of skill and judgment regarding all legal work. In short, regardless of the level of review the lawyer selects, the lawyer is fully responsible for the work on behalf of the client.

Emerging technologies may provide an output that is of distinctively higher quality than current GAI tools produce, or may enable lawyers to perform work markedly faster and more economically, eventually becoming ubiquitous in legal practice and establishing conventional expectations regarding lawyers’ duty of competence.17 Over time, other new technologies have become integrated into conventional legal practice in this manner.18 For example, “a lawyer would have difficulty providing competent legal services in today’s environment without knowing how

15 See generally ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 08-451, at 1 (2008) [hereinafter ABA

Formal Op. 08-451] (concluding that “[a] lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client under Model Rule 1.1”).

16 See Fla. State Bar Ass’n, Prof’l Ethics Comm. Op. 24-1, supra note 4.

17 See, e.g., Sharon Bradley, Rule 1.1 Duty of Competency and Internet Research: Benefits and Risks Associated with Relevant Technology at 7 (2019), available at https://ssrn.com/abstract=3485055 (“View Model Rule 1.1 as elastic.

It is expanding as legal technology solutions expand. The ever-changing shape of this rule makes clear that a lawyer cannot simply learn technology today and never again update their skills or knowledge.”).

18 See, e.g., Smith v. Lewis, 530 P.2d 589, 595 (Cal. 1975) (stating that a lawyer is expected “to possess knowledge of those plain and elementary principles of law which are commonly known by well-informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques”) (emphasis added); Hagopian v. Justice Admin. Comm’n, 18 So. 3d 625, 642 (Fla. Dist. Ct. App. 2009) (observing that lawyers have “become expected to use computer-assisted legal research to ensure that their research is complete and up-to-date, but the costs of this service can be significant”).

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to use email or create an electronic document.”19 Similar claims might be made about other tools such as computerized legal research or internet searches. 20 As GAI tools continue to develop and become more widely available, it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients. 21 But even in the absence of an expectation for lawyers to use GAI tools as a matter of course,22 lawyers should become aware of the GAI tools relevant to their work so that they can make an informed decision, as a matter of professional judgment, whether to avail themselves of these tools or to conduct their work by other means. 23 As previously noted regarding the possibility of outsourcing certain work, “[t]here is no unique blueprint for the provision of competent legal services. Different lawyers may perform the same tasks through different means, all with the necessary ‘legal knowledge, skill, thoroughness and preparation.’”24 Ultimately, any informed decision about whether to employ a GAI tool must consider the client’s interests and objectives.25

19 ABA Formal Op. 477R, supra note 6, at 3 (quoting ABA COMMISSION ON ETHICS 20/20 REPORT 105A (Aug.

2012)).

20 See, e.g., Bradley, supra note 17, at 3 (“Today no competent lawyer would rely solely upon a typewriter to draft a contract, brief, or memo. Typewriters are no longer part of ‘methods and procedures’ used by competent lawyers.”); Lawrence Duncan MacLachlan, Gandy Dancers on the Web: How the Internet Has Raised the Bar on Lawyers’ Professional Responsibility to Research and Know the Law, 13 GEO. J. LEGAL ETHICS 607, 608 (2000) (“The lawyer in the twenty-first century who does not effectively use the Internet for legal research may fall short of the minimal standards of professional competence and be potentially liable for malpractice”); Ellie Margolis, Surfin’ Safari— Why Competent Lawyers Should Research on the Web, 10 YALE J.L. & TECH. 82, 110 (2007) (“While a lawyer’s research methods reveal a great deal about the competence of the research, the method of research is ultimately a secondary inquiry, only engaged in when the results of that research process is judged inadequate. A lawyer who provides the court with adequate controlling authority is not going to be judged incompetent whether she found that authority in print, electronically, or by any other means.”); Michael Thomas Murphy, The Search for Clarity in an Attorney’s Duty to Google, 18 LEGAL COMM. & RHETORIC: JALWD 133, 133 (2021) (“This Duty to Google contemplates that certain readily available information on the public Internet about a legal matter is so easily accessible that it must be discovered, collected, and examined by an attorney, or else that attorney is acting unethically, committing malpractice, or both”); Michael Whiteman, The Impact of the Internet and Other Electronic Sources on an Attorney’s Duty of Competence Under the Rules of Professional Conduct, 11 ALB. L.J. SCI. & TECH. 89, 91 (2000) (“Unless it can be shown that the use of electronic sources in legal research has become a standard technique, then lawyers who fail to use electronic sources will not be deemed unethical or negligent in his or her failure to use such tools.”).

21 See MODEL RULES R. 1.1 cmt. [5] (stating that “[c]ompetent handling of a particular matter includes . . . [the] use of methods and procedures meeting the standards of competent practitioners”); New York County Lawyers Ass’n Prof’l Ethics Comm. Op. 749, 2017 WL 11659554, at *3 (2017) (explaining that the duty of competence covers not only substantive knowledge in different areas of the law, but also the manner in which lawyers provide legal services to clients).

22 The establishment of such an expectation would likely require an increased acceptance of GAI tools across the legal profession, a track record of reliable results from those platforms, the widespread availability of these technologies to lawyers from a cost or financial standpoint, and robust client demand for GAI tools as an efficiency or cost-cutting measure.

23 Model Rule 1.5’s prohibition on unreasonable fees, as well as market forces, may influence lawyers to use new technology in favor of slower or less efficient methods.

24 ABA Formal Op. 08-451, supra note 15, at 2. See also id. (“Rule 1.1 does not require that tasks be accomplished in any special way. The rule requires only that the lawyer who is responsible to the client satisfies her obligation to render legal services competently.”).

25 MODEL RULES R. 1.2(a).

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Confidentiality

A lawyer using GAI must be cognizant of the duty under Model Rule 1.6 to keep confidential all information relating to the representation of a client, regardless of its source, unless the client gives informed consent, disclosure is impliedly authorized to carry out the representation, or disclosure is permitted by an exception.26 Model Rules 1.9(c) and 1.18(b) require lawyers to extend similar protections to former and prospective clients’ information. Lawyers also must make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.”27 Generally, the nature and extent of the risk that information relating to a representation may be revealed depends on the facts. In considering whether information relating to any representation is adequately protected, lawyers must assess the likelihood of disclosure and unauthorized access, the sensitivity of the information,28 the difficulty of implementing safeguards, and the extent to which safeguards negatively impact the lawyer’s ability to represent the client.29 Before lawyers input information relating to the representation of a client into a GAI tool, they must evaluate the risks that the information will be disclosed to or accessed by others outside the firm. Lawyers must also evaluate the risk that the information will be disclosed to or accessed by others inside the firm who will not adequately protect the information from improper disclosure or use30 because, for example, they are unaware of the source of the information and that it originated with a client of the firm. Because GAI tools now available differ in their ability to ensure that information relating to the representation is protected from impermissible disclosure and access, this risk analysis will be fact-driven and depend on the client, the matter, the task, and the GAI tool used to perform it.31 Self-learning GAI tools into which lawyers input information relating to the representation, by their very nature, raise the risk that information relating to one client’s representation may be disclosed improperly,32 even if the tool is used exclusively by lawyers at the same firm.33 This can occur when information relating to one client’s representation is input into the tool, then later revealed in response to prompts by lawyers working on other matters, who then share that output with other clients, file it with the court, or otherwise disclose it. In other words, the self-learning 26 MODEL RULES R. 1.6; MODEL RULES R. 1.6 cmt. [3].

27 MODEL RULES R. 1.6(c).

28 ABA Formal Op. 477R, supra note 6, at 1 (A lawyer “may be required to take special security precautions to

protect against the inadvertent or unauthorized disclosure of client information when … the nature of the information requires a higher degree of security.”).

29 MODEL RULES R. 1.6, cmt. [18].

30 See MODEL RULES R. 1.8(b), which prohibits use of information relating to the representation of a client to the disadvantage of the client.

31 See ABA Formal Op. 477R, supra note 6, at 4 (rejecting specific security measures to protect information relating to a client’s representation and advising lawyers to adopt a fact-specific approach to data security).

32 See generally State Bar of Cal. Standing Comm. on Prof’l Resp. & Conduct, PRACTICAL GUIDANCE FOR THE USE OF GENERATIVE ARTIFICIAL INTELLIGENCE IN THE PRACTICE OF LAW (2024), available at https://www.calbar.ca.gov/Portals/0/documents/ethics/Generative-AI-Practical-Guidance.pdf; Fla. State Bar Ass’n, Prof’l Ethics Comm. Op. 24-1, supra note 4.

33 See Pa. & Philadelphia Joint Formal Opinion 2024-200, supra note 4, at 10 (noting risk that information relating to one representation may be used to inform work on another representation).

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GAI tool may disclose information relating to the representation to persons outside the firm who are using the same GAI tool. Similarly, it may disclose information relating to the representation to persons in the firm (1) who either are prohibited from access to said information because of an ethical wall or (2) who could inadvertently use the information from one client to help another client, not understanding that the lawyer is revealing client confidences. Accordingly, because many of today’s self-learning GAI tools are designed so that their output could lead directly or indirectly to the disclosure of information relating to the representation of a client, a client’s informed consent is required prior to inputting information relating to the representation into such a GAI tool.34 When consent is required, it must be informed. For the consent to be informed, the client must have the lawyer’s best judgment about why the GAI tool is being used, the extent of and specific information about the risk, including particulars about the kinds of client information that will be disclosed, the ways in which others might use the information against the client’s interests, and a clear explanation of the GAI tool’s benefits to the representation. Part of informed consent requires the lawyer to explain the extent of the risk that later users or beneficiaries of the GAI tool will have access to information relating to the representation. To obtain informed consent when using a GAI tool, merely adding general, boiler-plate provisions to engagement letters purporting to authorize the lawyer to use GAI is not sufficient.35 Because of the uncertainty surrounding GAI tools’ ability to protect such information and the uncertainty about what happens to information both at input and output, it will be difficult to evaluate the risk that information relating to the representation will either be disclosed to or accessed by others inside the firm to whom it should not be disclosed as well as others outside the firm.36 As a baseline, all lawyers should read and understand the Terms of Use, privacy policy, and related contractual terms and policies of any GAI tool they use to learn who has access to the information that the lawyer inputs into the tool or consult with a colleague or external expert who has read and analyzed those terms and policies. 37 Lawyers may need to consult with IT professionals or cyber security experts to fully understand these terms and policies as well as the manner in which GAI tools utilize information.

Today, there are uses of self-learning GAI tools in connection with a legal representation when client informed consent is not required because the lawyer will not be inputting information relating to the representation. As an example, if a lawyer is using the tool for idea generation in a manner that does not require inputting information relating to the representation, client informed consent would not be necessary.

34 This conclusion is based on the risks and capabilities of GAI tools as of the publication of this opinion. As the

technology develops, the risks may change in ways that would alter our conclusion. See Fla. State Bar Ass’n, Prof’l Ethics Comm. Op. 24-1, supra note 4, at 2; W. Va. Lawyer Disciplinary Bd. Op. 24-01 (2024), available at http://www.wvodc.org/pdf/AILEO24-01.pdf.

35 See W. Va. Lawyer Disciplinary Bd. Op. 24-01, supra note 34.

36 Magesh et al. supra note 14, at 23 (describing some of the GAI tools available to lawyers as “difficult for lawyers to assess when it is safe to trust them. Official documentation does not clearly illustrate what they can do for lawyers and in which areas lawyers should exercise caution.”)

37 Stephanie Pacheco, Three Considerations for Attorneys Using Generative AI, BLOOMBERG LAW ANALYSIS (June 16, 2023, 4:00 pm), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-three-considerations-forattorneys-using-generative-ai?context=search&index=7.

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Communication

Where Model Rule 1.6 does not require disclosure and informed consent, the lawyer must separately consider whether other Model Rules, particularly Model Rule 1.4, require disclosing the use of a GAI tool in the representation.

Model Rule 1.4, which addresses lawyers’ duty to communicate with their clients, builds on lawyers’ legal obligations as fiduciaries, which include “the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive.”38 Of particular relevance, Model Rule 1.4(a)(2) states that a lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”

Additionally, Model Rule 1.4(b) obligates lawyers to explain matters “to the extent reasonably necessary to permit a client to make an informed decision regarding the representation.” Comment [5] to Rule 1.4 explains, “the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.” Considering these underlying principles, questions arise regarding whether and when lawyers might be required to disclose their use of GAI tools to clients pursuant to Rule 1.4.

The facts of each case will determine whether Model Rule 1.4 requires lawyers to disclose their GAI practices to clients or obtain their informed consent to use a particular GAI tool.

Depending on the circumstances, client disclosure may be unnecessary.

Of course, lawyers must disclose their GAI practices if asked by a client how they conducted their work, or whether GAI technologies were employed in doing so, or if the client expressly requires disclosure under the terms of the engagement agreement or the client’s outside counsel guidelines.39 There are also situations where Model Rule 1.4 requires lawyers to discuss their use of GAI tools unprompted by the client.40 For example, as discussed in the previous section, clients would need to be informed in advance, and to give informed consent, if the lawyer proposes to input information relating to the representation into the GAI tool. 41 Lawyers must also consult clients when the use of a GAI tool is relevant to the basis or reasonableness of a lawyer’s fee.42 Client consultation about the use of a GAI tool is also necessary when its output will influence a significant decision in the representation,43 such as when a lawyer relies on GAI 38 Baker v. Humphrey, 101 U.S. 494, 500 (1879).

See, e.g., MODEL RULES R. 1.4(a)(4) (“A lawyer shall . . . promptly comply with reasonable requests for information[.]”).

40 See MODEL RULES R. 1.4(a)(1) (requiring lawyers to “promptly inform the client of any decision or circumstance with respect to which the client’s informed consent” is required by the rules of professional conduct).

41 See section B for a discussion of confidentiality issues under Rule 1.6.

42 See section F for a discussion of fee issues under Rule 1.5.

43 Guidance may be found in ethics opinions requiring lawyers to disclose their use of temporary lawyers whose involvement is significant or otherwise material to the representation. See, e.g., Va. State Bar Legal Ethics Op. 1850, 2010 WL 5545407, at *5 (2010) (acknowledging that “[t]here is little purpose to informing a client every time a lawyer outsources legal support services that are truly tangential, clerical, or administrative in nature, or even when basic legal research or writing is outsourced without any client confidences being revealed”); Cal. State Bar, Standing Comm. on Prof’l Resp. & Conduct Op. 2004-165, 2004 WL 3079030, at *2–3 (2004) (opining that a 39

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technology to evaluate potential litigation outcomes or jury selection. A client would reasonably want to know whether, in providing advice or making important decisions about how to carry out the representation, the lawyer is exercising independent judgment or, in the alternative, is deferring to the output of a GAI tool. Or there may be situations where a client retains a lawyer based on the lawyer’s particular skill and judgment, when the use of a GAI tool, without the client’s knowledge, would violate the terms of the engagement agreement or the client’s reasonable expectations regarding how the lawyer intends to accomplish the objectives of the representation.

It is not possible to catalogue every situation in which lawyers must inform clients about their use of GAI. Again, lawyers should consider whether the specific circumstances warrant client consultation about the use of a GAI tool, including the client’s needs and expectations, the scope of the representation, and the sensitivity of the information involved. Potentially relevant considerations include the GAI tool’s importance to a particular task, the significance of that task to the overall representation, how the GAI tool will process the client’s information, and the extent to which knowledge of the lawyer’s use of the GAI tool would affect the client’s evaluation of or confidence in the lawyer’s work.

Even when Rule 1.6 does not require informed consent and Rule 1.4 does not require a disclosure regarding the use of GAI, lawyers may tell clients how they employ GAI tools to assist in the delivery of legal services. Explaining this may serve the interest of effective client communication. The engagement agreement is a logical place to make such disclosures and to identify any client instructions on the use of GAI in the representation.44 D.

Meritorious Claims and Contentions and Candor Toward the Tribunal

Lawyers using GAI in litigation have ethical responsibilities to the courts as well as to clients. Model Rules 3.1, 3.3, and 8.4(c) may be implicated by certain uses. Rule 3.1 states, in part, that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert and issue therein, unless there is a basis in law or fact for doing so that is not frivolous.” Rule 3.3 makes it clear that lawyers cannot knowingly make any false statement of law or fact to a tribunal or fail to correct a material false statement of law or fact previously made to a tribunal.45 Rule 8.4(c) provides that a lawyer must disclose the use of a temporary lawyer to a client where the temporary lawyer’s use constitutes a “significant development” in the matter and listing relevant considerations); N.Y. State Bar Ass’n, Comm on Prof’l Ethics 715, at 7 (1999) (opining that “whether a law firm needs to disclose to the client and obtain client consent for the participation of a Contract lawyer depends upon whether client confidences will be disclosed to the lawyer, the degree of involvement of the lawyer in the matter, and the significance of the work done by the lawyer”); D.C. Bar Op. 284, at 4 (1988) (recommending client disclosure “whenever the proposed use of a temporary lawyer to perform work on the client’s matter appears reasonably likely to be material to the representation or to affect the client’s reasonable expectations”); Fla. State Bar Ass’n, Comm. on Prof’l Ethics Op. 88-12, 1988 WL 281590, at *2 (1988) (stating that disclosure of a temporary lawyer depends “on whether the client would likely consider the information material”);.

44 For a discussion of what client notice and informed consent under Rule 1.6 may require, see section B. 45 MODEL RULES R. 3.3(a) reads: “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if

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lawyer shall not engage in “conduct involving dishonesty, fraud, deceit or misrepresentation.”

Even an unintentional misstatement to a court can involve a misrepresentation under Rule 8.4(c).

Therefore, output from a GAI tool must be carefully reviewed to ensure that the assertions made to the court are not false.

Issues that have arisen to date with lawyers’ use of GAI outputs include citations to nonexistent opinions, inaccurate analysis of authority, and use of misleading arguments. 46 Some courts have responded by requiring lawyers to disclose their use of GAI. 47 As a matter of competence, as previously discussed, lawyers should review for accuracy all GAI outputs. In judicial proceedings, duties to the tribunal likewise require lawyers, before submitting materials to a court, to review these outputs, including analysis and citations to authority, and to correct errors, including misstatements of law and fact, a failure to include controlling legal authority, and misleading arguments.

E.

Supervisory Responsibilities

Model Rules 5.1 and 5.3 address the ethical duties of lawyers charged with managerial and supervisory responsibilities and set forth those lawyers’ responsibilities with regard to the firm, subordinate lawyers, and nonlawyers. Managerial lawyers must create effective measures to ensure that all lawyers in the firm conform to the rules of professional conduct,48 and supervisory lawyers must supervise subordinate lawyers and nonlawyer assistants to ensure that subordinate lawyers and nonlawyer assistants conform to the rules. 49 These responsibilities have implications for the use of GAI tools by lawyers and nonlawyers.

Managerial lawyers must establish clear policies regarding the law firm’s permissible use of GAI, and supervisory lawyers must make reasonable efforts to ensure that the firm’s lawyers and nonlawyers comply with their professional obligations when using GAI tools.50 Supervisory obligations also include ensuring that subordinate lawyers and nonlawyers are trained,51 including in the ethical and practical use of the GAI tools relevant to their work as well as on risks associated with relevant GAI use.52 Training could include the basics of GAI technology, the capabilities and limitations of the tools, ethical issues in use of GAI and best practices for secure data handling, privacy, and confidentiality.

necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”

46 See DC Bar Op. 388 (2024).

47 Lawyers should consult with the applicable court’s local rules to ensure that they comply with those rules with respect to AI use. As noted in footnote 4, no one opinion could address every ethics issue presented when a lawyer uses GAI. For example, depending on the facts, issues relating to Model Rule 3.4(c) could be presented.

48 See MODEL RULES R. 1.0(c) for the definition of firm.

49 ABA Formal Op. 08-451, supra note 15.

50 MODEL RULES R. 5.1.

51 See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 467 (2014).

52 See generally, MODEL RULES R. 1.1, cmt. [8]. One training suggestion is that all materials produced by GAI tools be marked as such when stored in any client or firm file so future users understand potential fallibility of the work.

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Lawyers have additional supervisory obligations insofar as they rely on others outside the law firm to employ GAI tools in connection with the legal representation. Model Rule 5.3(b) imposes a duty on lawyers with direct supervisory authority over a nonlawyer to make “reasonable efforts to ensure that” the nonlawyer’s conduct conforms with the professional obligations of the lawyer. Earlier opinions recognize that when outsourcing legal and nonlegal services to third-party providers, lawyers must ensure, for example, that the third party will do the work capably and protect the confidentiality of information relating to the representation.53 These opinions note the importance of: reference checks and vendor credentials; understanding vendor’s security policies and protocols; familiarity with vendor’s hiring practices; using confidentiality agreements; understanding the vendor’s conflicts check system to screen for adversity among firm clients; and the availability and accessibility of a legal forum for legal relief for violations of the vendor agreement. These concepts also apply to GAI providers and tools.

Earlier opinions regarding technological innovations and other innovations in legal practice are instructive when considering a lawyer’s use of a GAI tool that requires the disclosure and storage of information relating to the representation.54 In particular, opinions developed to address cloud computing and outsourcing of legal and nonlegal services suggest that lawyers should: •

• •

• F.

ensure that the [GAI tool] is configured to preserve the confidentiality and security of information, that the obligation is enforceable, and that the lawyer will be notified in the event of a breach or service of process regarding production of client information;55 investigate the [GAI tool’s] reliability, security measures, and policies, including limitations on the [the tool’s] liability;56 determine whether the [GAI tool] retains information submitted by the lawyer before and after the discontinuation of services or asserts proprietary rights to the information;57 and understand the risk that [GAI tool servers] are subject to their own failures and may be an attractive target of cyber-attacks.58 Fees

Model Rule 1.5, which governs lawyers’ fees and expenses, applies to representations in which a lawyer charges the client for the use of GAI. Rule 1.5(a) requires a lawyer’s fees and expenses to be reasonable and includes a non-exclusive list of criteria for evaluating whether a fee 53 ABA Formal Op. 08-451, supra note 15; ABA Formal. Op. 477R, supra note 6.

