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

Professor John Barkai William S. Richardson School of Law University of Hawaii. Mediation. Conciliation Dialogue. Mediation is assisted negotiation. NO POWER The mediator has no power to decide the dispute . Two Key Ideas about Mediation 1) Focus on Interests not positions

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

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  1. Professor John BarkaiWilliam S. Richardson School of LawUniversity of Hawaii Mediation

  2. Conciliation Dialogue

  3. Mediation is assisted negotiation

  4. NO POWER The mediator has no power to decide the dispute

  5. Two Key Ideas • about Mediation • 1) Focus on Interests • not positions • 2) Improve the • communication

  6. GETTING TO YES Separate People from Problem Interests not Positions Invent Options Objective Criteria BATNA

  7. ADR since 6 B.C.

  8. 1979 Honolulu

  9. 1979 Honolulu

  10. Levels of Mediation Community International Politics Commercial /Legal /Big Cases Friends, Family & Co-Workers

  11. You cannot shake hands with a clenched fist. Indira Gandhi

  12. 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

  13. You will become a better Friend Spouse Parent Co-worker You will become a more valuable Community member Member of your religious community

  14. Putting gold leaf on the back of a Buddha image (Do good deeds without seeking attention)

  15. 傍目八目Okame Hachimoku(Japanese proverb) The onlookers see more than the players. Japanese

  16. 当局者迷，旁观者清Dang Ju Zhe Mi, Pang Guan Zhe QingOnlookers see more than the players

  17. There are no losers Only winners Singapore Mediation Centre

  18. Shark What you can’t see

  19. Shark

  20. Mediators For Hire

  21. FACILITATIVE mediators do NOT suggest solutions EVALUATIVE mediators evaluate & suggest solutions

  22. Facilitative mediators ASK Evaluative mediators TELL

  23. 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

  24. The Riskin Grid Evaluative Evaluative Evaluative Narrow Broad Narrow Broad Facilitative Facilitative Narrow Broad Facilitative

  25. The mediator’s most powerful 2-letter word is

  26. If Followed by Asking or Telling

  27. Be indirect (Ask questions) Offer suggestions later

  28. Your most effective mediation tool is a good question!

  29. Your most effective mediation tool is a good question!

  30. Play video

  31. 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?

  32. 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 ...

  33. MEDIATORS FIND SOLUTIONS by HELPING PARTIES NEGOTIATE Uncover Interests Prioritize Interests Brainstorm Options "What could they do...?" "What could you do...?"

  34. 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

  35. 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

  36. Why should you use mediation? Compared to litigation Faster Cheaper Private - confidential Less formal Parties remain in control of their dispute Traditional reasons

  37. 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 mediator’s help overcoming strategic barriers to successful negotiations

  38. Plaintiff’s View of the Case Defendant’s View of the Case

  39. INSIGHTFUL or WISHFUL:Lawyers’ Ability to Predict Case OutcomesGoodman-Delahunty, Hartwig, Granhag, & Loftus16Psychology, Public Policy & Law, No. 2, 1–157 (2010) Lawyer’s are overconfident predicting trial outcomes Greater confidence  greater overconfidence Accuracy did not improve with experience Men were more overconfident than women Predicting Trial Outcomes

  40. 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

  41. Tendency to devalue offers and concessions made by made by the other side Reactive Devaluation 50

  42. 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

  43. 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 What’s 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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