Mediation Notes

8/13/2019 Mediation Notes

1/11

MEDIATION 1

JANUARY 11TH

History of mediation 20s/30slabor needed some way to resolve disputes; used labor mediators and

negotiators 60scommunity relations mediators: CRS (community relations services)

o Set up by justice depto

Organizations started funding mediation stuff Legal community didnt likeLawyers philosophically believe its 2ndhand justice SPIDER- original parent organization of ACR Mediation began to creep into other areashousing, matrimonial/family FL broke the law jamdecided to have mediation in every area (1988) If a non-lawyer is mediating Mediators- should tell people theyre not representing, theyre there as a neutral party;

should have written agreement w/ them so they understand How do mediators get paid? Use joint asset to pay, split 50/50, one party can pay (but will

that cause bias?) Can court mandate mediation? Parties cannot be told they dont have access to the

court- court can mandate mediation but they have no control over what happens inmediation

Cant tell judge what happened in the mediation, confidential by statute When does a conflict become a mediation case? When you have identifiable partiesand

a written agreementto mediate

If you have a court based resolution as opposed to neg/med resolution?o In court, maybe better opportunity to make your caseo In court only focused on legal interests, discussion only limited to the lawo In court, rules of evidence applyo In court communication is done through attorneys, whereas in mediation open

communicationo In court often trying to blame other sideo In court, not much listening going ono In court, lawyers tell the story not the people themselves

Mediation based resolution:o Parties can tell their storyo Both feel they benefit b/c making own agreemento Both parties more likely to follow through will what they agreed to doo Not as much finger pointing, blamingo Involved in problem solving together, rather than the judge trying to figure it out

Examples in the readings: how youd approach them o P. 2hot city night

Cases you dont want in a mediation- DV cases, class actions, Mediation has become big in schools (peer mediators) If court sends them to mediation, what responsibility do courts have to make sure

mediators are qualified? Professional development of mediation started when they started studying it Writing assignment- memo or list format

o Can e-mail it or bring to classJANUARY 18

TH

Substitute/Speaker- Attorney Joanna Cobleigh Mediation started in 60s and 70s

o No regulations involvedo Woman and children dont represent either party

Gains in requiring training/credentials in mediation


2/11

MEDIATION 2

o Ensures that mediators know what theyre doingwill help them know what to doand those techniques will be standardized

o Educationexposure to more topics A lot of trainings dont break dont subject matter mediations, only general mediation Are there differences between requirements for court appointed mediators or private

mediators?

Mass R. 8 of Dispute resolution code- requires specific training under authorized trainer FL rules What are the dangers of a mediator having subject matter expertise? Cyberspace/online mediation

o How does it work?o Any qualifications?

Mediation works in several wayso Traditional- both parties in the roomo Tag-team: mediator goes between 2 rooms where each party is, or parties come

in at diff timeso Mediators would email parties back and forth

Dangers Benefits of face to facein emails, ambiguity of tone and takes longer

oPeople will act more police/impolite in person v. email

Online- is it easier to walk away any time? Yes easier than just getting up in a face toface mediation

Online mediation- can it become public? Should online mediation be regulated? Same qualifications or diff?

JANUARY 23RD

NEGOTIATION Before you can do mediation, have to know how to do negotiation Difference between mediation and negotiation

o Negotiation- bargaining back and fortho Mediation- 3rdparty mediator who can help move the 2 sides along

Negotiation is contained within mediation Difference between old negotiation and Fisher & Ury [Getting to YES book]- principled

negotiation/integrated bargainingo Based on separating people from the problem and focus on the issues youre

trying to resolveo Inventing options for mutual gainput as many ideas on the table as you can

and then start trading off things and creating solution among the different optionso Use of objective criteriakind of what a court doeso Focus on interests rather than positionsinterests underlie positions

Cooperative vs. competitive- behavior within a negotiation Collaborative/cooperative How do you avoid separating the person from the problem? Try to figure out the interests

from the positions, ignore the positions, reach solutions based on the interests/needs; be

explicit about the emotions, dont necessarily ignore them; dont deduce motives fromfears Roger Fishers approach- can it resolve the distributive problem in all cases?