54 See ABA Formal Op. 08-451, supra note 15.

55 Fla. Bar Advisory Op. 12-3 (2013).

56 Id. citing Iowa State Bar Ass’n Comm. on Ethics & Practice Guidelines Op. 11-01 (2011) [hereinafter Iowa Ethics

Opinion 11-01].

57 Fla. Bar Advisory Op. 24-1, supra note 4; Fla. Bar Advisory Op. 12-3, supra note 55; Iowa Ethics Opinion 11-01, supra note 56.

58 Fla. Bar Advisory Op. 12-3, supra note 55; See generally Melissa Heikkila, Three Ways AI Chatbots are a Security Disaster, MIT TECHNOLOGY REVIEW (Apr. 3, 2023), www.technologyreview.com/2023/04/03/1070893/three-ways-ai-chatbots-are-a-security-disaster/.

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or expense is reasonable.59 Rule 1.5(b) requires a lawyer to communicate to a client the basis on which the lawyer will charge for fees and expenses unless the client is a regularly represented client and the terms are not changing. The required information must be communicated before or within a reasonable time of commencing the representation, preferably in writing. Therefore, before charging the client for the use of the GAI tools or services, the lawyer must explain the basis for the charge, preferably in writing.

GAI tools may provide lawyers with a faster and more efficient way to render legal services to their clients, but lawyers who bill clients an hourly rate for time spent on a matter must bill for their actual time. ABA Formal Ethics Opinion 93-379 explained, “the lawyer who has agreed to bill on the basis of hours expended does not fulfill her ethical duty if she bills the client for more time than she has actually expended on the client’s behalf.”60 If a lawyer uses a GAI tool to draft a pleading and expends 15 minutes to input the relevant information into the GAI program, the lawyer may charge for the 15 minutes as well as for the time the lawyer expends to review the resulting draft for accuracy and completeness. As further explained in Opinion 93-379, “If a lawyer has agreed to charge the client on [an hourly] basis and it turns out that the lawyer is particularly efficient in accomplishing a given result, it nonetheless will not be permissible to charge the client for more hours than were actually expended on the matter,”61 because “[t]he client should only be charged a reasonable fee for the legal services performed.”62 The “goal should be solely to compensate the lawyer fully for time reasonably expended, an approach that if followed will not take advantage of the client.”63 The factors set forth in Rule 1.5(a) also apply when evaluating the reasonableness of charges for GAI tools when the lawyer and client agree on a flat or contingent fee.64 For example, if using a GAI tool enables a lawyer to complete tasks much more quickly than without the tool, it may be unreasonable under Rule 1.5 for the lawyer to charge the same flat fee when using the GAI tool as when not using it. “A fee charged for which little or no work was performed is an unreasonable fee.”65 The principles set forth in ABA Formal Opinion 93-379 also apply when a lawyer charges GAI work as an expense. Rule 1.5(a) requires that disbursements, out-of-pocket expenses, or additional charges be reasonable. Formal Opinion 93-379 explained that a lawyer may charge the 59 The listed considerations are (1) the time and labor required, the novelty and difficulty of the questions involved,

and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

60 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 93-379, at 6 (1993) [hereinafter ABA Formal Op. 93379].

61 Id. 62 Id. at 5.

63 Id. 64 See, e.g., Williams Cos. v. Energy Transfer LP, 2022 Del. Ch. LEXIS 207, 2022 WL 3650176 (Del. Ch. Aug. 25, 2022) (applying same principles to contingency fee).

65 Att’y Grievance Comm’n v. Monfried, 794 A.2d 92, 103 (Md. 2002) (finding that a lawyer violated Rule 1.5 by charging a flat fee of $1,000 for which the lawyer did little or no work).

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client for disbursements incurred in providing legal services to the client. For example, a lawyer typically may bill to the client the actual cost incurred in paying a court reporter to transcribe a deposition or the actual cost to travel to an out-of-town hearing.66 Absent contrary disclosure to the client, the lawyer should not add a surcharge to the actual cost of such expenses and should pass along to the client any discounts the lawyer receives from a third-party provider.67 At the same time, lawyers may not bill clients for general office overhead expenses including the routine costs of “maintaining a library, securing malpractice insurance, renting of office space, purchasing utilities, and the like.”68 Formal Opinion 93-379 noted, “[i]n the absence of disclosure to a client in advance of the engagement to the contrary,” such overhead should be “subsumed within” the lawyer’s charges for professional services.69 In applying the principles set out in ABA Formal Ethics Opinion 93-379 to a lawyer’s use of a GAI tool, lawyers should analyze the characteristics and uses of each GAI tool, because the types, uses, and cost of GAI tools and services vary significantly. To the extent a particular tool or service functions similarly to equipping and maintaining a legal practice, a lawyer should consider its cost to be overhead and not charge the client for its cost absent a contrary disclosure to the client in advance. For example, when a lawyer uses a GAI tool embedded in or added to the lawyer’s word processing software to check grammar in documents the lawyer drafts, the cost of the tool should be considered to be overhead. In contrast, when a lawyer uses a third-party provider’s GAI service to review thousands of voluminous contracts for a particular client and the provider charges the lawyer for using the tool on a per-use basis, it would ordinarily be reasonable for the lawyer to bill the client as an expense for the actual out-of-pocket expense incurred for using that tool.

As acknowledged in ABA Formal Opinion 93-379, perhaps the most difficult issue is determining how to charge clients for providing in-house services that are not required to be included in general office overhead and for which the lawyer seeks reimbursement. The opinion concluded that lawyers may pass on reasonable charges for “photocopying, computer research, . . . and similar items” rather than absorbing these expenses as part of the lawyers’ overhead as many lawyers would do.70 For example, a lawyer may agree with the client in advance on the specific rate for photocopying, such as $0.15 per page. Absent an advance agreement, the lawyer “is obliged to charge the client no more than the direct cost associated with the service (i.e., the actual cost of making a copy on the photocopy machine) plus a reasonable allocation of overhead expenses directly associated with the provision of the service (e.g., the salary of the photocopy machine operator).”71 66 ABA Formal Op. 93-379 at 7.

67 Id. at 8.

68 Id. at 7.

69 Id. 70 Id. at 8.

71 Id. Opinion 93-379 also explained, “It is not appropriate for the Committee, in addressing ethical standards, to opine

on the various accounting issues as to how one calculates direct cost and what may or may not be included in allocated overhead. These are questions which properly should be reserved for our colleagues in the accounting profession.

Rather, it is the responsibility of the Committee to explain the principles it draws from the mandate of Model Rule 1.5’s injunction that fees be reasonable. Any reasonable calculation of direct costs as well as any reasonable allocation of related overhead should pass ethical muster. On the other hand, in the absence of an agreement to the contrary, it is impermissible for a lawyer to create an additional source of profit for the law firm beyond that which is contained in the provision of professional services themselves. The lawyer’s stock in trade is the sale of legal services, not photocopy paper, tuna fish sandwiches, computer time or messenger services.” Id.

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These same principles apply when a lawyer uses a proprietary, in-house GAI tool in rendering legal services to a client. A firm may have made a substantial investment in developing a GAI tool that is relatively unique and that enables the firm to perform certain work more quickly or effectively. The firm may agree in advance with the client about the specific rates to be charged for using a GAI tool, just as it would agree in advance on its legal fees. But not all in-house GAI tools are likely to be so special or costly to develop, and the firm may opt not to seek the client’s agreement on expenses for using the technology. Absent an agreement, the firm may charge the client no more than the direct cost associated with the tool (if any) plus a reasonable allocation of expenses directly associated with providing the GAI tool, while providing appropriate disclosures to the client consistent with Formal Opinion 93-379. The lawyer must ensure that the amount charged is not duplicative of other charges to this or other clients.

Finally, on the issue of reasonable fees, in addition to the time lawyers spend using various GAI tools and services, lawyers also will expend time to gain knowledge about those tools and services. Rule 1.1 recognizes that “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [8] explains that “[t]o maintain the requisite knowledge and skill [to be competent], a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engaging in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”72 Lawyers must remember that they may not charge clients for time necessitated by their own inexperience.73 Therefore, a lawyer may not charge a client to learn about how to use a GAI tool or service that the lawyer will regularly use for clients because lawyers must maintain competence in the tools they use, including but not limited to GAI technology. However, if a client explicitly requests that a specific GAI tool be used in furtherance of the matter and the lawyer is not knowledgeable in using that tool, it may be appropriate for the lawyer to bill the client to gain the knowledge to use the tool effectively. Before billing the client, the lawyer and the client should agree upon any new billing practices or billing terms relating to the GAI tool and, preferably, memorialize the new agreement.

III.

Conclusion

Lawyers using GAI tools have a duty of competence, including maintaining relevant technological competence, which requires an understanding of the evolving nature of GAI. In 72 MODEL RULES R. 1.1, cmt. [8] (emphasis added); see also ABA Comm. on Ethics & Prof’l Responsibility, Formal

Op. 498 (2021).

73 Heavener v. Meyers, 158 F. Supp. 2d 1278 (E.D. Okla. 2001) (five hundred hours for straightforward Fourth Amendment excessive-force claim and nineteen hours for research on Eleventh Amendment defense indicated excessive billing due to counsel’s inexperience); In re Poseidon Pools of Am., Inc., 180 B.R. 718 (Bankr. E.D.N.Y. 1995) (denying compensation for various document revisions; “we note that given the numerous times throughout the Final Application that Applicant requests fees for revising various documents, Applicant fails to negate the obvious possibility that such a plethora of revisions was necessitated by a level of competency less than that reflected by the Applicant’s billing rates”); Att’y Grievance Comm’n v. Manger, 913 A.2d 1 (Md. 2006) (“While it may be appropriate to charge a client for case-specific research or familiarization with a unique issue involved in a case, general education or background research should not be charged to the client.”); In re Hellerud, 714 N.W.2d 38 (N.D. 2006) (reduction in hours, fee refund of $5,651.24, and reprimand for lawyer unfamiliar with North Dakota probate work who charged too many hours at too high a rate for simple administration of cash estate; “it is counterintuitive to charge a higher hourly rate for knowing less about North Dakota law”).

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using GAI tools, lawyers also have other relevant ethical duties, such as those relating to confidentiality, communication with a client, meritorious claims and contentions, candor toward the tribunal, supervisory responsibilities regarding others in the law office using the technology and those outside the law office providing GAI services, and charging reasonable fees. With the ever-evolving use of technology by lawyers and courts, lawyers must be vigilant in complying with the Rules of Professional Conduct to ensure that lawyers are adhering to their ethical responsibilities and that clients are protected. ______________________________________________________________________________ AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY 321 N. Clark Street, Chicago, Illinois 60654-4714 Telephone (312) 988-5328 CHAIR: Bruce Green, New York, NY ■ Mark A. Armitage, Detroit, MI ■ Matthew Corbin, Olathe, KS ■ Robinjit Kaur Eagleson, Lansing, MI ■ Brian Shannon Faughnan, Memphis, TN ■ Hilary P. Gerzhoy, Washington, D.C. ■ Wendy Muchman, Chicago, IL ■ Tim Pierce, Madison, WI ■ Hon. Jennifer A. Rymell, Fort Worth, TX ■ Charles Vigil, Albuquerque, NM CENTER FOR PROFESSIONAL RESPONSIBILITY: Mary McDermott, Lead Senior Counsel ©2024 by the American Bar Association. All rights reserved.

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31ST ANNUAL ADR INSTITUTE

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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Best Practices for Attorneys for Ethically Implementing Artificial Intelligence into Practice Using the ASPEN Framework*

Awareness and Education 1. Continuous Learning: Emphasize the importance of staying abreast of the latest developments in AI technology, with a focus on understanding evolving capabilities, limitations, and the legal landscape surrounding AI use in practice. This includes participating in ongoing legal education courses, workshops, and seminars dedicated to AI ethics and law.

2. Comprehensive Understanding: Encourage a deep dive into the operational mechanics of generative AI, including how LLMs are trained, their data sources, and inherent biases. This knowledge is crucial for identifying when and how to utilize these tools responsibly in legal practice.

Strategies and Protocols 3. AI Usage Framework: Develop a detailed framework for AI application within legal practices, addressing ethical considerations, data protection, and the balance between AI-generated insights and human judgment. This framework should include protocols for evaluating new AI tools before integration into practice.

4. Ethical Decision-Making Protocols: Formulate protocols that guide ethical decisionmaking when using AI, ensuring these tools are used in a manner that respects client confidentiality, privacy, and the pursuit of justice.

Preparation and Practice 5. Guided Implementation: Advocate for a structured approach to incorporating AI into practice, with emphasis on supervised use where human professionals evaluate AI suggestions for accuracy, relevance, and ethical compliance before application.

6. Scenario-Based Training: Implement training programs that simulate real-life scenarios where AI tools are employed, helping legal professionals to understand the nuances of AI interaction and its practical implications in varied contexts.

Education Again 7. Ongoing Training and Development: Stress the necessity of continuous education for all team members on the evolving nature of AI technologies, ethical

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considerations, and best practices for responsible use, ensuring that the firm or legal department remains at the forefront of ethical AI application in law.

8. Professional Community Engagement: Encourage active participation in the broader legal and technological communities to facilitate the exchange of insights, experiences, and strategies for addressing AI ethics in law, promoting a culture of openness and continuous improvement.

Notice and Transparency 9. Transparent Client Relations: Ensure clear communication with clients regarding the use of AI in their cases, including an explanation of how AI tools assist, the benefits and risks involved, and the measures taken to safeguard their interests and data.

10. Ethical Disclosure Practices: Advocate for transparency in the use of AI, including the disclosure of AI involvement in legal advice, documentation, and strategy to clients, opposing parties, and courts as ethically appropriate, fostering trust and integrity in legal practice.

Key Takeaway Reinforce that while AI offers transformative potential for legal practice, its use must be carefully managed to uphold ethical standards, professional responsibility, and the commitment to justice. The ASPEN approach offers a structured pathway to navigate these challenges, ensuring that AI tools enhance, rather than compromise, the quality and integrity of legal services.

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BUILDING THE PRACTICE OF YOUR DREAMS One Month of Daily Tips for Finding Success

by Susan Guthrie

From the Creator and Host of The Make Money Mediating Podcast

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Dedication: To my husband, David, who supports me in building the practice (and life) of my dreams every day. I wish you all a partner in your success who lifts you up and inspires you in a similar way on your journey to success.

All material contained in this book and any related material is orginal content of the author.

Reprinting and use in any format is prohibited without the prior express written approval of the author and proper attribution. © 2023 All Rights Reserved – Susan E Guthrie LLC

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Dear Reader, If you are anything like me, you started your law career with a passion for helping people and a desire to make a difference. However, after years of practicing family law in the traditional litigation model, I found myself exhausted, stressed out, and feeling like I wasn't truly helping people in the way I had hoped.

Although I tried various things to improve my practice, it wasn't until I discovered mediation as an alternate path to help people restructure their lives and resolve their conflicts that things began to shift. But, as with any major career change, it wasn't an easy transition. I struggled to replicate the financial success I had experienced in litigation, and I knew nothing about building a practice.

To make matters worse, I moved to the West Coast and found myself in a place where I wasn't licensed to practice, which forced me to reevaluate my career and make some big changes.

It was during this time that I began to develop my skills as an online mediator, and I created a training program called Learn to Mediate Online , which teaches other professionals how to conduct their mediation practice online.

Over the course of a year, I trained about 50 colleagues, and when Covid hit, suddenly every mediator in the world needed to learn how to mediate online. I conducted webinars for 500 people twice per day for months, and from there, things just exploded.

Ⓡ

To share my expertise and interview other professionals in the industry, I also started two hit podcasts, The Divorce & Beyond Podcast and The Make Money Mediating Podcast. These podcasts have been a wonderful way to connect with colleagues and clients alike and have opened up many new opportunities for me in speaking and training.

Ⓡ

Now, I have a career that I think is even more successful than my original litigation practice. I truly enjoy what I do every day, I work with people all over the world, and yes, I was able to replace that litigation income. Along the way, I have learned a lot, and I want to share it with you.

Whether you're just starting out or looking for ways to take your existing practice to the next level, I believe you'll find this book to be a valuable resource. So, let's get started on building the practice of your dreams!

Warmly, Susan Guthrie

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TIP #1: DENZEL WASHINGTON'S SUCCESS TIP FOR ENTREPRENEURS: DEFINE YOUR OWN PATH Success. It's the shiny gold ring that so many of us pursue day in and day out, but have you ever really sat down and thought about what success means to you? If you don't, how will you ever know if you achieve it?

I don't think that anyone would deny that Denzel Washington is a success.

Most would look to his many acting awards, his high profile fame and his large paychecks as signs of that success but it is interesting to see what he thinks of the term as it applies to his life: "Success? I don't know what that word means. I'm happy. But success, that goes back to what in somebody's eyes success means.

For me, success is inner peace.

That's a good day for me."

- Denzel Washington Interestingly, at least in Denzel's description, there is a prioritization of personal satisfaction over the material indices of success. It is very likely that for many, success will be

achieved through a combination of achieving botpersonal and business goals. If you want to build a practice, you need to know your own, personal definition of success.

Defining success for your business is a critical step towards building a successful practice, just as it is important to define success in your personal life. While success may mean different things to different entrepreneurs, having a clear definition of what success means to your business and personal life can guide your decision-making, help you set achievable goals, and ensure that you are moving in the right direction.

Without a clear definition of success in your personal life, it can be easy to get sidetracked by external pressures, like keeping up with societal norms or chasing short-term gains, that can ultimately lead to a loss of focus and direction.

By taking the time to define what success looks like for your personal life, you can stay focused on122 what

truly matters, make informed decisions about where to invest your time and resources, and ensure that you are creating value not just for yourself, but for your loved ones and the community around you.

By doing so, you can build a business that not only generates financial returns but also creates meaningful impact and fulfills your personal and professional aspirations.

For instance, if success in your personal life means spending quality time with your family, you may choose to prioritize your family's needs and make adjustments in your professional life to achieve a work-life balance that works for you. Similarly, if success for your business means profitability, market dominance, social impact, or something else entirely, it's important to take the time to define it and use it as a guidepost for your journey as an entrepreneur.

So as you sit down and prepare yourself for your practice building endeavor, remember that defining success for both your personal life and your business is an essential step towards a fulfilling and meaningful journey. By understanding what success means to you, you can make better decisions, set achievable goals, and build a life and business that aligns with your values and passions. So take the time to reflect and define your own success, and let it guide you towards a bright and fulfilling future, both in your personal life and your practice!

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TIP #2: STARTING YOUR OWN PRACTICE - THE 3 ESSENTIAL STEPS AND HOW MUCH THEY COST We are getting practical about business this week in the Newsletter!

For those who are ready to go out on their own and set up their private practice, here’s a quick rundown on the important initial steps to do it right and how much it will cost you for each (spoiler alert: it’s probably less than you think!)

There are 3 essential basics that you need to cover when starting a private practice: 1. Make the practice legal 2. Have a place to practice 3. Create the structure to support the practice We want you to get started on the right foot and to spend as little as possible in getting set up so follow along this week as we help you get started quickly, easily and inexpensively!

MAKE IT LEGAL: Limited Liability Company: For most, creating a Limited Liability Company (LLC) or other legal entity in order to create a legal separation between you personally and your business will be advised. In many states, filing an LLC can be done easily online through the Secretary of State or other governmental business authority. With a little online research, many will be able to manage the filing on their own and will only need to budget for the filing fees which vary by state but range in the $400 - $700 range. If you want to retain an attorney to handle the filing of the LLC or other legal entity for you, then on average, expect to pay approximately $1,500 - $3,000 in fees although this too can vary depending on your location and the complexity of your business.

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Employee Identification Number: You will need an employee identification number (EIN) from the IRS. You can think of this as a social security number for your business and you can apply for one online at IRS.gov. There is no cost to applying for an EIN through the IRS and if you have retained an attorney to create your LLC or other business entity, you may find that applying for the EIN is a part of their services.

PRO TIP: For those who want to find a service to take care of it all and at an incredibly reasonable price, check out ZenBusiness.com which is a service that will:

Bank Account: You will want to create a bank account or accounts that are separate from your personal and any other business banking accounts for your new practice. KEEP THEM SEPARATE – it will save you a lot of headaches in your bookkeeping and accounting.

Consider also investing in a bookkeeping program like Quickbooks or Freshbooks (approx. $20/month) and/or engage a bookkeeper ($20-$30/hour) and accountant (Annually $1,000 - $2,000 est.) to manage your ongoing financial tracking and tax filings.

If you need assistance finding a bookkeeper or accountant try Upwork.com, it is a great place to find freelance workers in almost any field that you can think of to help you and to support your new business.

Worry-Free Compliance Business Banking Taxes and Accounting Domain Name and Website

Form Your LLC Fast Filing Speeds Registered Agent Service Employer ID Number (EIN) 100% Accuracy Guarantee Grow Your Business

Their services range from FREE (yes, FREE) for just the initial filing to $299/year for their premiere service that renews each year and provides the business support you need on an ongoing basis including a domain name and simple website.

