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Outline


  
 

A. An Introduction
1. Definition:

Three of mediations essential features must be underscored in order to understand its history:
1) A mediator has no preference for what the parties¶ settlement terms shall be
2) A mediator has no authority to impose a binding decision on the parties
3) Parties do not reach compete agreement in mediation unless each party accepts every
settlement term.
2. Historical Perspective
B. Mediation: The Foundational Years of the 1960s & 1970s
1. The Challenges
Beginning in the late 1960s, people used mediation to resolve many different types of controversies.
See examples below.
a. A Hot City Night
Officers injury people in a riot; community outraged & want to have a mass demonstration
b. Not in My Backyard
Half-way house for mentally-challenged adults wants to open in the neighborhood
c. Neighborhood Citizenship
Party house bothers the neighbor
d. Working for Local Government
City workers, upset with working conditions, seek to form a union & then strike when city won¶t
allow it
2. The Existing Repertoire of Responses
a. Overview
The fundamental drawback to using our traditional legal & political processes to meet each of
these challenges was identical: The parties most affected by the matters in question were not able to discuss the
concerns that mattered most to them w/ the persons or institutional representatives who were in a position to
effectively address the matter.
b. Hot City Night / Not in My Backyard
c. Neighborhood Citizenship
d. Working for Local Government
3. The Grand Experiment: Using Mediation as an ³Alternative Dispute Resolution Forum:
a. Introduction:

Congress created the Community Relations Service (CRS) of the IS Department of Justice under
the 1964 Civil Rights Act, a unit whose purpose was to recruit, train & deploy persons skilled at developing &
advancing the use of conciliation & mediation to resolve controversies in which racial & ethnic tensions pierced the
environment. (De-segregation cases and Klu Klux Klan cases). Its mandate, then & now, is to foster dialogue &
bargaining among parties in interest to work out mutually acceptable settlement terms.
In the private sector, the Ford Foundation & the William & Flora Hewlett Foundation assumed the
leadership role in providing substantial financial support to non-profit organizations dedicated to experimenting w/
the use of mediation to resolve these social conflicts.
What energized experiments was a common vision that structured participation by disputing
parties enhanced the dignity of citizens¶ lives & cemented their perspectives as democratic partners, that dialogue
engendered accountability, & that accountability was the foundation for unleashing citizen imagination to design &
implement effective relationships, programs, & institutions.
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To respond to interpersonal disputes among neighbors, many court systems created &
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experimented w/ using volunteer citizens to mediate such cases. The approach was simply described: Bring all
neighbors into a room. Have them meet w/ one another in the presence of a community resident trained in
conducting problem-solving dialogues. Try, through discussion, to have the parties discuss their concerns,
communicate their aspirations, & work out arrangements acceptable to each. (i.e. AAA, 4-A, CDS, NJC)

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The most explosive growth occurred here. Public Employment Relations Boards (PERBs) or
Public Employment Relations Commissions (PERCs) were established to oversee the implementation of collective
negotiations among state & local government personnel, & included the implementation of impasse procedures,
including mediation, that parties could use to resolve their disputes.
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1) It permitted stakeholders to the controversy to  the discussion ( 

2) It was an & process, permitting 
 not only by trained advocates but also those persons or
organizations which had to abide by the resolution;
3) It required persons to be  

(( to problems not just complaining about them;
4) It supported the belief, later to be substantiated empirically, that meaningful, direct participation   
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outcomes;
5) It  

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use more than lawyers.

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Three important themes emerged from the early developments:
1) The central emphasis was on the negotiation process rather than a trial;
2) persons recognized that the ³value-added´ of the mediation process resided in the mediator¶s neutrality; &
3) mediators were individuals drawn broadly from the community who reflected a diverse range of professional
training & life experiences.


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i. ñ   
     
Established in 1972, to promote dialogue, study & education among practitioners was needed. SPIDR was
created to satisfy this need.
ii. ñ     
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In 1977, the ABA created this special committee to study the growth of court-annexed citizen dispute
settlement programs.
iii. 
 
Dispute Resolution scholarship from WWII through the 1970s focused on analyzing DR processes
operative in private sector labor-management relations & was conducted largely by economists, political
scientists, psychologists, industrial relations scholars & concentrated on studying the dynamics of
collective bargaining, not mediation. Legal focused on interplay b/w courts & arbitration processes,
especially in union-management.
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Mediation¶s use during this decade spread in several ways, mostly targeting activities att the state and local
level. Successful experiments were transformed into 
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& mediation¶s use extended to new arenas. w/ each of the developments, new questions about process use
& service delivery arose.
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Program evaluation of dispute resolution projects generated three important consequences:
1) for successful experiment, program advocates focused on developing strategies to   "


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2) program advocates 

    
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3) for experiments that failed, practitioners tried to distill the lessons so that mediation¶s use in new
substantive arenas would be informed by those lessons. Only community disputes struggled in the
financial front.
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The practice of mediation expanded in 2 different directions during this decade: One direction embraced
controversies involving (
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In 1980¶s difference was public agency was party to the controversy. Disputes arose among gov agencies
at various levels and between gov parties and private parties (about how fed money should be spent).
The *
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 in which negotiations b/w Federal, State, & Local officials
were mediated by selected individuals. The projects were widely cited as   
 
