Professor John Barkai William S. Richardson School of Law University of Hawaii

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Professor John BarkaiWilliam S. Richardson
School of LawUniversity of Hawaii
Mediation
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Conciliation Dialogue
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Mediation is assisted negotiation
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NO POWER The mediator has no power to decide
the dispute
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Two Key Ideas about Mediation 1) Focus on
Interests not positions 2) Improve
the communication
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GETTING TO YES Separate People from
Problem Interests not Positions Invent Options
Objective Criteria BATNA
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ADR since 6 B.C.
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1979 Honolulu
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1979 Honolulu
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Levels of Mediation

• Community
• International Politics
• Commercial /Legal /Big Cases
• Friends, Family Co-Workers

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You cannot shake hands with a clenched fist.
Indira Gandhi
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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

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You will become a better

• Friend
• Spouse
• Parent
• Co-worker

You will become a more valuable
Community member Member of your religious
community
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Putting gold leaf on the back of a Buddha image
(Do good deeds without seeking attention)
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???? Okame Hachimoku(Japanese proverb)
The onlookers see more than the players.
Japanese
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????,????Dang Ju Zhe Mi, Pang Guan Zhe
QingOnlookers see more than the players
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There are no losers Only winners
Singapore Mediation Centre
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Shark
What you cant see
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Shark
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Saturn
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Saturn
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Mediators For Hire
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FACILITATIVE mediators do NOT suggest
solutions EVALUATIVE mediators evaluate
suggest solutions
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Facilitative mediators ASK Evaluative
mediators TELL
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Mediation Styles in International Crises
Facilitation does not offer suggestions
or opinions Formulation
offers opinions Evaluation proposes
solutions Clout (manipulation) solutions,
(carrots sticks)
external rewards punishment
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The Riskin Grid
Evaluative
Evaluative
Evaluative Narrow
Broad
Broad
Narrow
Facilitative
Facilitative Narrow
Broad
Facilitative
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The mediators most powerful 2-letter word is
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If Followed by Asking or Telling
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Be indirect (Ask questions) Offer suggestions
later
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Your most effective mediation tool is a good
question!
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Your most effective mediation tool is a good
question!
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Play video
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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?
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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 ...
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MEDIATORS FIND SOLUTIONS by HELPING PARTIES
NEGOTIATE   Uncover Interests Prioritize
Interests Brainstorm Options "What could they
do...?" "What could you do...?"
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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
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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
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Why should you use mediation?

• Compared to litigation
• Faster
• Cheaper
• Private - confidential
• Less formal
• Parties remain in control of their dispute

Traditional reasons
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Why should you use mediation?The truth is

• Virtually all psychology principles work against
  negotiators to make them over-value their case
• Many negotiators need a mediators help
  overcoming strategic barriers to successful
  negotiations

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Plaintiffs View of the Case
Defendants View of the Case
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INSIGHTFUL or WISHFULLawyers Ability to
Predict Case OutcomesGoodman-Delahunty, Hartwig,
Granhag, Loftus16 Psychology, Public Policy
Law, No. 2, 1157 (2010)
Predicting Trial Outcomes

• Lawyers are overconfident predicting trial
  outcomes
• Greater confidence ? greater overconfidence
• Accuracy did not improve with experience
• Men were more overconfident than women

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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

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Tendency to devalue offers and concessions made
by made by the other side
Reactive Devaluation
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What do these Hall of Fame type baseball
players have in common?

• Reggie Jackson
• Sammy Sosa
• Alex Rodriguez
• Ken Griffey
• Bobby Bonds
• Mickey Mantle
• Harmon Killebrew
• Mark McGwire
• Derek Jeter

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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
• Whats 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

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Simulate
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Mediationof International Conflicts
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International Crisis Mediation
Case Studies Africa Asia Caribbean Europe Latin
America South America
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Small, medium, and large States/Counties - United
States, Zambia, Argentina, Brazil, Chile,
Australia, Soviet Union, Zaire, Saudi Arabia,
Congo, Libya, Nigeria, United Kingdom, Algeria,
Sudan, Somalia, Ethiopia, Mali, Iran, Iraq,
Turkey, Germany, Turkeys, Venezuela Internationa
l and regional organizations - United Nations,
League of Nations, Arab League, Organization of
American States, African Union, Organization of
African Unity, Economic Community of West African
States, NGOs Unofficial individuals Global
diplomats - The Pope, former US President Jimmy
Carter
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Mediation Styles in International Crises
Facilitation does not offer
suggestions Formulation offers
opinions Evaluation proposes
solutions Clout (manipulation) solutions,
(carrots sticks)
external rewards punishment
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Facilitative Style