Final Note: Depending upon your services, you may be best served to secure professional liability insurance for your practice. Contact your insurance carrier to find out what options might be available to you and the cost.

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TIP #3: YOU NEED YOUR SPACE (OR DO YOU?) FINDING THE RIGHT PLACE FOR YOUR NEW PRACTICE Continuing “Starting Your Own Practice – The 3 Essential Steps and How Much They Cost” we are going to dive into Essential Step #2: Finding the Right Place to Practice.

For many practitioners today, the first question when it comes to establishing a practice will be, “will I be in-person, virtual or a combination of both (Hybrid)?”

In-Person: Depending on the services that you provide, it may be customary or necessary to meet with clients in person and other practitioners just prefer the “personal touch” of being in the same space as their clients. If this is you, then finding the right physical office space will be essential.

Quick tips for physical office space to look for: Convenient location – easy access for commuting for both you and your clients Physically accessible – ADA compliant

Privacy – Essential for many service practices Price – Rent can be the largest expense for many practitioners.

Know your budget and stick to it!

Amenities (WiFi, Conference Space, Reception) – Never forget to ask about the add on amenities and whether or not there are included in your rent!

Virtual: With the massive shift to online work, many practitioners starting their own practice today are opting for a fully virtual practice.

There are many obvious advantages to practicing online, including: Cost – overhead is reduced dramatically when the expenses of a physical space are eliminated and for many, the expense of their Zoom account ($15/mo) and other assistive programs (Think Docusign ($15.mo) and Calendly ($8/mo)) keep the overhead at under $100/month.

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Accessibility – working with clients via video conferencing makes our services available to a wide range of people with limiting physical disabilities.

Expanded Reach – we can work with almost anyone anywhere as long as they have an internet connection.

Lifestyle – professionals working virtually can live and practice almost anywhere they choose without regard for geography.

Hybrid: For those who want the best of both worlds, having a hybrid work model can be an attractive, and increasingly affordable, option. Here are a range of potential approaches from most expensive to least: $$$ - For those with deep pockets, it is a simple matter to combine a virtual practice in your physical office with some simple technology upgrades.

Many practitioners are installing virtual tech suites in their conference rooms that provide instant access to a virtual meeting. Logitech is the leader in remote technology and their Rally Bar series is incredibly popular (starts at approximately $2,500 for a small conference room.)

$$ - For a more affordable solution, it may be an option to lease a physical office space with other professionals who practice in the same area as you do and then each have the ability to use the physical office on an as needed basis while sharing costs. This approach can have the added benefit of creating a “practice pod” of likeminded and/or collaborative professionals. $ - The least expensive approach to a hybrid practice would be to rent space in a coworking office on an as-needed basis. There are a plethora of options available such as Liquidspace, WeWork, and Regus as well as local options you can find with a simple Google search. This is an especially attractive option for those who will be more online but want to have the ability to offer in-person to clients who prefer to meet in person.

Before you hang that shingle, take some time to really think through the pros and cons of your workspace taking into consideration the needs and wants of your clients against your budget and your preferences.

PRO TIP: If you are unsure, start out virtual! You can always find terrestrial space down the road if it becomes necessary or attractive but you can get your practice up and 127 running first!

TIP #4: YOUR FIRM INFRASTRUCTURE: BUILDING ON A SOLID FOUNDATION Continuing our series “Starting Your Own Practice – The 3 Essential Steps and How Much They Cost” we are going to dive into Essential Step #3: Creating Your Practice Infrastructure.

As important as it is to have both your legal entity and your practice location and space pulled together as you launch your practice, probably the most important factor is creating your practice infrastructure. By that I mean you policies, processes and procedures that will guide your delivery of services and be the hallmark of your client experience.

What am I talking about you ask? In short, you should take the time to set out your practice: Policies: The overall guidelines Processes: The flows of activity Procedures: The detailed instructions of steps Let's break this down so you can do the work. This is one place where I find it most helpful to put pen to paper or fingers to keyboard to chart each category out.

What are your Practice Policies? Your policies outline your general approach to your practice and business. Your policies will, in a broad sense, outline the direction of your practice as well as to identify and mitigate areas of risk. For example, if you are opening a mediation practice, some of your policies might determine what types of matters you will mediate, whether or not you will accept self-represented participants or if they must have counsel, and whether you will provide your services in person, online or both. Other policies might address things such as how you will deal with cancellations or establishing turnaround time on Term Sheets or Memorandums of Understanding (MOUs). Your policies are your guiding light and do not need to be permanent and set in stone. An ongoing review to modify as needed is highly recommended.

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What are your Practice Processes? Your processes are the maps that guide your actions and those of your staff.

These are the workflows that establish the steps to be taken to complete the tasks of your services. Specifically, a workflow is, according to the Business Process Management Center of Excellence: “An orchestrated and repeatable pattern of business activity enabled by the systematic organization of resources into processes that transform materials, provide services, or process information.” Think about each step of your service delivery, from initial contact through post-service follow up, and determine your workflow for each. Memorialize each workflow so that it can be shared easily with any support personnel you may work with.

What are Your Practice Procedures? Procedures specify tasks and define actions and this is where you get truly granular.

Break down your processes into each fundamental step and create the support structure needed to best accomplish that step. Using the example of creating a procedure when a potential client makes initial contact, you may need to specify who is tasked with responding, a timeframe for that response, create a form or handout that supports the outreach, perhaps a sample script (if answering a call) or email template, a schedule and procedure for follow up and how such outreach will be tracked.

I know, it is a lot, and some of this will be created, amplified and finetuned as you launch your business and put the elements above into practice but, the more time that you spend thinking this all through, the stronger the foundation upon which your practice will be built. A strong infrastructure will help you start strong and deliver a positive client experience from the start!

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TIP #5: IT'S TIME TO BREAK OUT OF YOUR WFH COVID BUBBLE TO BUILD YOUR PRACTICE A couple of week's ago I attended an in-person professional event in a suburb of Chicago where I live. Since the pandemic, I have gotten quite used to living in my work-fromhome bubble so it seemed like a serious effort to get dressed up (still wearing yoga pants all day), put on heels (OMG) and spend an hour and a half in bumper to bumper traffic to go 9 miles (if you know Chicago traffic, you know.) I contemplated passing it up and making my excuses several times but I had promised a good friend and I wanted to see her shine as she addressed the crowd so off I went.

In the space of two hours I: Saw four colleagues connect with potential referrals for collaborative cases Met at least two wonderful candidates to be guests on my podcast Connected with five good friends and met many more Saw my friend shine as I knew she would

Spoke with countless potential attendees for our Mosten Guthrie Academy trainings Was thrilled to meet a new consulting client who has since hired me to work with her as she establishes her practice.

All this in the space of two hours (if you don't count the dress up time and traffic.)

Well worth it I say!

There really is no substitute for getting out there and making yourself available. Will it always be as rewarding in tangible ways as this event was? Perhaps not, but you never know so break out of any lingering Covid bubble you may be living in (barring health reasons not to do so) and SHOW UP! As Brene Brown says, "Courage starts with showing up and letting ourselves be seen."

Be courageous!

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TIP #6: YOU NEED TO KNOW THE COMPETITION Unless you are a very rare service provider, you are not going to be the only professional offering services in your area of specialty. That's why it pays to know the competition.

When starting a practice, we often spend a great deal of time examining and thinking through the services that we will offer, but many do not take the time to do some research on other providers in the field to see what they offer and how they are faring in the market.

What should you be looking for?

Here are a few pointers as you do your research. First, make a list of other practitioners who are in your field.

1. What makes them stand out in a positive way?

2. Are there any negatives?

3. How do you and your services compare?

4. How are you different?

Where can you find this information?

Talk to their clients if possible.

Do you know anyone who has worked with them in the past?

See if you can pick their brain and get some insights into the questions above.

Check your competitors' websites. Study them carefully.

Many companies offer an abundance of information about themselves on the web. Do they offer their services virtually, inperson or both? Do they have a price list? What are they emphasizing on their site? What do they say about themselves?

What conclusions can you draw? Their websites are a great source of practice information.

Google them! These days, there is a wealth of information available online about anyone and anything.

LinkedIn. Take a look at their LinkedIn profile. For many professionals it is the new business card or resume.

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Review your list and consider how you might now tweak your messaging and your marketing. For example, if a colleague is a specialist in employment mediation and you do as well, what type of matters do they seem to focus on? What are they well-known for having expertise on and how can you differentiate your services? If you are very similar, consider potential opportunities for collaboration or referrals to each other.

That brings me to my final point when it comes to competition.

Always remember that it should be a friendly competition in good spirit and with an eye to supporting each other.

In fact, I think this quote says it all: "Don't knock your competitors. By boosting others you will boost yourself. A little competition is a good thing and severe competition is a blessing. Thank God for competition." -- Jacob Kindleberger

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TIP #7: "MAKE A PLAN STAN:" WHAT PAUL SIMON GOT RIGHT ABOUT BUSINESS Although Paul Simon sang about Stan needing to "make a new plan" to successfully end a relationship in 50 Ways to Leave Your Lover in 1990, it wasn't really a new concept in life and in business. In fact, Benjamin Franklin famously said: "When you fail to plan, you plan to fail."

I'm sure if I did a deep dive into researching the concept, I'd find examples of this concept from all the smart folks in history but let's focus on their point. What is important to take away from this article is that for you to find success as you build your practice, you need a PLAN. A business plan to be exact and unless you went to business school, you may not have any idea what creating a business plan entails so today and for the rest of the week, we will focus on the essential of creating an effective business plan.

Let's start with the critical components of your plan*:

Executive summary: Essentially your company or practice description. Can include your Mission Statement.

Market analysis: A summary of your industry and your expertise within it's construct.

Organizational and management structure: Outline your team and systems.

Services or products offered: Define your services and what problems you solve for your clients and customers.

Competitor analysis: A clear and complete statement of what competitors and colleagues are providing and how you are similar and different.

Future planning: This business planning stage is not one and done! Determine a schedule for review and future business planning and strategic planning.

Marketing and sales strategies: Specifics on how you will promote your business and practice.

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Financial plans and returns on investment: A clear picture of your financial planning and needs, including your pricing structure and expenses. *(indeed.com) I know, that seems like quite a lot to tackle, but here is the good news, all the hyperlinks in the list of elements above are topics that we have already discussed in this newsletter!

Over the next three days we will dive deeper into the remaining elements and help you pull it all together.

I'll close out with the words of another great philosopher who opined on this topic, Yogi Berra: Without a plan, even the most brilliant business can get lost. You need to have goals, create milestones and have a strategy in place to set yourself up for success.

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TIP #8: A SIMPLE BUSINESS PLAN TEMPLATE: WE DID THE WORK FOR YOU! If you are sitting down for the first time to draft a business plan and you are like me, it is very helpful to have an example to guide the way so we did the work for you. Here is a sample Business Plan for a mythical mediation services business (ie: Google search did not reveal a business using this name or a TM).

Following along with the sample plan can help you to kickstart the process but don't think that you have to stick to this template verbatim. Take it and make it yours not only in the basic content, but build out the sections that have the greatest importance to you and you business or which need the most work.

A Better Divorce Mediation Services - Business Plan Executive summary A Better Divorce Mediation Services is an online divorce and family mediation service provider focused on helping couples and families to resolve conflict in a respectful manner.

The services offered include a curated and client-specific team approach to mediation and support services and can include, coaching, financial planning and information, parenting coordination, consulting and review counsel, document preparation and drafting and mental health support in order to best meet the needs of each client and family.

Company description A Better Divorce Mediation Services is a d/b/a of ABD LLC and operating out of Chicago, Illinois and solely owned by Amy B. Doone.

Objective statement A Better Divorce Mediation Services seeks to expand across the United States with online mediation and support services available virtually. We plan to use digital, targeted marketing to increase client acquisition and invest revenue into onboarding new team members and marketing outreach.

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Business structure A Better Divorce Mediation Services is a general partnership with equal partners and founders, Amy B. Doone and Bob Green. Both founders work and manage the mediation practice, 3 adminitstrative staff members and a team of 8 support professionals.

Product description The practice offers mediation services, coaching services and support services to clients going through divorce, separation, custody and other family law matters. Clients can purchase services in packages that include combinations of services, create their own self-selected package of service or purchase services a la carte. All services are provided virtually.

Marketing plan A Better Divorce Mediation Services appeals to couples and individuals who are interested in an out-of-court resolution of their family dispute. We aim to increase client outreach using personalized and targeted social media and email advertisements to attract traffic to our online site. Founders will continue to grow their influencer roles through social media, speaking engagements and podcast appearances.

Financial analysis Our current annual revenue is approximately $425,000. To achieve our goal of growing our team by 1 more support staff we need approximately $275,000 to provide a salary and benefits for our new team member.

Projections Over the next three years, we project the ability to increase our reach to all 50 states and add three permanent staff members. We also project a 75% increase in our online sales through the use of social media advertisements. Our overall projected profits for the next three years equal approximately $2,000,000.

Voila! A business plan. Your roadmap to success so take your time. Just get started and be sure to continually review and modify as you proceed on your journey and do your research. An effective business plan is a living, breathing document that grows and changes with you.

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TIP #9: ARE YOU SPECIAL? WHY A NICHE CAN BE CRITICAL TO PRACTICE SUCCESS We were driving through a small town earlier today and I noticed a solo law office in a cute building on the main street of the town. The sign said "The Law Offices of Robert Roberts (name changed to protect the innocent) Specializing in Real Estate, Divorce, Personal Injury, Worker's Compensation and Probate." Phew, I thought, that is a lot of Special. Now I get it, small town practices often need general practitioners. Those who can handle a broad range of matters in order to have enough business to be sustainable, but this is truly an antiquated approach to business that doesn't serve most practitioners seeking success in the modern world.

These days popular wisdom is that you need to specialize or find your niche in order to stand out and for most, it does make sense. With a few exceptions, like our small town solo practitioner above, your niche can be your ticket to success.

If you look up the word “niche” in the dictionary, you’ll discover the following definition: Niche (n): a place, employment, status, or activity for which a person or thing is best fitted (Merriam-Webster) There are two key aspects to finding your niche that can help you as you build and grow your practice: 1. For most, your niche is where you shine. As the definition states, your niche is that employment for which you are best suited and when we are doing work we love and are good at, we generally excel.

2. Knowing your niche helps you to identify, attract and find your most viable potential clients.

Think of the solo practitioner above who is available for a wide variety of legal issues. He is throwing a very wide and general net in the hopes of pulling in enough fish to eat 137 because the pool is small.

However, in a world where digital marketing is one of the main sources of outreach to potential clients, this has the effect of throwing spaghetti at a wall and hoping that some sticks. You never know what strands will end up in you bowl.

I have an example from my own practice. Back about 8 years ago I opened my first fully online practice called Connecticut Family Law Online and advertised unbundled and mediation services in that state.

A pretty broad stroke and although the phone did start ringing (or the inbox started filling) there were very few potential clients who were actually viable for my practice. Most of the outreach that I received was from people seeking free advice, a cheap divorce or thought I was legal aid. Now part of this was the fault of my messaging but I also failed to identify my niche. I wasn't selling to my target audience.

For 20 plus years prior to opening that online business, I had been handling high net worth and high profile family law matters. That was my niche. I understood the particular nuances of that type of case and the needs and concerns of a certain clientele. When I honed my message and targeted my niche clients, well business instantly picked up.

So, while you are building your practice take the time to consider what makes you special. What is your "employment to which you are best suited?" Be proud to be special - it will set you apart and be a critical component in creating your success!

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TIP #10: WHY GOOD BRANDING IS AN EMOTIONAL EXERCISE A key concept in marketing is that “people buy feelings, not things.” In fact, a recent Psychology Today article cited a study that found “when evaluating brands, consumers primarily use emotions, rather than information.”

So how can we quickly harness this knowledge to enhance our marketing efforts with our potential clients? One quick answer is in your BRANDING. Your branding is the creation of a distinct identity for your practice and your services. It will help you to stand apart from your competitors and to appeal to the clients that you wish to attract.

One place to start when you begin to build your brand is to remember that people are buying a feeling and to ask ourselves the following questions: What is the emotional context of my potential client?

What causes my potential client anxiety?

How does my potential client feel prior to engaging me?

How do I want my potential client to feel after they have worked with me?

What does my potential client care about?

What is the change they are hoping for?

How will my services help them to achieve that change?

Taking the time to answer these questions in order to conceptualize your brand and your clients and then build out your brand: Design templates and brand standards for your marketing materials. (Tuesday) Develop a tagline. (Wednesday) Create a great logo and place it everywhere. (Thursday) Integrate your brand into every aspect of your business including your website. (Friday) Never forget that YOU ARE YOUR BRAND AND YOUR BRAND IS YOU!

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TIP #11: WHEN IT COMES TO YOUR BRAND, BEAUTY IS REALLY IN THE EYE OF THE BEHOLDER As the saying goes, “a picture paints a thousand words” and in branding and marketing your practice, the visuals are everything! In fact, creative visuals are so powerful that they are considered one of the best forms of marketing so – no pressure - but creating the visuals for your brand is IMPORTANT! In yesterday’s newsletter I wrote about the power that emotion plays in clients selecting you to work with.

We discussed that people make decisions with emotion, not necessarily facts so how do we evoke the right emotions in potential clients so that they hire us?

It’s all in the visuals. Once you have answered the questions about your potential client posed in yesterday’s newsletter, it’s time to Design templates and create brand standards for your marketing materials. Use the same color scheme, logo placement, look and feel throughout.

You don't need to be fancy, just consistent and you want your choices to create the emotions your potential clients are looking for.

Let’s start with your brand colors.

Color is one of the most influential emotional triggers so we need to put great care and thought into our brand color choices. Know that every color evokes a mood and emotion so consider the following: Blue is the color of trust, respect, intelligence and honor.

If you want your brand to be well respected then this may be the color for you. It also gives a calming effect to most people.

Green portrays a feeling of independence, change, healing and learning. If your company relates to any of these, green is the color for you. For example, green is a great color for schools as children learn and gain the independence they need for later in life.

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Yellow/Orange inspires optimism, enlightenment, joy and enthusiasm. Using yellow gives people the impression that you are an approachable, friendly business.

Red generates energy, strength and passion. If your business creates a product that is based on people’s passions and hobbies, this could be the color for you.

Purple represents wisdom, dignity and maturity. Therefore, if your company has an older target market, purple would probably be the best color for you to use.

You will also want to be intentional in your font choice and in the use of any images that you utilize in your branding.

Just as with color, fonts can evoke emotion in viewers. A recent MIT study found that unappealing fonts tend to reflect badly on the readers’ emotional response to content.

According to Design Rush, the Five Keys to a good brand font are: Legible Unique Memorable Multi-platform oriented Able to communicate brand personality Read on from their article to find a great rundown of the “personalities of every typeface.”

Once you have your colors, fonts and images selected, you are ready to move on to tomorrow’s task – YOUR LOGO!

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TIP #12: THE SECRET TO TAGLINES THAT REALLY WORK A great tagline tells your practice story in just a few succinct words.

You know a great one when you hear one.

Think about “Just do it” or “Can you hear me now?” Instantly you think of Nike and Verizon.

We know right away exactly what companies these taglines are from and that instant recognizability is one key to a tagline that works.

In fact, there are three key elements to a good tagline. You want one that is: Clear; Memorable; and one that Stands out Here are three steps to building a great tagline for your practice.

Pull out your Mission Statement (See “It Takes a Statement to Build a Practice”) and review it to summarize your brand story.

Distill your mission down to a few key words that embody your practice values. Ask yourself the question, “if I could only do one thing for my clients, what would it be?”

That is the kernel of your tagline.

Now, think about what benefits your client gets from using your services. Taglines should be more about them than about you. Think about the emotion that your brand embodies for clients. Safety. Support.

Empowerment. Closure. These are the keywords for your tagline.

Finally, and this is the fun part, BRAINSTORM! I have spent many fruitful hours with clients filling whiteboards with possible taglines and then tweaking and editing until it’s just right. This is where the magic happens and is worth the time and effort.

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After all, your tagline is your practice in one short phrase – don’t you want it to be just right?

For those who would like to go the technology assist route to finding a great tagline – here are two potential programs that can help you on your way!

SloganMania (free) Jasper.ai (free trial)

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TIP #13: THE 4 ESSENTIAL ELEMENTS OF A GREAT LOGO At a basic level a logo is a graphic mark, emblem, or symbol used to aid and promote public identification and recognition.

In fact, the best logos create an instant mental connection to the brand they represent. Think of the Nike swoosh and the Target bullseye. You see them and you just know.

It’s time for you to have your own Logo. You are ready! You have spent the time over the past few newsletters drafting your Mission Statement, selecting your colors and font, creating your tagline and now you are ready to bring it all home – in a logo.

Here are the 4 essential elements for a great logo: Timeless: Create a logo that can stand the test of time. You want your logo to look as fresh ten years from now as it does today.

Evocative: Create a logo that resonates with your audience.

Use your logo to connect to your potential clients. You do not need to have your initials or name in the logo but make sure that it creates that connection that Nike and Target have created.

Simple: Create a simple logo.

"Less is more" is very applicable when it comes to your logo so don’t go crazy with too many colors, crazy fonts or overly complicated icons.

Versatile: Create a versatile logo. You'll be using your logo in multiple places--online ads and offline communication. Social media and small business cards.

The logo needs to look good in all shapes and sizes. You will likely want a circle design and a complementary rectangular design for different platforms.

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So how can you get creative and start pulling this all together – the good news? Tech is our friend here.

