Mediation
Conciliation
Presented by:
Prof. John Barkai
William S. Richardson School of Law
University of Hawaii
Pray one hour before going to war,
Two hours before going to sea,
Three hours before getting married,
(and four hours before going to court).
- Indian Proverb – (modified)
HOW DO YOU SAY “ADR”?
Country
Negotiation Mediation
Japan
Korea
Malaysia
China
Thailand
Kosho
Hyoepsang
Rundingan
Tan Pan
Jeraja
Chotei
Joongjae
Perantaraan
Tiao Jie
Klaiklea
Compiles by Professor John Barkai and students from the University of Hawaii’s JEMBA Program (Japan Focused Executive MBA) and JAIMS’ (Japan American Institute for
Management Science) Intercultural Negotiations class.
Why take a mediation training?
You will become
- Better able to help people resolve conflicts
- including your own
- A better negotiator – self, family, work
- Better able to prevent disputes - DPR
- More effective when you are a party in mediation
You will become a better
Friend
Spouse
Parent
Co-worker
You will become a more valuable
Community member
Member of your religious community
Sarah Palin’s View of the World
Australian View of the World
傍目八目
Okame Hachimoku
(Japanese proverb)
The onlookers see
more than the players.
Japanese
Shark
Shark
Mediators For Hire
Mediation
is an informal process in
which a third-party
assists others to reach a
negotiated settlement.
Mediation
is
assisted negotiation
NO POWER
The mediator has
no power to decide
the dispute
Two Key Ideas
about Mediation
1) Focus on Interests
not positions
2) Improve the
communication
GETTING TO YES
People ▐ Problem
Interests not Positions
Invent Options
Objective Criteria
BATNA
Levels of Mediation
• Community
• International Politics
• Commercial /Legal /Big Cases
• Friends, Family & Co-Workers
Pepperdine
STAR
Model of mediation
S - stage
T – task (what)
A – action (how)
R - result
Stage
Task
(what)
Action
(how)
Result
Convening
Willingness
Opening
Safety & hope
Communicating
Expression
Negotiating
Flexibility &
innovation
Closing
Informed
decisions
Josh Stulberg
BADGER
Model of mediation
Josh Stulberg’s Mediation Model
B egin the discussion
A ccumulate information
D evelop the agenda & discussion strategies
G enerate movement (options)
E scape to private meeting(s)
R esolve the conflict
There are no losers
Only winners
Singapore Mediation Centre
ADVANTAGES
* faster than litigation
* less expensive than litigation
* informal compared to litigation
* parties select the neutral
* parties determine the outcome
* non-binding until agreement is reached
* opportunity to vent emotions
* creative solutions are possible
* private
* confidential
* parties decide who participates
DISADVANTAGES
* one party can refuse to mediate
* can't make legal precedent
* discovery is non-existent or limited
* may still need adjudication
* difficult if there is a power
imbalance
SAMPLE MEDIATION CLAUSE
All disputes arising out of
this contract shall be
submitted to mediation
American Arbitration Association
Sample Mediation Clause
If a dispute arises out of or relates to
this contract, or the breach thereof, and
if said dispute cannot be settled through
negotiation, the parties agree first to try
in good faith to settle the dispute by
mediation administered by the American
Arbitration Association under its
Commercial Mediation Rules, before
resorting to arbitration, litigation, or
some other dispute resolution procedure
Litigation / Mediation
Past / Future
“Do not find fault,
find a remedy.”
-- Henry Ford
Styles of Mediation
FACILITATIVE
EVALUATIVE
FACILITATIVE mediators do
NOT suggest solutions
EVALUATIVE mediators
evaluate & suggest solutions
TRANSFORMATIVE mediators
are not concerned about solutions.
They want to “empower” and
“transform” the parties. USPS
Facilitative mediators
ASK
Evaluative mediators
TELL
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
How to mediate?
Very much open to question
Different styles can work
ABA Task Force Report later
Lain padang lain belalang,
lain orang lain ragam
Different fields have different grasshoppers;
different people have different attitudes or styles
Different people see things differently
The truth is (?)
Misevaluated your case
See it is being better than it actually is
Selective perception – ignores the bad
Over confident
Negotiating poorly
Strategic bargaining has caused problems
Reactive devaluation
Mediation is a noun
名詞
meishi
名词
míng cí
Focus on the adjective
形容詞
形容词
keiyoushi
xíng róng cí
When to mediate?
After critical discovery; before full discovery.
Have enough facts to make good decisions.
