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JANUARY 11 History of mediation 20s/30slabor needed some way to resolve disputes; used labor mediators and negotiators 60scommunity relations mediators: CRS (community relations services) o Set up by justice dept o Organizations started funding mediation stuff nd Legal community didnt likeLawyers philosophically believe its 2 hand justice SPIDER- original parent organization of ACR Mediation began to creep into other areashousing, matrimonial/family FL broke the law jam decided to have mediation in every area (1988) If a non-lawyer is mediating Mediators- should tell people theyre not representing, theyre there as a neutral party; should have written agreement w/ them so they understand How do mediators get paid? Use joint asset to pay, split 50/50, one party can pay (but will that cause bias?) Can court mandate mediation? Parties cannot be told they dont have access to the court- court can mandate mediation but they have no control over what happens in mediation Cant tell judge what happened in the m ediation, confidential by statute When does a conflict become a mediation case? When you have identifiable parties and a written agreement to mediate If you have a court based resolution as opposed to neg/med resolution? o In court, maybe better opportunity to make your case o In court only focused on legal interests, discussion only limited to the law o In court, rules of evidence apply o In court communication is done through attorneys, whereas in mediation open communication o In court often trying to blame other side o In court, not much listening going on o In court, lawyers tell the story not the people themselves Mediation based resolution: o Parties can tell their story o Both feel they benefit b/c making own agreement o Both parties more likely to follow through will what they agreed to do o Not as much finger pointing, blaming o Involved in problem solving together, rather than the judge trying to figure it out Examples in the readings: how youd approach them o P. 2hot city night Cases you dont want in a mediation- DV cases, class actions, Mediation has become big in schools (peer mediators) If court sends them to mediation, what responsibility do courts have to make sure mediators are qualified? Professional development of mediation started when they started studying it Writing assignment- memo or list format o Can e-mail it or bring to class JANUARY 18 Substitute/Speaker- Attorney Joanna Cobleigh Mediation started in 60s and 70s o No regulations involved o Woman and children dont represent either party Gains in requiring training/credentials in mediation
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Ensures that mediators know what theyre doingwill help them know what to do and those techniques will be standardized o Educationexposure to more topics A lot of trainings dont break dont subject matter mediations, only general mediation Are there differences between requirements for court appointed mediators or private mediators? Mass R. 8 of Dispute resolution code- requires specific training under authorized trainer FL rules What are the dangers of a mediator having subject matter expertise? Cyberspace/online mediation o How does it work? o Any qualifications? Mediation works in several ways o Traditional- both parties in the room o Tag-team: mediator goes between 2 rooms where each party is, or parties come in at diff times o Mediators would email parties back and forth Dangers Benefits of face to facein emails, ambiguity of tone and takes longer o People will act more police/impolite in person v. email Online- is it easier to walk away any time? Yes easier than just getting up in a face to face mediation Online mediation- can it become public? Should online mediation be regulated? Same qualifications or diff?