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funding formula). With financial support from the National Institute of Dispute resolution, a small number
of ³State Offices of Dispute Resolution´ were created as part of state government bureaucracies to test
development & delivery of mediation services for these & other types of public policy matters.
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1) their use solidified public awareness that mediation could be used regularly to resolve complex matters
2) & they introduced the mediation process to a segment of the practicing Bar whose clients were involved
in these controversies.
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i. Overview / Children & the Family
 

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| -mediation for disputes between school and
parents over accommodations to be made for disabled child.
iii. Children & the Schools: 
| - to deal with social problems in school
environments by training high school students to mediate situations involving peers (bullying,
miss-behaving students).
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a) Context
b) New Challenges
(i)  
'  & Mental health professionals argued best divorce mediators
because of training regarding emotional issues. Lawyers argued best mediators for this
because of necessity of resolving complex issues with legal consequences.
(ii) 
   & if mental health officials practiced divorce mediation could
they be accused of practicing law without a license? Could lawyers be accused of
representing conflicting interests simultaneously?
(iii) V(V

& Who would pay? If hourly rate could have to end mediation
before resolution because of exhausted finances by each party.
(iv)  ()
  & If each party pays 50% so no danger of arbitrator skewing
decision in favor of paying party. Fair to require individuals with unequal resources to
share costs?
(v) 

 & different from social policy or neighborhood dispute in that a
divorce mediation case is definite and circumscribed and is the resolution of those
matters required to obtain a legal divorce.
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a) Questions Raised (Florida case-developed framework below-some feature controversial)
1) If confidential how will public learn about and gain confidence in mediation? 2) If court mandates
mediation before trial how can it ensure parties have qualified mediators? 3) While lawyers represent
parties in many cases, what special rules or protections are required to protect unrepresented parties.
1) [  & court can refer any civil case with limited exceptions
2)  
'  - parties can select mediator they want or court will appoint
one²special training needed for court mediator and mediators for certain cases such as
family or neighborhood citizenship cases
3) V- cases under a certain amount are generally volunteer otherwise mediator can
decide subject to court approval µ9usually hourly rate).
4) Program Administration- state and local offices supervise, coordinate and monitor
delivery of mediation services. No public reporting requirement for cases involving
private mediators.
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a. Practice Challenges
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a)  
'  - who is qualified? Does Mediator need ³substantive expertise´ as
well as ³process expertise?´ Cases involve many different issues. Can a mediator be a
generalist or must he/she specialize?
b)   (

 *+& matters consisting of legal claims
c)    
V%    - strength of mediation lies in freedom to adapt rules and
procedures to individual disputes. Flexibility was subdues by need for efficiency
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- If parties had to pay part of the mediation fees as well as
lawyer expenses would they be able to afford both? Would they have to choose one over the
other?
b) [
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-court became responsible for ensuring fair
implementation and quality mediation services. Problem is confidentiality.
c) 
  
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- Used to look to
mediator for neutrality, now looking for expertise. How can mediator remain neutral while
drawing on expertise.

 
i.  
'  - Need certain qualifications for certain types of disputes? In 60¶s and
70¶s qualifications based on life experience but now a push towards professional training and
degrees. Limits diversity of mediator pool.
ii. [ 
- with more private mediation practices, greater need to articulate ethical
standards.

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i. Professional Organizations & Activities
a) ñ   
     )- growth in membership and
activities reflected mediation¶s expanding range of activity. Local chapters.
b) -

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± was created to monitor
and establish performance standards for family disputes.     

- formed statewide coalitions to share information and adopt strategies. Bar
Associations ±established committees to explore and monitor mediation¶s growth in
respective jurisdictions.
ii. Scholarship: (Scholarship transformed practice in 80¶s)
a) Theory Centers
The .  (V
/V  provided leadership & financial support to create Theory Centers
in Dispute Resolution. Goal was to move field beyond shared experiences to understanding basic structure
and values of field. The Foundation¶s committee provided financial support to a limited number of
universities with groups of scholars interested in analyzing conceptual & theoretical aspects of dispute
resolution processes from multiple perspectives.
The Program on Negotiation (PON) containing faculty from Harvard, MIT, & Tufts University, was
created w/ this Hewlett Foundation support & remains, perhaps its best known center. Among the work
products of PON was a book on negotiation authored by Roger Fischer & William Ury entitled, Getting to
Yes. The book introduced the concept of ³principled´ or ³interest-based´ bargaining. PON wrote other
books which became standard material for mediation.
b) Legal Scholarship
Ohio State University & the University of Missouri-Columbia School of Law both
engaged in thorough study of ADR, to include mediation. Implemented the nation¶s first
clinical mediation programs using law students as mediators. Each school also began
their own dispute resolution journals which are resources for scholarly commentary.
b) Degree Programs
Advanced degree programs in conflict resolution emerged. George Mason University
established the first doctorate program offered through the newly established Institute of
Conflict Analysis and Resolution (ICAR).
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1. Overview- mediation expanded to federal government.