We no longer need to pay a graphic designer thousands of dollars for creating a logo or other promotional material. There’s now an app for that!

Logo.com: The “Plug and Chug” Method. Honestly, the fastest and easiest way to generate a ton of logo options by just answering a few questions and selecting your colors and fonts.

You can start here as well and then move over to Canva to fine tune your choice.

Here are three options: Canva: The DIY Approach.

Canva is simply the easiest and best graphic design tool out there. It can be used both on your browser as well as in app form. In fact, I do most of my creating right on my phone.

Canva has thousands of templates, colors, free stock photos, icons and fonts and you can dive down the rabbit hole of creativity for hours on end until you land on just the right design.

Try it, you might just find you like it.

99designs.com: If you are willing to spend a little money and want professional results. You can either hire a designer directly to work with or (much more fun) you can start a contest where you describe what you want and designers from around the world will create mock-ups for you to choose from and you pay only the winning designer.

No matter the approach you use, take the time to put some thought and effort into your logo – it’s the mark of a great practice!

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TIP #14: THE TOP 3 KEY FACTORS FOR BUILDING AN EFFECTIVE WEBSITE Your website is a critical part of your practice building efforts and one over which you have 100% control.

In fact, whether someone is just surfing the net looking for a practitioner, or if they are referred to you by a colleague or former client, more than 82% will check out your website before getting in touch.

Our website is the "face" of our practice and is accessible to every potential client at the touch of a keyboard yet for many professionals, it is a static brochure.

Something that was created at the beginning of our practice and rarely, if ever, updated or changed thereafter.

When I do programs on marketing for professional organizations, I always ask for a show of hands for those who have new content on their website in the past week, the past month, the past six months, and the past year.

By the end of the exercise, there are usually about half of the people in the room who still have not raised their hand! That means that 50% or more have not updated their website material in more than a year.

When you consider that approximately 75% of those who visit our website will in some part factor in our website design and content into their decision to hire us, and the importance of an effective and compelling website is clear.

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So what makes for a great professional website?

Clear Purpose: A great website has a distinct purpose that is clear right on the landing page.

When you build your website, first you need a clear vision of exactly what you want it to do for you. Are you trying sell your mediation services? Create a revenue stream from trainings and programs? Sell your books or materials? Take the time to create a clear picture of what purpose you want your website to serve before you even create that first page.

Clear Message: Go back to your Mission Statement and draft your website material based upon your vision and values.

Make sure the copy is succinct, well-written and on-point.

Great Design: Here is where all that thought you put into your logo design and color selection start to pay off. You want to carefully design your website to be visually attractive, both on a desktop and most importantly, on mobile. Great colors, engaging copy and eye-catching graphics all make for immediate impact so be thoughtful as you build out your pages.

We will dive in deeper on all things website-related in the next chapters. So take some time today to start pulling together your PURPOSE, MESSAGE and DESIGN and we will take it to the next step with a review of some of the most popular web-hosts and designs!

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TIP #15: CREATING A TOP-NOTCH LANDING PAGE FOR YOUR WEBSITE I mentioned yesterday that more than 82% of potential clients, whether they find you by Google search or are referred to you, will check out your website before they reach out but even more important to know is that once they get there, it only takes them approximately 50 milliseconds to form an opinion about your site! 50 milliseconds talk about the power of first impressions.

Obviously, it is imperative to make a great first impression but what makes a landing page stand out?

Here are the essentials that will help you stand out: Strong headlines: Get their attention right away with a good headline that appears as your website opens. It can be your name and tagline.

Eye-catching imagery and media: Here is where your colors come into play and finding great images that convey your message. PRO TIP: Get some professional photos of yourself taken showing you in different settings. NOT your standard headshots (please no standing sideways with arms crossed pictures.) Show your personality and appeal to the emotions of your potential client. For example, if they are seeking comfort and support, that is the image you want to project in your pictures. Great photos for your website are worth their weight in gold.

PRO TIP: I know I am a broken record but I have to say it again . . .

Canva has great templates for website pages that are easily customized and modified for your purposes. Be sure to give it a try for a quick and simple way to get your landing page pulled together!

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Engaging copy: Short, succinct but catchy is the key when it comes to website copy. No one wants to read a novel on your landing page so don't give them one. It is better to leave longer text to later pages and keep the landing page clean.

Value add for visitor: People love a good giveaway so consider providing something of value for them. Examples might be a link to a video that describes the benefits of mediation, or a downloadable checklist to pull together the financial information for their divorce. You can give them a list to your top 10 list of resources for their type of matter or a free 15 minute consultation. It's a win-win if you create a sign up that includes the visitor providing their name and email address for your mailing list in return for the freebie.

Social proof or testimonials: It's just a fact that when something comes recommended, be it a new movie, a great restaurant or a professional service, people are more inclined to purchase it.

People actively seek out opinions when deciding who to hire - in fact, 95% of people say that reviews – whether positive, or negative – influence their purchasing decisions. It is worth your time and effort to prominently display good testimonials on your landing page right where they can be most effective and easy to find.

Call to action: Don't forget to tell your site visitor what to do next. Once they have had the chance to check you out and form their 50 millisecond opinion about you, let them know how to book an appointment with you, find your calendar link, reach out for more information or contact you.

Repeat this information on every page of your website and if the page is long, repeat it more than once on a page. It is that important!

Pull these elements together and you will have an effective and compelling landing page for your website!

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TIP #16: IT TAKES A STATEMENT TO BUILD YOUR PRACTICE! One of the most important tasks that you can undertake when starting or growing your business is to sit down and take the time to craft a Mission Statement.

The Mission Statement will help you to focus on your goal and plot your path as you build.

The 5 key elements of a Mission Statement are: Purpose: What is the primary purpose and reason that your business exists?

Capability: In what way (or ways) does your business excel? What sets you apart?

Inspiration: Your mission statement should be inspiring and motivating, since part of its function is to (re)calibrate and (re)energize your business. Remember that your statement will help you inform clients and team members on what you and your business stand for.

Clarity: You want to strike a balance between a functional and

useful mission statement, and one that is succinct and portable. Try to keep it simple and use bullet points, headings and short paragraphs.

Vision: What are you known for in the marketplace and community, and perhaps more importantly, what do you want to be known for in the years ahead?

Once you have drafted your Mission Statement be proud of it!

Have it framed and placed in your lobby or office.

Put it on your website.

Include a copy in the materials you send to prospective clients.

Update it regularly.

Your Mission Statement is a powerful expression of who and what you and your company stand for. Take the time to craft it well and you will find it provides you with purpose and clarity as you move forward toward building the practice of your dreams!

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TIP #17: WHAT ARE YOU WORTH? IMPORTANT TIPS FOR SETTING YOUR FEES One very important factor in establishing your own practice will be determining your worth - in other words, what with you charge for your services?

This may sound like a no-brainer, especially for those who are leaving a firm or group practice or who are transitioning from one field to another related field (such as an attorney to a mediator) but hold up Buttercup, it's not that simple.

Fee setting is a delicate balance of what the market in your area of services calls for along with your financial needs and your personal professional worth. When you sit down to determine your fee structure, you need to take all three into consideration and find the sweet spot where they all converge.

Here are the most important considerations:

Market Price. What are others in your area of practice charging for similar services? You should have a firm grasp of what other practitioners charge for their time and importantly, how they charge. Do they charge by the hour, the day or other timeperiod, by the task, or some other measurable? Is there anything that sets you apart from those colleagues in terms of pricing?

Financial Planning. Importantly, in order to sustain your own practice, you must know your financial needs and be able to determine just what income from fees or other service charges, will support your financial house. What is your overhead? Do you plan to take time off during the year? Will you need staff, marketing or assistance on a temporary or ongoing basis?

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Do you want to be able to save or contribute to retirement accounts?

Every practitioner should have a solid idea of what their financial needs are and then work backwards to determine what their minimum workload will need to be based upon the fee structure they settle on. For example, for a practitioner who has a financial nut to meet their work and living expenses of $120,000 per year and who plans to work 40 hours/week (2,080 hours per year) they will need to charge a minimum of $58.00 per hour and work all 52 weeks in the year to just break even. You need to do the math to figure out how much you need to earn in order to plot out your pricing.

Your Worth. Here's the really tough question that all professionals struggle with.

How much are you worth to your clients? Here is where I often see people grossly under or overestimating their value.

For example, many attorneys who move into a mediation practice after many years of litigation will charge their usual hourly rate as an attorney for their mediation practice.

If you are a new mediator, are you really worth what you were worth as a seasoned attorney?

Is a mediation practice built on the same model of billable hours that the legal practice is built on? These are questions that you need to take a hard look at when setting your rates.

As my training and business partner, legal legend, Forrest "Woody" Mosten say to trainees in our 40Hour Mediation Training, many of whom are attorneys, "You can't charge hundreds of dollars an hour as a mediator right out of the gate, you aren't worth it." Shocking for many, but not wrong for many as well.

Pro Tip: Whether you are just starting a practice or have been working for years, an annual review of the above three factors is a good idea. Very often in a year, at least one factor will have changed, and your fees and rates should be adjusted to reflect that.

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TIP #18: WHY TECH IS A MUST AS YOU BUILD YOUR PRACTICE Just the other day I was giving a presentation on simple technology, in the form of programs, apps and integrations, that can help practitioners build a "great" mediation practice for the New Jersey Association of Professional Mediators (NJAPM) and the response was fantastic. So many attendees reached out to thank me for sharing such, and I will use their words, "simple, effective and easilyimplemented tips." It made me pause and reflect for a moment on a quote that I have used many times in presentations: 'The most expensive words in business are 'But that is the way we have always done it!'"

When it comes to implementing technology into our practice, and in so many other ways, it is so true that our dedication to staying with what we have always done is very costly at times.

For example, how many practitioners out there who need to gather information from clients are sending those clients forms to fill out in a process that involves printing out the forms, filling them in with pen/pencil, scanning them into .pdf format and then emailing them back. When I ask this question in presenations and workshops, invariably about half of the participants raise their hands.

Think about the time involved in the workflow that you have set up for your client here. All the unnecessary steps, paper waste, time and hassle of this process, not to mention the confidentiality disaster of sending personal information via email, when there are simple programs that can eliminate all but the essential gathering of the information part.

Here are three programs that help you create simple, online, fillable forms for your clients;

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Jotform: Jotform is a fullfeatured online form builder that makes it easy to create robust forms and collect important data.

What will get you to comply with the requestion for information faster? Which will give you a better feeling about your medicare care provider and their practice?

TypeForm: Helps people create no-code forms, quizzes, surveys, and asynchronous videos, brands can engage their audience and grow their business with ease.

Because that is the key factor in all of this, the client experience. Never forget that if you are a service provider, your client's experience is KEY to building a successful practice. Do they care that sending paper forms is the way that you have always done it? No, they just want you to make their lives easier and technology is constantly giving us new ways to do this so if you truly want to build a successful practice, keep your mind open to the technology possibilities that are coming in the pipeline every day!

Google Forms: Easily creates and shares online forms and surveys, and analyzes responses in real-time.

Consider your own experience when you have to fill out forms for your doctor. Would you prefer that they send you forms that you need to print out, fill out, scan and send back or would you prefer to fill out those forms online?

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TIP #19: THE ONE PROGRAM THAT WILL INSTANTLY CHANGE YOUR PRACTICE FOR THE BETTER! If you want to do yourself ONE favor that will instantly impact your practice, implement the use of a calendaring program!

I use calendly.com and it had changed my life. I mean it. Please note that I don't work for Calendly, am not affiliated with them nor receive any sort of incentive from them to make these statements. I am taking the time to post about their program because it has given me the dual gift of more time in my day and more happy clients and potential clients to boot.

No one, literally no one, enjoys the email back and forth of trying to find a mutually convenient time to meet.

It is one of the biggest time-suckers in our day with little to no end benefit and it is easily remedied by adopting a scheduling program.

Calendly is a free appointment scheduling tool that individuals and organizations use to schedule meetings and appointments with their leads and clients.

The tool offers a range of powerful features designed to make meeting scheduling as simple and painless as possible. Some of its best features include custom notifications, group events, calendar integration, team scheduling, enhanced privacy, and metrics and reporting.

Here are some of my favorite features: Meeting Polls: Calendly allows you to set up meeting polls so that you can find the best time available for multiple participants (especially helpful for mediators and those whose meetings regularly involve more than one client!)

I'll use Calendly as an example.

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Workflows: For example, you can set up email workflows so that your meeting attendees receive an email confirming their appointment, reminders before and a thank you email after. Clients appreciate the contact touchpoints and you ensure that your meetings are not missed!

Integrations: Calendly integrates with your other technology.

Obviously it connects to your calendar but you can also connect it to your video-conferencing program (mine, automatically sends out a zoom invite to my guests when they schedule and places it on my calendar automatically. I also have Calendly integrated with my PayPal account so that clients can pay for their session when scheduling.

Clients love the convenience and the amount of time that this saves me is invaluable!

Remember, the fewer barriers that you present to a client who wants to work with you the better! Give them the ability to get on your calendar with the click of a button anytime, anywhere, and they will.

If you are already using a scheduling tool, share which one with us and let us know what you think in the comments below.

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TIP #20: THE FUN FACTOR AT WORK: WHY HAVING A GOOD TIME IS ESSENTIAL You have heard it time and time again: "Choose a job that you love and you'll never have to work a day in your life."

While that quote has been attributed to Confucius, Mark Twain, Harvey Mackay and many others, it is hard to debate the truth of the sentiment. If you love what you do it just doesn't feel like work but how do you know that you love your work?

One way I measure it is by checking in to see if I am having fun. Yes, FUN! In fact, statistics support this premise in that 81% of employees at companies ranked as "great to work for" described their office environments as "fun."

Fun has a positive impact on our engagement, creativity and purpose all essential to a positive work experience, yet we tend to think of it as something that is solely for children or our weekends.

Knowing this, isn't it time to make some time for fun in your practice?

Here are a few tips for adding "fun" into your workday: Flex your creativity muscles.

Doing the same thing day after day is quite simply, boring.

When we get creative, we engage new neural pathways in our brain and fire up our ingenuity and interest. For me, this can be a simple as creating some graphics with Canva or brainstorming with a consulting client to help them build and grow their practice. This is creativity at work and it can light you, and those your work with, up!

Celebrate the wins. Good things happen and the more you look for them and celebrate, the more abundant they will be.

Much like a gratitude journal practice will help you to find out just how much you have to be grateful for, celebrating your wins will bring an awareness of all the positives of your 157 practice.

The fun will multiply!

Make a "Fun" List instead of a "To-Do" List. I get it, I love a good list myself and there is nothing like the satisfaction of crossing off items on that neverending To Do List but, think about adding a little fun on there. What would be a fun todo that you can add? Build it in even if it seems frivolous or a waste of time when there is so much else to do. It will be worth it. Just try it. Maybe even make it a to-do on your list for today!

These are just a few ideas of quick and easy ways to get some fun in your work day. I'd love to hear from others - how do you find fun in your practice?

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TIP #21: FEEDBACK: THE KEY TO HAPPY CLIENTS WHO RETURN/REFER Sometimes we get so caught up in doing things the way that we always have done them that we forget that making changes to enhance our clients' experience is the best way to garner positive feedback and referrals.

One way to find out what could be better is to ask!

Are you requesting feedback from your clients? Consider a short, pointed survey when their matter is concluded. Ask what went well and what you can do better.

It is in that window where we can make our client experience better and in so doing, increase the likelihood that those clients will return and/or refer.

A great tool for your post-service survey is surveymonkey.com. The program is intuitive and will help you to create a short but effective set of questions that can get you the input you need. You can even insert an answer box that will gather testimonials for use on your website and social media and can provide a link to your Google reviews as well.

Then EXECUTE! They say the most expensive words in business are "but we've always done it that way." Don't fall into this trap! Feedback is essential if we want to grow a business. Yes, it is nice to hear what we are doing well, but the real gold is in finding out what we can do better so that we can improve.

Another resource is the book "Thanks for the Feedback" by Douglas Stone and Sheila Heen (Authors of "Difficult Conversations".) The full title is Thanks for the Feedback: The Science and Art of Receiving Feedback Well* (*even when it is off base, unfair, poorly delivered and frankly, you're not in the mood) That says it all!

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TIP #22: WHY IT MIGHT BE TIME TO POUR A LITTLE HOT SAUCE ON YOUR PRACTICE I know you are wondering what the heck hot sauce has to do with practice building but bear with me here because this might just be the kick your business needs!

The hot sauce in question is the viral condiment on Oprah Winfrey's list of Favorite Things for the holiday season: TRUFF Hot Sauce. This article is not really about the sauce, but let me just say that it is my new favorite and is now a regular on our table. Seriously, give it a try.

But I digress. What does this delicious, truffle-infused, spicy sauce have to do with building your practice? Perhaps everything. Let me tell you a story. My husband is a big fan of the brand Bonobos and recently placed an order with them.

There were some shipping issues and the package arrived a little late but in the end, it all worked out. A few days later however, my husband received another small package in the mail from Bonobos. In it was a small bottle of Truff Hot Sauce and a note that said, "we are sorry for the recent issues with your order.

We did not live up to our standard of care and wanted to send a small gift and our promise to do better in the future."

There are two things I think that stood out from this experience for me: Bonobos stepped up, admitted a wrong and went above and beyond in order to rectify the situation and make amends; and The power of a small gift and/or a little extra effort is priceless.

Just the fact that I am writing about this experience is evidence of the power of the experience and we can all learn from this. First, when we mess up, in business or life, it is important to acknowledge that fact and make amends directly. Second, a little extra effort can have a lasting impact and turn a negative into a positive.

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It doesn't need to be a gift (although this was a huge hit in this case), but even a note, a card, a well-written email, goes a long way to mending bridges and standing out as a professional who holds oneself to a high standard.

Next time you mess up, or just want to make a positive impression, perhaps sprinkle a little hot sauce on your clients!

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TIP #23: ADVERTISING: WHO NEEDS IT? I get asked all the time about whether or not professionals should advertise. In other words, should they spend money to place messaging in some format designed to attract potential clients? The definition of advertising from Merriam-Webster: The activity of attracting public attention to a product or business, as by paid announcements in the print, broadcast, or electronic media.

First, I want to take a moment to clarify that advertising is not the same thing as marketing your practice. Advertising is a small avenue of marketing and there is a world of other options such as social media, websites, writing, speaking, networking, presenting and more but yes, advertising is an option.

The question is, should you avail yourself of the option?

I will start with the positives. For those who want to reach a wide market, a defined market and/or have an audience that is a consumer of the media where the advertising

will be featured, advertising can be effective. What does this mean? It means if your target client is someone who is out there and likely to be looking for someone who provides your services or products in certain media outlets, then outreach in that source may be very helpful. For example, if you are a retailer for evening wear, then an advertisement in your community newspaper might be helpful in the months leading up to prom, New Year's Eve or other formal events. It might be less effective to advertise in the paper year-round since formal attire isn't a big seller at all times. A retailer would need to consider the return on investment of advertising in September or March perhaps but might find it very effective to advertise in May and December.

The bottom line is that advertising needs a great deal of thought and strategy before it is usually a good idea. Without that strategy, it is easy to waste money with paid ads.

That bring us to cost. Advertising is not free - far from it. cheap.162 The better the placement in the media

outlet, the more expensive the advertising is and many question whether or not inexpensive advertising is even worth it. There is a reason it's cheap. In addition to cost, I want to mention a few other potential downsides to advertising to take into consideration.

It's not always well-received.

For some professions, my fellow attorneys out there for example, advertising is not particularly well thought of in the industry.

It is a fine-line that needs to be walked if you choose to advertise as you don't want to turn off the very people that you are trying to attract.

It's hard to stand out. Media outlets don't discriminate and they are incentivized to sell as many ads as possible so you are not likely to be their only advertiser, maybe not even the only one in your area of interest.

You must take into consideration whether or not your inclusion in that media will be effective when bunched in with others.

Cost. Although I mentioned cost once already above, I want to revisit the issue again because many people forget that for every advertising dollar they spend, they need to bring in at least that much in sales or fees in order to get back to parity. In other words, you will either need to up your fees/ charges

or up your number of sales/ clients, or both in order for the advertising to have sufficient ROI and that doesn't take into account the time it will take for you to create and manage the advertising. That is an additional expense that must be factored into the cost.

Ethical Issues. For some professions, such as law and financial advisors, there are serious ethical implications to advertising. This adds a layer of difficulty in ensuring that the ads are compliant with ethics rules as well as potentially adding the risk of exposure to consequences if they are not.

Yikes.

I recently was doing a program with noted dispute resolution marketing expert, Natalie Armstrong-Motin of Marketing Resolution who works with many individuals and firms in the fields of law and mediation, and her general advice to clients is "don't waste your time and money on advertising. It's frowned upon and there are many other, better ways to market your business."

In the end, I would think long and hard about advertising before writing that check. In fact, I will be exploring some other avenues of promotion this week in the newsletter so before you commit to advertising, wait to see your other options!

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TIP #24: HOW TO BECOME TOP OF MIND WITHOUT SPENDING MONEY For those who have a small to nonexistant marketing budget, do not fret! There are many ways in today's digital marketing world where you can make an impact without breaking the bank.

Always remember what marketing is. I love this quote from Nathan Ellering: "Your product (or service) is the party. Marketing is the invitation to attend."

What a great way to put it because who doesn't love a party and that invitation to the party is something everyone wants. THAT is the goal of our marketing efforts. I break the goals of marketing down as follows: 1. Awareness: Who are you? What do you do or sell? What is your Why? 2. Expertise: Why should they hire you or purchase your product?