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NEGOTIATION Before you can do mediation, have to know how to do negotiation Difference between mediation and negotiation o Negotiation- bargaining back and forth rd o Mediation- 3 party mediator who can help move the 2 sides along Negotiation is contained within mediation Difference between old negotiation and Fisher & Ury [Getting to YES book]- principled negotiation/integrated bargaining o Based on separating people from the problem and focus on the issues youre trying to resolve o Inventing options for mutual gainput as many ideas on the table as you can and then start trading off things and creating solution among the different options o Use of objective criteriakind of what a court does o Focus on interests rather than positionsinterests underlie positions Cooperative vs. competitive- behavior within a negotiation Collaborative/cooperative How do you avoid separating the person from the problem? Try to figure out the interests from the positions, ignore the positions, reach solutions based on the interests/needs; be explicit about the emotions, dont necessarily ignore them; dont deduce motives from fears Roger Fishers approach- can it resolve the distributive problem in all cases? (distributiveI get one, you get one; I gain one/you lose one) o Need to use distributive when there is a fixed resource o When there are 2 parties who will never deal w/ each other again, when there is a single issue o Fisher acknowledges that comes cases are nothing more than distributive Objective criteria and neutral favor the status quo

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Whats the harm in using the objective criteria? Likely to never effectuate change; will likely be unfair Gerald Williams- talk about effective negotiators o Both competitive and cooperative negotiators are effective o Qualities recognized in both: Highly experienced Ethical, trustworthy, and honest Rational, analytical, figure things out ahead of time Thoroughly prepared on the facts of the law Creative, versatile, and adjustable Rigid Self-controlled Have skill in reading their opponents cues You want to see if you can psych these people out? Both types were ranked good trial attorneys Decision-tree analysis (treeage.com)o Lawsuit w/ claim for $100,000. Have to survive SJ motion by D. P 75% sure they wouldnt lose. P wins motion, goes on to trial. If they win at trial, P expects outcome to be 100,000. P believes odds of winning at trial is 75%. o At what point should people start figuring out what is a good number for you to settle? Multiply 75% chance of winning trial, by 75%= $56,250. Minus 10,000 for attorneys fees. So minimum offer should be $46,250 What do you do when youre analyzing a case? o Figure out your bottom line o Then figure out BATNA (Best alternative to a negotiation agreement) what happens if you cant reach your goal, whats the best thing that could happen Attorney representing party might have different interests than that party (bc theyre getting paid by the hour, for example) P. 62- Ds; BATNA; starting point is 10,000 o Bottom line- 10,000, they wouldnt go to litigation, out of the question; D wants money, no lawsuit; P would get apology, half of the money, apology and new promise that nothing else is defective, delayed/installment payment from D to P, nd or a reduction on Ps obligation on 2 mortgage o What is your BATNA- buy another house, rescind contract, plaintiff move out, o D should deduct cost of what had to be fixed and offset his payments
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JANUARY 25 Defendants o We made last offeron table, so P should make next offer ETHICS IN NEGOTIATION Can a lawyer be a good person? o Fried proposes this Lawyer is required to be truthful in dealing w/ other when dealing w/ others, but generally have no affirmative duty to inform other side of relevant fact. When would this be a bad thing? o If other side misunderstood something you said thats material fact o If other party makes settlement offer and you know your client has died JANUARY 30 Dishonesty, fraud, and deceit constitute misconduct 3 Exceptions to veracity requirement What is purpose of professional standards? Set minimum standard of whats expected of parties Do you think professional standards go far enough or too far?
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If youre a moral person, they probably go far enough; if not, then youll pick it apart to find how you can get around it If ABA took away material word, so now absolute violation to make misstatement of law or fact.. whats the problem? o If its blanket violation, youd have to do homework so well; might misspeak, might not understand. Can hurt mediation in general b/c no flexibility o Making the stricter would slow down mediation What about in court? Should it be material there too or more stringent? Fried- believes lying in negotiation is both violation to client and lawyers own moral standards (hes tough on this) Good negotiator asks do you have the right to settle Ruth Fleet Thurmanpresents 5 diff scenarios o Misrepresenting your true opinion about meaning of case or state- this is ok o Distortion of the value of a case or subject matter involved- ok o Negotiator includes series of false demands to get concessions from other sideok with exceptioncan cause harm such as in divorce cases Thurman says you shouldnt do this o P gives a settlement amount that he claims will settle. D thinks he has authority to settle for that amount, but wants to settle for lessnot right; can say you have the authority, but client doesnt want to settle for that amount; deflect the question so you wont answer it one way or the other o Lawyer represents 3 people charged w/ shoplifting. 