(distributiveI get one, you get one; I gain one/you lose one)o Need to use distributive when there is a fixed resourceo When there are 2 parties who will never deal w/ each other again, when there is

a single issueo Fisher acknowledges that comes cases are nothing more than distributive

Objective criteria and neutral favor the status quo


3/11

MEDIATION 3

Whats the harm in using the objective criteria? Likely to never effectuate change; willlikely be unfair

Gerald Williams- talk about effective negotiatorso Both competitive and cooperative negotiators are effectiveo Qualities recognized in both:

Highly experienced

Ethical, trustworthy, and honest Rational, analytical, figure things out ahead of time Thoroughly prepared on the facts of the law Creative, versatile, and adjustable Rigid Self-controlled Have skill in reading their opponents cues You want to see if you can psych these people out? Both types were ranked good trial attorneys

Decision-tree analysis (treeage.com)-o Lawsuit w/ claim for $100,000. Have to survive SJ motion by D. P 75% sure they

wouldnt lose. P wins motion, goes on to trial. If they win at trial, P expectsoutcome to be 100,000. P believes odds of winning at trial is 75%.

o At what point should people start figuring out what is a good number for you tosettle? Multiply 75% chance of winning trial, by 75%= $56,250. Minus 10,000 forattorneys fees. So minimum offer should be $46,250

What do you do when youre analyzing a case?o Figure out your bottom lineo Then figure out BATNA (Best alternative to a negotiation agreement)what

happens if you cant reach your goal, whats the best thing that could happen Attorney representing party might have different interests than that party (bc theyre

getting paid by the hour, for example) P. 62- Ds; BATNA; starting point is 10,000

o Bottom line- 10,000, they wouldnt go to litigation, out of the question; D wantsmoney, no lawsuit; P would get apology, half of the money, apology and newpromise that nothing else is defective, delayed/installment payment from D to P,or a reduction on Ps obligation on 2

ndmortgage

o What is your BATNA- buy another house, rescind contract, plaintiff move out,o D should deduct cost of what had to be fixed and offset his payments

JANUARY 25TH

Defendants

o We made last offeron table, so P should make next offerETHICS IN NEGOTIATION

Can a lawyer be a good person?o Fried proposes this

Lawyer is required to be truthful in dealing w/ other when dealing w/ others, but generallyhave no affirmative duty to inform other side of relevant fact. When would this be a badthing?

o If other side misunderstood something you said thats material facto If other party makes settlement offer and you know your client has died

JANUARY 30TH

Dishonesty, fraud, and deceit constitute misconduct 3 Exceptions to veracity requirement What is purpose of professional standards? Set minimum standard of whats expected of

parties Do you think professional standards go far enough or too far?


4/11

MEDIATION 4

o If youre a moral person, they probably go far enough; if not, then youll pick itapart to find how you can get around it

If ABA took away material word, so now absolute violation to make misstatement of lawor fact.. whats the problem?

o If its blanket violation, youd have to do homework so well; might misspeak,might not understand. Can hurt mediation in general b/c no flexibility

oMaking the stricter would slow down mediation

What about in court? Should it be material there too or more stringent? Fried- believes lying in negotiation is both violation to client and lawyers own moral

standards (hes tough on this) Good negotiator asks do you have the right to settle Ruth Fleet Thurmanpresents 5 diff scenarios

o Misrepresenting your true opinion about meaning of case or state- this is oko Distortion of the value of a case or subject matter involved- oko Negotiator includes series of false demands to get concessions from other side-

ok with exceptioncan cause harm such as in divorce cases Thurman says you shouldnt do this

o P gives a settlement amount that he claims will settle. D thinks he has authorityto settle for that amount, but wants to settle for lessnot right; can say you havethe authority, but client doesnt want to settle for that amount; deflect the questionso you wont answer it one way or the other

o Lawyer represents 3 people charged w/ shoplifting. 2 have said they will pleadguilty, 1 said he wont. Lawyer informs prosecutor that the 2 will plead guilty onlyifthe 3

rdis allowed to go free

Is there a price to pay for lawyers who are dishonest?o Reputation tarnishedo Your value to otherso Effect on your work and your cliento Effect on you as a person

