Increasing Mediation Effectiveness: When is it appropriate? What makes it work? Access To Justice Conference William S. Richardson School of Law John Barkai,

Slides:



Advertisements
Similar presentations
Note: Lists provided by the Conference Board of Canada
Advertisements

Pennsylvania Council of Mediators Resolving Disputes Through Mediation © PA Council of Mediators –
Last Topic - National Security Measures taken to ensure national security include Pakistan National Security Council (PNSC) Elements of National Security.
Negotiating for Win-Win Interest-Based Negotiation CASFAA Conference, 2008 Anaheim, CA Presented by Natasha Kobrinsky Pepperdine University Graziadio School.
Mediation Advocacy. Mediation Representation Formula for Problem Solving Mediation Hal Abramson & John Barkai.
The Added Value a Commercial Mediation Gives to the Resolution of a Money Dispute Singapore Management University School of Law Geoff Sharp, Commercial.
EVALUATION OF DISPUTE RESOLUTION METHODS. Strengths of Mediation  Strengths 1) Mediation is often less expensive. Mediation avoids the costs of a trial,
1 The Collaborative Family Law Process 101: A New Role for the Family Law Attorney By: Dawn Anderson.
LAW, JUSTICE AND DEVELOPMENT WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT November 14-17, 2011 Washington DC LJD LAW JUSTICE and DEVELOPMENT.
MODULE 23 CONFLICT AND NEGOTIATION
Basics of Conflict Management CRETE Day 2 Training Tricia S. Jones, Ph
Mediation and the Trial Civil Procedure Reforms practice direction Law Society of the Northern Territory Steve Walsh QC Alistair Wyvill SC.
What is Teamwork & Team Building Team work : Concept of people working together as a team. Team Player : A team player is someone who is able to get.
Issues for Sophisticated Users of Construction Mediation: When, How, and by Whom? Prof. John Barkai William S. Richardson School of Law University of Hawaii.
Mediation Conciliation Presented by: Prof. John Barkai William S. Richardson School of Law University of Hawaii Mediation Conciliation Presented by: Prof.
Putting It all Together Facilitating Learning and Project Groups.
Interest-Based Bargaining
Dispute Resolution Methods
United States Department of Agriculture Office of Procurement and Property Management Effective Negotiation Refresher August 2008 Exhibit 1.
College of Extended and International Education California State University at Dominguez Hills Mediation and Conflict Resolution Program Workshop Dr. Jack.
Problem Solving Decision Making Conflict Resolution
Mediation. Mediation / Conciliation vs. Arbitration n Mediation / Conciliation –Process where a third party intervenes. –By invitation of the parties.
Nothing astonishes men so much as common sense and plain dealing. Ralph Waldo Emerson Poet,
Chapter Seven: Exploring Interpersonal Communication H.L. Goodall & Sandra Goodall Communicating in Professional Contexts Skills, Ethics, and Technologies.
1 CREATING A LEARNING ORGANIZATION AND AN ETHICAL ORGANIZATION STRATEGIC MANAGEMENT BUAD 4980.
Back to First Principles: Why We Mediate Carrie Menkel-Meadow Chancellor’s Professor of Law, University of California, Irvine, Author, Dispute Resolution:
Customer Service: A Practical Approach, 5th ed. By Elaine K. Harris
Killing Me Softly - September 2006 Pacific Mediation Resolving Team & Staff Conflict.
[Name of Organization] [Date]. What You Will Learn What is planned early dispute resolution (PEDR) How lawyers can get good results for clients using.
Bringing Mediation Home Lynn P. Cohn. Explaining Mediation  voluntary  a private process in which a neutral party helps people resolve disputes  getting.
©2011 Discovery Learning, Inc. All Rights Reserved.
Resolving Education Disputes Scott F. Johnson. About Me Professor of Law at Concord Law School Hearing Officer with NH Dept. of Education NHEdLaw, LLC.
1 Law Professors’ Forum: Mediation Shop Talk Legal Educators’ Colloquium April 18, 2009 organizers Dwight Golann, Art Hinshaw, Carol Izumi, and Peter Robinson.
Mediation October 7, 2013 M.Gauci Law 341/342. October 7, 2013 M.Gauci Law 341/342 Definition  “The intervention in a negotiation or a conflict of an.
© 2007 The McGraw-Hill Companies, Inc. All rights reserved. Serving as Designated Leader © 2007 The McGraw-Hill Companies, Inc. All rights reserved. C.
Wait Wait, Don’t Give Up How to Break through “No Agreement” Tips and Techniques as well as some Counterintuitive Techniques.
Mediation Skills Nathaniel D. Danjibo, Ph.D. The 3 Ps of Mediation 1.People (People are at the centre of any mediation process); 2.Process (The process.
Maureen Gauci Ethics in Negotiation Law 341 and Law 342 October 28 th, 2013.
Trustworthiness To act in manner that makes one worthy of trust and confidence.
Negotiation and Mediation Presented by Ms. Asha Menon Additional District Judge & Member Secretary, Delhi Legal Services Authority Business Session –II.
Increasing Mediation Effectiveness: When is it appropriate? What makes it work? Access To Justice Conference William S. Richardson School of Law John Barkai,
1. 2 Introductions Biography 3 Agenda What is Conflict? Role of ADR ADR Continuum Benefits of ADR Case for Mediation Case Studies ADR Institute of Ontario.
Business Communication Course Unit 8 Negotiations.
Mediation: A View from Both Sides of the Aisle A presentation to Insuralex June 27, 2013 By: Lawrence W. Pollack.
Leadership. Intra vs Inter Intra Within your self Intrapersonal Intramural Inter With others Interpersonal Intermural.
INVESTIGATIONS MEDIATIONS & ARBITRATIONS POWER TOOLS FOR MANAGING WORKPLACE DISPUTES © Patricia Lee Connors, Esq
Productive bargaining for advocates This training module focuses on the behaviour of parties in bargaining and builds on four principles supported by the.
Click anywhere to start the presentation Business Etiquette.
Settling Disputes out of Court Conflict is a part of everyday life. Courts can help resolve conflicts, but there are other methods to help solve everyday.
Chapter 4 – Settling Disputes.  Effective community advocates work to solve problems in the community by proposing and lobbying for better laws and public.
Alternative Dispute Resolution Mediation. What is Dispute Resolution? Methods to resolve a conflict Methods to resolve a conflict May be referred to as:
Resolving Education Disputes Scott F. Johnson. About Me Professor of Law at Concord Law School Hearing Officer with NH Dept. of Education NHEdLaw, LLC.
LECTURE 4 WORKING WITH OTHERS. Definition Working with others : is the ability to effectively interact, cooperate, collaborate and manage conflicts with.
District 4 Area Workshops 2016 Conflict Resolution or I say tomato you say…
Professionalism in Retail Merchandising 1. Abide by OSHA and safety standards 2. Define personality traits and skills important to retailing (e.g., positivity,
Everyone’s a Leader Leadership. Everyone’s a Leader  Leadership is not a position  Leadership is not about power  Leadership is not about following.
Workplace Conflict RESOLUTION. Sources of Conflict Conflicts originate from a variety sources and contain many different qualities. Conflicts, therefore,
Mediation: An Effective Process for Resolving Disputes in Business, Courts and Communities Dr. Christopher Moore CDR Associates.
Resolving Health Care Disputes
Negotiate.
The Conduct of Mediation
Alternative Dispute Resolution
Conflict Resolution Skills and Strategies for HR Professionals:
2018 Contract Negotiations Competition
Non-Adversarial Case Resolution
Social & Emotional Skills in the Workplace
WHAT IS COLLABORATIVE LAW?
Civil Pretrial Practice
Top Ten Communication Skills of the Guidance Counsellor
Presentation transcript:

Increasing Mediation Effectiveness: When is it appropriate? What makes it work? Access To Justice Conference William S. Richardson School of Law John Barkai, Chuck Hurd, Elizabeth Kent, Tracey Wiltgen June 25, 2010

Pray one hour before going to war, Two hours before going to sea, Three hours before getting married, (and four hours before going to court). - Indian Proverb – (modified)

Mediation is assisted negotiation The mediator has no power to decide the dispute Mediation has a focus on the future Do not find fault, find a remedy Even a sheet of paper has two sides The onlookers see more than the players

StageTask(what)Action(how)Result ConveningWillingness Opening Safety & hope CommunicatingExpression Negotiating Flexibility & innovation Closing Informed decisions Pepperdine

Mediation Center of the Pacific

FACILITATIVE EVALUATIVE Styles of Mediation

FACILITATIVE mediators do NOT offer opinions or suggest solutions EVALUATIVE mediators evaluate by offering opinions & suggesting solutions TRANSFORMATIVE mediators are not concerned about solutions. They want to “empower” and “transform” the parties. USPS

Facilitative mediators ASK Evaluative mediators TELL

A Mediator's View of the Bargaining Process 1. Develop a relationship with the parties 2. Get the parties unstuck - shift to “interests” not “positions” focus, or/and - get the first new money offer 3. Move the bargaining along - generate significant movements 4. Close the gap - beyond the old bottom lines