What sets you apart?

3. Top of mind: When the moment comes when someone needs your product or service, how can you be "Top of Mind."

Keeping those points in mind the invitation to the party is not usually a one-and-done outreach. It necessarily requires ongoing touchpoints because although you can create awareness and establish expertise in a single moment, there is no guarantee that you will remain top of mind when the need arises for you and your expertise.

This is one reason why low to nocost marketing is very effective and practical for most professionals.

There are two main outlets that are free (or low cost) and allow you to repeatedly create awareness and establish your expertise on an ongoing basis so that you will be top of mind in the moment.

Social Media and Networking.

It's not rocket science, I know, but that is why these are the most discussed and practiced marketing tools. I'll dive into both in the next edition of the newsletter tomorrow and I think that you will be relieved to find that they work together and in many ways are the same thing 164 and the best part? They don't cost a thing!

TIP #25: THE GOLDEN RULE OF NETWORKING "My Golden Rule of Networking is simple: Don't keep score." -- Harvey Mackay Networking is an Abundance Mindset activity. In order to succeed, your best course of action to help others to succeed and trust that the karma police, the Great and Powerful Oz or whatever deity you follow, will bless you back for your efforts.

In yesterday's newsletter I wrote about the importance of making the effort, getting out there (in-person if you can) and making yourself available. Opportunities rarely come to those who are hiding in their office and takers rarely inspire generosity of spirit from others.

"The successful networkers I know, the ones receiving tons of referrals and feeling truly happy about themselves, continually put the other person's needs ahead of their own."

-- Bob Burg

I remember very clearly the day that I was sitting with two other colleagues organizing an event that we were throwing. We were a little stressed out because tickets weren't selling the way we had hoped and we were brainstorming ways to get more attendees. One of my coorganizers was annoyed with some of our speakers (who were donating their time) because they had not been promoting the event as she would have liked. I suggested that we share a percentage of the ticket sales with the speakers for any tickets that they sold. My colleague was not happy with the idea and accused me of having a scarcity mindset. She did not want to share and so we did not. Now we did sell out the event but I have to say, I didn't enjoy working with that colleague any longer and soon parted ways. The scarcity mindset that she exhibited was unappealing and that experience has colored the way that I show up for my network.

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Like Harvey Mackay said above, I don't keep score. I don't believe that it's a zero sum game and that there is only enough for one.

That is an abundance mindset. Don't keep score - there is always enough to go around.

Networking is a place for generosity of spirit. When you help others, you will help yourself. It comes back but even if it doesn't, there is great value in doing something for someone else, of making someone else's efforts worthwhile, of sharing the wealth.

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TIP #26: YOU NEED TO PAY YOUR DUES - LITERALLY IN ORDER TO SUCCEED You got to pay your dues if you want to sing the blues ... And you know it don't come easy.

— Ringo Starr Ringo is on to something here when it comes to paying your dues! While you may think that I am talking about putting in the time and effort to succeed, in this instance I am actually speaking about actual dues (cash, money folks.) The dues you pay to belong to professional organizations because your membership in those organizations can be one of the biggest boosts to your practice out there. The small amount of money that you will expend on your dues to these organizations will more than be returned in the benefits of membership but there is one additional secret ingredient to success here . . . you have to get INVOLVED! Now I admit that as I sit here writing this article, I am conscious of my role as Vice Chair of the ABA Section of Dispute Resolution.

Those who know me, know that I am very active and enthusiastic about my membership and participation in the Section. I am also the ABA SOC Class Officer Representative and the Co-Chair of the Advanced Mediation and Advocacy Skills Institute. I don't mention this to toot my own horn, I mention it to emphasize the benefit of jumping in and rolling your shirtsleeves up when you join an organization.

I will share a bit more of my story in the hopes that it will inspire you because I feel that my time and effort in the ABA DRS has been one of the most beneficial boosts to my career (and my social life) in years.

The truth is, although I have been a member of the ABA for many years, I only started to volunteer for committee work and more in 2018 when I moved to Chicago. I showed up for the monthly Mediation Committee meetings and volunteered to take on a role as a co-editor for the Just Resolutions 167 Magazine.

A few months later, I joined the Planning Committee for the Mediation Institute and a few months after that I was approached to become a co-chair of the Mediation Committee. Since then, I have been a Co-Chair of the Institute for four years, the Membership Officer, the Budget Officer, a Member of the Executive Committee and am now sitting in line to be Chair of the Section.

Contributing a chapter to a soon-to-be-published ABA book (Jan. 2023!)

Connected with hundreds of colleagues and friends from around the world with likeminded views of my profession Have met many of the top thought leaders in our industry Opportunity to meet and mentor some of the brightest new professionals in our field

Being involved in these positions has given me untold opportunities.

Here are just a few:

I will not mislead you. This has been a great deal of work but I hope that you can see that for me at least, that effort has been more than worth it and I am better off for it both as a professional and as a person.

Being published in several ABA publications Being on Faculty for many programs, Institutes and Conference panels

What effort are you willing to put in? Start today!

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TIP #27: THE ART OF PROMOTING YOURSELF ACCORDING TO FRANK SINATRA One of the most difficult parts of marketing for most professionals is the discomfort that they feel "selling" themselves. It is awkward for most to promote ourselves and to toot our own horn but honestly, if we don't do it - who will?

"People often remark that I'm pretty lucky. Luck is only important in so far as getting the chance to sell yourself at the right moment.

After that, you've got to have talent and know how to use it."

- Frank Sinatra Frank is right insofar as he notes that when you have the opportunity to sell yourself at the right moment, you need the talent and know how on how to properly do so. Unlike in Frank's heyday however, we ALWAYS have the chance to sell ourselves due to our highly virtual world. We have our websites, our social media, our blogs and our virtual network. Frankly, we have so much opportunity to sell ourselves, if you aren't doing it you are even further down the hole than in Frank's day.

So what is the trick to promoting ourselves in a way that doesn't sound like you are constantly bragging?

The key is to take your content and be HELPFUL. Use your accomplishments in a way that helps others whether it be with some advice, an insight you gleaned or shared, a tip based upon your experience or a promotion of another. These are all ways that you can both highlight something that you have done while also providing value to others that makes your outreach welcome and even desired.

For example, if you recently spoke at an event, you could post a picture of you at the podium or posing with some other speakers or attendees and then comment along these lines: I had a wonderful time speaking at the __Conference yesterday where I met up with __and __, the co169 chairs of this wonderful event.

One of the tips that seemed to especially resonate with attendees from my presentation entitled __, was to always do __. Looking forward to two more days of great content and the chance to see old friends and new!

Think about what you will have accomplished in a post like this or by putting this on your website or in your newsletter.

You will have: Brought yourself to top of mind Shared your expertise Established yourself as a worthwhile speaker Thanked your hosts and promoted their event Helped colleagues and/or the public with useful information Just imagine what Frank Sinatra could have done in selling himself if social media had existed in his day!

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TIP #28: SOCIAL MEDIA IS AN INVESTMENT: SPEND YOUR CAPITAL WISELY Social media is an investment.

It takes time and commitment in order to reap any benefit but it's not as difficult as it may seem.

Many of the professionals that I work with think of their social media posts as something that will attract potential clients and while that may be somewhat true, it misses the true point of social media - the fact that it is SOCIAL! The main benefit of social media is raising awareness of you and your practice and meeting other leaders in your field. Truly using the platforms as a way to connect with those who might offer you referrals and opportunities and for you to do the same for others.

It helps you to expand your network, your visibility and your potential growth around the world!

If you want the benefits though, you need to spend the time. Take a few minutes every day to not only post your own content (more on that in another post) but to also interact with others. Like posts that speak to you. Share them with your followers. Comment in a meaningful way.

One way to free up time for social media is to make posting faster and easier by automating it with simple technology. Here are a few of my favorites: Canva: Canva is the gold-standard for creating graphics and the robust free program (can be used on desktop or app) helps you create eye-catching graphics to accompany your posts in minutes. Even better, you can now post AND schedule posts directly from Canva when you create them so you can eliminate have to use a social media automation tool (see below.)

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Remix: Even easier than Canva, Remix is an app that let's you input a quote, Twitter link or other information and will automatically generate a pleasing graphic for posting.

Buffer and Loomly: These are two of my favorite social media automation tools (both have plenty of other functionality such as link shortening as well.) These allow you to load your posts, including graphics and language and schedule them to your various social media platforms to be automatically posted at your selected date and time all at one. Essentially, sit down and plan out your posts for a week, a month, a year - set it and forget it!

Spend less time posting yourself and you have more time to actually read and interact with other people's posts and start growing that network!

I guarantee, if you do, you will see the appeal of being social.

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TIP #29: ARE YOU CAMERA READY? THE TOP ADVANTAGES TO USING VIDEO TO PROMOTE YOUR PRACTICE It likely comes as no surprise that video is a hot medium for marketing outreach in today's business world.

From YouTube vidoe shows to short form videos on TikTok and Instagram Reels, it seems as if everyone today is sharing their every thought on video. The plethora of content is indicative of one sure thing - video works!

There are a number of reasons but here are the ones that are most relevant to business: Video provides both audio and visual stimulation which is more engaging and memorable.

There is a very low barrier to entry for video content. If you have a smart phone or know how to Zoom, you can create video content.

The video platforms are hugely popular and expose you to an almost limitless audience. YouTube is the second largest search engine in the world (owned by Google!) and social

media platforms (IG, Twitter, Facebook) all have algorithms that prioritze eye-catching video content.

Video is personal. It allows your audience to hear directly from you and to begin to feel they know you. It allows for fasttracked relationship and trust building.

Content is only limited by your imagination. You can create video content that highlights your areas of expertise and experience and immediately establish yourself in your niche.

With so many benefits, why aren't more professionals using video? I put it down to camera-fright.

Although we spend much of our time these days on virtual meetings, staring into a camera, many professionals become spooked when it comes time to hit "Record."

The other issue for many is that editing a video seems like a difficult

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task beyond their capabilities or requiring expensive support people.

The truth is, no video needs to be perfect so hit record and give it a try which brings me to my second point, editing is EASY!

If you tape a video and want to tweak it to make it better or to edit out some stumbles or errors, there are many free and low-cost programs that practically do it for you!

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TIP #30: PUT THE POWER OF PODCAST TO WORK FOR YOU! Let's talk about the power of podcasting and how you can use that power to advance your business and raise your profile.

I have learned that everyone has a story and everyone has something valuable to share that will benefit others.

As an award-winning podcast creator and host, with two current podcasts on the air, I know just how hard it is to start a podcast and grow a significant audience. It has taken me 2 years to get my divorce podcast into the top 1.5% of all podcasts worldwide. Trust me, it takes a lot of effort and hard word to get there. Add to that, that there are more than 2,000,000 podcasts in the world today, and it is just getting harder and harder to stand out, but the good news is that you don't have to!

The key is honing in on what your particular valuable "golden nuggets" are and letting hosts and podcast producers know what you have to offer.

With that many podcasts already out there, there are tons of opportunities for you to share your expertise on someone else's show.

Trust me, with more than 300 podcast interviews under my belt, both as host and as a guest on countless shows,

Her are some key tips for getting guest gigs: Create a speaker sheet. You can find templates in a web search or on Canva. You can take a peek at one of mine here: Susan's Speaker Sheet Come up with several relevant and current topics that you are qualified to speak on and include them in your pitch.

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Do a little research on the show you are hoping to guest on.

What other topics have they featured? What is their format?

What do you like about their show (tell them)!

Hone in on a specific topic rather than a general one. For example, instead of "Divorce and Your Finances" hone in on "The Top 5 Most Important Financial Issues in Divorce" or "Why Retirement Accounts are a Potential Landmine in Divorce."

Provide the host with 5-8 questions that flow on your topic and don't make it too "salesy" and about you. They want to provide value to their listeners. Give them tips and takeaways and you will be a beloved guest asked back again and again!

Create some type of free giveaway for the podcast's listeners. Make it a downloadable tip sheet, short ebook, 15-minute meeting or something special for that podcast and that audience.

Again, you will be a golden guest.

Podcasts are POWERFUL - make them work for you!

Check out both my podcasts and see if they might be a good fit for you: The Divorce & Beyond Podcast Make Money Mediating Podcast

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TIP #31: 8 IMPORTANT QUESTIONS FOR YOUR YEAR-END REVIEW (OR ANY TIME!) You have heard it a million times before but "New Year, New You" is especially important when it comes to your practice building efforts. In fact, the year's end, when we often have a small opportunity to pause and catch our breath, is the perfect time to both reflect back on the year that has passed, and to also make plans for the year that is to come.

“It’s fine to celebrate success but it is more important to heed the lessons of failure.”

– Bill Gates I have a full newsletter on why it is so important to celebrate your wins but at year end, it is doubly important to reflect back on what you could have done better. What can you learn from and tweak so that it can be better as the new year unfolds?

Here are some critical questions to ask yourself as you come to the end of the year and look forward to the new:

What goals did I accomplish in my practice this year? What contributed to achieving them?

Did they have the impact intended?

What goals did I not achieve this past year? What contributed to not achieving them? Should they be modified and added to the list for the coming year?

What do my employees and clients have to say? Did I ask for feedback? Would an end-ofyear survey help me to gain valuable metrics on what went well and what I can do better?

What metrics were important to me in 2022? Are the same metrics equally important for 2023 or should I review and modify? Do I want more clients? money? time? help? exposure?

Where did I spend my practice building dollars in 2022? Were those dollars effective? How do I want to adjust my budget for the coming year?

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What support did I need in 2023? Was it sufficient? Do I need to find more support in the coming year in light of the above?

What are my goals for 2023?

What do I need to do to achieve these goals?

What made me happiest in 2022? How can I do more of that? What brought me the least joy in 2022? How can I do less of that?

Take a moment to look back as you bring this crazy year to an end.

Copy and paste the questions above onto a blank page and put some thought into a thorough review. Ask for insights from others and take that feedback to heart.

Once you have done this exercise, you will be half-way to building out your 2023 business plan and we will have you ready to hit the ground running come January 1!

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I hope you found this book to be a helpful resource on your journey towards building the practice of your dreams. Remember, success is not built overnight, but with consistent effort and dedication, you can achieve the results you desire.

To continue your journey, I invite you to subscribe to The Make Money Mediating Podcast and the Practice Building Tip of the Day Newsletter on LinkedIn. The podcast and newsletter are designed to provide ongoing tips, tricks, and strategies to help you build a successful practice.

If you're looking for more personalized guidance and coaching, consider booking a Strategy Session with me. During these one-on-one sessions, we'll dive deeper into your specific situation, identify areas for improvement, and develop a plan of action to help you achieve your goals.

Thank you for reading this book, and I wish you all the best in building the practice of your dreams.

Warmly, Susan Guthrie www.susaneguthrie.com

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About the Author Susan Guthrie has been at the forefront of divorce practice for more than 30 years. After more than 20 years as a name partner in a leading law firm in Connecticut followed by establishing her own boutique Family Law and Mediation practice in 2012, Susan has in the past four years transitioned into one of the leading family, collaborative and mediation trainers in the world and regularly works with and consults with professionals and attorneys in growing and marketing their practice for a happier and healthier life.

In 2020 Susan partnered with mediation legend, Forrest “Woody” Mosten, to create the Mosten Guthrie Academy to provide cutting edge gold-standard trainings for attorneys, mediators and other professionals.The Academy has grown in two years from one 40-Hour training program to a comprehensive curriculum of basic, advanced and specialized trainings and consulting groups for a vast family of dedicated professionals.

As a leading dispute resolution professional, Susan is honored to be currently serving as Vice-Chair of the American Bar Association’s Section of Dispute Resolution and looks forward to serving as the Chair of the Section in the 2024-2025 Bar Year. Susan is also pleased to be an honorary member of the National Academy of Distinguished Neutrals (NADN.) Susan is also an internationally well-regarded expert in online mediation and has been training colleagues and other professionals in the practical and ethical considerations of conducting their mediations online with her innovative programs and webinars for more than two years. To date, more than 24,000 dispute resolution professionals have benefited from her program and she has trained mediators in countries all around the world including programs for the American Bar Association (ABA), the Alternative Dispute Resolution Institute of Canada (ADRIC), and the National Association of Distinguished Neutrals (NADN) among others. Susan’s bonus chapter on online mediation is featured in the recently released American Bar Association Family Law Section publication, Effectively Representing and Coaching Clients in Family Law Mediations, by Forrest S. Mosten, Hon. Elizabeth Potter 180 Scully and Lara Traum.

About the Author In 2020 Susan was awarded the prestigious L. Randolph Lowry Award from the Southern California Mediation Association which is presented to a member of the dispute resolution community who has honored and inspired us through their passion and dedication to education in the field of dispute resolution. In addition, Susan was named to the Executive Committee of the recently formed Online Mediation Training Task Force, created to make recommendations regarding standards and practices in the field and the Task Force currently reviewing and revising the Model Standards of Practice for Family Mediation.

Susan regularly presents programs and workshops at family law and divorce industry conferences around the world and has contributed to more than 100 programs in just the past two years. Her recent and upcoming keynote engagements include the 2021 Association of Professional Family Mediators (APFM) Annual Conference, the 2022 National Academy of Distinguished Neutrals (NADN) Advanced Mediation Training Retreat, the 2022 New Jersey Association of Professional Mediators (NJAPM) Annual Conference and the 2023 Center for International Legal Studies (CILS) Annual Retreat in Salzburg, Austria.

Susan has been featured in and on media outlets such as CNBC, Market Watch, Forbes, Eye on Chicago, WGN, KROQ, the ABA’s Just Resolutions Magazine, New York Lawyer Magazine, Thrive Global, The Independent, Medium, Authority Magazine and She Knows among others. Susan is the creator and host of the award-winning The Divorce & Beyond Podcast with Susan Guthrie, Esq. which is ranked as one of the top 1.5% of podcasts overall in the world.The podcast is one of the most popular divorce podcasts on the air and has reached a listening audience of millions.Her new podcast, directed at dispute resolution and legal entrepreneurs is called The Make Money Mediating Podcast and debuted in the iTunes Top New Business Podcasts Category.

She is licensed to practice law in the States of California and Connecticut as 181 well as before the Supreme Court of the United States.

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Guiding Principles for Generative AI in Mediation Practice* 1. Augment, Don’t Replace the Human Element •

Principle: AI should support and enhance the mediation process, not replace the mediator’s role. AI tools can assist in preparing for sessions, generating options, and managing logistics, but the human touch in understanding emotions, building rapport, and guiding parties to resolution remains irreplaceable.

2. Maintain Transparency •

Principle: Clearly disclose the use of AI tools in the mediation process. Whether using AI to draft settlement agreements, generate communication strategies, or analyze case data, ensure that all parties are informed and comfortable with its use. Transparency builds trust and ensures that AI enhances, rather than detracts from, the mediation process.

3. Ensure Inclusivity and Reduce Bias •

Principle: AI tools can inadvertently reflect biases present in their training data.

Mediators should carefully review AI-generated content to ensure it is free from bias and inclusive of all perspectives. This is crucial in maintaining fairness and equity in the mediation process.

4. Prioritize Confidentiality and Data Security •

Principle: Confidentiality is a cornerstone of mediation. When using AI tools, avoid inputting sensitive or personally identifiable information (PII) that could compromise confidentiality. Ensure that any AI tools used are compliant with data protection standards and do not store or share confidential information without explicit consent.

5. Respect Privacy •

Principle: AI should never be used in a way that violates the privacy of the parties involved in mediation. Avoid using AI to gather or analyze personal data without the informed consent of the parties. Privacy considerations should be central to the design and use of AI in mediation.

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6. Apply AI Thoughtfully in Mediation Processes •

Principle: Use AI tools to enhance creativity, generate options, and streamline administrative tasks, but always keep the human mediator in the decision-making role. AI can assist in drafting agreements, generating communication strategies, and providing data insights, but these outputs must always be reviewed and adjusted by the mediator to fit the specific context of the dispute.

7. Ensure Accuracy and Verify Outputs •

Principle: AI-generated content, whether it’s a draft agreement or a suggested communication strategy, should be thoroughly reviewed for accuracy. Mediators should cross-check AI outputs with traditional methods and their own expertise to ensure the information is correct and relevant.

8. Uphold Ethical Standards and Professionalism •

Principle: The use of AI in mediation should align with the ethical standards and values of the mediation profession. This includes ensuring that AI tools are used to assist in achieving fair, balanced, and just outcomes for all parties involved.

9. Foster Trust and Manage Expectations •

Principle: Communicate clearly with clients about the role AI will play in the mediation process. Managing expectations around what AI can and cannot do will help maintain trust and ensure that all parties are comfortable with its use.

10. Continuous Learning and Adaptation •

Principle: As AI tools evolve, mediators should stay informed about new developments and continuously adapt their practices to incorporate beneficial AI advancements.

Regularly reviewing and updating AI practices will help mediators leverage the best tools available while maintaining the integrity of the mediation process.

These principles provide a framework for mediators to integrate AI tools into their practice thoughtfully and ethically, ensuring that the human element remains central to the mediation process while benefiting from the efficiency and creativity AI can offer.

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Embracing the Emerald City: Navigating Legal Tech with the ASPEN Protocol By: Susan Guthrie 1 If you've ever attended one of my presentations, you know I often draw parallels between the legal world and Frank L. Baum's "The Wizard of Oz." It's a surprisingly apt metaphor, especially as we journey down the yellow brick road of artificial intelligence (AI). With endless buzz about ChatGPT, Gemini, Claude, and the like, it's easy to feel a bit like Dorothy – a bit overwhelmed but determined to find our way.