Lack of civility among lawyers What is the advantage of making the first offer in negotiation?

o Its an overstated figure, can go down from there; gain some control. Anchorswhole thinking around a certain point

Advantage of making second offero You set the midpoint

How will you avoid being exploited by a counterpart in a mediation?o Do your research on law and facts

Make thoughtful concessions How do you frame offer so its most likely to be accepted?

o People are more sensitive to losses than gainso Loss aversiono Risk aversion- more willing to take chanceso Present to other side as what they will gain; makes losses sound less important

Framing effects- how offers and counteroffers are presented Set up scoring system so you can quantify everything to see if youre getting good offer Factors that come into play that make other side value your offer more favorably:

o Reputationo How you present the offero

How can you get people to accept the offer?o Point out what theyre gainingo Point out what youve offered them already, theyll feel compelled to reciprocate o More likely to be favorable to you if you have good working relationshipo Authorityhad independent person evaluate ito Scarcity- limited time offer


5/11


6/11

MEDIATION 6

FEBRUARY 6TH

Transformative mediation

o Differs b/c mediators focus on helping clients change the way they look at eachother and give them tools to solve their own problems

o In opening statement, tell them what your philosophy iso

Ultimately the parties choiceo Leave responsibility of the outcome to the parties Moments of grace- one party concedes and it starts potential negotiating

o Things may not be of equal value, its just a kind action that generates a kindresponse

Transformative mediation diff than problem solving mediationo Not necessarily solving the problem, building on their relationship in hopes that

they solve it eventually; give them a way of recognizing other person, trying tohelp them change their relationship

Majorie Kormantalks about dos and dont of facilitative/evaluative mediation When would it be necessary to offer an evaluation? To inform them about the law How would opening statement differ? Transformative vs. evaluative

o Describe your roleo

My goal is to help you resolve this yourselves Pros and cons for parties in participating in evaluative mediation?

o More directive toward the problem, gets to solution quicker Fuller- describe role of mediation as reorienting parties toward each other, changing

attitudes toward each other so they can facilitate communicate and make their own deal(transformative mediation)

Powers of mediationo Consensual process that seeks self-determined resultso Outcome is within hands of the partieso No higher person to make determinationso Search for solutions within their own abilities to accomplish them

FEBRUARY 8TH

Mediator neutrality and mediator accountability for outcome Susskind p. 160argues in environmental mediation mediator is accountable for the

outcomeo Argues mediation and outcome have to be fairo Puts responsibility for fairness in hands of mediator

Stulberg p. 162says interests of parties not directly involved should still be adequatelyrepresented

o Says theres other ways to ensure fairness w/o mediator breaching neutrality o Mediators job is to ensure procedural fairness, not substantive fairness

Moatsays mediators need to facilitate agreement that parties couldnt do on their own;when mediators intervene to settle legal dispute, 2 important safeguards need to be inplace

Tension between accountability and neutrality Parties need informed consentto make informed consent about agreement, need to

know the law Lela Love- argues evaluative mediation isnt even mediation; Riskins grid system

o Ways you view the problemnarrow or broado Directive or evaluative mediator

Narrow mediatorloks at problem in front of them Elictiative narrowworks toward solving the problem; directive narrowactually tells

party thats what they do and helps them work toward it (like evaluative mediator) Elicitative broad-- transformative


7/11

MEDIATION 7

P. 186 diagram Transformative mediatorsreverses downward spiral of conflict Trashersexerienced trial lawyer; keep parties apart Bashers- feel job is to hammer some sense into people; spends little time engaging in

case evaluation aimed at getting parties to put realistic figures on the table, but focus ison putting offers on table and trying to come up w/ something in between (ex: retired

judges); most directive mediation Hashers- more flexible; encourages and relies on communication between the parties.

