Mediation Conciliation Presented by: Prof. John Barkai William S. Richardson School of Law University of Hawaii



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Mediation Conciliation Presented by: Prof. John Barkai William S. Richardson School of Law University of Hawaii

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)

HOW DO YOU SAY “ADR”?

  • Country
  • Negotiation
  • Mediation
  • Japan
  • Kosho
  • Chotei
  • Korea
  • Hyoepsang
  • Joongjae
  • Malaysia
  • Rundingan
  • Perantaraan
  • China
  • Tan Pan
  • Tiao Jie
  • Thailand
  • Jeraja
  • Klaiklea
  • 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.

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

You will become a better

  • Friend
  • Spouse
  • Parent
  • Co-worker
  • You will become a more valuable
  • Community member
  • Member of your religious community
  • Sarah Palin’s View of the World
  • Australian View of the World

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

  • Japanese
  • Shark
  • What you can’t see
  • Shark

Mediators For Hire

  • Mediation
  • is an informal process in which a third‑party assists others to reach a negotiated settlement.
  • Mediation
  • is
  • assisted negotiation
  • Two Key Ideas
  • about Mediation
  • 1) Focus on Interests
        • not positions
  • 2) Improve the
        • communication
  • GETTING TO YES
  • People ▐ Problem
  • Interests not Positions
  • Invent Options
  • Objective Criteria
  • BATNA

Levels of Mediation

  • Community
  • International Politics
  • Commercial /Legal /Big Cases
  • Friends, Family & Co-Workers
  • S - stage
  • T – task (what)
  • A – action (how)
  • R - result
  • Stage
  • Task
  • (what)
  • Action
  • (how)
  • Result
  • Convening
  • Willingness
  • Opening
  • Safety & hope
  • Communicating
  • Expression
  • Negotiating
  • Flexibility & innovation
  • Closing
  • Informed decisions
  • Josh Stulberg
  • BADGER
  • Model of mediation
  • 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
  • There are no losers
  • Only winners
  • Singapore Mediation Centre
  • 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
  • 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
  • SAMPLE MEDIATION CLAUSE
  •  
  • All disputes arising out of this contract shall be submitted to mediation
  • 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
  • Litigation / Mediation
  • Past / Future

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

  • FACILITATIVE
  • EVALUATIVE
  • Styles of Mediation
  • 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
  • Facilitative mediators
  • ASK
  • Evaluative mediators
  • TELL

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

How to mediate?

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

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

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

When to mediate?

  • After critical discovery; before full discovery.
  • Have enough facts to make good decisions.
  • More information is not better information
  • – selective perception
  • Mediation Styles in International Crises
  • The mediator’s
  • most powerful
  • 2-letter word
  • is
  • If
  • Followed by
  • Asking or
  • Telling
  • Evaluative Evaluative
  • Narrow Broad
  • Broad
  • Narrow
  • Facilitative Facilitative
  • Narrow Broad
  • Evaluative
  • Facilitative
  • The Riskin Grid
  • Well, how was I supposed to know that
  • “Evaluative Broad” was a mediation style
  • and not her nickname?!
  • Be indirect
  • (Ask questions)
  • Offer suggestions later
  • Your most effective mediation tool is a good question!
  • Play video
  • Mediator Techniques

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

Why should you use mediation?

  • Compared to litigation
  • Faster
  • Cheaper
  • Private - confidential
  • Less formal
  • Parties remain in control of their dispute
  • Traditional reasons
  • Plaintiff’s View of the Case
  • Defendant’s View of the Case

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

Tendency to devalue offers and concessions made by made by the other side

  • Reactive Devaluation

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
    • What’s mine is better
  • 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
    • 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

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

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
  • 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?
  • 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 ...
  • MEDIATORS FIND SOLUTIONS
  • by
  • HELPING PARTIES NEGOTIATE
  •  
  • Uncover Interests
  • Prioritize Interests
  • Brainstorm Options
  • "What could they do...?"
  • "What could you do...?"
  • 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
  • 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
  • What does it take to be a mediator?
  • What does it take to be a mediator?


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