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Law Professors’ Forum: Mediation Shop Talk

Law Professors’ Forum: Mediation Shop Talk. Legal Educators’ Colloquium April 18, 2009 organizers Dwight Golann, Art Hinshaw, Carol Izumi, and Peter Robinson. Shaw-Goldberg – Study 2 Views of reasons for mediator success.

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Law Professors’ Forum: Mediation Shop Talk

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  1. Law Professors’ Forum: Mediation Shop Talk Legal Educators’ Colloquium April 18, 2009 organizers Dwight Golann, Art Hinshaw, Carol Izumi, and Peter Robinson

  2. Shaw-Goldberg – Study 2Views of reasons for mediator success

  3. Shaw-Goldberg – Study 3Advocates' views of reasons for mediator failure

  4. ABA Task Force on Improving Mediation Quality User comments – what they value • Preparation – mediators, attys, and parties • Case-by-case customization • Analytical assistance from mediator • Mediator persistence

  5. Preparation • Pre-mediation communication w/ participants (joint or separate) • Mediator’s approach and expectations • Prompts attorney and party preparation • Asking clients what is important and why • Avoid leading clients to unrealistic expectations (zealous advocacy) • Importance of mediator’s subject matter expertise • Lawyers and clients should be as prepared as trial • Settlement based upon how much is known about the case • Should understand the other side as • Clients who feel their attys prepared them are happier

  6. Customization • Timing of mediation • Critical discovery v. full discovery • Evaluation of each case’s process needs • w/ parties and counsel • Tailoring preparation to each case • Memo to mediator and/or other side • Use of parties’ opening statements • Overly inflammatory statements and entrenchment

  7. How should we adapt our teaching to accomplish this ?? • Can we teach future mediators: • to communicate friendliness and empathy? To be more so? • to be and to demonstrate honesty and integrity? • Can we teach future advocates: • how to select mediators more effectively? • how to prepare themselves and their clients? • How much flexibility should be in the process?

  8. The mediator was friendly, empathic (60%) “Because of his sincerity and likeability, he is able to keep people talking when other mediators might lose them.” “She demonstrates compassion for the client, which makes the client feel that she is working hard on her behalf and tends to make the client trust her.”

  9. Honesty and integrity (53%) “He has honesty and integrity. We had absolute confidence that he would not reveal information we did not want revealed to the other side.” “Another essential quality is her personal integrity – as it is essential to any mediator. Both sides trust that the information she relays is accurate, and that she’s not putting a spin on things to help her get where she needs to go.”

  10. How do you account for your success as a mediator? Ability to gain the parties’ confidence 75% Friendly/empathic 75% Honesty/integrity 25% Ability to generate novel or creative solutions 50% Patient, tenacious, never quit 15% Sense of humor 15% Understand the rhythm of a mediation; 10% know when to put pressure on the parties Assist the parties to understand others’ needs 10% Maintaining an outwardly optimistic attitude 10% Focus the parties on the consequences of not 10% settling ; predict the likely result of trial

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