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mediation clinic > mediation questions > Flashcards

mediation questions Flashcards

1
Q

if one of the parties is not negotiating in good faith the mediator may…

A

tell the court ordering the mediation

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2
Q

mediator MAY tell the court ordering the mediation that…

A

one of the principles at the mediation does not have the authority to settle

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3
Q

if a party does not negotiate in good faith, the court may order them to…

A

pay for the mediation if the party did not object to the reference to mediation

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4
Q

if an instance that includes elder abuse is disclosed in mediation it must be…

A

furhter disclosed

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5
Q

if a mediator is sued for his conduct during mediation he is NOT bound by confidentiality and may…

A

testify concerning the alleged conduct

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6
Q

the policy behind the parties mediation privilege is to…

A

promote the settlement of lawsuits

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7
Q

a subpoena issued by both parties directed to the mediator to testify concerning the mediation…

A

may NOT be ignored by the mediator

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8
Q

a signed mediation settlement agreement is…

A

a contract

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9
Q

a party may appear at a court ordered mediation without his attorney and…

A

NOT be in contempt of the court order

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10
Q

a mediation settlement agreement is enforced using…

A

the same procedures as enforcement of any contract

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11
Q

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 …

A

may testify

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12
Q

The final agreement following mediation is not confidential unless…

A

the parties agree that it is

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13
Q

The concept of lawyering includes representation in adversarial and non-adversarial situations, for which what skills are needed?

A

competitive and collaborative

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14
Q

It is unethical for a mediator to set his fees based on…

A

whether or not an agreement is reached

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15
Q

If a mediator becomes so enraged at the conduct of one of the parties that he is no longer neutral he should…

A

resign as mediator in that case

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16
Q

Advantages of caucus mediation include…

A
  • opportunity for the mediator to establish rapport and deeper communication with each party
  • explore hidden agendas.
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17
Q

Uncovering motivation for positions taken (key to interest-based or problem solving bargaining) can occur in joint sessions because…

A

the advocate can ask questions directly to the other party

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18
Q

A neutral may refuse to testify by filing a…

A

motion to quash the subpoena

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19
Q

The primary goal of the analytical style of mediation is NOT…

A

improving the quality of infromation

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20
Q

parties can request a caucus with the mediator while…

A

in joint session

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21
Q

In Texas there is a valid claim of privilege for the mediator under

A

§ 154.073(b) Texas Civil Practice and Remedies Code

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22
Q

The core purpose of performative mediation is…

A

for the mediator to help the parties convert their respective monologues into dialogues
- whether telling conflict stories or repeating their personal demands

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23
Q

communication skills include…

A
  • effective listening
  • reframing statements from the other side
  • dealing effectively with emotions
  • building rapport
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24
Q

Research confirms that negotiators with a higher perspective-taking ability negotiate agreements with…

A

higher value than those with lower perspective-taking ability

25
Q

5 sources of conflict

A
  • data
  • values
  • structural issues
  • relationship problems
  • interests
26
Q

Each of the 5 conflict styles can be effectively used, but should be…

A

appropriate for the conflict situation and should be a deliberate choice by mediators and parties

27
Q

As a mediator, use of techniques of persuasion, such as deliberately using persuasive words (money, save, you) can enhance your ability to…

A

help clients resolve their case

28
Q

4 approaches to negotiation are explained in the Holbrook text:

A
  • performative
  • transformative
  • distributive/linear
  • integrative
29
Q

in TX the mediator should do what with the final written settlement agreement for pro-se parties?

A

NOT unilaterally create the final written settlement agreement

30
Q

3 traditional approaches for mediators

A
  • transformative
  • directive
  • facilitative
31
Q

The neutrality of a mediator can be doubted by the parties if…

A

the mediator has an undisclosed stake in the outcome or has an undisclosed close relationship with one of the parties

32
Q

Making threats, demands, and digging into positions are adversarial, distributive tactics that mediation advocates should…

A

never use to show confidence that they will prevail in court

33
Q

Effective mediation advocacy and due diligence require preparation before the mediation session, such as…

A
  • 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
34
Q

these are NOT examples of resolving conflict through the use of power…

A

private and public adjudication

35
Q

The mediator’s role does not include…

A

assessor of the financial value of each party’s case

36
Q

If the mediator discovers she is connected personally, financially, or professionally to any participant in the mediation, that information must be…

A

fully disclosed to all parties ASAP

- if both parties still want the mediator to serve, she may

37
Q

Active listening is NOT…

A

concentrating on the answer you will give to the other party’s position statement

38
Q

Mediators should question the parties concerning their needs, feelings, concerns, values, or perceptions, in…

A

caucus and joint session

39
Q

Collaborating is the conflict style that is…

A

assertive and empathetic

40
Q

When collaborating is not effectively resolving a conflict what other method should be used?

A

compromising is a fall back style which can allow both sides to find a solution that seems fair, although not optimal

41
Q

The issues in any dispute are NOT the same as…

A

the interests of the parties

42
Q

Traditionally, positional bargaining has been used synonymously with distributive negotiation but the Holbrook text states that distributive negotiation is…

A

an economically rational strategy that only sometimes employs positional bargaining tactics including deception, intimidation, and manipulation

43
Q

If a lawyer appears at a court ordered mediation but his client does not appear and the other party agrees…

A

this is not contempt of court

44
Q

Much of the mediation process involves, direct, subtle, verbal, and particularly, non-verbal communication. Thus mediation advocates should prepare their clients…

A

carefully for their participation in joint and in caucus session

45
Q

The sequence of stages in mediation usually contemplates that reality testing and bargaining will occur AFTER…

A

issue and interest identification

46
Q

Human needs or interests, only one of which is money, motivate positions taken by a party in mediation. These interests include…

A
  • concerns
  • hopes
  • expectations
  • perceptions
  • attitudes
  • beliefs
  • values
  • feelings
47
Q

A detailed agenda of the specific issues to be resolved in mediation and the order in which they will be discussed is…

A

an important first step in the mediator’s tool box

48
Q

The Johari Window is a tool that can be developed and employed in any negotiation or mediation. It includes 4 categories of self-expression…

A
  1. the public area: information that is openly known
  2. the hidden area: information known to others but not known to me
  3. what we don’t know we don’t know
  4. the private area: information we know but choose to keep hidden from others
49
Q

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…

A
  • humility
  • trustworthiness
  • curiosity
  • open-mindedness
  • courage
50
Q

competing

A
  • most assertive

- least cooperative

51
Q

collaborating

A
  • win win
  • more joint satisfaction
  • high on assertiveness and cooperation
52
Q

compromising

A
  • in the middle of cooperation and assertiveness
53
Q

avoiding

A
  • least assertive

- least cooperative

54
Q

accommodating

A
  • more cooperative

- less assertive

55
Q

evaluative style

A

has added risk of mediator predicting outcome

56
Q

facilitation

A

collaborative process used to help a group of individuals with divergent views reach a goal or complete a task to all parties satisfaction

57
Q

arbitration

A

disputed issue referred to 3rd party who renders decision after hearing arguments and reviewing evidence

58
Q

interest based negotiation

A
  • people
  • power
  • position
  • interests
  • alternatives
  • options
  • standards
  • closure
  • implementation
59
Q

mediators role when drafting an agreement

A

refrain from drafting and avoid making comments or suggestions regarding particular language

mediation clinic (1 decks)

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