2 have said they will plead guilty, 1 said he wont. Lawyer informs prosecutor that the 2 will plead guilty only rd if the 3 is allowed to go free Is there a price to pay for lawyers who are dishonest? o Reputation tarnished o Your value to others o Effect on your work and your client o Effect on you as a person Lack of civility among lawyers What is the advantage of making the first offer in negotiation? o Its an overstated figure, can go down from there; gain some control. Anchors whole thinking around a certain point Advantage of making second offer o You set the midpoint How will you avoid being exploited by a counterpart in a mediation? o Do your research on law and facts Make thoughtful concessions How do you frame offer so its most likely to be accepted? o People are more sensitive to losses than gains o Loss aversion o Risk aversion- more willing to take chances o Present to other side as what they will gain; makes losses sound less important Framing effects- how offers and counteroffers are presented Set up scoring system so you can quantify everything to see if youre getting good offer Factors that come into play that make other side value your offer more favorably: o Reputation o How you present the offer o How can you get people to accept the offer? o Point out what theyre gaining o Point out what youve offered them already, theyll feel compelled to reciprocate o More likely to be favorable to you if you have good working relationship o Authorityhad independent person evaluate it o Scarcity- limited time offer

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Every negotiation has 2 tensions- between discovered shared interests and max gains and maximizing your own gains; also principal/agent problem Next class well start w/ mediation (so far weve discussed negotiation) o Interests will shiftwill shift to being person in charge of settling the conflict Email proposal of assignment
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FEBRUARY 1 Mediation is assisted negotiation Mediator can reframe what person says so words arent as stinging Mediation is consensual process, confidential Uniform Mediation Actto make even non-qualified mediators who took on the job Chinese tend to be more community focusedwould look at mediation different than Americans Adjudicatory process different than mediation o They focus on past behavior; mediation is looking to the future and what will be best for the parties o Not rights oriented (adjudication) but problem solving process (mediation) o Adjudication has a lot of rules; mediation doesnt but has a lot of techniques o Adjudication- parties rarely talk to each other o Mediation- less stress, less time, less expense Gains from mediation (as opposed to adjudication) o People happier with the outcome o More likely to enforce outcome o Improve relationships, prevent future disputes o Quicker and cheaper o Can focus on non-legal issues Mediation is a skill, not a talent Requires reflective learning- youre getting experience and you yourself are critically evaluating yourself Technique- paraphrasing, reframing, arranging seating Skills- common sense Paradigm shiftshift from how we act as lawyers, to how we have to act as mediators (shift from battlefield to problem solving view Types of mediation o Transformativegoal isnt to solve problem, but to transform relationship between parties so they can solve problems themselves. Qualitieso Facilitative (most common)focused specifically on solving problem, parties needs and concerns, help parties develop creative solutions o Evaluativemore directive. Focus will be on the issue, not needs and interests. Judges are usually evaluative mediators Use a round table if you can; if not, sit in the middle, or have parties on 1 side and mediator on the other (triangle shape) o Parties more likely to talk to each other when theyre sitting on same side Provide food If DV case, never put in same room Have whiteboard/flip chart in the room, calculator, Start with facilitative mediation Mediators courteous opening Parties let you know about themselves Ask open ended questions Generate options, no opinions at this point Negotiation Solution or no solution

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FEBRUARY 6 Transformative mediation o Differs b/c mediators focus on helping clients change the way they look at each other and give them tools to solve their own problems o In opening statement, tell them what your philosophy is o Ultimately the parties choice o Leave responsibility of the outcome to the parties Moments of grace- one party concedes and it starts potential negotiating o Things may not be of equal value, its just a kind action that generates a kind response Transformative mediation diff than problem solving mediation o Not necessarily solving the problem, building on their relationship in hopes that they solve it eventually; give them a way of recognizing other person, trying to help them change their relationship Majorie Kormantalks about dos and dont of facilitative/evaluative mediation When would it be necessary to offer an evaluation? To inform them about the law How would opening statement differ? Transformative vs. evaluative o Describe your role o My goal is to help you resolve this yourselves