issues for sophisticated users of construction mediation: when, how, and by whom? prof. john barkai...
Post on 18-Dec-2015
214 Views
Preview:
TRANSCRIPT
Issues for Sophisticated Issues for Sophisticated Users of Construction Users of Construction
Mediation:Mediation:
When, How, and by Whom?When, How, and by Whom?
Prof. John BarkaiProf. John BarkaiWilliam S. Richardson School of LawWilliam S. Richardson School of Law
University of HawaiiUniversity of Hawaii
"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.
Common Forms Common Forms of Dispute Resolutionsof Dispute Resolutions
•NegotiationNegotiation
•Mediation - ConciliationMediation - Conciliation
•ArbitrationArbitration
•Trial in CourtTrial in Court
Common Forms Common Forms of ADR in Constructionof ADR in Construction
•PartneringPartnering
•Dispute Review BoardsDispute Review Boards
•Mediation - ConciliationMediation - Conciliation
•ArbitrationArbitration
Why use mediation?Why use mediation?
PartiesParties
Faster, cheaper, confidential, Faster, cheaper, confidential, controlcontrol
LawyersLawyers
Help with other side & clientsHelp with other side & clients
MediatorsMediators
Psychology of mis-evaluation, Psychology of mis-evaluation, perception, over confidence, perception, over confidence, biases, etc.biases, etc.
Some Psychological Issues Some Psychological Issues Affecting PerceptionAffecting Perception
1. Attribution1. Attribution
2. Selective Perception2. Selective Perception
3. Framing3. Framing
4. Anchoring4. Anchoring
5. Reactive Devaluation 5. Reactive Devaluation
6. Risk Preferences (Prospect Theory)6. Risk Preferences (Prospect Theory)
7. Endowment Effects 7. Endowment Effects
8. Behavioral Traps8. Behavioral Traps
の検索結果の検索結果Okame HatimokuOkame Hatimoku
(Japanese proverb) (Japanese proverb)
The onlookers see The onlookers see
more than the playersmore than the players
Tendency to devalue offers and concessions made by made by the other side
24
Reactive Reactive DevaluationDevaluation
Styles & Types of MediationStyles & Types of Mediation
Facilitative, evaluative, transformative, Facilitative, evaluative, transformative, narrative, etc.narrative, etc.
Community, commercial, construction, Community, commercial, construction, family, employment, probate, postal family, employment, probate, postal
service, tort, peer mediation for school-service, tort, peer mediation for school-aged children, etc.aged children, etc.
Narrow or broadNarrow or broad
Caucus or non-caucusCaucus or non-caucus
Mediation is a nounMediation is a noun 名詞 名詞 meishimeishi
Focus on the adjective Focus on the adjective形容詞 形容詞
keiyoushikeiyoushi
FACILITATIVE do NOT suggest solutions
EVALUATIVE evaluate & suggest solutions
TRANSFORMATIVEnot concerned about solutions.
They want to “empower” and “transform” the parties. United States Postal Service
Evaluative Evaluative Narrow Broad
BroadNarrow
Facilitative Facilitative
Narrow Broad
Evaluative
Facilitative
The Riskin Grid
When to mediate?When to mediate?
After critical discovery; before full After critical discovery; before full discovery.discovery.
Have enough facts to make good Have enough facts to make good decisions.decisions.
More information is not better information More information is not better information
– – selective perceptionselective perception
Who can/should/does Who can/should/does mediate?mediate?
U.S. – lawyersU.S. – lawyers
Anyone who can build confidence and Anyone who can build confidence and has the process skillshas the process skills
Know law & facts, prepared, persistent, Know law & facts, prepared, persistent, creative, ability to evaluate creative, ability to evaluate
Goldberg & Shaw data laterGoldberg & Shaw data later
How to mediate?How to mediate?
Very much open to questionVery much open to question
Different styles can workDifferent styles can work
ABA Task Force Report laterABA Task Force Report later
Goldberg & Shaw 2005 & 2007Traits of Successful
and Unsuccessful Mediators
American Bar Association’sAmerican Bar Association’sSection of Dispute Resolution 2008Section of Dispute Resolution 2008
Task Force on Task Force on Improving Mediation QualityImproving Mediation Quality
----------------------------------------------
Mediation AdvocacyMediation Advocacy
How to “Borrow” a How to “Borrow” a Mediator’s PowersMediator’s Powers Dwight Golann
Problem-Solving Advocacy in Problem-Solving Advocacy in Mediations Mediations
Harold AbramsonHarold Abramson (2005) (2005)
Controls the format & processIs usually open to process suggestionsSeparates or keeps the parties together
Moderates the negotiationGathers data
Keeps confidencesIs seen as neutral
Actually is neutralCan offer a “mediator’s proposal”
American Bar Association’sAmerican Bar Association’sSection of Dispute Resolution Section of Dispute Resolution
Task Force on Task Force on
Improving Mediation QualityImproving Mediation Quality
The 2008 ABA Report on Improving Mediation Quality
(civil disputes with lawyers)
Preparation
Customization
Evaluation Skills
Persistence
PreparationPreparation
Pre-mediation discussionsPre-mediation discussions
Joint v. separateJoint v. separate
Face-to-face v. phoneFace-to-face v. phone
With or without partiesWith or without parties
Users want input into the processUsers want input into the process
Mediator’s approachMediator’s approach
Will the necessary parties be present?Will the necessary parties be present?