Mediator is willing to be the scapegoat between the parties;

FEBRUARY 13TH

PAPER DUE AFTER LONG WEEKEND (FEB 22) NO CLASS FEBRUARY 20TH Are these appropriate parties for mediation?

o Are the parties hostile?o Is a party lacking capacity?o Conflict of interest?o Are you as mediator competent on the subject matter?

Some courts dont want you contacting parties ahead of time; what would you gain fromhaving separate contacts with parties ahead of time?

o What their issues areo Time to research the relevant lawo What their goals are

What is the harm of having client meetings?o May not see you as being impartial figureo Might cause you to already form an opiniono Might cause parties to dig in on their positions morethey may feel obligated to

really stick with the story they told you Preliminary process conference or send brochureif you cant speak to parties ahead of

time What do you do if 1 party contacts you about doing the mediation?

o Potential bias problemo

Potential ethical problem Footnote p. 25with regard to family mediation, some commentators How would you go about approaching the second party? In what kind of cases are written statements most helpful? Personal injury, probate Would you set any ground rules for these written statements? Set length, general

content, Benefits of written statementsget clear statement of problem, up to date version,

efficient, shortens time for mediation Drawbacksmight oversimplify the problem, gives problem legalistic definition, adds

times to pre-mediation, reinforces parties in their positions What do parties need to know about mediation process?

o Its a voluntary processo Confidentialo And mediator is neutral partyo Fees & how youre going to get paid

Have visuals available Opening statement

o Make parties comfortableo Get them to trust youo Explain 3 important thingsvoluntary, confidential, neutralo Explain processo Find out if theres ethical problemso Find out if theyre competent to handle this


8/11

MEDIATION 8

o Is there any DVo

Who should attend mediation?o Mediator, 2 parties, lawyerso Dont want children in a family law mattero

Need to know if theres any health issues, language issues,

FEBRUARY 15TH

5 STEPS (p. 63)

o Mediators opening Introduction Ask them to introduce themselves

o The parties initial statementso Defining the problemo Problem solving and negotiationo Final decision and closure

Explain conflict of interests Speaking orderhave to have objective reason for choosing who speaks first

Give parties little information about caucusjust let them know its available to them, andits routine and common Give them something to write notes down P. 70exceptions to confidentiality (MA doesnt have these)

FEBRUARY 20TH

SKIP

FEBRUARY 27th

MARCH 5

TH

Generating movementstechniques to move things alongo

Alternate discussion of the issueso Using silenceo Use of humoro Create doubts, challenge their assumptionso Get them to identify their interests rather than their actual positions

Listen for any facts that are usual/havent come up before Need to establish priorities and tradeoffs (might want to do this in a caucus) Spot inconsistencies and bring it to their attention Be the agent of reality Caucusingwhy would you caucus?

o Deal w/ parties that have unsupported attitude toward mediation and bring it totheir attention

o Parties can talk to mediator about concerns they are having, etc.o

Exploring settlement options Caucus should not last more than 10 min Remind them that caucus is confidential, unless the tell you you can disclose something

to other side At end of caucusconfirm w/ them what they want disclosed and what they dont Tell parties youre going to have separate meeting, how long it will be, and who youd like

to call in first. Write time down, take notes on caucus (separate from other notes) Use hypo when proposing other parties settlement proposal in a caucus wit h other party

(to maintain neutrality)