The COVID-19 pandemic was our tornado, catapulting us into a tech-driven Oz. Video conferencing, once the stuff of skepticism, became our lifeline. But this was just the start.

We need a map – the ASPEN Protocol to truly thrive in this new landscape.

Video Conferencing: Our Unexpected Shortcut Social distancing pushed us to embrace video conferencing on a massive scale. While "Zoom fatigue" and tech hiccups were real, the benefits were undeniable. We gained efficiency, flexibility, and expanded access to justice. This experience shattered the myth that technology and the law were incompatible.

Lessons from the Yellow Brick Road •

Adaptability is Key: We found clever ways to adapt mediation and arbitration to the virtual realm. We used breakout rooms for caucusing, screen sharing for collaboration, and whiteboards for brainstorming.

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Security Risks Spurred Innovation: Initial concerns about data security led to stronger encryption, stricter access controls, and enhanced confidentiality training.

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Technology is Only a Tool: Successful virtual dispute resolution hinged on human skills like building rapport, active listening, and empathy – even through a screen.

The ASPEN Protocol: Your Actionable Guide to the Emerald City

The author acknowledges the use of AI tools, including ChatGPT and Gemini, to assist in refining the language and structure of this article. However, the core concepts, theoretical framework, and the ASPEN Protocol are original to the author.

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The ASPEN Protocol is more than just a roadmap; it's a toolkit for navigating the everevolving landscape of legal technology. Let's break down each step with actionable tips for practitioners: 1. A - Awareness & Education: Knowledge is Your Power •

Dive into Tech News: Regularly read legal tech blogs, publications, and news sources (like LawSites, Legaltech News, Above the Law) to stay informed about the latest developments.

•

Attend Webinars and Conferences: Participate in online and in-person events like ABA TECHSHOW, which is focused on legal tech, to learn from experts and network with peers.

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Join Professional Groups: Engage with online forums and communities like LinkedIn's Legal Technology Professionals group to share knowledge and ask questions.

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Experiment with New Tools: Don't be afraid to try new technologies in a sandbox environment to understand their capabilities and limitations.

2. S - Strategies & Protocols: Create Your Playbook •

Develop Technology Use Policies: Create firm-wide or practice-specific policies outlining acceptable use of technology, data security protocols, and ethical guidelines.

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Document Workflows: Map out how technology will be integrated into existing processes, identifying potential bottlenecks and areas for improvement.

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Define Roles and Responsibilities: Clearly assign who will be responsible for implementing, maintaining, and troubleshooting technology solutions. Consider creating a dedicated legal tech committee or role.

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Establish Communication Channels: Create clear channels for reporting issues, sharing feedback, and staying informed about updates and changes.

Utilize tools like Slack or Microsoft Teams for efficient communication.

3. P - Preparation & Practice: Build Your Skills •

Invest in Training: Provide comprehensive training for lawyers and staff on how to effectively use new technologies, covering both technical and ethical aspects.

Consider partnering with legal tech providers for specialized training sessions.

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•

Conduct Simulations: Run mock trials, hearings, or mediations using new technologies to identify and address potential challenges before they arise.

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Pilot New Solutions: Test out new technologies on a small scale before rolling them out firm-wide to gather feedback and make adjustments as needed. Start with a specific practice area or case type.

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Seek Expert Guidance: Consult with technology specialists or legal tech consultants to gain insights and advice on best practices for implementation.

4. E - Education Again: Stay Ahead of the Curve •

Monitor Emerging Trends: Keep an eye on emerging technologies like AI, blockchain, and cybersecurity to anticipate their impact on the legal field.

Subscribe to newsletters and alerts from organizations like the Legal Technology Resource Center.

•

Participate in Continuing Education: Attend workshops, seminars, and courses on legal technology to stay up-to-date on the latest developments and best practices. Look for CLE opportunities offered by bar associations or legal tech providers.

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Engage in Ethical Discussions: Participate in conversations about the ethical implications of new technologies, including their potential for bias and impact on due process. Join online forums or attend ethics-focused legal tech events.

•

Contribute to the Conversation: Share your knowledge and experiences with others in the legal community to foster a culture of continuous learning and improvement. Write blog posts, give presentations, or participate in panel discussions.

5. N - Notice & Transparency: Build Trust with Clients •

Obtain Informed Consent: Clearly explain to clients how technology will be used in their case and obtain their consent before proceeding. Create a standardized disclosure form to outline the specific technologies used, their benefits, and any potential risks.

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Address Privacy Concerns: Proactively address any privacy or confidentiality concerns that clients may have about the use of technology. Assure them that their data is secure and explain any measures taken to protect it.

•

Be Transparent About Limitations: Clearly communicate the limitations of technology and explain how human judgment will remain a critical component

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of the legal process. Set realistic expectations with clients about what technology can and cannot do.

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Educate Clients: Help clients understand how technology can benefit their case, such as by reducing costs, increasing efficiency, and improving communication. Provide resources like brochures or FAQs to explain the benefits of legal tech.

By following the ASPEN Protocol, legal professionals can confidently embrace technology as a powerful tool for enhancing their practice, improving client service, and advancing the pursuit of justice.

Remember, the ASPEN Protocol isn't a one-and-done checklist; it's an ongoing commitment to responsible and ethical technology adoption. By staying informed, adaptable, and proactive, you can navigate the ever-changing landscape of legal tech with confidence and integrity.

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HANDS-ON WITH AI: PRACTICAL TOOLS FOR MEDIATION PROFESSIONALS This session will provide practical demonstrations of how AI tools can support mediators in various aspects of their practice, both inside and outside the mediation room. Susan Guthrie will showcase realworld applications for streamlining workflows,

HANDS-ON WITH AI

enhancing case management, and improving client communication. Attendees will see how AI can be used for tasks such as summarizing information, drafting documents, and generating options, offering insights into the practical benefits of integrating these technologies into mediation.

Participants are encouraged to bring their laptop, tablet, or phone and set up free accounts with AI tools like ChatGPT or Gemini, as there will be opportunities to follow along during the demos.

Presented by: Susan Guthrie, Esq.

1:00 PM TO 2:00 PM 1 CLE HOUR, INCLUDING 1 TRIAL HOUR

In-person attendees can join the presenters in the Auditorium.

This session will be live-streamed to virtual attendees.

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Susan Guthrie, Esq. Susan E Guthrie LLC

Susan Guthrie, Esq., is a leading attorney, mediator, and expert in technology integration with over 30 years of experience in law, dispute resolution, and business development. Currently serving as the Chair of the ABA Section of Dispute Resolution, she is a pioneer in leveraging artificial intelligence (AI) for mediation.

Susan’s earlier work includes founding Learn to Mediate OnlineTM, a groundbreaking program that helped mediators transition to virtual practice during the pandemic, training thousands of professionals globally.

Susan is also the host of the top 1% Divorce & Beyond Podcast and Make Money Mediating Podcast, and the author of the #1 bestselling book Building the Practice of Your Dreams: One Month of Daily Tips for Finding Success.

Frequently appearing on major outlets like News Nation, CNBC, WGN, and Chicago Today, she shares insights on technology, legal trends, and best practices. Her work empowers mediators and legal practitioners to harness AI tools for greater efficiency, enhanced case management, and improved client communication. With a dynamic style and practical approach, Susan delivers valuable takeaways, equipping professionals with the skills to confidently integrate AI into their practices and embrace innovation.

Learn more at https://susaneguthrie.com/

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GETTING HANDS-ON WITH AI Practical Tools for Mediators 1

The Big Three LLMs For Everyday Use CHATGPT

GEMINI

CLAUDE

chat.openai.com

gemini.google.com

claude.ai

Creative

Factual

“Honest”

FREE WIDELY IN USE RAPID UPDATES NOT “SAFE”

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Top Tips for Getting Started: Try out a few of the Tools to get started and play with them for a bit using the FREE versions.

Once you know which one or ones are your favortites, consider trying the monthly paid version to see whay more they offer.

Put your favorites on your PHONE! That way they are always at hand and the voice to text makes them even easier to use!

Don’t use them in a professional capacity until you have a solid, basic competence in using them. The more you use them, the faster your adoption will be.

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FIRST THINGS FIRST

We need to retrain our brains!

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Here’s the Problem:

WE ALL HAVE GOOGLE BRAIN 5

GOOGLE IS LIKE A LABRADOR RETRIEVER You ask a question (throw the ball) and Google (the dog) returns your specific answer (the ball.)

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AI TOOLS LIKE CHATGPT ARE MORE LIKE THE WISE OLD, WELLREAD OWL THAT YOU SIT DOWN WITH FOR A CHAT ON A VARIETY OF TOPICS AND WHO WILL HELP GUIDE YOU AND SUPPORT YOU IN YOUR INTELLECTUAL

HOW YOU COMMUNICATE WITH THESE TOOLS MAKES ALL THE DIFFERENCE. It is all about the conversation.

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AI TOOLS ARE YOUR CONVERSATION PARTNER Their output is only as good as your input..

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TALK TO THE AI LIKE YOU WOULD TO A PERSON “Hello ChatGPT, I need your help . . .”

SET THE STAGE AND PROVIDE CONTEXT

THE PROMPT IS EVERYTHING

“I am a _____________________ and will be giving a presentation on __________________ to an audience made up of __________________________.

TELL THE AI WHAT IDENTITY OR ROLE YOU WANT IT TO PLAY “I want you to help me to create an engaging program for this audience. Let’s start with some potential interesting topic ideas.”

KEEP THE AI ON TRACK “That wasn’t what I was going for at all. Please try again and don’t ___________________. Rather do ___________.

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Give me 5 ways that I can grow my mediation practice.

A GOOGLE SEARCH PROMPT

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"Hi ChatGPT, I’m working on advancing my dispute resolution practice and would love your input on innovative strategies to upgrade. I have a civil mediation practice after 25 years as a top personal injury litigator representing both plaintiffs at one time and then defendants most recently. Please take the role of my branding and marketing specialist. To give you more context, I’ve already implemented the basics like a website, social media presence, and some networking activities. However, I’m looking for fresh ideas that can help take my practice to the next level. My goal is to increase visibility, attract more clients, and enhance my professional reputation. Please provide me with a list of 5 creative and practical initiatives that I can implement to grow my dispute resolution practice. Each idea should be actionable and designed to have a strong impact on client engagement and business development."

AN ENGINEERED PROMPT

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So, what exactly can these tools do for me professionally?

I BREAK IT DO WN INT O THREE AREAS O F SUPPO RT :

• Business Support (Coach, Assistant, Planner, Sounding Board, Brainstormer, and more) • Practice and Client Support (Admin, Trainer, Research Assistant, Scrivner, and more) • “In the Room” Support (Notetaker, Option Generator, Assistant, Research, Communication Coach, Drafter, and more)

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Business Support • Take on the role of your business coach in drafting and updating your annual business plan.

• Create a marketing launch plan for current or new services that you are introducing.

• Help you to do market research on your target clients and strategize how to engage them.

• Identify emerging and hot topics in your practice area to keep you at the top of your game.

• Assist you in revamping and updating your website for SEO and engagement.

• Create and fine tune your “elevator speech.”

• Analyze and refine your budget and financial goals.

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Practice Support • Workflows and Process Streamlining • Templates and Forms • Feedback and Evaluation • Communication Enhancement • Skill Development and Training • Preparation and Research • Customized services and process • Client Support (Give them prompts!)

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“In the room” • Summarizing Complex Information • Generating Options and Brainstorming • Drafting Neutral Language • Translating Languages • Fact-Checking • Creating a Term Sheet • Reviewing Options • Creating visual aids and summaries

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DEMOS ChatGPT what can you do for me?

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Q&A 18

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SUSAN GUTHRIE

susan@susaneguthrie.com www.susaneguthrie.com

ATTORNEY | MEDIATOR | SPEAKER | TRAINER | CONSULTANT | COACH | LEGAL TECHNOLOGIST CHAIR ABA SECTION OF DISPUTE RESOLUTION

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Law Specific Generative AI Programing: Legal Research & Writing: •

Lawgeex: (https://www.lawgeex.com/) Offers AI-powered contract review and analysis, with pricing dependent on project scope and volume.

•

Kira Systems: (https://kirasystems.com/) Leverages AI for complex contract review and analysis, with custom pricing models.

•

Lex Machina: (https://lexmachina.com/) Provides AI-driven legal research and analytics, with tiered subscription plans.

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Casetext: (https://casetext.com/) Uses AI for legal research and analysis, offering freemium and paid subscription models.

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DoNotPay: (https://gizmodo.com/donotpay-robot-lawyer-ai-parking-ticket1850031456) Focuses on generating legal documents and navigating bureaucratic processes, with freemium and paid options.

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Lexis+ AI: (https://www.lexisnexis.com/en-us/products/lexis-plus-ai/signup.page) Using the fastest legal generative AI with conversational search, drafting, summarization, document analysis, and hallucination-free linked legal citations.

Subscription.

Legal Document Automation: •

Docupace: (https://www.docupace.com/) Offers contract management and automation solutions, with tiered subscription plans.

•

ContractPodAi: (https://contractpodai.com/) Provides AI-powered contract generation and management, with custom pricing models.

•

ROSS Intelligence: (https://www.rossintelligence.com/why-ross) Generates legal documents based on user input, with custom pricing models.

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Evisort: (https://www.evisort.com/) Leverages AI for contract analysis and document automation, with custom pricing models.

•

Templater.ai: (https://silentvoid13.github.io/Templater/introduction.html) Focuses on automating document generation based on templates, with freemium and paid options.

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Legal Chatbots & Virtual Assistants: •

Ada: (https://www.ada.cx/) Provides AI-powered virtual assistants for client interactions, with custom pricing models.

•

LawBot: (https://www.lawbot.io/) Offers customizable chatbots for law firms, with pricing based on features and usage.

•

Pardot: (https://go.pardot.com/) Uses AI for marketing automation and lead generation, with tiered subscription plans.

•

Drift: (https://www.drift.com/) Leverages AI for conversational marketing and sales tools, with tiered subscription plans.

•

Chorus.ai: (https://www.chorus.ai/blog/call-transcription-accuracy) Offers AIpowered meeting transcription and analysis, with tiered subscription plans.

•

Clio Duo: (https://www.clio.com/about/press/clio-unveils-clio-duo/) Coming soon.

Clio Duo will serve as a coach, intuitive collaborator, and expert consultant to legal professionals, deeply attuned to the intricate facets of running a law firm.

Subscription.

Additional Resources: •

Guide helps legal professionals use generative AI to advance their practice: (https://www.thomsonreuters.com/en/pressreleases/2023/november/thomson-reuters-launches-generative-ai-poweredsolutions-to-transform-how-legal-professionals-work.html)

•

10 Legal AI Tools for Legal Practices and Professionals in 2023: (https://clickup.com/blog/ai-tools-for-lawyers/)

•

AI Tools for Lawyers: Improving Efficiency and Productivity in Law Firms: (https://www.clio.com/resources/ai-for-lawyers/)

Remember, this list is not exhaustive, and new tools emerge constantly. It's crucial to conduct thorough research and consider your specific needs when choosing a Generative AI program for your legal practice.

Disclaimer: I cannot vouch for the accuracy or effectiveness of any specific program. It's crucial to research and critically evaluate each tool before using it in a professional setting. This resource guide was created by Susan Guthrie with the assistance of Google Gemini and ChatGPT.

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Mastering AI: The 5 P's of Prompting for Game-Changing Results Artificial intelligence (AI) holds immense potential for revolutionizing various industries, but its true value depends on how e ectively we interact with it. At the heart of successful AI interactions is prompting. Think of prompting as the art of asking the right questions or framing instructions in a way that ensures the AI delivers the best results. To help you harness the full potential of AI in your professional work, I’ve developed the 5 P’s of E ective Prompting: Prime, Persona, Privacy, Product, and Polish. Let’s explore how each of these key components can elevate your AI usage to the next level.

1. Prime: Start with Context Every e ective prompt starts with proper context. Just like in any conversation, the more information you provide, the more accurate and relevant the response will be. Setting the scene for the AI helps it understand the scope of your inquiry, whether it’s a legal case, a business problem, or a creative task. For instance, if you’re looking for a marketing strategy for mediators, specify the industry, audience, and goals. By priming the AI with this background, you align its output with your goals from the very start.

Tip: Avoid generic requests and provide detailed context to focus the AI on the task at hand.

2. Persona: Set the Tone and Expertise AI is versatile, able to adapt its tone, style, and expertise based on your prompting. Whether you need a formal legal opinion, an academic research paper, or a casual brainstorming session, the AI can adjust its language and depth accordingly. By defining the persona— whether it’s professional, academic, or conversational—you ensure the output meets your specific needs.

For example, if you're preparing for a legal mediation session, prompting the AI to deliver an expert-level legal analysis versus a simplified explanation will provide very di erent outcomes. The key is setting the right persona from the beginning.

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Tip: Specify the tone and level of expertise to get responses that are tailored to your audience.

3. Privacy: Protect Sensitive Information While AI can be incredibly helpful, it’s important to remember that not all AI tools are created equal in terms of privacy and security. As with any public forum, you should avoid sharing sensitive personal information unless you are confident that the AI is operating in a secure environment. Always exercise caution and treat every interaction as if it could be shared publicly. Privacy protection is crucial, especially when dealing with client information or business data.

Tip: When in doubt, anonymize sensitive data or use placeholders to keep confidentiality intact.

4. Product: Define Your Goal Before diving into a conversation with AI, it’s essential to know what you’re aiming to achieve. Are you looking for a creative marketing plan, legal research, case analysis, or something else? Clearly defining the desired outcome—whether it’s a product, solution, or analysis—helps the AI tailor its response more accurately to your needs.

Think of your goal as the “product” you want the AI to deliver. If you're seeking a draft contract, clearly specify the type of contract, its purpose, and any important clauses. This step ensures the AI doesn’t go o track and keeps your conversation productive.

Tip: Clearly articulate the end result you’re seeking to avoid vague or unfocused responses.

5. Polish: Refine for Precision The first response from AI isn’t always the final answer. Once the AI provides an initial response, it's important to dig deeper. Use follow-up questions to refine the output and gain clarity or insight. Asking for alternative perspectives—both positive and negative—can help in making a more balanced decision.

For instance, if the AI provides a marketing strategy, ask for potential pitfalls or challenges you might encounter. This additional polish can often turn a good response into a great one, ensuring precision and depth.

Tip: Don’t settle for the first answer; iterate on the response until it fully meets your needs.

Conclusion: Master the Art of Prompting

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By mastering the 5 P’s of E ective Prompting—Prime, Persona, Privacy, Product, and Polish—you can unlock the full potential of AI in your work. Whether you’re a mediator, entrepreneur, or legal professional, the power of AI lies in how you guide it. Next time you interact with AI, remember that thoughtful prompting will get you results that not only meet but exceed your expectations.

Special shout-out to @Josh Kubicki and his excellent Brainyacts newsletter, where I discovered this game-changing framework! If you haven’t subscribed yet, I highly recommend you check it out for more brilliant insights on AI and beyond: Subscribe to Brainyacts.

Want to stay ahead in the world of AI? Join my LinkedIn newsletter for regular tips on integrating technology into your practice and business and other insights to help you build the practice of your dreams.

More resources: Work with Me: Susan Guthrie Consulting and More Take the Hands-On AI Tools Workshop on September 24th: Information and Register Want a faster track to AI Literacy? Sign up for a 1-on-1 Training Session Subscribe to The Make Money Mediating Podcast Get the FREE Book: Building the Practice of Your Dreams: One Month of Tips To Find Success Get the FREE Business Journal: MMMP Weekly Business Journal Visit my website: susaneguthrie.com

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Sample Prompts for Legal and Dispute Resolution Professionals: PRESENTATION SUMMARY Prompt: ChatGPT I have attached the slide handout for an AI and Mediation program that I just attended.

Please summarize the key takeaways and create a list of action tips for me to integrate those takeaways into my own mediation practice.

PART ONE DEMOS ON USING THE LLMS TO HELP WITH ASPEN: Awareness and Education: Perplexity what are the benefits and challenges of using AI as a mediation professional?

Strategies and Protocols: ChatGPT help me to create strategies and protocols for managing the challenges that AI presents for mediators.

Practice and Preparation: Gemini, create a list of prompts to help me to prepare and practice different ways that I might integrate AI into my mediation practice.

Education Again: Mistral please give me an update on the latest developments in the use of AI in professional practice.

Notice and Transparency: Claude, draft a letter notifying my mediation clients that I use AI in my practice and providing transparency and accountability.

SECOND DEMO: Mediation Guide I am a commercial mediator handling complex litigation matters, mainly in construction law.

Please help me prepare a comprehensive Mediation Process Guide for Participants in my virtual mediation. This should include all necessary explanations of the mediation process, the accommodations necessary for a proper virtual mediation, and best practices and expectations for all participants.

FAQs: Hello ChatGPT, I’m a mediator specializing in family law, business disputes, and crosscultural conflicts. Can you help me create 10 FAQs for my practice, along with clear answers?

The FAQs should cover the mediation process, confidentiality, cost, duration, and the benefits of mediation over litigation. Please include questions specific to cross-cultural mediation and family law.

THIRD DEMO: Termination Letter

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them to meet the necessary standards and offered a variety of support, such as a team member mentor and weekly check-ins, but things have not improved.

