Mediation Training Honolulu Board of Realtors May 27, 2014

1. Mediation Training Honolulu Board of Realtors May 27, 2014 Professor John BarkaiWilliam S. Richardson School of LawUniversity of Hawaii

2. www2.hawaii.edu/~barkai Google - John Barkai

3. www2.hawaii.edu/~barkai Google - John Barkai

4. TP.ppt

6. Those of us who first focus on issues of fairness too ofteneffectagreement by finally giving ininstead of first using our full powers of persuasion to affect a fair outcome that will fully satisfy all of our fully effectively legitimate interests John Sturrock, Scotland

7. Those of us who first focus on issues offairness too ofteneffectagreement by finally giving ininstead of first using our full powers of persuasion to affect a fair outcome that will fully satisfy all of our fully effectively legitimate interests

8. 22 f’s

9. Models of Mediation

10. Models of Mediation Wide variety (very similar) Almost anything works (sometime) Are there “Best Practices?”

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

12. Pepperdine STAR Model of mediation

13. S - stage T – task (what) A – action (how) R - result

15. Hawaii Diamond

17. Josh Stulberg BADGER Model of mediation

18. Josh Stulberg’s Badger Mediation Model Begin the discussion Accumulate information Develop the agenda & discussion strategies Generate movement (options) Escape to private meeting(s) Resolve the conflict

19. The Practice of MediationFrenkel & Stark 1. Opening the Process, Developing Information 2. Expanding the Information Base, Identifying Issues, Organizing an Agenda 3. Problem-Solving and Persuasion 4. Dealing with Impasse, Closing

20. Golann’s 6 Step Strategy 1. Build a foundation for success 2. Allow participants to argue and express feelings 3. Moderate the bargaining 4. See out and address hidden issues 5. Test the parties’ alternatives: If necessary, evaluate the adjudication option 6. Break bargaining impasses

21. Mediating Legal DisputesDwight Golann The Opening Session Caucuses Early Caucuses Middle Caucuses Later Caucuses Follow-up Efforts (if necessary)

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

23. Go beyond what the law will allow Mediation allows you to go beyond what the law will allow, and that is one of the major reasons you should consider mediation

24. Why do you really need a mediator?

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

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

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

29. Shark What you can’t see

30. Shark

31. A Mediator's View of the Bargaining Process Getting the parties unstuck Moving the bargaining along. Closing the gap

32. A Mediator's View of the Bargaining Process Getting the parties unstuck - get the first new offer. Moving the bargaining along. - generate significant movements. Closing the gap - beyond the old bottomlines

33. 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

34. 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

35. 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

36. 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

37. 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

38. They are among the career leaders in STRIKE OUTS Reggie Jackson 2,597 Ranked 1 Sammy Sosa 2,306 Ranked 3 Alex Rodriquez 2,075 Ranked 5 Derek Jeter 1,753 Ranked 18 Mickey Mantle 1,710 Ranked 26

39. Communication Presented by:Prof. John BarkaiWilliam S. Richardson School of LawUniversity of Hawaii

40. GETTING TO YES Separate People from Problem Interests not Positions Invent Options Objective Criteria BATNA http://mediationadvocacy.com/Getting%20to%20Yes.pdf

41. What do you think is one of the most important issues facing Hawaii in the next 10 years?

44. Communication Techniques

46. Hawaii Civil Cases6,002 Filed4,257 Terminated Circuit Court 2012-2013

47. How many jury trials?Guess!

48. 6 Jury Trials52 Non-Jury Trials Circuit Court Civil Cases in Hawaii 2012-2013

49. Jury Trials 0 Contract Trials 6 Tort TrialsCircuit Court Civil Cases in Hawaii 2012-2013

50. 0.14 %Circuit CourtCivil Casesterminated in Hawaiiby jury trial2012-2013