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Mediation Conciliation Presented by: Prof. John Barkai William S. Richardson School of Law University of Hawaii

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).

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Mediation Conciliation Presented by: Prof. John Barkai William S. Richardson School of Law University of Hawaii

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  1. MediationConciliationPresented by:Prof. John BarkaiWilliam S. Richardson School of LawUniversity of Hawaii

  2. 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)

  3. HOW DO YOU SAY “ADR”? 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.

  4. 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

  5. You will become a better Friend Spouse Parent Co-worker You will become a more valuable Community member Member of your religious community

  6. Sarah Palin’s View of the World

  7. Australian View of the World

  8. 傍目八目Okame Hachimoku(Japanese proverb) The onlookers see more than the players. Japanese

  9. Shark What you can’t see

  10. Shark

  11. Mediators For Hire

  12. Mediation is an informal process in which a third‑party assists others to reach a negotiated settlement.

  13. Mediation is assisted negotiation

  14. NO POWER The mediator has no power to decide the dispute

  15. Two Key Ideas • about Mediation • 1) Focus on Interests • not positions • 2) Improve the • communication

  16. GETTING TO YES People ▐ Problem Interests not Positions Invent Options Objective Criteria BATNA

  17. Levels of Mediation • Community • International Politics • Commercial /Legal /Big Cases • Friends, Family & Co-Workers

  18. Pepperdine STAR Model of mediation

  19. S - stage T – task (what) A – action (how) R - result

  20. Josh Stulberg BADGER Model of mediation

  21. Josh Stulberg’s Mediation Model Begin the discussion Accumulate information Develop the agenda & discussion strategies Generate movement (options) Escape to private meeting(s) Resolve the conflict

  22. There are no losers Only winners Singapore Mediation Centre

  23. 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

  24. 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

  25. SAMPLE MEDIATION CLAUSE All disputes arising out of this contract shall be submitted to mediation

  26. 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

  27. Litigation / Mediation Past / Future

  28. “Do not find fault, find a remedy.”-- Henry Ford

  29. Styles of Mediation FACILITATIVE EVALUATIVE

  30. 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

  31. Facilitative mediators ASK Evaluative mediators TELL

  32. Styles & Types of MediationFacilitative, evaluative, transformative, narrative, etc.Community, commercial, construction, family, employment, probate, postal service, tort, peer mediation for school-aged children, etc.Narrow or broadCaucus or non-caucus

  33. How to mediate? Very much open to question Different styles can work ABA Task Force Report later

  34. 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

  35. 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

  36. Mediation is a noun名詞　　meishi Focus on the adjective形容詞 keiyoushi 名词míng cí 形容词 xíng róng cí

  37. When to mediate? After critical discovery; before full discovery. Have enough facts to make good decisions. More information is not better information – selective perception

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