1. Mediation of Construction Disputes in the United States Prof. John Barkai William S. Richardson School of Law University of Hawaii www2.hawaii.edu/~barkai

3. Handling of Problems designed by Liu Young Western - American Asian

4. Common Forms of Dispute Resolutions Negotiation Negotiation Mediation - Conciliation Mediation - Conciliation Arbitration Arbitration Trial in Court Trial in Court

5. CHINESE ARBITRATION The great Chinese Emperor Kang-hsi (during the Manchu Dynasty) issued the following decree, in response to complaints about his courts: "The Emperor, considering the immense population of the empire, the great division of territorial property and the notoriously litigious character of the Chinese, is of the opinion that lawsuits would tend to increase to a frightful extent if people were not afraid of the tribunals and if they felt confident of always finding in them ready and perfect justice. I desire, therefore, that those who have recourse to the courts should be treated without any pity and in such a manner that they shall be disgusted with the law and tremble to appear before a magistrate. In this manner... the good citizens who may have difficulties among themselves will settle them like brothers by referring them to the arbitration of some old man." - National Geographic Magazine, June 1927

6. OLD FRIEND SYSTEM (Lao peng you) – CHINESE Community Mediation Model Trusted old friend Meets separately with the parties Explores facts & interests Explores interests in context of mutual benefits & interdependence Preserves valuable relationships Identifies options Suggests resolution Save face & give face Convenes parties to confirm agreement Pours tea & talks Tawa Shay

7. Common Forms of ADR in Construction Partnering Partnering Dispute Review Boards Dispute Review Boards Mediation - Conciliation Mediation - Conciliation Arbitration Arbitration

10. Perspective View

14. "Then it's agreed. Watson, Smith, Teller, and Wilson go to Heaven; Jones, Paducci, and Horner go to Hell; and Fenton and Miller go to arbitration.

15. Mediation is assisted negotiation Tam Pan Tawa Shay Negotiation Mediation

16. Mediation is Conciliation

17. NO POWER The mediator has no power to decide the dispute

18. Why use mediation? Parties Faster, cheaper, confidential, control Lawyers Help with other side & clients Mediators Psychology of mis-evaluation, perception, over confidence, biases, strategic & tactical barriers

19. 当局者迷，旁观者清 Dang Ju Zhe Mi, Pang Guan Zhe Qing Lookers-on see more than the players

20. 36 Chinese Strategies Applied to Negotiations

21. Strategy 1: Cross the Sea by Deceiving the Sky 瞒天过海 Act in the open, but hide your true intentions. Hide secrets in the open to avoid detection

22. Strategy 2: Besiege Wei to Rescue Zhao 围魏救赵 Attack their Achilles heel (weakest point)

23. Strategy 6: Make a Feint to the East While Attacking the West 声东击西 Fake to the right; attack to the left (Confuse and mislead)

25. Plaintiff’s View of the CaseDefendant’s View of the Case

26. Two Key Ideas about Negotiation & ADR 1)Focus on Interests not positions 2)Improve the Communication (information & temperature)

29. Same bed, different dreams

30. Iceberg Theory “Below the line” issues Huge & invisible Purposely hidden Out of awareness

32. “And notice, gentlemen, this year’s model has twenty per cent more trunk space.”

33. Litigation Arbitration Past

34. Mediation Future (interests)

35. The mediator’s most powerful 2-letter word is

36. If Followed by Asking or Telling

37. “ Do not find fault, find a remedy. ” -- Henry Ford

40. Styles & Types of Mediation Facilitative, evaluative, transformative, narrative, etc. Community, commercial, construction, family, employment, probate, postal service, tort, peer mediation for school-aged children, etc. Narrow or broad Caucus or non-caucus

41. Mediation is a noun 名词 míng cí Focus on the adjective 形容词 xíng róng cí

42. FACILITATIVE EVALUATIVE Styles of Mediation

43. FACILITATIVE do NOT suggest solutions EVALUATIVE evaluate & suggest solutions

44. Facilitative mediators ASK Evaluative mediators TELL

45. Evaluative Narrow Broad BroadNarrow Facilitative Narrow Broad Evaluative Facilitative The Riskin Grid

46. Mediation Advocacy How to “Borrow” a Mediator’s Powers Problem-Solving Advocacy in Mediations Harold Abramson (2005) Mediation Advocacy How to “Borrow” a Mediator’s Powers Dwight Golann Problem-Solving Advocacy in Mediations Harold Abramson (2005)

47. Tolanski Curve Illusion

49. Pre-Mediation Conferences Mediator Selection Pre-mediation Document Submissions

50. Select Mediator Meet with mediator Submit documents Collect Information Negotiate Agreement

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

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

53. What do you see?

54. The Western View of the Business Deal The Deal Party AParty B

55. Asian View of the Business Deal The Deal Party AParty B Trust-based Relationships Business bonding Via Entertainment Contracts based On a Handshake Gifts and Favors

57. Shichi Go San 7-5-3

59. JAPANESE KEIRETSU TRADING CIRCLE Mutual business associate from an established trading circle Meets separately with the parties Explores facts, perceptions, interests Identifies options for mutual benefits Explores obligations to accommodate for the good of future relationship Searches for consensus Convenes parties to confirm agreement