9/11

MEDIATION 9

MARCH 7TH

Sdfsd

MARCH 12TH

Elements of unproductive conflict Stonewalling clientI have nothing to say, she has everything

oMediator should have private meeting w/ person that is stonewalling

o Use humoro Promise to protect them from attacks by the other party

Defensivenessall our sons behaviors are caused by things he learned from youo Call attention to fact that it was inappropriate comment and delivered in

inappropriate comment; then reframe ito

Overly competitivemore likely to be a lawyer representing a party, doesnt considerneeds/interests of other party

o Remind them theyre in mediation, come up with solutions hereo If you feel so strongly, then why did you come to mediation? o Explore their motives for why theyre in mediation and what theyre hoping to

accomplish

Person starts throwing irrelevant issues into the pot We have different types of conflicts styles/different ways people handle conflict

o Competingmy way or the highway Inflexible, take hardline position, use personal criticism, deny

responsibility, dismissal What do you do? Acknowledge their feelings, but focus on issue

o Avoidingavoids conflict Denial, shifts away from topic, withdraws psychologically, not really

involved, threatened by conflict Whats good about this style? Compromise easily Whats the affect on the mediation?

o Compromising Moderately assertive/moderately cooperative; just want a fair deal, seek

quick solution, want it to be over with Most versatile conflict style Most appropriate when theres fixed resources Advantagesreceptive to listening to other person, understand they

have to give and get Disadvantage- to quick to compromise, might wind up w/ unfair deal/wind

up at an impasse, might spend too much time dividing fixed resourceo Accommodatinggive in all the time, think things will be more peaceful

Feel they can win by losing Mediator has some responsibility to make sure agreement meets their

minimal needs Fairness vs. impartiality debate:

o Collaborating Cycles of conflict

o Escalation model Triggering eventcauses conflict to begin Conflict escalation

For next classethical and practical issues; class after breakcross culturalMARCH 14

TH


10/11

MEDIATION 10

Minorities tend to not fare as well in their outcome in mediation, but still report beingsatisfied

What safeguards does court provide? Procedureo In court everyone gets a chance to speak?

Are men discriminated against/disadvantaged? White middle class women do better in mediation than anyone else, do better than they

would in courto But they usually tend to not like mediation

MARCH 26TH

Sdfsd

MARCH 28TH

UMArequired by court? Doesnt apply to collective bargaining arrangements; applies to mediation disputes filed

w/ administrative agency in court Privilege doesnt apply if parties waive Privilege states that comm. And writings that come out of mediation are confidential and

privileged

APRIL 2ND

Representing clients in mediation Should the discussion of ADR discussion be mandatory when client comes in? What should the role of the lawyer be in mediation?

o A check and balance to make sure mediated agreement is ok for your client;advisor to client

Fairness in mandatory divorce mediation?o Lawyers can mitigate effects of mandatory divorce mediation

Disadvantages:o Costs (b/c both mediators and lawyers are involved)

Collaborative lawboth parties have lawyer; hire neutral experts that both of you agreeon

UMA gives clients right to choose if they want a lawyer Advantages of having a lawyer at the mediation:

o Can explain things Drawbacks of having lawyer present:

o If theyre too aggressive, clients arent really participating 2 mediators next classAPRIL 4

TH

For finaldont have to do an opening statement Mecompany lawyer

o PAlexis (my client)o Co PJulieo Co LAmanda Co MediatorsShannon and Mario

APRIL 9TH

Assignment 3do assignment individually; due 1 or 2 classes after ending in class

activity

APRIL 11TH

Representation plannote ethnic differences,

APRIL 16TH


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MEDIATION 11

Monday, April 30th4 PM: MEDIATION FINAL EXAMo 3rdfloor library, Suzanne norback room

Each individual writes an agreemento Due on Monday

Bring drinks on Monday Dont be directive, ask open ended questions, listen to other side, show reframing, dont

immediately put options on the table

APRIL 23RD

Do not say you guys If parties come in with unrealistic expectations, bring them down to earth

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