Mediation + extra Flashcards
What is mediation?
a third party called a mediator not associated with either of the parties assisting the parties’ communication and negotiation during a confidential process to reach a voluntary agreement
What is Riskin’s grid?
the types of interventions that a mediator is likely to use
What would a broad facilitative mediator focus on?
The facilitative-broad mediator seeks to help the parties define, understand and resolve the problems they
wish to address. She encourages them to consider underlying interests rather than positions and helps
them generate and assess proposals designed to accommodate those interests. Specifically, she might:
* Encourage the parties to discuss underlying interests in joint sessions. To bring out such interests,
she might use techniques such as those employed by the evaluative-broad mediator.
* Encourage and help the parties to develop their own proposals (jointly or alone) that would
respond to underlying interests of both sides.
The facilitative-broad mediator does not provide assessments, predictions or proposals. However, to help
the participants better understand their legal situations, she will likely allow the parties to present and
discuss their legal arguments. In addition, she might ask questions such as those listed for the facilitative-
narrow mediator and focus discussion on underlying interests.
What would a narrow facilitative mediator focus on?
Like the evaluative-narrow, the facilitative-narrow mediator plans to help the participants become
“realistic” about their litigation situations. But he employs different techniques. He does not use his own
assessments, predictions or proposals. Nor does he apply pressure. Moreover, he probably will not request
or study relevant documents, such as pleadings, depositions, reports, or mediation briefs. Instead, because
he believes that the burden of decision should rest with the parties, the facilitative-narrow mediator might
ask questions—generally in private caucuses—to help the participants understand both sides’ legal
positions and the consequences of non-settlement. Also in private caucuses, he helps each side assess
proposals in light of the alternatives.
Here are examples of the types of questions the facilitative-narrow mediator might ask:
* What are the strengths and weakness of your case? Of the other side’s case?
* What are the best, worst, and most likely outcomes of litigation? How did you make these
assessments? Have you thought about [other issues]?
* How long will it take to get to trial? How long will the trial last?
* What will be the associated costs—in money, emotions, or reputation?
What would a broad evaluative mediator focus on?
The evaluative-broad mediator also helps the parties understand their circumstances and options.
However, she has a different notion of what this requires. So she emphasizes the parties’ interests over
their positions and proposes solutions designed to accommodate these interests. In addition, because the
evaluative-broad mediator constructs the agreement, she emphasizes her own understanding of the
circumstances at least as much as the parties’.
Like the evaluative-narrow mediator, the evaluative-broad mediator is likely to request and study relevant
documents, such as pleadings, depositions, and mediation briefs. In addition, she tries to uncover the
parties’ underlying interests by such methods as:
* Explaining that the goal of mediation can include addressing underlying interests.
* Encouraging the real parties, or knowledgeable representatives (with settlement authority) of
corporations or other organizations to attend and participate in the mediation. For instance, the
mediator might invite such individuals to make remarks after the lawyers present their opening
statements, and she might include them in most settlement discussions.
* Asking about the participants’ situations, plans, needs and interests.
* Speculating about underlying interests and asking for confirmation
Narrow evaluative?
The principal strategy of the evaluative-narrow mediator is to help the parties understand the strengths
and weaknesses of their positions and the likely outcome at trial. To accomplish this, the evaluative-
narrow mediator typically will first carefully study relevant documents, such as pleadings, depositions,
reports and mediation briefs. Then, in the mediation, she employs evaluative techniques, such as the
following, which are listed from most to least evaluative:
* Urge parties to settle or to accept a particular settlement proposal or range.
* Propose position-based compromise agreements.
* Predict court (or administrative agency) dispositions.
* Try to persuade parties to accept mediator’s assessments.
* Directly assess the strengths and weaknesses of each side’s case (usually in private caucuses) and
perhaps try to persuade the parties to accept the mediator’s analysis
What is the understanding based model of mediation?
the main goal is to help the parties understand each other. no caucasing
What is the transformative model of mediation?
there is no causcaing, everything is done in everyone’s presence. The goal is to empower parties to say what is important to them and recognize each other’s sense of humanity, transform the conflict interaction between the parties. Settlement is not the main goal, but a byproduct. This model has been used very widely in the workplace
What are the basic steps of mediation?
The mediator explains the process of mediation and the parties agree to mediate
Then the mediator needs to fully understand the problem before generating solutions. They also need to demonstrate that they understand the parties’ underlying interests, facts, etc through active listening/reflective listening (you listen and reflect back what you understand that they had said and demonstrate that you heard)
Then the parties will generate and assess options and hopefully reach an agreement
Closing the mediation
What is loop of understanding?
someone speaks, the person reflects back what they heard and asks if they got it right, then the other person either confirms or denies that the other person understood
What are ways confidentiality forms and who is it binding on?
Can be based on statute, court rule – or private
contract between the parties
▫ Binding upon the mediator and parties
What is the mediation privilege?
Protects confidential information shared during mediation from being brough up in court. Binding on the court and has a basis in statute or court rule
What are three things you can disclose from a mediation?
reports of abuse, exploitation, and neglect
What is a nondisclosure agreement?
a legally binding contract that ensures one party keeps certain information confidential and does not disclose it to others
What qualifications do you need to be a general mediator?
None
What qualifications do you need to be a court connected mediator?
You need certain training
What qualifications do you need to be a private organization mediator?
specific training and or subject matter expertise related to that organization
What is a court ordered mediation?
- courts can require parties to conduct and pay for mediation
What is judicial mediation and potential problems with it?
The judge acts as a mediator. problems in caucus and if they do end up going to court with that judge
What is a summary jury trial?
a type of alternative dispute resolution (ADR) process designed to give parties an informal preview of how a trial might unfold, usually involving a short, abbreviated version of a trial. The key difference between a summary jury trial and a regular trial is that it typically takes place in front of a mock jury that’s meant to help the parties gauge how their case might fare in a real court trial.
What is a special master?
is a court-appointed official who is tasked with assisting a judge in managing certain aspects of a case or handling specific issues within a case, may serve as a mediator between the parties
What is early neutral evaluation?
process like evaluative mediation, the third party neutral’s job is just to evaluate the case, not specifically to mediate
What are the steps of the dispute resolution system?
1) Preventative processes
2) Negotiated processes
3) Facilitative processes
4) fact finding
5) advisory
6) imposed
What are key principles for dispute system design?
Determine whether alternative dispute resolution
processes are appropriate
* Identify system goals
* Develop a system that is fair and just
* Provide multiple process options for parties, including
rights-based and interest-based processes
* Provide substantial stakeholder involvement in the
system’s design
* Provide for system transparency and accountability
through evaluation and reporting
* Educate and train stakeholders