Pros and cons for parties in participating in evaluative mediation? o More directive toward the problem, gets to solution quicker Fuller- describe role of mediation as reorienting parties toward each other, changing attitudes toward each other so they can facilitate communicate and make their own deal (transformative mediation) Powers of mediation o Consensual process that seeks self-determined results o Outcome is within hands of the parties o No higher person to make determinations o Search for solutions within their own abilities to accomplish them FEBRUARY 8 Mediator neutrality and mediator accountability for outcome Susskind p. 160argues in environmental mediation mediator is accountable for the outcome o Argues mediation and outcome have to be fair o Puts responsibility for fairness in hands of mediator Stulberg p. 162says interests of parties not directly involved should still be adequately represented o Says theres other ways to ensure fairness w/o mediator breaching neutrality o Mediators job is to ensure procedural fairness, not substantive fairness Moatsays mediators need to facilitate agreement that parties couldnt do on their own; when mediators intervene to settle legal dispute, 2 important safeguards need to be in place Tension between accountability and neutrality Parties need informed consentto make informed consent about agreement, need to know the law Lela Love- argues evaluative mediation isnt even mediation; Riskins grid system o Ways you view the problemnarrow or broad o Directive or evaluative mediator Narrow mediatorloks at problem in front of them Elictiative narrowworks toward solving the problem; directive narrowactually tells party thats what they do and helps them work toward it (like evaluative mediator) Elicitative broad-- transformative
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P. 186 diagram Transformative mediatorsreverses downward spiral of conflict Trashersexerienced trial lawyer; keep parties apart Bashers- feel job is to hammer some sense into people; spends little time engaging in case evaluation aimed at getting parties to put realistic figures on the table, but focus is on putting offers on table and trying to come up w/ something in between (ex: retired judges); most directive mediation Hashers- more flexible; encourages and relies on communication between the parties. Mediator is willing to be the scapegoat between the parties;
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FEBRUARY 13 PAPER DUE AFTER LONG WEEKEND (FEB 22) TH NO CLASS FEBRUARY 20 Are these appropriate parties for mediation? o Are the parties hostile? o Is a party lacking capacity? o Conflict of interest? o Are you as mediator competent on the subject matter? Some courts dont want you contacting parties ahead of time; what would you gain from having separate contacts with parties ahead of time? o What their issues are o Time to research the relevant law o What their goals are What is the harm of having client meetings? o May not see you as being impartial figure o Might cause you to already form an opinion o Might cause parties to dig in on their positions morethey may feel obligated to really stick with the story they told you Preliminary process conference or send brochureif you cant speak to parties ahead of time What do you do if 1 party contacts you about doing the mediation? o Potential bias problem o Potential ethical problem Footnote p. 25with regard to family mediation, some commentators How would you go about approaching the second party? In what kind of cases are written statements most helpful? Personal injury, probate Would you set any ground rules for these written statements? Set length, general content, Benefits of written statementsget clear statement of problem, up to date version, efficient, shortens time for mediation Drawbacksmight oversimplify the problem, gives problem legalistic definition, adds times to pre-mediation, reinforces parties in their positions What do parties need to know about mediation process? o Its a voluntary process o Confidential o And mediator is neutral party o Fees & how youre going to get paid Have visuals available Opening statement o Make parties comfortable o Get them to trust you o Explain 3 important thingsvoluntary, confidential, neutral o Explain process o Find out if theres ethical problems o Find out if theyre competent to handle this

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o Is there any DV o Who should attend mediation? o Mediator, 2 parties, lawyers o Dont want children in a family law matter o Need to know if theres any health issues, language issues,
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FEBRUARY 15 5 STEPS (p. 63) o Mediators opening Introduction Ask them to introduce themselves o The parties initial statements o Defining the problem o Problem solving and negotiation o Final decision and closure Explain conflict of interests Speaking orderhave to have objective reason for choosing who speaks first Give parties little information about caucusjust let them know its available to them, and its routine and common Give them something to write notes down P. 70exceptions to confidentiality (MA doesnt have these) FEBRUARY 20 SKIP FEBRUARY 27
