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When is Mediation Likely to Work?

When is Mediation Likely to Work?. Northwestern University study of cases handled by 4 national providers:. 78% overall settlement rate 81% if both “evaluative” and “facilitative” techniques used 76% in “mandatory” situations (court order, contract clause). When is Mediation Likely to Work?.

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When is Mediation Likely to Work?

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  1. When is Mediation Likely to Work? Northwestern University study of cases handled by 4 national providers: • 78% overall settlement rate • 81% if both “evaluative” and “facilitative” techniques used • 76% in “mandatory” situations (court order, contract clause)

  2. When is Mediation Likely to Work? • In “jackpot” cases (where plaintiff sees slight chance of huge recovery) • Where a party has no financial incentive to settle • In some court-conducted ADR programs Mediation is much less effective:

  3. Quick Quiz Select a range of answers so as to have a 90% chance of being correct: LOW HIGH 1. Martin Luther King’s age at this death _____ _____ 2. Length of the Nile River (miles) _____ _____ 3. Number of OPEC member countries _____ _____ 4. Number of books in the Old Testament _____ _____ 5. Diameter of the moon (miles) _____ _____

  4. Quick Quiz Select a range of answers so as to have a 90% chance of being correct: Low High 6. Weight of an empty Boeing 747(pounds) _____ _____ 7. Year of Wolfgang A. Mozart’s birth _____ _____ 8. Gestation period of Asian elephant (days) _____ _____ 9. Air distance from London to Tokyo (mi) _____ _____ 10. Deepest (known) point in ocean (mi) _____ _____

  5. Why Do Negotiations Fail? • There are three general kinds of barriers: • Process • Psychological/ Emotional • Merits

  6. Process Issues • Lack of a settlement event • Positional bargaining: Lock-in, escalation • Disagreement over procedure or process • Wrong people at the table: Missing decision-makers

  7. Process Issues • Lack of Bargaining Authority • Hidden issues: Emotions, economics, other disputes • Inconsistent interests

  8. Psychological/Emotional Problems • Strong personal emotions • Cognitive barriers re: bargaining or merits assessment • Moral or symbolic issues

  9. Merits Issues • Inadequate information • Different evaluations of the outcome in adjudication • Concerns about precedent or reputation

  10. Mediation is: A voluntary, non-binding, and private dispute resolution process, in which a neutral person helps disputants to reach a negotiated settlement.

  11. There are different styles of mediation: • Broad or Narrow • Facilitative or Evaluative • Restrained or Active

  12. What Style of Mediation Will You Use? • Activist or restrained? • Focus on legal issues or on hidden concerns? • Help participants to assess the legal merits or give an evaluation? • Support interest-based, principled or positional tactics?

  13. What Will Influence Your Choices? • Your personality • Your professional training • Your life experiences, both personal and professional • The nature of the dispute

  14. A Basic Mediation Strategy • Create a Settlement Event • Allow the Participants to Argue and Vent • Moderate the Bargaining • Test the Parties’ Alternatives

  15. A Basic Mediative Strategy • Probe for and Address Hidden Issues • If Necessary, Evaluate the Adjudication Argument • Propose a Settlement Package

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