mediation questions Flashcards
if one of the parties is not negotiating in good faith the mediator may…
tell the court ordering the mediation
mediator MAY tell the court ordering the mediation that…
one of the principles at the mediation does not have the authority to settle
if a party does not negotiate in good faith, the court may order them to…
pay for the mediation if the party did not object to the reference to mediation
if an instance that includes elder abuse is disclosed in mediation it must be…
furhter disclosed
if a mediator is sued for his conduct during mediation he is NOT bound by confidentiality and may…
testify concerning the alleged conduct
the policy behind the parties mediation privilege is to…
promote the settlement of lawsuits
a subpoena issued by both parties directed to the mediator to testify concerning the mediation…
may NOT be ignored by the mediator
a signed mediation settlement agreement is…
a contract
a party may appear at a court ordered mediation without his attorney and…
NOT be in contempt of the court order
a mediation settlement agreement is enforced using…
the same procedures as enforcement of any contract
If there is a dispute concerning exactly what the agreement was following the mediation and one party brings suit to annul the agreement the other party …
may testify
The final agreement following mediation is not confidential unless…
the parties agree that it is
The concept of lawyering includes representation in adversarial and non-adversarial situations, for which what skills are needed?
competitive and collaborative
It is unethical for a mediator to set his fees based on…
whether or not an agreement is reached
If a mediator becomes so enraged at the conduct of one of the parties that he is no longer neutral he should…
resign as mediator in that case
Advantages of caucus mediation include…
- opportunity for the mediator to establish rapport and deeper communication with each party
- explore hidden agendas.
Uncovering motivation for positions taken (key to interest-based or problem solving bargaining) can occur in joint sessions because…
the advocate can ask questions directly to the other party
A neutral may refuse to testify by filing a…
motion to quash the subpoena
The primary goal of the analytical style of mediation is NOT…
improving the quality of infromation
parties can request a caucus with the mediator while…
in joint session
In Texas there is a valid claim of privilege for the mediator under
§ 154.073(b) Texas Civil Practice and Remedies Code
The core purpose of performative mediation is…
for the mediator to help the parties convert their respective monologues into dialogues
- whether telling conflict stories or repeating their personal demands
communication skills include…
- effective listening
- reframing statements from the other side
- dealing effectively with emotions
- building rapport
Research confirms that negotiators with a higher perspective-taking ability negotiate agreements with…
higher value than those with lower perspective-taking ability
5 sources of conflict
- data
- values
- structural issues
- relationship problems
- interests
Each of the 5 conflict styles can be effectively used, but should be…
appropriate for the conflict situation and should be a deliberate choice by mediators and parties
As a mediator, use of techniques of persuasion, such as deliberately using persuasive words (money, save, you) can enhance your ability to…
help clients resolve their case
4 approaches to negotiation are explained in the Holbrook text:
- performative
- transformative
- distributive/linear
- integrative
in TX the mediator should do what with the final written settlement agreement for pro-se parties?
NOT unilaterally create the final written settlement agreement
3 traditional approaches for mediators
- transformative
- directive
- facilitative
The neutrality of a mediator can be doubted by the parties if…
the mediator has an undisclosed stake in the outcome or has an undisclosed close relationship with one of the parties
Making threats, demands, and digging into positions are adversarial, distributive tactics that mediation advocates should…
never use to show confidence that they will prevail in court
Effective mediation advocacy and due diligence require preparation before the mediation session, such as…
- factual and legal research
- strategy for settlement
- preparation of the client for joint and caucus sessions
- preparation of a representation plan for the mediator
- use of an advocacy style that is conciliatory and collaborative
these are NOT examples of resolving conflict through the use of power…
private and public adjudication
The mediator’s role does not include…
assessor of the financial value of each party’s case
If the mediator discovers she is connected personally, financially, or professionally to any participant in the mediation, that information must be…
fully disclosed to all parties ASAP
- if both parties still want the mediator to serve, she may
Active listening is NOT…
concentrating on the answer you will give to the other party’s position statement
Mediators should question the parties concerning their needs, feelings, concerns, values, or perceptions, in…
caucus and joint session
Collaborating is the conflict style that is…
assertive and empathetic
When collaborating is not effectively resolving a conflict what other method should be used?
compromising is a fall back style which can allow both sides to find a solution that seems fair, although not optimal
The issues in any dispute are NOT the same as…
the interests of the parties
Traditionally, positional bargaining has been used synonymously with distributive negotiation but the Holbrook text states that distributive negotiation is…
an economically rational strategy that only sometimes employs positional bargaining tactics including deception, intimidation, and manipulation
If a lawyer appears at a court ordered mediation but his client does not appear and the other party agrees…
this is not contempt of court
Much of the mediation process involves, direct, subtle, verbal, and particularly, non-verbal communication. Thus mediation advocates should prepare their clients…
carefully for their participation in joint and in caucus session
The sequence of stages in mediation usually contemplates that reality testing and bargaining will occur AFTER…
issue and interest identification
Human needs or interests, only one of which is money, motivate positions taken by a party in mediation. These interests include…
- concerns
- hopes
- expectations
- perceptions
- attitudes
- beliefs
- values
- feelings
A detailed agenda of the specific issues to be resolved in mediation and the order in which they will be discussed is…
an important first step in the mediator’s tool box
The Johari Window is a tool that can be developed and employed in any negotiation or mediation. It includes 4 categories of self-expression…
- the public area: information that is openly known
- the hidden area: information known to others but not known to me
- what we don’t know we don’t know
- the private area: information we know but choose to keep hidden from others
The Johari Window suggests 5 character traits and related behaviors (counter intuitively) should be developed by mediation advocates because they are very useful in conflict resolution…
- humility
- trustworthiness
- curiosity
- open-mindedness
- courage
competing
- most assertive
- least cooperative
collaborating
- win win
- more joint satisfaction
- high on assertiveness and cooperation
compromising
- in the middle of cooperation and assertiveness
avoiding
- least assertive
- least cooperative
accommodating
- more cooperative
- less assertive
evaluative style
has added risk of mediator predicting outcome
facilitation
collaborative process used to help a group of individuals with divergent views reach a goal or complete a task to all parties satisfaction
arbitration
disputed issue referred to 3rd party who renders decision after hearing arguments and reviewing evidence
interest based negotiation
- people
- power
- position
- interests
- alternatives
- options
- standards
- closure
- implementation
mediators role when drafting an agreement
refrain from drafting and avoid making comments or suggestions regarding particular language
