Issues for Sophisticated Users
of Construction Mediation:
When, How, and by Whom?
Prof. John Barkai
William S. Richardson School of Law
University of Hawaii
www2.hawaii.edu/~barkai
Handling of Problems
Western - American
Asian
designed by Liu Young
Shichi Go San 7-5-3
“Even a sheet of paper
has two sides”
Japanese Proverb
Perspective
View
"Then it's agreed. Watson, Smith, Teller, and
Wilson go to Heaven; Jones, Paducci, and Horner
go to Hell; and Fenton and Miller go to arbitration.
Common Forms
of Dispute Resolutions
• Negotiation
• Mediation - Conciliation
• Arbitration
• Trial in Court
Common Forms
of ADR in Construction
• Partnering
• Dispute Review Boards
• Mediation - Conciliation
• Arbitration
International Arbitration – NGOs –
is not used often – 3,000 per year?
Why use mediation?
Parties
Faster, cheaper, confidential, control
Lawyers
Help with other side & clients
Mediators
Psychology of mis-evaluation,
perception, over confidence, biases, etc.
Some Psychological Issues
Affecting Perception
1. Attribution
2. Selective Perception
3. Framing
4. Anchoring
5. Reactive Devaluation
6. Risk Preferences (Prospect Theory)
7. Endowment Effects
8. Behavioral Traps
の検索結果
Okame Hatimoku
(Japanese proverb)
The onlookers see
more than the players
Plaintiff’s View of the Case
Defendant’s View of the Case
Reactive
Devaluation
Tendency to devalue
offers and concessions
made by made by the
other side
25
Power Imbalances
Styles & Types of Mediation
Facilitative, evaluative, transformative, narrative,
etc.
Community, commercial, construction, family,
employment, probate, postal service, tort, peer
mediation for school-aged children, etc.
Narrow or broad
Caucus or non-caucus
Mediation is a noun
名詞
meishi
Focus on the adjective
形容詞
keiyoushi
Styles of Mediation
Facilitative
Evaluative
FACILITATIVE
do NOT suggest solutions
EVALUATIVE
evaluate & suggest solutions
TRANSFORMATIVE
not concerned about solutions.
They want to “empower” and “transform” the parties.
United States Postal Service
Facilitative mediators
ASK
Evaluative mediators
TELL
The Riskin Grid
Evaluative
Evaluative
Narrow
Evaluative
Broad
Narrow
Broad
Facilitative
Facilitative
Narrow
Broad
Facilitative
When to mediate?
After critical discovery; before full discovery.
Have enough facts to make good decisions.
More information is not better information
– selective perception
Tolanski Curve Illusion
Who can/should/does mediate?
U.S. – lawyers
Anyone who can build confidence and has
the process skills
Know law & facts, prepared, persistent,
creative, ability to evaluate
Goldberg & Shaw data later
How to mediate?
Very much open to question
Different styles can work
ABA Task Force Report later
American Bar Association’s
Section of Dispute Resolution 2008
Task Force on
Improving Mediation Quality
----------------------Goldberg & Shaw 2005 & 2007
Traits of Successful
and Unsuccessful Mediators
Mediation Advocacy
How to “Borrow” a
Mediator’s Powers
Dwight Golann
Problem-Solving Advocacy in
Mediations
Harold Abramson (2005)
Controls the format & process
Is usually open to process suggestions
Separates or keeps the parties together
Moderates the negotiation
Gathers data
Keeps confidences
Is seen as neutral
Actually is neutral
Can offer a “mediator’s proposal”
What does it take
to be a mediator?
American Bar Association’s
Section of Dispute Resolution
Task Force on
Improving Mediation Quality
The 2008 ABA Report on
Improving Mediation Quality
(civil disputes with lawyers)
Preparation
Customization
Evaluation Skills
Persistence
Preparation
Pre-mediation discussions
Joint v. separate
Face-to-face v. phone
With or without parties
Users want input into the process
Mediator’s approach
Will the necessary parties be present?
Preparation -
continued
Understand interests
How can it settle?
Use opening statements?
Joint or caucuses for certain issues
Prior settlement discussions
Clients v. lawyers speak
Customization
Adjust mediation to fit the parties needs
Opening statements
Useful? Will entrench?
Analytical Input - Evaluation
Sophisticated mediation users
wanted mediators to provide
analytical input (evaluate)
95% important to make suggestions
75% important to give opinions
Users said (it was helpful to) 60 - 100%
Ask Pointed Questions That Raise Issues;
Give An Analysis Of Case
(Including Strengths And Weaknesses);
Make Predictions About Likely Court Results;
Suggest Possible Ways To Resolve Issues;
Recommend A Specific Settlement;
Apply Some Pressure To Accept A Specific
Solution
Persistence
98% “very important”
Keep at the table
Exert pressure to settle
Get them back to table
When the going gets tough, the tough …
Construction Mediations Differ
Pre-mediation activities
Impasse breaking strategies
Complex, commercial mediations with lawyers representing the parties
Pre-Mediation Activities
Mediator selection
Pre-mediation meetings
Pre-mediation submissions
Impasse Breaking Strategies
Facilitative v. Evaluative
Goldberg & Shaw 2005 & 2007
Traits of Successful
and Unsuccessful Mediators
Study 1
"How do you account for your
success as a mediator? “
75% said:
Ability to develop rapport with the disputing
parties
Develop a relationship of understanding,
empathy, and trust
Why is that so important?
Encourages the parties to communicate
more fully with the mediator, often
providing the mediator with the
information the mediator needs to
help the parties craft a settlement:
How to build that relationship?
Empathic listening, which conveys the
message that the mediator truly cares
about the parties' feelings, needs, and
concerns (substantial majority)
The mediator’s reputation for being honest,
ethical, and trustworthy (some mediators)
What does
a mediator do
after establishing rapport?
•
•
•
•
•
Generate novel or creative solutions
Attribute the mediator’s own creative ideas
to the parties
Use humor
Combine patience and tenacity
Persistence
Other tactics
•
•
•
•
Focus parties on consequences of not
settling (BATNA / WATNA)
Push at the appropriate time
Assist them to understand each other’s
needs
Remain optimistic
Study 2
Lawyers & Parties –
What lead to success?
•
•
•
Mediator’s ability to gain the parties’ confidence
(friendly, empathic, likable, etc.)
Mediator’s high integrity (Honesty, neutrality,
trustworthiness, protection of confidences, etc.)
Mediator was smart, well-prepared, or new the
relevant contract or law
Study 3
Why did mediators fail?
•
•
•
Lack of confidence-building attributes
Lack of process skills
Lack of evaluation skills
Lack Of Confidence-Building
Attributes
•
Mediator lacked integrity, neutrality,
empathy; did not understand the issues or
law, or was not well-prepared
Lack of Process Skills
•
•
•
•
Acted just as a messenger
Not persistent – quit too soon
Didn’t propose solutions
Had bad timing
Lack of Evaluation Skills
•
Faulty or no evaluation