corbett__adr__fall_2010.doc
ADR OUTLINE.
I. Mediation:
A. A process in which an impartial 3rd party, who lacks authority to impose a solution, helps others resolve a dispute or plan a transaction.
B. Disputes can be resolved by:
1. Avoidance
2. Negotiations
3. Mediation
4. Surrender to 3rd party (Judge or Arbitration)
5. Power
C. 4 barriers to the resolution of conflict:
1. Strategic Barriers: efficiency issues of growing the pie & and the distributive issues of dividing the pie.
2. Principal/Agent Problems: the interest of the principal(client) are different from interest of agent(attorney).
3. Cognitive Barriers: loss aversion and framing effects.
4. Reactive Devaluation of Compromises and Concessions: when on side offers a particular concession or proposes a particular exchange of compromises, the other side may diminish the attractiveness of that offer or proposed exchanged simply because it originated with the perceived opponent.
D. Other barriers to a negotiated settlement include:
1. Lack of negotiating skills, communication problems, cultural differences, information problems, differences in values, gender & race differences, actual & perceived power imbalances, overcoming past injuries, lack of trust, procedural differences, unwillingness/inability to understand/foresee the worst alternatives to negotiation.
E. Task of the mediator:
1. Assist the negotiating parties to overcome the barriers of negotiations and guide them to settlement that meets their respective interests.
2. Mediator is NOT there to fact find(determine what happened), make a decision, determine who is right/wrong, or what should happen to the parties.
3. Mediator is there to create a neutral, safe place to guide the parties in a future based discussion, relying on the concepts of empowerment and self-determination, to resolve their conflict or to make the deal.
F. Mediator’s process:
1. Information Gathering.
a. Not fact-finding, there could be 2 truths in the room.
b. Establish information to have a future based discussion.
2. Issue Identification
a. Determine which issues the parties are willing to discuss.
3. Exploration of Underlying Interests.
a. Asking the “why” about the interests.
4. Generating Options for Resolution
a. Parties come up with the options.
5. Selecting from among the generated options,
a. the option that satisfies the parties’ interests.
II. Mediation Terms.
A. Position:
1. An assertion, demand, or offer that represents an end goal, which will satisfy interests.
a. Ex: I will sell for $10,000/settle for $10,000.
B. Interest:
1. Encompasses those needs, desires, fears that underlie a position, and can best be determined by inquiring for the basis of the position(just ask why).
C. Issues:
1. Those items which both sides are willing to openly discuss as the predominant points of contention, and about which the negotiation has been initiated.
a. 3 types of Issues: “The satisfaction Triangle.”
(1) Substance
(2) Procedural
(a) fairness, structure, process, etc.
(3) Psychological
(a) fun, freedom, power, & belonging.
III. The Caucus:
A. Explain the caucus during the mediator’s opening and remind the parties of the fact prior to taking a caucus, or reexplain the caucus prior to taking the caucus.
B. Purpose:
1. To provide an opportunity for the parties to converse privately with you;
2. Allow them to discuss and consider alternative solutions;
3. Permits evaluation of new developments and proposa
roles of the mediator includes:
1. Catalyst, Educator, Translator
2. Expand the resources of the parties
3. Bearer of bad news
4. Agent of Reality/Devil’s Advocate
5. Scapegoat
6. A neutral.
VI. Primary function of a mediator
A. to manage the mediation process in order to provide a safe environment and a structure which will give them the best opportunity to reach resolution.
1. This includes encouraging the parties to talk broadly about the issues that bring them to mediation.
VII. 4 major skills of the mediator:
A. Neutralize:
1. mediators help the parties to communicate and to hear each other better by providing a neutral environment and presence.
B. Mutualize:
1. Mediators know that momentum for resolution can be generated if the parties recognized areas of shared concerns, interests, or benefits.
C. Futurize:
1. mediators help parties let go of the past and focus on the present and future.
D. Clarify:
1. mediators help to make sure that they and the disputants clearly understand what is being said, their option, and the consequences of their actions.
VIII. Secrets of Mediation:
A. Trust the Process
B. Be open, not attached, to outcome.
C. Be comfortable with the unknown.
D. Never focus on fixing blame.
E. Show up and be present.
F. Maintain a constant sense of self.
G. Remember, wisdom is flexible.
H. The right answer at the wrong time is the wrong answer.
