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Mediation
South Texas College of Law Houston
Wettman, Bruce Wayne

I. Chapter One: Overview
A. INTRODUCTION
1. Avoidance is often the response to conflict.
2. Alternative Dispute Resolution focuses on new and creative methods to resolve disputes and includes an examination of the underlying causes of conflict.
3. Mediation is derived from the Latin mediare which means “to be in the middle.”
4. Socrates claimed that he had no special wisdom other than he did no know.
B. WHAT ARE DISPUTES?
1. The work of the mediator necessarily involves intervention in a dispute.
a) The mediator’s job is to assist in the resolution of conflict.
2. Disputes have been described as:

a)

Q: gives examples and asks which is NOT a way to describe a dispute

Arguments, disagreements, challenges, contests, debates, conflicts, quarrels, lawsuits, fights, altercations, controversies, feuds, wrongs, combat, and war.

3. Conflict is defined as (from latin con (together) and fligere (strike))
a) An encounter with arms, a fight, a battle, a prolonged struggle.
b) A mental or spiritual struggle with a person
c) The classing or variance of opposed principles, statements, or arguments
d) Conflict exists when there are incompatible activities
e) A set of divergent aims, methods, or behavior.
f) An expressed struggle between at least two interdependent parties who perceive incompatible goals, scarce rewards, and interference from the other party in achieving their goals.
4. Conflict has its own life cycle.
5. FACTORS AFFECTING CONFLICT
a) Hidden agenda: underlying issues
(i) One goal of the mediation process is to uncover the underlying motivations of the parties.
(ii) Intrapersonal conflict: conflict within one’s self.
b) Better treated by psychologists or social workers
6. Interpersonal conflict: disputes or conflicts between individuals or groups
a) The communication process is an integral part of conflict.
(i) The exchange of both verbal and nonverbal messages is the most significant part of disputing.
(ii) The manner in which individuals dispute can depend upon factors such as the culture, history, and relationship of the parties.
7. TRADITIONAL MEANS OF RESOLVING DISPUTES
a) Fight, force, or coercion—on test Wettman uses rocks, like throwing rocks.
(i) Usually considered as the win-lose approach
(ii) Survival instinct leads to the use of this alternative
b) Flight or avoidance—on test Wettman uses runs, like run away.
(i) Avoidance where the dispute is not of great significance to one or all of the parties, or the dispute is of low priority.
(ii) Likely to occur where the disputing parties will have no future relationship.
(iii) Unresolved and internalized conflicts usually linger
(iv) Ordinarily it intensifies
(a) Particularly true where there is an ongoing relationship between the parties
(b) Unresolved disputes are likely to recur or simply manifest in another manner.
8. Compromise
a) All parties move from their initial positions in nearly equivalent increments until the middle ground is reached.
b) Disadvantages:
(i) Resentment when movement is unequal
(ii) Important underlying interests or needs are often not identified, let alone met.
9. Voluntary relinquishment of responsibility for the conflict.
a) Turning it over to chance
(i) Chance may consist of a third party, i.e., judge or jury.
(ii) Individuals can avoid responsibility for their disputes by relying on these outside entities.
10. OUTCOMES SOUGHT BY DISPUTING PARTIES
a) To re

or to the arbitration hearing, the parties establish a bounded range for the award. If the arbitrator’s award falls within that range, then the arbitrator’s award becomes binding on the parties; if the arbitrator’s award is outside the range, then the award is adjusted to the appropriate high or low boundary
(b) Arbitrator does not know amount agreed upon.
(c) Arbitrator determines award within high/low boundary.
(v) Final Offer Arbitration / Baseball Arbitration—party chooses award
(a) In this process, each party submits a proposed monetary award to the arbitrator, who chooses one of the proposed awards based on the merits of the presented case. The arbitrator does not modify the proposed award of the prevailing party. This technique limits the arbitrator’s discretion and encourages parties to propose reasonable awards.
(b) Arbitrator knows what final offers are.
(vi) Night Baseball Arbitration—party chooses award, but arb does not know choices.
(a) As with baseball arbitration, each party submits a proposed monetary award to the arbitrator. However, the arbitrator does not know the contents of the proposed awards. At the close of the hearing, the arbitrator issues a non-binding award, and the proposed award that is closest to the arbitrator’s award becomes binding on the parties (award to the party whose proposal is closest to that of the arbitrator).
(b) Arbitrator does not know amounts agreed upon.