More information is not better information
– selective perception
Mediation Styles in International Crises
Facilitation
– does not offer suggestions
Formulation – proposes solutions
Manipulation – solutions, carrots & sticks
The mediator’s
most powerful
2-letter word
is
If
Followed by
Asking or
Telling
The Riskin Grid
Evaluative
Evaluative
Narrow
Evaluative
Broad
Narrow
Broad
Facilitative
Facilitative
Narrow
Broad
Facilitative
Well, how was I supposed to know that
“Evaluative Broad” was a mediation style
and not her nickname?!
Be indirect
(Ask questions)
Offer suggestions later
Your most effective
mediation tool is a
good question!
Play video
Mediator Techniques
Why should you use mediation?
The truth is …
Virtually all psychology principles work
against negotiators to make them overvalue their case
Many negotiators need a mediator’s help
overcoming strategic barriers to successful
negotiations
Why should you use mediation?
Compared to litigation
- Faster
- Cheaper
- Private - confidential
- Less formal
- Parties remain in control of their dispute
Traditional reasons
Plaintiff’s View of the Case
Defendant’s View of the Case
10 Psychological Issues
Affecting Decision Making
1. Anchoring
2. Availability
3. Selective Perception
4. Reactive Devaluation
5. Overconfidence
6. Attribution
7. Framing
8. Risk Preferences
9. Endowment Effects
10. Behavioral traps
Reactive
Devaluation
Tendency to devalue
offers and concessions
made by made by the
other side
67
Endowment Effect
• General Principle: Refers to the empirical finding that people tend
to value goods more when they own them than when they do not
– What’s mine is better
• Example 1: The coffee mug experiment
– Subjects given a mug valued it at much higher price ($7.12) than those
given money and permitted to buy the mug ($2.87), or than those
permitted to choose the mug or money ($3.12).
• Example 2: Duck hunters were surveyed about what they would pay
to protect wetlands where they hunted
– willing to pay an average of $247 per person per season for the right to
prevent development (thus preserving their capacity to hunt)
– willing to demand, on average, $1,044 to give up an entitlement to hunt
in the wetlands
Selective Perception – Risk Analysis
Disputants exclude the possiblity of losing in
their unsophisticated approach to risk
analysis
Flip a coin.
You call it – you keep it.
Offer you 55% before the flip
A Mediator's View
of the Bargaining Process
1. Getting the parties unstuck
- get the first new offer.
- a change in position or a shift to interests.
2. Moving the bargaining along.
- generate significant movements in the bargaining.
- multiple concessions or the reformulating interests.
3. Closing the gap.
- moving beyond original bottom lines
PRACTICE MEDIATOR LINES
FORUM PHASE - DEALING WITH THE PAST AND THE PRESENT
Can we agree that as a ground rule, we will ...
Remember, you both agreed not interrupt..
Tell me more about that.
When did this happen?
So what you are saying is ...
Wait. Let me be sure I understand correctly. You're saying ...
So, as far as you are concerned ...
What else is important?
Could you say more about that?
How do you feel about what happened?
What do you mean by that?
Is there anything else you want to add?
Let's move to the issue of ...
Can you tell me more about ...?
What additional information do you have on that?
Of all that you have talked about, what is most important to you now?
NEGOTIATION PHASE - DEALING WITH THE FUTURE
What could X do to help you solve this problem?"
What can you do to help solve this problem?
Do you have any other ideas for solving this problem?
What do you think will happen if you can't negotiate a solution?
How do you want things to be between the two of you?
Is what you are talking about now helpful in reaching a solution?
Put yourself in Mr./Ms. X's shoes. How do you think they feel right now.
What do you have in mind on that topic?
If X were to do A, what would you be willing to do?
What I hear you saying is that you might be willing to ...
You both seem to agree that ...
Do you agree with the solution that we are talking about?
What you are talking about sounds like it might work. What will happen if ...
MUCH LATER - MEDIATOR SUGGESTIONS:
How would you feel about ...
What would happen if you tried ...
MEDIATORS FIND SOLUTIONS
by
HELPING PARTIES NEGOTIATE
Uncover Interests
Prioritize Interests
Brainstorm Options
"What could they do...?"
"What could you do...?"
Establish criteria
Create Doubts
Review the Relationship
Engage in contingent Bargaining
"If they were to , what could you do?"
"For you to , what would you expect
them to do?"
Narrow the differences
Save Face
Emphasize Progress
Engage in Reality Testing: BATNA
Stress the Consequences of No Agreement
Find External Standards & Sources
Cheerleader for settlement
And, as a last resort:
Mediator suggests MULTIPLE options
What does it take
to be a mediator?
What does it take
to be a mediator?