Issues for Sophisticated Users of Construction Mediation: When, How, and by Whom? Prof. John Barkai William S. Richardso

1. Issues for Sophisticated Users of Construction Mediation:When, How, and by Whom?Prof. John BarkaiWilliam S. Richardson School of LawUniversity of Hawaii

2. www2.hawaii.edu/~barkai

3. Handling of Problems Asian Western - American designed by Liu Young

5. Shichi Go San 7-5-3

8. “Even a sheet of paper has two sides” Japanese Proverb

9. Perspective View

15. "Then it's agreed. Watson, Smith, Teller, and Wilson go to Heaven; Jones, Paducci, and Horner go to Hell; and Fenton and Miller go to arbitration.

16. Common Forms of Dispute Resolutions • Negotiation • Mediation - Conciliation • Arbitration • Trial in Court

17. Common Forms of ADR in Construction • Partnering • Dispute Review Boards • Mediation - Conciliation • Arbitration

18. International Arbitration – NGOs – is not used often – 3,000 per year?

19. Why use mediation? Parties Faster, cheaper, confidential, control Lawyers Help with other side & clients Mediators Psychology of mis-evaluation, perception, over confidence, biases, etc.

20. Some Psychological Issues Affecting Perception 1. Attribution 2. Selective Perception 3. Framing 4. Anchoring 5. Reactive Devaluation 6. Risk Preferences (Prospect Theory) 7. Endowment Effects 8. Behavioral Traps

21. の検索結果Okame Hatimoku(Japanese proverb) The onlookers see more than the players

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

24. Tendency to devalue offers and concessions made by made by the other side Reactive Devaluation 25

25. Power Imbalances

26. 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

27. Mediation is a noun名詞　　meishi Focus on the adjective形容詞 keiyoushi

28. Styles of Mediation Facilitative Evaluative

29. FACILITATIVE do NOT suggest solutions EVALUATIVE evaluate & suggest solutions TRANSFORMATIVE not concerned about solutions. They want to “empower” and “transform” the parties. United States Postal Service

30. Facilitative mediators ASK Evaluative mediators TELL

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

32. When to mediate? After critical discovery; before full discovery. Have enough facts to make good decisions. More information is not better information – selective perception

33. Tolanski Curve Illusion

34. Who can/should/does mediate? U.S. – lawyers Anyone who can build confidence and has the process skills Know law & facts, prepared, persistent, creative, ability to evaluate Goldberg & Shaw data later

35. How to mediate? Very much open to question Different styles can work ABA Task Force Report later

36. American Bar Association’sSection of Dispute Resolution 2008 Task Force on Improving Mediation Quality ----------------------- Goldberg & Shaw 2005 & 2007 Traits of Successful and Unsuccessful Mediators

37. Mediation AdvocacyHow to “Borrow” a Mediator’s PowersDwight GolannProblem-Solving Advocacy in Mediations Harold Abramson (2005)

38. Controls the format & process Is usually open to process suggestions Separates or keeps the parties together Moderates the negotiation Gathers data Keeps confidences Is seen as neutral Actually is neutral Can offer a “mediator’s proposal”

39. What does it take to be a mediator?

41. American Bar Association’sSection of Dispute Resolution Task Force on Improving Mediation Quality

42. The 2008 ABA Report on Improving Mediation Quality (civil disputes with lawyers) Preparation Customization Evaluation Skills Persistence

43. Preparation Pre-mediation discussions Joint v. separate Face-to-face v. phone With or without parties Users want input into the process Mediator’s approach Will the necessary parties be present?

44. Preparation - continued Understand interests How can it settle? Use opening statements? Joint or caucuses for certain issues Prior settlement discussions Clients v. lawyers speak

45. Customization Adjust mediation to fit the parties needs Opening statements Useful? Will entrench?

46. Analytical Input - Evaluation Sophisticated mediation users wanted mediators to provide analytical input (evaluate) 95% important to make suggestions 75% important to give opinions

47. Users said (it was helpful to)60 - 100% Ask Pointed Questions That Raise Issues; Give An Analysis Of Case (Including Strengths And Weaknesses); Make Predictions About Likely Court Results; Suggest Possible Ways To Resolve Issues; Recommend A Specific Settlement; Apply Some Pressure To Accept A Specific Solution

48. Persistence 98% “very important” Keep at the table Exert pressure to settle Get them back to table When the going gets tough, the tough …

50. Construction Mediations Differ Pre-mediation activities Impasse breaking strategies Complex, commercial mediations with lawyers representing the parties