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

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MediationConciliationPresented byProf.
John BarkaiWilliam S. Richardson School of
LawUniversity of Hawaii
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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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HOW DO YOU SAY ADR?
Country Negotiation Mediation
Japan Kosho Chotei
Korea Hyoepsang Joongjae
Malaysia Rundingan Perantaraan
China Tan Pan Tiao Jie
Thailand Jeraja Klaiklea
Compiles by Professor John Barkai and students
from the University of Hawaiis JEMBA Program
(Japan Focused Executive MBA) and JAIMS (Japan
American Institute for Management Science)
Intercultural Negotiations class.
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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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Sarah Palins View of the World
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Australian View of the World
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???? Okame Hachimoku(Japanese proverb)
The onlookers see more than the players.
Japanese
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Shark
What you cant see
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Shark
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Mediators For Hire
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Mediation is an informal process in which a
third-party assists others to reach a negotiated
settlement.
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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 People Problem Interests not
Positions Invent Options Objective
Criteria BATNA
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Levels of Mediation

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

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Pepperdine STAR Model of mediation
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S - stage T task (what) A action (how) R -
result
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Stage Task (what) Action (how) Result
Convening Willingness
Opening Safety hope
Communicating Expression
Negotiating Flexibility innovation
Closing Informed decisions
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Josh Stulberg BADGER Model of mediation
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Josh Stulbergs 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
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There are no losers Only winners
Singapore Mediation Centre
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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
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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
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SAMPLE MEDIATION CLAUSE   All disputes arising
out of this contract shall be submitted to
mediation
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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
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Litigation / Mediation Past / Future
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Do not find fault, find a remedy. -- Henry
Ford
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Styles of Mediation
FACILITATIVE EVALUATIVE
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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
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Facilitative mediators ASK Evaluative
mediators TELL
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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
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How to mediate?

• Very much open to question
• Different styles can work
• ABA Task Force Report later

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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

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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

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Mediation is a noun ?? meishi Focus on the
adjective??? keiyoushi
??míng cí
??? xíng róng cí
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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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Mediation Styles in International Crises
Facilitation does not offer
suggestions Formulation proposes
solutions Manipulation solutions, carrots
sticks
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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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The Riskin Grid
Evaluative
Evaluative
Evaluative Narrow
Broad
Broad
Narrow
Facilitative
Facilitative Narrow
Broad
Facilitative
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Well, how was I supposed to know that
Evaluative Broad was a mediation style and
not her nickname?!
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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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Play video
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Mediator Techniques
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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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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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Plaintiffs View of the Case
Defendants View of the Case
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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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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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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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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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What does it take to be a mediator?
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What does it take to be a mediator?
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