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Santa Clara University School of Law
Naegele, Joseph L.

MEDIATION THEORY AND PRACTICE Spring 2009 Outline for Prof. Naegele keyed to Understanding the EnneagramTextbook and Please Understand Me
I.        Myers-Briggs (Please Understand)
A.      Differences (not bad—embrace them)
B.      Introvert vs. extrovert (carl jung)
C.      Personality types and K. Briggs creation of Myers-Briggs Test
D.      Guardian (p.104-107 of Understanding)
E.       Test-Enneagram
a.       P.74 “helper”
II.      Mediation
A.      Ch 1: The Origin of Disputes (p.3)
1.       Evolution fr disputants hiring gladiators to fight in their place;)
2.       Disputes akin to illness/friendships—composed in part of the perceptions & understandings of those who participate in and observe them
(a)    Disputes arise fr vast sea of events, encounters, collisions, rivalries, disappointments, discomforts & injuries
(b)   Dependent upon social life
(c)    Exp: higher population densities and cash crops bring raised expectations & rivalry for scarce land
(d)   Proto-disputes progress to process which may lead to ct (p.6)
3.       Some experiences perc’d as injurious
(a)    Some may be seen as deserved of punishment
(b)   Some as the result of assumed risk or fate
(c)    Some are seen as violations of some rt or entitlement caused by human agent and susceptible of remedy
(d)   All of these above = grievances
4.       When grievance are voiced to offending party (maybe to focus blame or to diffuse it), they become claims
5.       Many claims will be granted
6.       Those claims not granted become disputes
(a)    Dispute exists when claim based on grievance is rejected in whole or in part
7.       Many injures may not be perc’d and, when they are, may not be dealt with (resignation—“lumping it”), common w/low income consumers, naïve vics who lack info about or access to remedies
(a)    Lumping it also common where consumer decides the gain is too low to pursue (p.7)
8.       Most typical response to grievance = to make claim to other party (if the grievance is a sizable)
9.       Lawyers/cts
(a)    Attny
·         Help translate client’s disputes to fit into legal category
·         Act as gatekeeper: screening out claims that they are disinclined to pursue
·         Tend to diffuse—direct to mediation
·         Should be regarded as last resort, after other means of settling dispute have been exhausted
(b)   In Amer, litigation tends to be twix strangers a

meet the parties needs
12.   most direct and inexpensive path to resolving a dispute = negotiation and, mediation is in essence a process of assisted negotiation** (p.12)
B.      intro to negotiation
a.       negotiation: process of communication we use to get something we want, when another person has control over whether or how we can get it—bargaining
b.      styles/approaches
·         competitive: goal to obtain best possible result for her client at the expense of the other side (someone must win, someone must lose—distributive or zero-sum bargaining). Tend to trade positions in a gradual progression toward compromise (positional negotiation)
·         cooperative bargainer (p.14) : does not view negotiation as fixed but rather, work to identify interests and examine diff in how the parties value items; then search jointly w/the other negotiator for solution that will best satisfy both parties
·         cooperative/competitive are not nec exclusive