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

www2.hawaii.edu/~barkai

Handling of Problems

designed by Liu Young

Western - American Asian

Shichi Go San 7-5-3

“Even a sheet of paper has two sides”

Japanese Proverb

PerspectivePerspectiveViewView

"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

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

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

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

Tendency to devalue offers and concessions made by made by the other side

24

Reactive Reactive DevaluationDevaluation

Power Imbalances

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

Evaluative

Styles of Mediation

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

Facilitative mediators

ASK

Evaluative mediators

TELL

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

Tolanski Curve Illusion

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

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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”

What does it take to be a mediator?

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

Pre-Mediation Activities

Mediator selectionPre-mediation meetings

Pre-mediation submissions

Impasse Breaking Strategies

Facilitative v. Evaluative

Goldberg & Shaw 2005 & 2007

Traits of Successful and Unsuccessful Mediators

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

Lack of Evaluation SkillsLack of Evaluation Skills

• Faulty or no evaluationFaulty or no evaluation