MEDIATION INTRO
5
MEDIATION- Part one
INTRO
WHAT IS MEDIATION?
A form of assisted negotiation that uses a third party (mediator)
1
Mediator assists disputants in negotiating a resolution to their conflict
2
WHAT IS MEDIATION?
3
Neutral does not take sides
4
Neutral does not make decision
FACILITATED MEDIATION
aka ASSISTED NEGOTIATION
FACILITATED MEDIATION
Neutral helps with resolution of the conflict
Disputants retain the power to settle (or not)
Neutral's primary role is to faciliate effective resolution
EVALUATIVE MEDIATION
Neutral attempts to minimize the distance between the disputants positions and tries to create an overlap
EVALUATIVE MEDIATION
"Reality testing"
PROCESSES RELATED TO MEDIATION
SETTLEMENT CONFERNCING
PROCESSES RELATED TO MEDIATION
FACILIATION
CONCILIATION
COLLABORATIVE LAW
USE OF MEDIATION TODAY
Labor relations
Employment
Civil litigation (state and federal court systems)
Private & court-connected divorce & child custody
Special education disputes
Neighborhood disputes
International diversity disputes
Consumer/merchant grievances
Public & private schools
FORMS OF MEDIATION
TRIAGE
TRIAGE
PURPOSE: RAPID, INEXPENSIVE DIVERSION OF CASES FROM COURT
APPROACH: NARROW, EVALUATIVE
TYPICAL APPLICATIONS: COURT-CONNECTED MEDIATION, INCREASINGLY RARE
FACILITATIVE
PURPOSE: GET A COMPROMISE
APPROACH: NARROW, EVALUATIVE
FACILITATIVE
TYPICAL APPLICATION: TORT AND CONTRACT CASES
TRANSFORMATIVE
Purpose: promote empowerment and recognition among and between disputants
TRANSFORMATIVE
Approach: very broad, very facilitative
Typical applications: community; occasional other applications; US Postal Service applies approach in employment mediation
NARRATIVE
Purpose: deconstruct and revise internal
narratives of conflict
NARRATIVE
Approach: very broad, very facilitative
Typical applications: community; occasional other applications; very rare in US currently
PARTICIPANTS
MEDIATOR(S)
NECESSARY PARTICIPANT
INDIVIDUAL OR PANEL
INDIVIDUAL OR PANEL?
DISPUTANTS AND LAWYERS
DISPUTANTS
DISPUTANTS
BENEFITS OF DIRECT INVOLEMENT
LAWYERS
BEFORE MEDIATION
DURING MEDIATION
AT MEDIATION SESSION
IN PLACE OF DISPUTANT
AFTER MEDIATION
LAWYER ROLES IN MEDIATION
ESSENTIAL - Legal advice on impact of settlement
LAWYER ROLES IN MEDIATION
IMPORTANT - BATNA clarification/informed consent
Explaining how mediation works
SOMETIMES USFULL: Giving support in a session
BATNA – instilling doubt
Avoid:
Taking over the mediation
- Benefits of direct client participation
- Lawyer role when dispute contains complex legal issues
Avoid:
Adversarial posturing
Using as a discovery device
CONSTITUANTS &
DEPENDANTS
KEY RESULTS
PROGRAM 3
KEY RESULTS
CONSULTANTS & EXPERTS
INITIAL CONTACTI
STAGES
INTRODUCTORY STAGE
ISSUE CLARIFICATION
STAGES
PRODUCTIVE STAGE
AGREEMENT CONSUMATION
DEBRIFING & REFERRAL