• Make contact with the parties
• Gain the trust and confidence of the parties
• Arrange for interactions between the parties
• Ensure the privacy of mediation
• Clarify the situation
• Allow the interests of all parties to be
  discussed
• Highlight common interests
• Identify underlying issues and interests
• Transmit messages between parties
• Control the pace and formality of the meetings
• Control timing
• Help devise a framework for typical outcome
• Help parties save face

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Evaluative Style

• Fact finding
• Supply missing information
• Offer positive evaluations
• Make substantive suggestions and proposals
• Suggest concessions parties could make

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Clout Style

• Keep parties at the table
• Make parties aware of the costs of non- agreement
• Supply and filter information
• Press the parties to show flexibility
• Change parties' expectations
• Take responsibility for concessions
• Help negotiators to undo a commitment
• Add incentives
• Promise resources
• Reward concessions made by parties
• Offer to verify compliance with the agreement
• Threaten withdrawal of resources
• Threatened punishments
• Threatened to withdraw mediation

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Mediation Styles in International Crises
Facilitation does not offer
suggestions Formulation proposes
solutions Manipulation solutions, carrots
sticks
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Asian Model of mediation
Joel Lee and Teh Hwee Hwee,
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Cultural Factors Negotiation
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Asian Model of mediation
Directive (Evaluative) High context
communication Collectivist Orientation Concern
for Face Power Distance / status /
hierarchy Confucianism
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Thai and U.S Community Mediation
Ronda Callister James Wall, Journal of Conflict
Resolution, 48 (4) 573-598 (2004) Compared 111
Thai and 111 U.S. community mediators
Thai mediators are more likely to be
assertive they put disputants together (joint
session) demand concessions criticize disputants
and threaten them more frequently than do U.S.
mediators. Thai mediators more frequently seek
harmony by asking disputants to forgive each
other and to apologize.
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Thai and U.S Community Mediation
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Thai Mediators Techniques

• More frequently
• - uses joint sessions
• - calls for apologies to the opponent
• - talks about interdependencies
• - emphasizes the cost of the dispute to 3rd
  parties (children, family, community) rather than
  effect on relationship with each other
• Less likely
• - to call for empathy for other

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Cultural Differences in Mediation(Lou Chang)

• CLASSIC WESTERN MEDIATION
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• Neutral mediator
• Face-to-face interaction
• Facilitate communication
• Explore interests
• Determine facts perceptions
• Identify options
• Assist in evaluation of options
• Documents the agreement

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OLD FRIEND SYSTEM (Lao peng you) -
CHINESE   Trusted old friend Meets separately
with the parties Explores facts
interests Explores interests in context of mutual
benefits interdependence Preserves valuable
relationships Identifies options Suggests
resolution Save face give face Convenes parties
to confirm agreement Pours tea talks
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JAPANESE KEIRETSU TRADING CIRCLE Mutual
business associate from an established trading
circle Meets separately with the parties Explores
facts, perceptions, interests Identifies options
for mutual benefits Explores obligations to
accommodate for the good of future
relationship Searches for consensus Convenes
parties to confirm agreement
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• HO'OPONOPONO - HAWAIIAN
• High status elder (haku) gathers disputing
  parties
• Opening prayer to gods and family guardians
  (aumakua)
• Identifies the problem
• Elder questions the parties
• Parties acknowledge their actions to gods and
  each other
• Talk about solutions, actions to disentangle and
  to make right (pono)
• Mutual forgiveness
• Closing prayer
• Sharing of meal

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• COUNCIL OF ELDERS
• (VILLAGE MODEL)
• Circle of Elders
• Joint meeting of parties with Circle of Elders
• Sharing of cultural customs
• Prayer to divine spirits
• Explores facts perceptions
• Encourages full expression of views options
• Evaluates options in context of group needs
• Makes suggestions for resolution
• Acceptance and ceremony

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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

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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

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2 Step Process in Mediations

• Get the parties to their best numbers during
  the negotiation
• Somehow bridge the final gap between those numbers

Making Money Talk J. Anderson Little ABA Book
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What does it take to be a mediator?
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Goldberg Shaw 2005 2007 Traits of Successful
and Unsuccessful Mediators n 30
mediators n216 advocates
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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

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Study 2Lawyers Parties What lead to
success?

• Mediators ability to gain the parties
  confidence (friendly, empathic, likable, etc.)
• Mediators high integrity (Honesty, neutrality,
  trustworthiness, protection of confidences, etc.)
• Mediator was smart, well-prepared, or new the
  relevant contract or law

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Study 3Why did mediators fail?

• Lack of confidence-building attributes
• Lack of process skills
• Lack of evaluation skills