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Mediation
University of Iowa School of Law
Gittler, Josephine

Mediation : Gittler (Winter-Spring 2011)

Definitions

1.Negotiation – conferring, discussing, or bargaining to reach an agreement

2.Mediation – facilitation of negotiation by neutral third party

Sources of Dissatisfaction With Litigation and With Courts

1.Time / delay due to crowded court dockets

2.Money / expense

3.Win / lose result

4.Solution not tailored to reflect disputants’ interests

5.Psychological / emotional distress suffered by disputants

6.Damage to relationship between disputants

Types of Negotiation

1.Adversarial (traditional)

A.Win / lose result

B.Focus on positions

C.Strategies / techniques

1)High initial demands

2)Apparent commitment to position (i.e. few concessions)

3)Limited, or non-, disclosure

4)Misleading of opponent

2.Problem-solving (principled negotiation, from Getting to Yes)

A.Win / win result

B.Focus on interests

Types of Bargaining Situations

1.Distributive (zero sum) bargaining (“value claiming”)

A.Fixed amount of gain / loss (i.e. one party always benefits to other’s detriment)

B.Usually involves only one central issue

C.Promotes adversarial bargaining

2.Integrative bargaining (“value creating”)

A.Joint gains exist

B.Examples

1)Brainstorming – exchange of information between parties in a creative

problem-solving atmosphere when parties with opposing positions have

underlying interests that are independent or complementary

2)Logrolling – parties have conflicting interests or positions but place different

priorities on each of those

C.Promotes problem-solving bargaining

Needed for Successful Negotiations

1.Good information

A.Lack of preparation is the primary downfall in, or leads to inefficient, negotiation

2.Good negotiating skills

Misrepresentations in Negotiation

1.Model Rules of Professional Conduct

A.Rule 4.1 – “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person.”

B.Comment to Rule 4.1(a)

1)”Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimate of price or value placed on the subject of a transaction and a party’s intention as to an acceptable settlement of a claim are in this category…”

2.Getting to Yes (p. 140) – “Less than full disclosure is not the same as deception . . . . Good faith

negotiation does not require total disclosure.”

3.Professor Wetlaufer, “The Ethics of Lying in Negotiation” – “An obligation not to lie does not

entail, without more, an obligation to answer all questions . . . . Human disclosure is far too

subtle to leave us with only the choice between lies and self-defeating disclosures of the whole

truth.”

Getting To Yes

Don’t Argue Over Positions

1.Produces unwise agreements

“Your ego becomes identified with your position.”

2.Is inefficient

3.Endangers ongoing relationships

4.Is worse if there are many parties

5.Neither soft nor hard positional bargaining works

Principled Negotiation (or Negotiation on the Merits)

1.Produces wise agreements

A.Meets legitimate interests of each side to extent possible

B.Resolves conflicting interests fairly

C.Is durable

D.Takes community interests into account

2.Four basic points

A.Separate the people from the problem

B.Focus on interests, not positions

C.Generate a variety of possibilities before deciding what to do

D.Insist that the result be based on some objective standard

3.Apply basic points to all three stages of negotiation

A.Analysis

B.Planning

C.Discussion

Separate the People From the Problem

1.Negotiators are people first

-A working relationship where trust, understanding, respect, and friendship are built up

over time can make each new negotiation smoother and more efficient.

-People have egos that are easily threatened and they frequently confuse their

perceptions with reality.

2.Negotiators have two kinds of interests: in the substance of the negotiation and in the

relationship between the parties

A.The relationship tends to become entangled with the problem

B.Positional bargaining puts relationship and substance in conflict

3.Separate the relationship from the substance; deal directly with the people problem

-Deal with people problems directly; don’t try to solve them with substantive

concessions.

-Look for ways to educate, vent steam or communicate

4.Perceptions

-Understanding the other sides thinking is not simply a useful activity that will help you

solve the problem, their thinking is the problem.

-Conflict lies not in objective reality, but in peoples heads.

A.Put yourself in their shoes

-Understanding their point of view is not the same as agreeing with it, b

nfidential means of communicating with the other side, you can

also improve communication by limiting the size of the group meeting.

-No matter how many people are involved in a negotiation, important decisions

are typically made when no more than two people are in the room.

D.Speak about yourself, not about them

E.Speak for a purpose

-When anger and misperception are high, some thoughts are better left unsaid

-Before making a significant statement, know what you want to communicate or

find out, and know what purpose this information will serve.

7.Prevention works best

A.Build a working relationship

-The more quickly you can turn a stranger into someone you know, the

easier negotiation is likely to become.

-To get to know someone try to meet them informally, arrive a little

early or stay a little late, get to know their likes and dislikes. Ben

Franklin used to ask to borrow a certain book to flatter the person and

give him the comfortable feeling of knowing that he owed a favor.

B.Face the problem, not the people

-It helps to literally sit on the same side of the table and to have the

problem in front of you. Avoid a face-to-face orientation and raise the

issue with them explicitly, “Look we’re both lawyers/businessmen, let’s

look at this problem together to satisfy our collective interests.”

Focus on Interests, Not Positions

1.For a wise position, reconcile interests, not positions

-Don’t rely on the other sides stated positions, instead look to their underlying interests. The difference between positions and interests is crucial.

A.Interests define the problem

-The other sides needs, desires, concerns, and fears

-Interests motivate people; they are the silent movers behind the hubbub of

positions. Your position is something you have decided upon. Your interests are

what caused you to do so.

B.Behind opposed positions lie shared and compatible interests, as well as conflicting

ones