Increasing Mediation Effectiveness: When is it appropriate? What makes it work? Access To Justice Conference William S. Richardson School of Law John Barkai,

Increasing Mediation Effectiveness:

When is it appropriate?What makes it work?

Access To Justice ConferenceWilliam S. Richardson School of Law

John Barkai, Chuck Hurd, Elizabeth Kent, Tracey Wiltgen

June 25, 2010

Pray one hour before going to war, Pray one hour before going to war,

Two hours before going to sea, Two hours before going to sea,

Three hours before getting Three hours before getting married, married,

(and four hours before going to (and four hours before going to court).court).

- Indian Proverb – (modified)- Indian Proverb – (modified)

Mediation is assisted negotiation

The mediator has no power to decide the dispute

Mediation has a focus on the future

Do not find fault, find a remedy

Even a sheet of paper has two sides

The onlookers see more than the players

The onlookers see more than the players

StageStage TaskTask

(what)(what)ActionAction

(how)(how)ResultResult

ConveningConvening WillingnessWillingness

OpeningOpening Safety & hopeSafety & hope

CommunicatinCommunicatingg

ExpressionExpression

NegotiatingNegotiating Flexibility & Flexibility & innovationinnovation

ClosingClosing Informed Informed decisionsdecisions

Pepperdine

Mediation Center of the Pacific

FACILITATIVE

EVALUATIVE

Styles of Mediation

FACILITATIVE mediators do NOT

offer opinions or suggest solutions

EVALUATIVE mediators evaluate by offering opinions &

suggesting solutions

TRANSFORMATIVE mediators are not concerned about solutions.

They want to “empower” and “transform” the parties. USPS

Facilitative mediators

ASK

Evaluative mediators

TELL

A Mediator's View A Mediator's View of the Bargaining Processof the Bargaining Process

1. Develop a relationship with the parties1. Develop a relationship with the parties

2. Get the parties unstuck 2. Get the parties unstuck - shift to “interests” not “positions” focus, or/andshift to “interests” not “positions” focus, or/and- get the first new money offer get the first new money offer

3. Move the bargaining along3. Move the bargaining along- generate significant movements- generate significant movements

4. Close the gap4. Close the gap- - beyond the old bottom linesbeyond the old bottom lines

Why should you use Why should you use mediation?mediation?

Compared to litigationCompared to litigation

- FasterFaster

- CheaperCheaper

- Private - confidentialPrivate - confidential

- Less formalLess formal

- Parties remain in control of their Parties remain in control of their disputedispute

Traditional reasons

Why should you use Why should you use mediation?mediation?

The truth is …The truth is …

Virtually all psychology principles work Virtually all psychology principles work against negotiators to make them against negotiators to make them over-value their caseover-value their case

Many negotiators need a mediator’s Many negotiators need a mediator’s help overcoming strategic barriers to help overcoming strategic barriers to successful negotiationssuccessful negotiations

ABA Task Force on Improving Mediation Quality

Goldberg & Shaw - Successful and Unsuccessful Mediators

Goodman-Loftus - Study on Lawyer Overconfidence

Prof. John BarkaiProf. John Barkai

American Bar Association’sAmerican Bar Association’sSection of Dispute Resolution Section of Dispute Resolution

Task Force on Task Force on

Improving Mediation Improving Mediation QualityQuality

The 2008 ABA Report on Improving Mediation Quality

(civil disputes with lawyers)

Preparation

Customization

Evaluation Skills

Persistence

Goldberg & Shaw 2005 & 2007

Traits of Successful and Unsuccessful Mediators

n= 30 mediatorsn=216 advocates

Study 1Study 1"How do you account for your "How do you account for your successsuccess as a mediator? “ as a mediator? “

75% said: 75% said:

Ability to develop Ability to develop RAPPORTRAPPORT with the 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 settlementparties craft a settlement

How to build that How to build that relationship?relationship?

Empathic listeningEmpathic listening, which conveys the , 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 The mediator’s reputationmediator’s reputation for being 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 understanding each other’s Assist understanding each other’s

needsneeds• Remain optimisticRemain optimistic

How do you account for How do you account for your success as a your success as a mediator?mediator? Ability to gain the parties’ confidenceAbility to gain the parties’ confidence

75%75%Friendly/empathicFriendly/empathic7575%%Honesty/integrityHonesty/integrity25%25%

Ability to generate novel or creative Ability to generate novel or creative solutionssolutions50%50%Patient,Patient, tenacious tenacious,, never never quit quit15%15%Sense of humorSense of humor15%15%Understand the rhythm of a mediation;Understand the rhythm of a mediation;

10%10% know when to put pressure on the know when to put pressure on the partiespartiesAssist the parties to understand others’ Assist the parties to understand others’ needsneeds 10%10%Maintaining an outwardly optimistic Maintaining an outwardly optimistic attitudeattitude 10%10%Focus the parties on the consequences of Focus the parties on the consequences of notnot 10%10% settling ; predict the likely result of trialsettling ; predict the likely result of trial

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 confidence (friendly, empathic, likable, etc.)(friendly, empathic, likable, etc.)

• Mediator’s high Mediator’s high integrityintegrity (Honesty, (Honesty, neutrality, trustworthiness, protection of neutrality, trustworthiness, protection of confidences, etc.)confidences, etc.)

• Mediator was smart, well-prepared, or new Mediator was smart, well-prepared, or new the relevant contract or lawthe relevant contract or law

Shaw-Goldberg – Study 2Shaw-Goldberg – Study 2Views of reasons for mediator successViews of reasons for mediator success

   AdvocatesAdvocatesMediatorMediatorss

CONFIDENCE BUILDING ATTRIBUTES:CONFIDENCE BUILDING ATTRIBUTES:Friendly, empathic, likeable, relates to Friendly, empathic, likeable, relates to all, respectful, conveys sense of caring, all, respectful, conveys sense of caring, wants to find solutionswants to find solutions

60%60% 75%75%

High integrity, respects confidences, High integrity, respects confidences, non-judgmentalnon-judgmental 53%53% 25%25%

EVALUATIVE SKILLS:EVALUATIVE SKILLS:Useful reality testing, evaluates likely Useful reality testing, evaluates likely outcome; candidoutcome; candid 33%33% 10%10%

PROCESS SKILLS:PROCESS SKILLS:Patient, persistent, never quitsPatient, persistent, never quits 35%35% 15%15%

Proposes solutions, creativeProposes solutions, creative 18%18% 50%50%

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

INSIGHTFUL or WISHFUL:INSIGHTFUL or WISHFUL:Lawyers’ Ability to Predict Case OutcomesLawyers’ Ability to Predict Case OutcomesGoodman-Delahunty, Hartwig, Granhag, & LoftusGoodman-Delahunty, Hartwig, Granhag, & Loftus

1616 Psychology, Public Policy & Law, No. 2, 1–157 (2010)Psychology, Public Policy & Law, No. 2, 1–157 (2010)

• Lawyer’s are overconfident predicting trial outcomesLawyer’s are overconfident predicting trial outcomes

• Greater confidence Greater confidence greater overconfidence greater overconfidence

• Accuracy did not improve with experienceAccuracy did not improve with experience

• Men Men were more overconfident than women were more overconfident than women

Predicting Trial Outcomes