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Mediation
UMKC School of Law
Kisthardt, Mary Kay

Mediation – Kisthardt Spring 2011

I. Historical Context and Conceptual Framework (pp 1-33).

a. 1960 -70’s – Increase in the use of Mediation among public workers and the government and between citizens in neighborhood disputes.

i. Mediation as an “Alternative Dispute Resolution” Forum

1. Community conflicts

a. Not in my backyard

b. NJC’s – dispute resolution programs used to settle disputes in neighborhoods

2. Minor disputes

3. Public Employment: State and Local Govt.

b. The 1980’s Expansion (primarily State and Local level)

i. Public disputes

ii. Disputes among individuals

1. Child custody

2. Special Education plans

3. Children and Schools (peer mediation)

iii. Mediation of Matrimonial Dissolutions

iv. Disputes Among Individuals/Entities

c. The 1990’s Mediation and Democratic Governance (p28): a comprehensive use of mediation to resolve a broad range of cases on their court docket.

i. Mandates to Mediate: Rule 16 Fed Rules provides that Courts can require mediation first

ii. Role of the Federal Govt.

1. The Negotiated Rule Making Act (“Reg-Neg”): Can use mediators btw. Interested parties and the federal agency decision makers (EPA or FCC).

a. Purpose is to facilitate the development of governmental regulations through assisted negotiations.

2. Administrative Dispute Resolution Act: authorizes and encourages each federal agency to consider using various dispute resolution processes, including mediation, to resolve any of the multiple issues that constitute their work.

3. Federal Courts joined the ADR movement with the passing of Civil Justice Reform Act of 1990 and Alternative Dispute Resolution Act in 1998.

iii. Technology and Mediation

1. Tools that reduce the need to find mutually acceptable meeting dates or wait for documents to be transmitted through normal postal services, and thereby diminish delays that might otherwise occur in conducting conversations btw. disputing parties and among the mediator and the parties.

2. Facilitate broad-based participation and discussion of policy matters by interested parties throughout the world.

II. Conflict and Addressing Barriers to its Resolution (pp. 85-105, 150-151)

a. Conflict

i. The interaction of inter-dependent people who perceive incompatible goals and interference from each other in achieving those goals.

ii. Conflict arises when people anticipate that the resolution to a problem or situation may not meet their needs or interests

1. As the importance of the conflict rises, emotion and intensity also arise

iii. Many aspects of conflict are predictable.

iv.

Chinese symbol for conflict represents both crisis and opportunity

Sources of conflict

1. Relationship (developed through emotion and communication)

2. Data (withholding information, discovery conflicts, etc..)

3. Interest (competition)

4. Structural (power imbalance)

5. Value (most difficult to deal with)

v. Conflict indicators

1. Body language

2. Disagreements, regardless of issues

3. Increasing lack of respect

4. Open disagreement

vi. The advantages of conflict

1. May motivate individuals to do better and work harder

2. Provides opportunity for creative and innovative ideas

3. Can cause authentic communication

4. Can lead to collaboration as outcome

5. Helps facilitate an understanding of the problem, people and interrelationships btw people, better co-operation, etc

vii. Disadvantages of conflict

1. Affects individual and organizational performance. Resolving it consumes times and energy that could be spent on more productive activities.

2. People may promote their self0interest at the cost of others.

3. Intense conflicts over a prolonged period affect individuals and may lead to psychosomatic disorders.

viii. Shaping our conflict style

1. How hard do we push for the things we want (our own agenda)?

2. How much attention do we give to the relationship?

3. Styles

a. Directing/ Forcing: Focus high on Agenda, less on Relationship (assert, demand, control, compete, insist, defeat etc..)

i. Pros: decisiveness, gaining or protecting things important to the Director. Useful in emergencies

ii. Cons if over-used: inequality, resentment, reduction in trust. In time, others display lower self-motivation.

b. Harmonizing/ Accommodating: Focus high on Relationship, low on Agenda (agree, go along, give in, affirm)

i. Pros: flexible and easy to work with, wins approval and appreciation of others, creates pleasant atmosphere. Freedom from hassle, at least in the short term.

ii. Cons if over-used: frustration for others who want the engagement of problem-solving. Dependency on others. Denies others the benefit of confrontation if the Accommodator accepts unhealthy patterns or behaviors that ought to be challenged.

c. Avoiding: Focus low on Agenda, low on Relationship (withdraw, remain silent, walk away, postpone discussion, delay responding)

i. Pros: freedom from entanglement in trivial issues or insignificant relationships, stability, preservation of status quo, ability to influence or block others w/o se

nferences about the intentions, motives, and good faith of the other side.

III. Negotiation: The Theory (pp35-37, 49-61, 61-68, 37-49 & Getting to Yes)

a. Adversarial Negotiation: assumption is a fixed pie and everyone is trying to get a bigger piece of the pie. (a ZERO-SUM game)

i. Competitive: Focus in on adversarial relationship, moves against the other, hides the ball.

ii. Cooperative: Catch more flies with honey, moves toward opponent, takes the moral high ground

b. Problem Solving or Principled Negotiation:

i. Finding mutual interests, creating value, separating people from the problem, using objective criteria.

ii. Structured settlements are an example

IV. Getting to Yes

a. Don’t Bargain Over Positions

i. Positional/adversarial bargaining

1. Get locked in

2. Inefficient

3. Endanger relationship

4. Soft to dangerous

ii. Principled Negotiation

1. Produces wise agreement

2. Meets each sides interests

3. Resolves conflicting interest fairly durable

4. Community interests

b. Separate the people from the problem

i. Negotiators are people first

ii. Separate the relationship from substance: deal with the people problem not the people

iii. Focus on

1. Perception

a. Whether or not it’s real doesn’t matter, perceived as X, must deal with it as X.

2. Emotion

3. Communication

4. Prevention works best

c. Focus on Interests, not positions

i. Identifying interests: why, why not?

ii. Each side is likely to have multiple interest and some are common

iii. Acknowledge their interest

iv. Put the problem before the Answer

d. Invent Options for Mutual Gain

i. Obstacles

1. Premature judgment

2. Searching for the single answer

3. Assumption of fixed pie

4. Solving their problem is their problem

ii. Prescription

1. Separate inventing from deciding

2. Brainstorming

3. Dovetail differing interests

iii. Before Brainstorming:

1. Define your purpose

2. Choose a few participants