Preparation - Preparation - continuedcontinued
Understand interestsUnderstand interests
How can it settle?How can it settle?
Use opening statements?Use opening statements?
Joint or caucuses for certain issuesJoint or caucuses for certain issues
Prior settlement discussionsPrior settlement discussions
Clients v. lawyers speakClients v. lawyers speak
CustomizationCustomization
Adjust mediation to fit the parties Adjust mediation to fit the parties needsneeds
Opening statementsOpening statements
Useful? Will entrench?Useful? Will entrench?
Analytical Input - Evaluation
Sophisticated mediation users wanted mediators to provide
analytical input (evaluate)
95% important to make suggestions
75% important to give opinions
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
Persistence Persistence 98% “very important”98% “very important”
Keep at the tableKeep at the table
Exert pressure to settleExert pressure to settle
Get them back to tableGet them back to table
When the going gets tough, the tough …When the going gets tough, the tough …
Construction Mediations Construction Mediations DifferDiffer
Pre-mediation activitiesPre-mediation activities
Impasse breaking strategiesImpasse breaking strategies
Complex, commercial mediations with lawyers representing the parties
Study 1Study 1"How do you account for your "How do you account for your
success as a mediator? “success as a mediator? “
75% said: 75% said:
Ability to develop rapport with the Ability to develop rapport with the disputing partiesdisputing parties
Develop a relationship of Develop a relationship of understanding, empathy, and trustunderstanding, empathy, and trust
Why is that so important?Why is that so important?
Encourages the parties to Encourages the parties to communicate more fully with the communicate more fully with the mediator, often providing the mediator, often providing the mediator with the information mediator with the information the mediator needs to help the the mediator needs to help the parties craft a settlement: parties craft a settlement:
How to build that How to build that relationship?relationship?
Empathic listening, which conveys the Empathic listening, which conveys the message that the mediator truly cares message that the mediator truly cares about the parties' feelings, needs, and about the parties' feelings, needs, and concerns (substantial majority)concerns (substantial majority)
The mediator’s reputation for being The mediator’s reputation for being honest, ethical, and trustworthy honest, ethical, and trustworthy (some mediators)(some mediators)
What does What does a mediator do a mediator do
after establishing rapport?after establishing rapport?
• Generate novel or creative solutionsGenerate novel or creative solutions
• Attribute the mediator’s own creative Attribute the mediator’s own creative ideas to the partiesideas to the parties
• Use humorUse humor
• Combine patience and tenacityCombine patience and tenacity
• PersistencePersistence
Other tacticsOther tactics
• Focus parties on consequences of not Focus parties on consequences of not settling (BATNA / WATNA)settling (BATNA / WATNA)
• Push at the appropriate timePush at the appropriate time
• Assist them to understand each Assist them to understand each other’s needsother’s needs
• Remain optimisticRemain optimistic
Study 2Study 2Lawyers & Parties – Lawyers & Parties –
What lead to success?What lead to success?
• Mediator’s ability to gain the parties’ Mediator’s ability to gain the parties’ confidence (friendly, empathic, likable, etc.)confidence (friendly, empathic, likable, etc.)
• Mediator’s high integrity (Honesty, neutrality, Mediator’s high integrity (Honesty, neutrality, trustworthiness, protection of confidences, trustworthiness, protection of confidences, etc.)etc.)
• Mediator was smart, well-prepared, or new Mediator was smart, well-prepared, or new the relevant contract or lawthe relevant contract or law
Study 3Study 3Why did mediators fail? Why did mediators fail?
• Lack of confidence-building Lack of confidence-building attributesattributes
• Lack of process skillsLack of process skills• Lack of evaluation skillsLack of evaluation skills
Lack Of Confidence-Building Lack Of Confidence-Building AttributesAttributes
• Mediator lacked integrity, neutrality, Mediator lacked integrity, neutrality, empathy; did not understand the empathy; did not understand the issues or law, or was not well-issues or law, or was not well-preparedprepared
Lack of Process SkillsLack of Process Skills
• Acted just as a messengerActed just as a messenger
• Not persistent – quit too soonNot persistent – quit too soon
• Didn’t propose solutionsDidn’t propose solutions
• Had bad timingHad bad timing
top related