FOURTH DEMO: Business Planning: The magic prompt: Hello ChatGPT, I am a mediator looking to create a detailed business plan for 2024. I need your assistance in developing this plan. Can you guide me through this process by asking me specific questions? I'll provide the necessary information based on your queries. Let's focus on gathering insights into my target market, defining the structure of my mediation practice, outlining my financial goals, and establishing a marketing strategy. I would like this to be a collaborative process where you ask me questions, one at a time, I provide responses, and then you use this information to draft a comprehensive business plan. This plan should include a clear timeline for implementation, specific action items, and measurable goals.

Role Play: Hello, ChatGPT. I would like to conduct a mediation role play exercise where I will act as the mediator and you will act as the participants.

Please create a scenario for our mediation with the following details: • • •

Type of dispute: [Specify the type of dispute, e.g., divorce, business disagreement, neighbor conflict] Level of difficulty: [Specify the difficulty level, e.g., easy, moderate, difficult] Number of parties: [Specify the number of parties involved, e.g., 2, 3]

FIFTH DEMO: Pre-Mediation Report and Summary I am the mediator for a workplace claim that is outlined in the attached two briefs - one from the plaintiff and one from the defendant. Please prepare a summary and analysis of the stated claims positions, demands, potential areas of agreement, disagreement and anything else that might be helpful to me as mediator in a comprehensive Pre-Mediation report

SIXTH DEMO: Family Residence Options:

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Provide a comprehensive list of potential options for the disposition of a marital residence in a divorce scenario, where the home has a fair market value (FMV) of approximately $450,000 and a mortgage balance of $302,000 with a 3.5% interest rate. Consider the context of current high-interest rates, around 8%, and differing desires of the parties: one wishes to retain the home for stability, while the other seeks to liquidate the asset for financial independence. Account for the challenge that one party may not sustain the financial burden of the home independently without support. Present these options in neutral terms for consideration.

Additional Mediation Prompts: 1. Case Summary Generation Prompt: "I have a mediation case involving a complex commercial dispute between two multinational corporations. The plaintiff, a technology firm, alleges that the defendant, a former partner, misappropriated trade secrets and violated a non-compete agreement. The defendant counters that the trade secrets in question were not proprietary and that the non-compete clause is unenforceable under current laws. Could you summarize the key facts, positions, and legal arguments for me as a mediator?"

2. Role-Playing for Skill Enhancement Prompt: "You are representing a high-profile executive in a mediation involving allegations of breach of fiduciary duty by the board of a publicly traded company. The executive feels that their reputation is on the line and is very defensive. Please play the role of this executive as the mediator tries to address your concerns and move the negotiation forward."

3. Drafting Agreement Clauses Prompt: "The parties have agreed that the defendant will make a substantial settlement payment, but the payment will be structured as a combination of cash and stock options, with specific conditions attached to the vesting of the options. Can you draft an agreement clause that outlines this settlement structure, ensuring the language is precise and addresses potential contingencies?"

4. Identifying Interests vs. Positions Prompt: "In a mediation involving a dispute over a failed merger between two financial institutions, the acquiring company’s position is that they are entitled to a significant breakup fee due to the target company’s alleged misrepresentation of financial health. The target company’s position is that the merger failed due to market conditions beyond their control and that no fee is warranted. What might be the underlying interests of each party, and how could these interests be addressed to reach a resolution?"

5. Decision Tree Analysis Prompt: "I’m mediating a complex case involving a pharmaceutical company accused of patent infringement by a competitor. The parties are considering several options, including a licensing agreement, a joint venture, or continuing litigation. Can you help me create a decision tree that outlines the risks, benefits, and possible outcomes for each option, factoring in potential market reactions and regulatory scrutiny?"

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6. Generating Neutral Language Prompt: "The following statement was made by the CEO of one party during mediation: 'The other side’s actions are nothing short of corporate sabotage, and they have no intention of negotiating in good faith.' Could you rephrase this statement in neutral, non-confrontational language that a mediator might use to keep the discussion focused and productive?"

7. Scenario-Based Learning Prompt: "Imagine a mediation scenario where two conglomerates are in conflict over a joint venture that has gone awry. One party believes they have contributed significantly more capital and intellectual property, while the other party insists that the benefits should be shared equally as originally agreed. If I suggest involving a third-party auditor to assess contributions, how might each party respond, and what are some possible outcomes of this suggestion?"

8. Real-Time Translation Prompt: "In this international arbitration scenario, the lead negotiator for one party speaks only Mandarin, while the other side conducts business in English. Please translate the following high-level negotiation point from Mandarin to English: '我们愿意讨论任何合理的提议，但前提是这些提议必须尊重我们的知识

产权和商业机密。'"

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ADVANCED PROBATE ISSUES

31ST ANNUAL ADR INSTITUTE

ADVANCED PROBATE ISSUES: BEWARE OF THE SHADOWS Probate mediators would be wise to be aware of and check the "shadows" in their cases. These shadows include handling issues related to the legally interested parties who may not be present at a session but who must approve an agreement, underlying legal issues that can prevent an agreement from being approved, and the often ephemeral nature and understanding of capacity and its impact on a mediation, among other things. The session will address issues that have been raised by probate judges, program directors and mediators since the onset of the statewide initiative, review common statutes that impact advanced work in these cases, and provide practical information and strategies to help mediators navigate these challenging issues. It will include time for participation and feedback from attendees about additional issues and concerns.

Panelists include: Eleanor Crosby Lanier, Esq.; Hon. Susan Schaffer; and Brian Carney, Esq.

1:00 PM TO 2:00 PM 1 CLE HOUR, INCLUDING 1 TRIAL HOUR

In-person attendees can join the panelists in Room A. This session will NOT be live-streamed to virtual attendees, but a recording will be made available for the month of December 2024.

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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Eleanor Crosby Lanier, Esq. Clinical Professor Emerita, UGA School of Law

Ellie Crosby Lanier is a Clinical Professor Emerita at UGA Law, where she developed and taught the Mediation Practicum and Clinic as well as taught elder law. She is currently consulting with the Georgia Commission on Dispute Resolution to develop and implement the Probate Mediation Initiative. Ellie received her BA from Vassar College, a master’s degree in political science from the University of Georgia, and her JD from Emory University School of Law. In addition to many years of mediation experience, Ellie is a co-founder of the State Bar Elder Law Section, worked for the Georgia Division of Aging Services and AARP, among other law and aging service providers, and she developed training (and then trained) mediators in six states on adult guardianship and caregiver mediation under a grant from the U.S. Administration on Aging. Probate mediation is a longtime passion of Ellie’s because of the the opportunities it presents for helping families through challenging times.

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Judge Susan Schaffer Athens-Clarke County Probate Court

Judge Susan Schaffer’s 30-year legal career has been devoted to serving the public interest.

After obtaining her undergraduate degree from Boston University and earning her Juris Doctorate degree from the University of Memphis School of Law, she started out as a legal services attorney, representing rural lowerincome clients in civil legal matters. After 6½ years, the last of 4 of which were spent with Georgia Legal Services Program, she mvoed to Athens in 2001 and served for 13½ years as the Managing Attorney for the University of Georgia School of Law Family Violence Clinic (now known as the jane W. Wilson Family Justice Clinic), teaching students and providing legal representation to indigent survivors of domestic violence and their children.

For 6 years, she served under former Judge Susan Tate as Staff Attorney, Pro Hac Vice Judge, and Chief Clerk of the Athens-Clarke County Probate Court prior to taking office as Probate Judge of Athens-Clarke County in January of 2021.

Currently, Judge schaffer serves on the Council of Probate Court Judges of Georgia’s Ad Hoc Committee on Fees, Legislative Committee, and Mental Health Committee and serves as the liaison on the Judicial Council of Georgia’s Ad Hoc Committee on Judicial Emergency Preparedness.

Judge Schaffer has 2 daughters, who have generously contributed to her gray hair, and a menagerie of pets.

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Brian S. Carney, Esq. Brian Carney Law

Carole Brian Carney, Esq. is a native Atlantan, having grown up in the Chastain Park area and having attended City of Atlanta Public Schools (McClatchey, Tuxedo, Dykes). His college years were spent in Macon at Mercer University (B.A. 1974), where he majored in the Allman Brothers Band and soccer.

Upon discovering he lacked the requisite skillset for both teaching and the food services industry, Brian moved to Athens in 1978 to attend UGA Law (J.D. 1981). He fell in love with the community and never left. With rare exception, Brian’s law practice has been limited to Family Law and ADR since 2003.

Brian and his spouse Mary (a UGA retiree) share an old craftsman style house with their golden retriever, Okra. Most time away from work involves textiles (Mary is a weaver), travel, fly fishing, and soccer.

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Advanced Probate Issues Watch for the Shadows 2024 ADR Institute Eleanor C. Lanier, Clinical Professor Emerita, UGA School of Law Introduction This topic and the content for this session arose from the lessons learned and challenges encountered before, during, and after GODR implemented the Probate Mediation Initiative, an eJort that included establishing a special registration category and training requirements for probate mediators and trainers, listening sessions with program directors, judges, probate litigators, and experienced probate mediators, and research into best practices for mediating probate cases used in other states.

This paper includes reference and practical material designed to support mediators in working through the challenges and lessons identified.

Issues Raised by Probate Judges Throughout the design and implementation process for the Probate Mediation Initiative GODR has worked closely with probate judges and the Council of Probate Court Judges of Georgia to assure that the initiative met the needs and addressed concerns of the probate courts and judges. Judges and court staJ provided input by serving on GODR’s Probate Court Working Group chaired by Judge Carrie Markham of the Probate Court of Coweta County. As the development process continued, GODR staJ made presentations to the probate judges and held listening sessions. This work continues, and GODR has fielded questions and concerns arising after the initial round of training.

Furthermore, in preparation for this breakout session, Judge Susan SchaJer of the Athens-Clarke County Probate Court asked her colleagues for input on the issues they have encountered.

1) Agreement Enforcement and Equitable Remedies/Agreement Terms Outside the Court’s Jurisdictional Authority Probate Judges have discretion in whether and if so, how to accept or adopt agreements reached in mediation, depending on the language and terms of the agreement. As we have listened to judges throughout the state, we have learned that courts take a range of approaches to this, and the correct approach will be the one that your judge elects to adopt. If you are not sure which approach your judge takes, the time to learn is prior to the commencement of the mediation, otherwise, you will run afoul of the confidentiality requirements in our ethics rules.1

See, for example, Appendix C Chapter 1 (https://godr.org/wp-content/uploads/2019/10/Appendix-CChapter-1-1.pdf, ps. 25-26) and specifically, Advisory Opinion 6, page 3, addressing confidentiality and mediator communications with the court (https://godr.org/wp-content/uploads/2019/10/Advisory-Opinon6.pdf.)

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Here are some potential approaches, keeping in mind that courts have the discretion to modify or adapt the approach taken, depending on the specifics of the case in front of them: • • • •

The court accepts and includes in a final order only those aspects that address the legal issue presented to the court.

Court includes only those aspects of an agreement that address the legal issue in the case and are enforceable by the court.

The court includes the basics in the order and accepts additional areas of agreement as an addendum or appendix to a court’s order.

The court enters an order but agrees to making any additional terms part of the case record, but not part of the final order.

2) Parties to the Case/Legally interested Parties/Support Persons Judges report diJiculties when parties or lawyers submit agreements without mention, inclusion or assent of persons or entities with a legal interest in the case since without them, an agreement cannot be approved. This issue can arise in a number of ways. In an estate case, there could be family members litigating an issue without all named beneficiaries present. In this instance, if the terms of the will are changed by agreement of the parties, all the beneficiaries must be notified, agree to, and sign oJ before a court can approve the agreement. The mediator may not be aware of these “shadow” parties prior to the mediation, so any agreement must be contingent upon, and include all the necessary steps and dates for obtaining agreement prior to the court’s adoption of the agreement terms and entry of an order.

In other circumstances, the mediator may not be aware of family members with a legal interest in the case. Sometimes, a petitioner may neglect to include the list of all legally interested parties or heirs in their petition. In this case, the mediator should work to get a clear picture of the family tree and ask questions if there appear to be gaps in branches. This could be deliberate or inadvertent.

Some parties may not understand that estranged family members whose location is unknown or family from a prior marriage may have rights in a case. Or there may be the existence of heirs standing in closer degree to the Decedent or post deceased heirs of an estate who need to be included.

3) Incomplete Agreements Probate Judges report being presented with incomplete agreements, meaning agreements that omit one or more essential elements without clearly reserving them for the court. In one example, a probate judge was given an agreement that included a detailed description of how property would be divided but did not address who was to serve as personal representative. In this situation, a checklist would help assure that all issues are addressed and if the parties cannot agree, then the agreement should be labeled as a “Partial Agreement” and clearly delineate the areas of accord and the issue or issues remaining for the court to decide. The probate training materials contain a

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checklist for agreements2, and another form of a checklist is included with these materials. But it might be helpful for a mediator to develop their own checklist to assure all elements are addressed or explicitly reserved.

4) The agreement removes the court’s jurisdiction by dismissing the underlying action when all issues have not been resolved.

It can be tempting for a mediator to memorialize a party’s desire or willingness to dismiss an action without considering the consequences for the parties, the estate, or the case. For example, if an applicant withdraws or dismisses the action, it can eJectively end the case and the court’s jurisdiction to resolve the underlying matter or matters prematurely. Most judges review agreements closely and would not approve this agreement, but the parties might be upset if they think their case has been fully resolved only to be called back to court to address matters fully.

Issues Raised by Mediators Probate mediation has existed in Georgia since the early 1990s 3and many of the issues faced by mediators have been present in these cases throughout this time. But because they are pernicious, these challenges benefit from a closer examination of options available to address them.

1) Capacity Capacity concerns are the most common challenge raised by probate mediators, and this is true not only in adult guardianship and conservatorship cases (which makes sense since capacity is per se at issue there) but also in estate cases. The probate training resources section contains significant information on the topic of capacity and the class portion of the training addresses the fluid nature (namely that it can vary depending on time, task, and emotional state, among other factors) and both the legal and functional definitions of capacity. 4

https://georgiacourtsmy.sharepoint.com/personal/tracy_johnson_georgiacourts_gov/_layouts/15/onedrive.aspx?id=%2Fpersonal %2Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurriculum% 2FProbate%20Materials%202024%2FFinal%20Materials%2F00%2E%20FINAL%20MANUAL%2FDIGITAL%5F REV%2E6%2E16%2E24%20%2D%20Probate%20Mediation%20Training%20%2D%20Participant%20Manual %5F3%2E2024%2Epdf&parent=%2Fpersonal%2Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocument s%2FProbate%20Mediation%2FCurriculum%2FProbate%20Materials%202024%2FFinal%20Materials%2F00 %2E%20FINAL%20MANUAL&ga=1 P 196-197. P. 203 3 https://georgiacourtsmy.sharepoint.com/personal/tracy_johnson_georgiacourts_gov/_layouts/15/onedrive.aspx?ga=1&id=%2Fper sonal%2Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurricul um%2FProbate%20Materials%202024%2FFinal%20Materials%2F03%2E%20Intro%20Pages%20%28Preface %29%2F01%2E%20History%20of%20the%20Fulton%20Probate%20Court%2Epdf&parent=%2Fpersonal%2 Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurriculum%2FP robate%20Materials%202024%2FFinal%20Materials%2F03%2E%20Intro%20Pages%20%28Preface%29 2

https://georgiacourtsmy.sharepoint.com/personal/tracy_johnson_georgiacourts_gov/_layouts/15/onedrive.aspx?id=%2Fpersonal 4

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To provide a bit of context, here some distinct types of capacity defined by statutes and courts: • • • • • • • •

Testamentary Capacity Donative Capacity Contractual Capacity Capacity to convey Real Property Capacity to Execute a Durable Power of Attorney Decisional Capacity in Health Care Capacity to Stand Trial Other Legal Capacities (these are articulated and shaped by language in our Guardianship/Conservatorship law and are the responsibility of the probate court to determine and include capacity to drive, to vote, to marry, to sue or be sued, among other things.5

The Supreme Court’s Ethical Standards for Mediators address the issue of capacity to mediate in a number of places. See, for example, the language and guidance surrounding the core value of SelfDetermination, and the importance that each party fully understands the process and consents to it.6 The issue of capacity is further addressed in the following explicit language in the rules: B. The mediator has an obligation to assure that every party has the capacity to participate in the mediation conference. Where an incapacity cannot be redressed, the mediation should be rescheduled or canceled. Self-determination includes the ability to bargain for oneself alone or with the assistance of an attorney. Although the mediator has a duty to make every e@ort to address a power imbalance, this may be impossible. At some point the balance of power may be so skewed that the mediation should be terminated.7

ADA Definition of Capacity to Mediate Additional guidance can be found in the language of the Americans with Disabilities Act Mediation Guidelines, which provide a definition of “Capacity to Mediate” for the purposes of the Act as follows:

%2Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurriculum% 2FProbate%20Materials%202024%2FFinal%20Materials%2F00%2E%20FINAL%20MANUAL%2FDIGITAL%5F REV%2E6%2E16%2E24%20%2D%20Probate%20Mediation%20Training%20%2D%20Participant%20Manual %5F3%2E2024%2Epdf&parent=%2Fpersonal%2Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocument s%2FProbate%20Mediation%2FCurriculum%2FProbate%20Materials%202024%2FFinal%20Materials%2F00 %2E%20FINAL%20MANUAL&ga=1 p.144 5 ABA Comm. On L. & Aging & Am. Psychological Assn., Assessment of Adults with Diminished Capacity, A Handbook for Lawyers (2005), pp.5-6.

6 Appendix C Chapter 1 p.2 https://godr.org/wp-content/uploads/2019/10/Appendix-C-Chapter-1-1.pdf 7

https://godr.org/wp-content/uploads/2019/10/Appendix-C-Chapter-1-1.pdf p.2

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The mediator should ascertain that a party understands the nature of the mediation process, who the parties are, the role of the mediator, the parties’ relationship to the mediator, and the issues at hand.

The mediator should determine whether the parties can assess options and make or keep an agreement.8 This definition tracks language and concepts resented in our Ethical Standards, and in the ABA/AAA/ACR Model Standards of Conduct for Mediators.9 Additional Ways a Mediator can Facilitate Capacity The Probate Training covers the concept of a mediator’s responsibility to facilitate a parties’ capacity by making the session accessible and comfortable to all and provides diverse ways this can be achieved. This concept was initially introduced by the Key Bridge Foundation in their training for ADA Mediators10 and has also been employed in Guardianship/Conservatorship and Caregiver Mediation throughout the country.11 It encourages mediators not only to be alert to party capacity, but also to consider ways they can enhance or support party capacity to more fully participate in the session.12 In essence, it asks that we look not just at party capacity, but at a mediator’s competence to work with a party.

The following additional techniques can be used to enhance party capacity13: •

Engendering Party Trust and Confidence

This involves creating a welcoming space, and if necessary, caucusing with a party alone or with a support person at the outset of the session to determine whether process changes may be indicated, stressing confidentiality, encouraging maximum participation, (as appropriate and without creating undue stress or pressure), responding to any concerns and feelings expressed, helping all participants feel respected and valued, encouraging and expressing confidence that progress can be made and that a positive outcome can be reached, even if there is no resolution of the case.

8

https://keybridge.org/standards-of-conduct-for-ada-mediation-at-key-bridge-foundation/

9

https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/dispute_resolution/model _standards_conduct_april2007.pdf Ibid.

See, for example, The Center for Social Gerontology, Adult Guardianship Mediation Training Manual, https://www.tcsg.org/mediation/manual.htm 12 https://georgiacourtsmy.sharepoint.com/personal/tracy_johnson_georgiacourts_gov/_layouts/15/onedrive.aspx?ga=1&id=%2Fper sonal%2Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurricul um%2FProbate%20Materials%202024%2FFinal%20Materials%2F11%2E%20Section%208%2F01%2E%20C apacity%20and%20Alternatives%20to%20Guardianship%2Epdf&parent=%2Fpersonal%2Ftracy%5Fjohnson ,%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurriculum%2FProbate%20Materi als%202024%2FFinal%20Materials%2F11%2E%20Section%208 pages 6-8.

13 This section has been adapted for mediators from the ABA and APA Handbook, op cit, pages 28-30.

10 11

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•

Accommodating Sensory Challenges

Hearing This can be done by minimizing background noise or interruptions, looking directly at the party when speaking, and speaking slowly and distinctly. In many cases, it can be helpful for the mediator to read aloud any documents, pausing at times for questions, and many mediators routinely do this in all cases. Using a clear voice without shouting, and where possible, a lower pitch, enables one to be heard more readily by someone with a hearing impairment than a higher range or pitch. If in person, sitting oriented face to face and near the party can also be helpful.

Vision Vision challenges can be addressed with good lighting, reducing glare from windows, avoiding glossy printed materials, formatting using a larger font, providing additional time for review of any written material, and providing time to refocus between viewing at a distance (faces) and reading documents (close up) because sometimes it can be challenging to switch the fields back rapidly.

Be mindful of narrowing vision fields. For example, someone may not be aware of your presence until you are right in front of them. If in person, having magnifying glasses or readers to oJer, and arranging furniture to provide clear pathways can also be helpful.

•

Accommodating Cognitive Challenges

Because capacity can be so variable, it may not always be evident that someone lacks capacity, and someone can be in great shape at the outset of a mediation and fade as the session progresses. Below are some ideas for how a mediator can accommodate cognitive impairments, whether they appear as a subtle “shadow” or arise as a clear barrier to communication.

Use a variation of the “Question Funnel” described in The Art of Mediation.14 The classic version of the funnel from this classic book involves moving from open questions to narrower and then to more direct ones. In this version, the mediator begins with more simple questions that require brief responses, and the mediator uses the responses to help assess the party’s abilities to participate.

