1. Mediation Conciliation Presented by: 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

2. 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)

3. HOW DO YOU SAY “ADR”? CountryNegotiationMediation JapanKoshoChotei KoreaHyoepsangJoongjae MalaysiaRundinganPerantaraan ChinaTan PanTiao Jie ThailandJerajaKlaiklea Compiles by Professor John Barkai and students from the University of Hawaii’s JEMBA Program (Japan Focused Executive MBA) and JAIMS’ (Japan American Institute for Management Science) Intercultural Negotiations class.

4. Why take a mediation training? You will become - Better able to help people resolve conflicts -including your own - A better negotiator – self, family, work - Better able to prevent disputes - DPR - More effective when you are a party in mediation

5. You will become a better FriendSpouseParentCo-worker You will become a more valuable Community member Member of your religious community

7. Sarah Palin’s View of the World

8. Australian View of the World

9. 傍目八目 Okame Hachimoku (Japanese proverb) The onlookers see more than the players. Japanese

11. Shark What you can’t see

12. Shark

13. Mediators For Hire

15. Mediation is an informal process in which a third ‑ party assists others to reach a negotiated settlement.

16. Mediation is assisted negotiation

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

18. Two Key Ideas about Mediation 1)Focus on Interests not positions 2)Improve the communication

19. GETTING TO YES People ▐ Problem Interests not Positions Invent Options Objective Criteria BATNA

20. Levels of Mediation Community Community International Politics International Politics Commercial /Legal /Big Cases Commercial /Legal /Big Cases Friends, Family & Co-Workers Friends, Family & Co-Workers

26. Pepperdine STAR Model of mediation

27. S - stage T – task (what) A – action (how) R - result

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

29. Josh Stulberg BADGER Model of mediation

30. Josh Stulberg’s Mediation Model B egin the discussion A ccumulate information D evelop the agenda & discussion strategies G enerate movement (options) E scape to private meeting(s) R esolve the conflict

32. There are no losers Only winners Singapore Mediation Centre

33. ADVANTAGES * faster than litigation * less expensive than litigation * informal compared to litigation * parties select the neutral * parties determine the outcome * non-binding until agreement is reached * opportunity to vent emotions * creative solutions are possible * private * confidential * parties decide who participates

35. DISADVANTAGES * one party can refuse to mediate * can't make legal precedent * discovery is non-existent or limited * may still need adjudication * difficult if there is a power imbalance

36. SAMPLE MEDIATION CLAUSE All disputes arising out of this contract shall be submitted to mediation

37. American Arbitration Association Sample Mediation Clause If a dispute arises out of or relates to this contract, or the breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Rules, before resorting to arbitration, litigation, or some other dispute resolution procedure

38. Litigation / Mediation Past / Future

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

42. FACILITATIVE EVALUATIVE Styles of Mediation

43. FACILITATIVE mediators do NOT suggest solutions EVALUATIVE mediators evaluate & suggest solutions TRANSFORMATIVE mediators are not concerned about solutions. They want to “empower” and “transform” the parties. USPS

44. Facilitative mediators ASK Evaluative mediators TELL

45. 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

46. How to mediate? Very much open to question Different styles can work ABA Task Force Report later

47. Lain padang lain belalang, lain orang lain ragam Different fields have different grasshoppers; different people have different attitudes or styles Different people see things differently

48. The truth is (?) Misevaluated your case See it is being better than it actually is Selective perception – ignores the bad Over confident Negotiating poorly Strategic bargaining has caused problems Reactive devaluation

49. Mediation is a noun 名詞 meishi Focus on the adjective 形容詞 keiyoushi 名词 míng cí 形容词 xíng róng cí

50. When to mediate? After critical discovery; before full discovery. Have enough facts to make good decisions. More information is not better information – selective perception

51. Facilitation – does not offer suggestions Formulation – proposes solutions Manipulation – solutions, carrots & sticks Mediation Styles in International Crises

