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Mediation of Construction Disputes in the United States

Mediation of Construction Disputes in the United States. Prof. John Barkai William S. Richardson School of Law University of Hawaii www2.hawaii.edu/~barkai. www2.hawaii.edu/~barkai. Handling of Problems . Asian. Western - American. designed by Liu Young .

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Mediation of Construction Disputes in the United States

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  1. Mediation of Construction Disputes in the United States Prof. John BarkaiWilliam S. Richardson School of LawUniversity of Hawaii www2.hawaii.edu/~barkai

  2. www2.hawaii.edu/~barkai

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

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

  5. CHINESE ARBITRATION The great Chinese Emperor Kang-hsi (during the Manchu Dynasty) issued the following decree, in response to complaints about his courts: "The Emperor, considering the immense population of the empire, the great division of territorial property and the notoriously litigious character of the Chinese, is of the opinion that lawsuits would tend to increase to a frightful extent if people were not afraid of the tribunals and if they felt confident of always finding in them ready and perfect justice. I desire, therefore, that those who have recourse to the courts should be treated without any pity and in such a manner that they shall be disgusted with the law and tremble to appear before a magistrate. In this manner ... the good citizens who may have difficulties among themselves will settle them like brothers by referring them to the arbitration of some old man." - National Geographic Magazine, June 1927

  6. OLD FRIEND SYSTEM (Lao peng you) – CHINESE Community Mediation Model Trusted old friend Meets separately with the parties Explores facts & interests Explores interests in context of mutual benefits & interdependence Preserves valuable relationships Identifies options Suggests resolution Save face & give face Convenes parties to confirm agreement Pours tea & talks Tawa Shay

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

  8. Perspective View

  9. "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.

  10. Mediation is assisted negotiation Tam Pan Tawa Shay Negotiation Mediation

  11. Mediation is Conciliation

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

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

  14. 当局者迷，旁观者清Dang Ju Zhe Mi, Pang Guan Zhe QingLookers-on see more than the players

  15. 36 Chinese Strategies Applied to Negotiations

  16. 瞒天过海 Act in the open, but hide your true intentions. Hide secrets in the open to avoid detection Strategy 1: Cross the Sea by Deceiving the Sky

  17. 围魏救赵 Attack their Achilles heel (weakest point) Strategy 2: Besiege Wei to Rescue Zhao

  18. 声东击西 Fake to the right; attack to the left (Confuse and mislead) Strategy 6: Make a Feint to the East While Attacking the West

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

  20. Two Key Ideas • about Negotiation & ADR • 1) Focus on Interests • not positions • 2) Improve the • Communication • (information & temperature)

  21. Same bed, different dreams

  22. Iceberg Theory “Below the line” issues Huge & invisible Purposely hidden Out of awareness

  23. “And notice, gentlemen, this year’s model has twenty per cent more trunk space.”

  24. Litigation Arbitration Past

  25. Mediation Future (interests)

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

  27. If Followed by Asking or Telling

  28. “Do not find fault, find a remedy.”-- Henry Ford

  29. 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

  30. Mediation is a noun名词míng cí Focus on the adjective形容词 xíng róng cí

  31. Styles of Mediation FACILITATIVE EVALUATIVE

  32. FACILITATIVE do NOT suggest solutions EVALUATIVE evaluate & suggest solutions

  33. Facilitative mediators ASK Evaluative mediators TELL

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

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

  36. Tolanski Curve Illusion

  37. Mediator Selection Pre-Mediation Conferences Pre-mediation Document Submissions

  38. Select Mediator Meet with mediator Submit documents Collect Information Negotiate Agreement

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