Why should you use mediation? Compared to litigation - Faster - Cheaper - Private - confidential - Less formal - Parties remain in control of their dispute Traditional reasons

Why should you use mediation? The truth is … Virtually all psychology principles work against negotiators to make them over- value their case Many negotiators need a mediator’s help overcoming strategic barriers to successful negotiations

ABA Task Force on Improving Mediation Quality Goldberg & Shaw - Successful and Unsuccessful Mediators Goodman-Loftus - Study on Lawyer Overconfidence Prof. John Barkai

American Bar Association’s Section of Dispute Resolution Task Force on Improving Mediation Quality

The 2008 ABA Report on Improving Mediation Quality (civil disputes with lawyers) Preparation Customization Evaluation Skills Persistence

Goldberg & Shaw 2005 & 2007 Traits of Successful and Unsuccessful Mediators n= 30 mediators n=216 advocates

Study 1 "How do you account for your success as a mediator? “ 75% said: Ability to develop RAPPORT with the disputing parties Develop a relationship of understanding, empathy, and trust

Why is that so important? Encourages the parties to communicate more fully with the mediator, often providing the mediator with the information the mediator needs to help the parties craft a settlement

How to build that relationship? Empathic listening, which conveys the message that the mediator truly cares about the parties' feelings, needs, and concerns (substantial majority) The mediator’s reputation for being honest, ethical, and trustworthy (some mediators)

What does a mediator do after establishing rapport? Generate novel or creative solutions Generate novel or creative solutions Attribute the mediator’s own creative ideas to the parties Attribute the mediator’s own creative ideas to the parties Use humor Use humor Combine patience and tenacity Combine patience and tenacity Persistence Persistence

Other tactics Focus parties on consequences of not settling (BATNA / WATNA) Focus parties on consequences of not settling (BATNA / WATNA) Push at the appropriate time Push at the appropriate time Assist understanding each other’s needs Assist understanding each other’s needs Remain optimistic Remain optimistic

How do you account for your success as a mediator? Ability to gain the parties’ confidence75% Ability to gain the parties’ confidence75% Friendly/empathic 75 % Friendly/empathic 75 % Honesty/integrity25% Honesty/integrity25% Ability to generate novel or creative solutions50% Ability to generate novel or creative solutions50% Patient, tenacious, never quit15% Patient, tenacious, never quit15% Sense of humor15% Sense of humor15% Understand the rhythm of a mediation;10% Understand the rhythm of a mediation;10% know when to put pressure on the parties know when to put pressure on the parties Assist the parties to understand others’ needs10% Assist the parties to understand others’ needs10% Maintaining an outwardly optimistic attitude10% Maintaining an outwardly optimistic attitude10% Focus the parties on the consequences of not10% Focus the parties on the consequences of not10% settling ; predict the likely result of trial settling ; predict the likely result of trial

Study 2 Lawyers & Parties – What lead to success? Mediator’s ability to gain the parties’ confidence (friendly, empathic, likable, etc.) Mediator’s ability to gain the parties’ confidence (friendly, empathic, likable, etc.) Mediator’s high integrity (Honesty, neutrality, trustworthiness, protection of confidences, etc.) Mediator’s high integrity (Honesty, neutrality, trustworthiness, protection of confidences, etc.) Mediator was smart, well-prepared, or new the relevant contract or law Mediator was smart, well-prepared, or new the relevant contract or law

Shaw-Goldberg – Study 2 Views of reasons for mediator success Shaw-Goldberg – Study 2 Views of reasons for mediator success AdvocatesMediators CONFIDENCE BUILDING ATTRIBUTES: Friendly, empathic, likeable, relates to all, respectful, conveys sense of caring, wants to find solutions 60%75% High integrity, respects confidences, non- judgmental 53%25% EVALUATIVE SKILLS: Useful reality testing, evaluates likely outcome; candid 33%10% PROCESS SKILLS: Patient, persistent, never quits 35%15% Proposes solutions, creative 18%50%

Study 3 Why did mediators fail? Lack of confidence-building attributes Lack of confidence-building attributes Lack of process skills Lack of process skills Lack of evaluation skills Lack of evaluation skills

INSIGHTFUL or WISHFUL: Lawyers’ Ability to Predict Case Outcomes Goodman-Delahunty, Hartwig, Granhag, & Loftus 16 Psychology, Public Policy & Law, No. 2, 1–157 (2010) Lawyer’s are overconfident predicting trial outcomes Lawyer’s are overconfident predicting trial outcomes Greater confidence  greater overconfidence Greater confidence  greater overconfidence Accuracy did not improve with experience Accuracy did not improve with experience Men were more overconfident than women Men were more overconfident than women Predicting Trial Outcomes