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

53. If Followed by Asking or Telling

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

55. Well, how was I supposed to know that “Evaluative Broad” was a mediation style and not her nickname?!

56. Be indirect (Ask questions) Offer suggestions later

57. Your most effective mediation tool is a good question!

58. Play video

59. Mediator Techniques

61. 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

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

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

65. 10 Psychological Issues Affecting Decision Making 1. Anchoring 2. Availability 3. Selective Perception 4. Reactive Devaluation 5. Overconfidence 6. Attribution 7. Framing 8. Risk Preferences 9. Endowment Effects 10. Behavioral traps

66. Tendency to devalue offers and concessions made by made by the other side 67 Reactive Devaluation

68. Endowment Effect General Principle: Refers to the empirical finding that people tend to value goods more when they own them than when they do not General Principle: Refers to the empirical finding that people tend to value goods more when they own them than when they do not –What ’ s mine is better Example 1: The coffee mug experiment Example 1: The coffee mug experiment –Subjects given a mug valued it at much higher price ($7.12) than those given money and permitted to buy the mug ($2.87), or than those permitted to choose the mug or money ($3.12). Example 2: Duck hunters were surveyed about what they would pay to protect wetlands where they hunted Example 2: Duck hunters were surveyed about what they would pay to protect wetlands where they hunted –willing to pay an average of $247 per person per season for the right to prevent development (thus preserving their capacity to hunt) –willing to demand, on average, $1,044 to give up an entitlement to hunt in the wetlands

69. Selective Perception – Risk Analysis Disputants exclude the possiblity of losing in their unsophisticated approach to risk analysis Flip a coin. You call it – you keep it. Offer you 55% before the flip

70. A Mediator's View of the Bargaining Process 1. Getting the parties unstuck - get the first new offer. - a change in position or a shift to interests. 2. Moving the bargaining along. - generate significant movements in the bargaining. - multiple concessions or the reformulating interests. 3. Closing the gap. - moving beyond original bottom lines

71. PRACTICE MEDIATOR LINES FORUM PHASE - DEALING WITH THE PAST AND THE PRESENT Can we agree that as a ground rule, we will... Remember, you both agreed not interrupt.. Tell me more about that. When did this happen? So what you are saying is... Wait. Let me be sure I understand correctly. You're saying... So, as far as you are concerned... What else is important? Could you say more about that? How do you feel about what happened? What do you mean by that? Is there anything else you want to add? Let's move to the issue of... Can you tell me more about...? What additional information do you have on that? Of all that you have talked about, what is most important to you now?

72. NEGOTIATION PHASE - DEALING WITH THE FUTURE What could X do to help you solve this problem?" What can you do to help solve this problem? Do you have any other ideas for solving this problem? What do you think will happen if you can't negotiate a solution? How do you want things to be between the two of you? Is what you are talking about now helpful in reaching a solution? Put yourself in Mr./Ms. X's shoes. How do you think they feel right now. What do you have in mind on that topic? If X were to do A, what would you be willing to do? What I hear you saying is that you might be willing to... You both seem to agree that... Do you agree with the solution that we are talking about? What you are talking about sounds like it might work. What will happen if... MUCH LATER - MEDIATOR SUGGESTIONS: How would you feel about... What would happen if you tried...

73. MEDIATORS FIND SOLUTIONS by HELPING PARTIES NEGOTIATE Uncover Interests Prioritize Interests Brainstorm Options "What could they do...?" "What could you do...?"

74. Establish criteria Create Doubts Review the Relationship Engage in contingent Bargaining "If they were to, what could you do?" "For you to, what would you expect them to do?" Narrow the differences Save Face Emphasize Progress

75. Engage in Reality Testing: BATNA Stress the Consequences of No Agreement Find External Standards & Sources Cheerleader for settlement And, as a last resort: Mediator suggests MULTIPLE options

76. What does it take to be a mediator?