So, in this version, start with simple questions and ask follow-up questions to add detail. Allowing extra time can also be useful and help to accommodate issues with “word finding.” Chunking the conversation to clearly discuss one issue at a time can be more helpful than trying to have a party divide attention between diJerent issues and tasks. Where this is possible. If necessary, and being careful to avoid impeding self-determination, it can help to use cues to assist with recall instead of expecting spontaneous retrieval. And utilizing tools that are already in the mediator’s toolbox, such as summarization, paraphrasing, repetition, and looping, along with checking in periodically to assure you are being understood can be tremendously useful.

14

Mark Bennett and Scott Hughes, The Art of Mediation, 2nd Edition, (2005) Chapter 4.

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Other ideas involve scheduling the session for the most suitable time of day, providing breaks or oJering multiple, shorter sessions, all of which can be helpful, provided the mediator and parties are able and willing.

Facilitating Engagement in Decision Making through the “Gradual” Method This method is drawn from the elder law field and was first articulated by Linda Smith, but it works well in the mediation context. This method relies on the mediator: • • • • •

Identifying and Confirming Basic Goals Getting feedback or “looping” to assure the mediator has correctly identified and articulated goals and the relative priorities of them.

Exploring the underlying values the party holds Explaining, Reviewing and Comparing options to the party’s values and goals, and Providing and Obtaining Feedback15

Working with Attorneys As all seasoned probate mediators know, attorneys can be extremely helpful participants in mediation. Lawyers in mediation are wonderful resources, and can explain the law, court procedures, and judge’s preferences to the parties, and therefore assist parties with risk assessment. Challenges arise because of the ethical obligations that run to their client and not the process, and their obligation to advocate for their clients, which poses a risk if other parties in the session are not represented.

This challenge is not confined to probate mediation, of course. It can be present in any case where only one, or some, but not all, parties have counsel, and mediators are uniquely alert to the power imbalances and information gaps that can result from this.

A related issue raised by mediators is the challenge of dealing with a lawyer less experienced in probate matters, who may not have a thorough grasp of the law or local curt practice. In cases where the lawyer misstates the law in front of their client or in joint session, it is critical both to maintain the appearance of impartiality and to avoid the danger of coming between a lawyer and their client. Subtle signals in the form of questions can be an eJective tool here, but only if used judiciously.

Working with Self-Represented Parties Self-represented parties pose a special challenge in probate mediation because knowledge of probate law and procedure is critical to crafting a successful agreement, meaning one that eJectively captures areas of accord, addresses the issues presented, is likely to be approved by the court, and has a good chance of being durable, without a need for external enforcement. Since Georgia probate cases oJer standard forms, parties may not understand the full import and Linda F. Smith, Elder Law: Representing the Elderly Client and Addressing the Question of Competence 14 J. of Contemporary L. 61 (1988.)

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consequences of submitting a form with incorrect or incomplete information (see the discussion on legally interested parties, above.)

Because of our role and obligations as neutrals, and because even if we are admitted to the bar, we are prohibited from giving legal or financial advice to parties,16 helping self-represented parties recognize and access legal help can be necessary to assure they are able to exercise selfdetermination fully. The probate training materials include information and referral sheets that can be provided to parties, when necessary. 17Self-determination without adequate information is a hollow right, and the author would argue that the mediator has an obligation to alert a party of the importance of information necessary to enable the party to make a fully informed decision, and the need to terminate the mediation rather than proceeding.

Timing of Referral The timing of the referral to mediation can pose challenges to mediators. If the timing is too soon, the parties may not have the information they need to resolve the case fully. In this circumstance, the mediator can still be helpful by collaborating with parties and counsel to develop a road map, timelines and agreements surrounding the procurement of needed information. Parties can ask for a continuance and return to mediation when ready, or proceed to court, if the interim agreement fails.

On the other end, if the referral comes too late in the process, parties may be entrenched in their positions, falling prey to the “sunk cost fallacy” or a loss aversion heuristic18 making settlement more diJicult. In these cases, mediators may need extra patience and skill in helping parties see the risks and benefits of each option presented, and helping them make a decision that is not based in a reaction to the past, but in a careful assessment of future options, probabilities, and consequences.

Mediating without adequate information (parties and issues) This shadow challenge relates to a few of those discussed above but acknowledges the diJiculties a mediator faces when the mediator is working without adequate information about whether there are legally interested parties not listed in the paperwork or without dependable, accurate, and adequate information about debts, assets, resources, or interests. In this case, the mediator’s best tool is to continue to ask probing questions, to help parties identify additional information needed https://godr.org/wp-content/uploads/2019/10/Appendix-C-Chapter-1-1.pdf p.22 A 4. https://georgiacourtsmy.sharepoint.com/personal/tracy_johnson_georgiacourts_gov/_layouts/15/onedrive.aspx?ga=1&id=%2Fper sonal%2Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurricul um%2FProbate%20Materials%202024%2FFinal%20Materials%2F08%2E%20Section%205%2F04%2E%20R esources%20for%20Parties%20in%20GA%2Epdf&parent=%2Fpersonal%2Ftracy%5Fjohnson%5Fgeorgiacou rts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurriculum%2FProbate%20Materials%202024%2F Final%20Materials%2F08%2E%20Section%205 16 17

Ronayne, D., Sgroi, D., & Tuckwell, A. (2021). Evaluating the sunk cost eeect. Journal of Economic Behavior & Organization, 186, 318-327 18

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and sources, and to establish timelines and a plan for obtaining the information. An interim agreement can be helpful here, as well, and a mediator should consider terminating the mediation and sending the parties back to court if there is an indication that significant information is unknown or being withheld. A reminder of the guidelines’ provisions on disclosure of material information and good faith can sometimes be helpful.19 Legal Advice vs Legal Information Last, but not least, mediators continue to struggle with the line between the mediator’s provision of legal information, which is permissible and sometimes necessary, and the prohibition of provision of legal advice, which is barred by our rules and guidelines.20 The Probate Mediation training materials contain information, examples, resources and common definitions for legal advice and legal information, but a mediator should always act within their comfort zone.

Since it is central to this specific challenge, the common definition of each contained in the training materials is repeated below: LEGAL ADVICE involves giving advice about the course of action a party should take to further his or her own interests and generally involves subjective information, an opinion, or a prediction.

LEGAL INFORMATION involves providing facts about the law and the legal process, and generally, relates to the provision of objective information that does not require understanding the details of a specific situation. Legal information is the same information no matter which party is asking, whereas legal advice may change depending on the circumstances of the person asking it.21 Mediators in the training reported that they employ a wide range of approaches to this challenge, with the most cautious only working cases where all parties are represented, some using questions to help parties identify the risk of going forward without information, others giving parties breaks and guidance on websites where they can access information,22 and still others using the guidance https://godr.org/wp-content/uploads/2019/10/Appendix-C-Chapter-1-1.pdf p.22 A 6 and 7. https://godr.org/wp-content/uploads/2019/10/Appendix-C-Chapter-1-1.pdf p.22 A 4.

21 https://georgiacourtsmy.sharepoint.com/personal/tracy_johnson_georgiacourts_gov/_layouts/15/onedrive.aspx?ga=1&id=%2Fper sonal%2Ftracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurricul um%2FProbate%20Materials%202024%2FFinal%20Materials%2F04%2E%20Pre%2Dtraining%20Materials% 20%28Section%201%29%2F03%2E%20Probate%20Court%20Definitions%2Epdf&parent=%2Fpersonal%2F tracy%5Fjohnson%5Fgeorgiacourts%5Fgov%2FDocuments%2FProbate%20Mediation%2FCurriculum%2FPr obate%20Materials%202024%2FFinal%20Materials%2F04%2E%20Pre%2Dtraining%20Materials%20%28Se ction%201%29 19 20

See Cobb County Probate Court’s website which contains self-help information, for example, https://www.cobbcounty.org/courts/probate-court.

22

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on legal information to provide information and answers to parties in joint session. Again, the right approach is the one that works for you and with which you have comfort. To the best knowledge of the author, the ethics committee has never cited a mediator for an ethics violation involving the provision of legal information to parties in joint session. A mediator with legal information about probate matters adds value to the session by assuring that parties have adequate information to fully exercise self-determination and assess the risks, rewards and potential consequences of various options presented before making a decision about settlement.

Conclusion Probate work is full of shadows, not only because probate mediation occurs in the shadow of our probate law and court, but also because there are issues that can lurk in a case without being readily apparent. This paper has attempted to identify and provide practical approaches to the issues that seem to arise most frequently from the court and mediators’ perspectives. As this work continues, we will no doubt uncover additional issues. The Georgia Commission on Dispute Resolution, The Georgia OJice of Dispute Resolution, and the Council of Probate Court Judges of Georgia are committed to collaborating with trainers and mediators registered in this category to increase the use, eJectiveness of and party satisfaction with probate mediation in Georgia. Stay tuned, and do not be afraid of the shadows, they can be intriguing.

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Checklist for Probate Agreements Here are some additional things to consider when drafting probate agreements that have been raised by courts and mediators 1) Review the type of action and assure that the issue that brought the parties to mediation has been resolved- if not, then it is an impasse; 2) Review the pleadings or the mediation referral information provided to /by the program director, or review online docket if available to identify: a. Type of action b. Who the parties to the case are c. Who the legally interested parties are, if any d. What the family tree looks like and who may be beneficiaries e. Are there any missing branches, for example, you have nieces and nephews, but no sibling/parent listed- are they alive?

3) Double check to assure that agreement references missing people or entities, contains explicit agreements on how they will be notified (who what how date by, etc.)

4) Make clear if an agreement is contingent upon approval of people or entities not in attendance by labeling it as a “Contingent Agreement” and clearly spelling out any contingencies (see above.)

5) If parties have not agreed on some elements of the case, be sure to label the agreement as a partial agreement and clearly state up front the issues that remain for the court to decide 6) If your agreement is in outline form and an attorney will prepare the final order, make sure that this is in the agreement along with a date by which it will be done, and make sure the agreement includes that the signed outline will be provided to the court, all parties are clear on next steps and who will present everything to the court (with dates, additional costs and who will bear, etc.)

7) If the agreement contains terms that are outside of the court’s jurisdiction and therefore unenforceable by the probate court, be sure you understand the court’s policy and preference for these. If you do not know, then memorialize these elements in a separate agreement and include it as an appendix to the agreement.

Make sure that everyone has copies of both the central agreement that addresses the case referred and any additional agreements the parties reach. Let selfrepresented parties know the reasoning behind this step and that the additional (non-probate) elements would need to be enforced by a separate action in a court that has jurisdiction.

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31ST ANNUAL ADR INSTITUTE

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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GA CHILD SUPPORT UPDATES

31ST ANNUAL ADR INSTITUTE

RECENT UPDATES TO THE CHILD SUPPORT GUIDELINES This session covers the statutory changes to the child support statute, O.C.G.A. 19-6-15, brought forth from the passage of the Senate Bill 454 during this past year’s legislative session. Included is updates to the basic child support obligation table, Veteran’s Affairs benefits, lowincome adjustments, and parenting time adjustments.

Additionally, changes to the income withholding order process will be discussed.

Panelists Include: Noelle Lagueux-Alvarez, Esq.; Kurt C. Bryan.; and Latoinna Lawrence

2:15 PM TO 3:15 PM 1 CLE HOUR, INCLUDING 1 TRIAL HOUR In-person attendees can join the presenters in the Auditorium.

This session will be live-streamed to virtual attendees.

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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Noelle Lagueux-Alvarex, Esq.

Judicial Council of Georgia / Administrative Office of the Courts (AOC) Noelle.lagueux-alvarez@georgiacourts.gov

Noelle is employed by the Judicial Council/Administrative Office of the Courts ("AOC") and serves the AOC as Assistant Division Director for Communication, Children, Families, and the Courts. She is an attorney with over eighteen years of professional legal experience. After working in the private sector for six years, for such companies as Goldman Sachs and Swissair, Ms. Lagueux-Alvarez graduated magna cum laude from Albany Law School in 2005. She started her legal career in the general litigation department in the Atlanta office of Paul Hastings—a large international law firm. Thereafter, Ms. Lagueux-Alvarez was the Program Director and Staff Attorney for the Fulton County Business Court. Following the Business Court, Ms. Lagueux-Alvarez worked for the U.S. Department of Labor representing a sub-agency in litigation. In 2015, Ms. Lagueux-Alvarez started her own solo firm and created Court Camp, LLC through which she offers mock trial summer camps for kids and teens. Ms. Lagueux-Alvarez is a lawyer mom and enjoys an active lifestyle with her two sons. Ms. LagueuxAlvarez volunteers extensively and is proud of her service to such organizations as GAWL, the March of Dimes, her neighborhood, her church, and her boys' schools.

Learn more about the Georgia Child Support Commission at https://csc.georgiacourts.gov/ and https://georgiacourts.gov/ido/

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Kurt C. Bryan

Judicial Council of Georgia / Administrative Office of the Courts (AOC) kurt.bryan@georgiacourts.gov

Kurt grew up in Rome, Georgia, and attended Georgia’s largest, and most beautiful college, Berry College. He graduated in 2008 with a Bachelor of Science degree in Psychology. In March of 2009, Kurt began working for the Division of Child Support Services (DCSS) in the Dallas/Paulding County office as a Child Support Enforcement/Modification Agent. Kurt continued to work as a Child Support Agent in the Atlanta Metro area up until 2015 where he moved to the 2 Peachtree State Office. From 2015 to 2022, Kurt would serve DCSS as a Compliance Monitor, Policy Specialist, and Communications Group Manager. From 2022 through October 2023, Kurt worked as the Limited English Proficiency/Sensor Impairment (LEPSI) Program Manager for the Department of Human Services. Kurt resides in Midtown Atlanta and is an avid professional football fan. In his spare time, Kurt enjoys international travel, outdoor activities, and cooking.

Learn more about the Georgia Child Support Commission at https://csc.georgiacourts.gov/ and https://georgiacourts.gov/ido/

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Latoinna Lawrence

Judicial Council of Georgia / Administrative Office of the Courts (AOC) Latoinna.lawrence@georgiacourts.gov

Latoinna Lawrence is the Program Coordinator of the Georgia Child Support Commission. She creates informative content from ideas of the Commission, assists with planning, organizing, and capturing memories from many events.

She attended Georgia State University, and enjoys photography, cooking, crafts, and riding in her golf cart throughout the town of Senoia, GA with her two kids and husband.

Learn more about the Georgia Child Support Commission at https://csc.georgiacourts.gov/ and https://georgiacourts.gov/ido/

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ARBITRATION - WHO DECIDES?

31ST ANNUAL ADR INSTITUTE

ARBITRATION - WHO DECIDES? (AND WHAT HAPPENS WHEN THEY DON’T) The program will include a review of recent decisions on who, a court or arbitrator, determines the arbitrability of disputes and a detailed examination of a significant recent decision reviewing the statutory basis for attacking an arbitration award.

Presented By: N.S. Ken Kendrick, Esq.

2:15 PM TO 3:15 PM 1 CLE HOUR, INCLUDING 1 TRIAL HOUR

In-person attendees can join the presenter in Room A. This session will NOT be live-streamed to virtual attendees, but a recording will be made available for the month of December 2024.

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N.S. “Ken” Kendrick, Esq. Panelist, Henning Mediation & Arbitration

Ken Kendrick, Esq., organized the ADR section of the Georgia Bar, served as the third chairperson of the section, and was co-chair of an early-held ADR Institute when it was held over three days at the Brasstown Valley Resort.

Since 2010, he has been a full-time neutral on the Henning Mediation & Arbitration Service panel, focusing on business disputes, and has conducted over 1,200 mediations in a dozen states. He has served as an arbitrator in more than 100 disputes administered under Henning, AAA, and ICC rules.

Ken is a member of the American College of Civil Trial Mediators and is a Georgia Charter Member of the National Academy of Distinguished Neutrals.

Learn more at https://www.henningmediation.com/bio-kendrick.php

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31ST ANNUAL ADR INSTITUTE

ETHICS IN MEDIATION This session will touch on the rule changes to the Supreme Court ADR Rules, Appendix C and how this

ETHICS IN MEDIATION

impacts registered neutrals. The session will also provide an in depth look at the complaint process when complaints are filed against neutrals, and offer a review the Best Practices Manual for Registered Neutrals, published by the Georgia Commission on Dispute Resolution in May of 2024.

All Supreme Court ADR Rules can be found at: https://godr.org/about-us/rules/ The Best Practices Manual for Registered Neutrals can be found at: https://godr.org/registered-neutral/

Presented by: Carole Griffith, Esq.

3:30 PM TO 4:30 PM 1 CLE HOUR, INCLUDING 1 ETHICS HOUR

In-person attendees can join the presenter in the Auditorium.

This session will be live-streamed to virtual attendees.

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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Carole Griffith, Esq.

Judicial Council of Georgia/Administrative Office of the Courts Carole Griffith is an attorney for the AOC, and she provides legal services to the Georgia Office of Dispute Resolution, working closely with the Supreme Court Commission on Dispute Resolution’s (the Commission) Ethics Committee (the Committee). Among other tasks, she investigates complaints that are filed against Registered Neutrals and presents her work to the Committee for review. Carole has also assisted the Commission in drafting rule revisions to Appendix C of the Supreme Court ADR Rules, and she assisted the Committee in drafting the Best Practices Manual for Registered Neutrals.

Carole has been with JC/AOC for 3 years and previously worked as a family law attorney in the Atlanta area. She is a graduate of Mercer University School of Law and attended Florida State University… yes, she is still an avid Seminole fan, despite their football season.

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31ST ANNUAL ADR INSTITUTE

THANK YOU FOR ATTENDING THE 31ST ANNUAL ADR INSTITUTE! Continuing Education Information This event is approved for 6 hours of continuing education for registered neutrals in Georgia and 6 hours of continuing legal education (including 2 ethics and 5 trial hours) for Georgia attorneys.

Need CJE hours? Reach out and let us know: ADRInstitute@georgiacourts.gov. We will do our best to help judges facilitate receiving CJE hours.

Attorneys barred in other states may qualify for CLE credit. Please email a list of your specific needs to ADRInstitute@georgiacourts.gov, and we will be

POSTFACE

happy to assist you if we can.

WE WANT TO HEAR FROM YOU A survey will be sent to attendees following the event, asking for feedback about the event sessions and overall experience.

Questions?

Email us at ADRInstitute@georgiacourts.gov

NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER

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GEORGIA COMMISSION ON DISPUTE RESOLUTION 244 WASHINGTON STREET, S.W., SUITE 300 ATLANTA, GEORGIA 30334-5900 OFFICE: 404-463-3808 | WEB: https://godr.org/

Commission Members Chair: Chair-elect:

Chief Judge M. Cindy Morris Judge Carrie B. Markham

Members:

Justice John J. Ellington Presiding Judge Sara L. Doyle N. Staten Bitting, Jr., Esq. Hon. Rebecca Crumrine Rieder Chief Judge Clarence Cuthpert Jr. Mary S. Donovan, Esq. Herbert H. (Hal) Gray III, Esq. Melissa C. Heard, MSSW Nicole W. Hull, Esq. Representative Rob Leverett Patrick T. O’Connor, Esq. Judge Pandora E. Palmer Judge D. Victor (Vic) Reynolds Judge Renata D. Turner Randall Weiland Peggy McCoy Wilson

GODR Staff Executive Director: Tracy B. Johnson Deputy Director: Karlie A. Sahs

Current as of November 2024

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GEORGIA COMMISSION ON DISPUTE RESOLUTION COMMITTEES Current as of November 2024

__________________________________________________________________ COMMITTEE ON BUDGET/PERSONNEL Chief Judge Clarence Cuthpert Jr., Committee Chair Presiding Judge Sara L. Doyle Chief Judge M. Cindy Morris Judge Vic Reynolds Judge Renata D. Turner COMMITTEE ON ETHICS Judge Renata D. Turner, Committee Chair Hon. Rebecca Crumrine Rieder Mary S. Donovan, Esq. Judge Carrie B. Markham Judge Pandora E. Palmer Patrick T. O’Connor, Esq. COMMITTEE ON TRAINING AND CREDENTIALS Melissa C. Heard, MSSW, Committee Co-Chair Nicole W. Hull, Esq., Committee Co-Chair Hon. Rebecca Crumrine Rieder Herbert H. (Hal) Gray III, Esq. Judge Carrie B. Markham Raytheon Rawls, Esq., Trainer, UGA – J.W. Fanning Institute DOMESTIC VIOLENCE RULES COMMITTEE Peggy McCoy Wilson, Committee Chair Chief Judge M. Cindy Morris Randall Weiland Raytheon (Raye) Rawls, Esq., Trainer, UGA – J.W. Fanning Institute Caitlin Livingston, Program Director, DeKalb County Courts Dispute Resolution Center Valerie Lyle, Program Director, 9th Judicial Administrative District ADR Program Liesl Owen, Program Director, 6th Judicial Administrative District ADR Program OUTREACH COMMITTEE Herbert H. (Hal) Gray III, Esq., Chair N. Staten Bitting, Jr., Esq. Chief Judge Clarence Cuthpert Jr. Mary S. Donovan, Esq. Randall Weiland Peggy McCoy Wilson Rita Carroll, Program Director, Carroll County ADR Program Valerie Lyle, Program Director, 9th Judicial Administrative District ADR Program

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29TH ANNUAL ADR INSTITUTE

THURSDAY, NOVEMBER 21, 2024 STATE BAR OF GEORGIA CONFERENCE CENTER 104 MARIETTA ST. NW, ATLANTA, GA 30303

OFFICIAL CONFERENCE PROGRAM