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MARCH 5 Generating movementstechniques to move things along o Alternate discussion of the issues o Using silence o Use of humor o Create doubts, challenge their assumptions o Get them to identify their interests rather than their actual positions Listen for any facts that are usual/havent come up before Need to establish priorities and tradeoffs (might want to do this in a caucus) Spot inconsistencies and bring it to their attention Be the agent of reality Caucusingwhy would you caucus? o Deal w/ parties that have unsupported attitude toward mediation and bring it to their attention o Parties can talk to mediator about concerns they are having, etc. o Exploring settlement options Caucus should not last more than 10 min Remind them that caucus is confidential, unless the tell you you can disclose something to other side At end of caucusconfirm w/ them what they want disclosed and what they dont Tell parties youre going to have separate meeting, how long it will be, and who youd like to call in first. Write time down, take notes on caucus (separate from other notes) Use hypo when proposing other parties settlement proposal in a caucus wit h other party (to maintain neutrality)

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MARCH 12 Elements of unproductive conflict Stonewalling clientI have nothing to say, she has everything o Mediator should have private meeting w/ person that is stonewalling o Use humor o Promise to protect them from attacks by the other party Defensivenessall our sons behaviors are caused by things he learned from you o Call attention to fact that it was inappropriate comment and delivered in inappropriate comment; then reframe it o Overly competitivemore likely to be a lawyer representing a party, doesnt consider needs/interests of other party o Remind them theyre in mediation, come up with solutions here o If you feel so strongly, then why did you come to mediation? o Explore their motives for why theyre in mediation and what theyre hoping to accomplish Person starts throwing irrelevant issues into the pot We have different types of conflicts styles/different ways people handle conflict o Competingmy way or the highway Inflexible, take hardline position, use personal criticism, deny responsibility, dismissal What do you do? Acknowledge their feelings, but focus on issue o Avoidingavoids conflict Denial, shifts away from topic, withdraws psychologically, not really involved, threatened by conflict Whats good about this style? Compromise easily Whats the affect on the mediation? o Compromising Moderately assertive/moderately cooperative; just want a fair deal, seek quick solution, want it to be over with Most versatile conflict style Most appropriate when theres fixed resources Advantagesreceptive to listening to other person, understand they have to give and get Disadvantage- to quick to compromise, might wind up w/ unfair deal/wind up at an impasse, might spend too much time dividing fixed resource o Accommodatinggive in all the time, think things will be more peaceful Feel they can win by losing Mediator has some responsibility to make sure agreement meets their minimal needs Fairness vs. impartiality debate: o Collaborating Cycles of conflict o Escalation model Triggering eventcauses conflict to begin Conflict escalation For next classethical and practical issues; class after break cross cultural MARCH 14
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Minorities tend to not fare as well in their outcome in mediation, but still report being satisfied What safeguards does court provide? Procedure o In court everyone gets a chance to speak? Are men discriminated against/disadvantaged? White middle class women do better in mediation than anyone else, do better than they would in court o But they usually tend to not like mediation
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MARCH 26 Sdfsd MARCH 28 UMArequired by court? Doesnt apply to collective bargaining arrangements; applies to mediation disputes filed w/ administrative agency in court Privilege doesnt apply if parties waive Privilege states that comm. And writings that come out of mediation are confidential and privileged APRIL 2 Representing clients in mediation Should the discussion of ADR discussion be mandatory when client comes in? What should the role of the lawyer be in mediation? o A check and balance to make sure mediated agreement is ok for your client; advisor to client Fairness in mandatory divorce mediation? o Lawyers can mitigate effects of mandatory divorce mediation Disadvantages: o Costs (b/c both mediators and lawyers are involved) Collaborative lawboth parties have lawyer; hire neutral experts that both of you agree on UMA gives clients right to choose if they want a lawyer Advantages of having a lawyer at the mediation: o Can explain things Drawbacks of having lawyer present: o If theyre too aggressive, clients arent really participating 2 mediators next class APRIL 4 For finaldont have to do an opening statement Mecompany lawyer o PAlexis (my client) o Co PJulie o Co LAmanda C o MediatorsShannon and Mario APRIL 9 Assignment 3do assignment individually; due 1 or 2 classes after ending in class activity APRIL 11 Representation plannote ethnic differences, APRIL 16
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Monday, April 30 4 PM: MEDIATION FINAL EXAM rd o 3 floor library, Suzanne norback room Each individual writes an agreement o Due on Monday Bring drinks on Monday Dont be directive, ask open ended questions, listen to other side, show reframing, dont immediately put options on the table
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APRIL 23 Do not say you guys If parties come in with unrealistic expectations, bring them down to earth