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a. Overview
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In 1990, Congress passed two laws affecting the use of ADR processes in federal agencies.
1)Negotiated Rulemaking Act established a framework whereby a federal government agency responsible for
issuing various rules could engage a neutral third party intervener (mediator) to facilitate rule-development.
2)Administrative Dispute Resolution Act in 1990 authorized each federal agency to consider using various dispute
resolution processes, including mediation, to resolve any of the multiple issues that constitute their work, from intra-
agency controversies to agency/public interactions.


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With the Civil Justice Reform Act of 1990 & the ADR Act in 1998, Congress aligned the federal
district courts w/ ADR movement. Federal approach didn¶t encourage or mandate mediation¶s use like state court
initiatives but required federal district courts to establish a more general ADR program, embracing a multitude of
ADR options.
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Online mediation
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With rise in mediation must have greater accountability, meet goals as mediator and treat parties fairly. In 2001 a
Uniform Mediation Statute was adopted by National Conference of Commissioners on Uniform State Laws
(NCCUSL). Model standards of code developed by American Arbitration Association (AAA), ABA, and SPIDR
have been amended. Third consolidation is merging of SPIDR, AFM, and CREnet into one organization called the
Association for Conflict Resolution (ACR).

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A. Psychological & Economic Analysis

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No clear notion of value of claim can lead to a susceptibility to anchoring bias, while clear notions of
value of a claim can lead to a desire to use/exploit reciprocity to establish favorable mid-point by the person
countering the initial offer; therefore, information on valuation is vital. Additionally, the ³rate of concessions´ in
negotiation has a bigger effect than the ³magnitude of the concessions.´
The way a problem is framed in terms of losses or gains can have a substantial impact on behavior in
negotiations:
1) Loss aversion contributes to a basis in favor of the status quo b/c relative disadvantages of alternative
outcomes loom larger than relative advantages.
2) Both loss aversion & the pattern of risk seeking for losses may lead to more aggressive bargaining when
the task is viewed as minimizing losses rather than maximizing gains (negotiators whose payoffs are framed in terms
of gains tended to be more risk-averse than those whose payoffs are framed in terms of losses).
3) The attractiveness of potential agreements may be influenced by the way in which gains & losses are
packaged & described. If a negotiator wants to present a proposal in its best possible light to a counterpart, he or she
should attempt to integrate each aspect of the agreement on which the counterpart stands to lose in order to exploit
the fact that people experience diminishing sensitivity to each additional loss, & segregate each aspect of the
agreement on which the counterpart stands to gain in order to avoid the tendency of people to experience
diminishing sensitivity to each additional gain.
-Beware of the impact transitory perceptions have on how aggressively one negotiates.
-Create a unified dollar metric & look at the overall monetary gain/loss rather than the individual concessions.
-Beware of the Psychological effect of Reactive Devaluation, or fixed-pie bias or knee-jerk skepticism of an offer
due to the source of the offer.
-The Psychology of Social Influence involves the following factors: 0 
-tendency to reciprocate when
one side makes concessions²sometimes one side may only give a little and the other may respond by giving a lot,
  -once party takes a stand, pressure to conform with it, #
-people likely to
conform with socially acceptable behavior-example of pressuring tactic is saying other 6 people approved, $(-
people prefer to say yes to those they know and like, , 
-people are more likely to accede to a request by a
perceived authority figure, & #
- opportunities often seem more valuable when they are less available- impose
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artificial or real time limits to make agreement more attractive.

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Mnookin focuses on the following Barriers to Resolution: #
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interests and maximizing own interests²can make the pie bigger- identifying interests- strategic behavior only
shrinks pie, 5
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who may have different interests, (&  0 &  &
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aversion and framing; gives examples: 25% chance of $100 or 100% chance of $20; apples/oranges;
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& = when one side concedes/compromises, the other side diminishes the attractiveness of that offer just
b/c it originated from the perceived opponent.
*tip ± induce them to reveal info about their interests, needs, etc« & to also see other side¶s perspective
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: Mediator as a neutral to discover underlying shared interests, can bring parties to
table rather than lawyers (principle/agent issue), overcome cognitive barriers by showing each side the other¶s
perspective, and to combat reactive devaluation make offers appear neutral.
B. Role Conceptions
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Fuller sees mediations ³central quality´ as ³its capacity to reorient the parties toward each other.´ He
thus views the mediator¶s role (or function) as that of assisting the parties ³to free themselves from the encumbrance
of rules & of accepting, instead, a relationship of mutual respect, trust, & understanding«´
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A. Overview
Note on Negotiation Terminology
BATNA (Best Alternative to a Negotiated Agreement) should not be confused w/ bottom line. Your
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 is the very minimum for which you will settle. #ñ
 is what you will do if you don¶t get your
bottom line.
Integrative bargaining (making pie bigger) can be contrasted w/ distributive bargaining, positional
negotiations, or hard bargaining (focus on limited resources of pie), where parties are more rigidly locked into
positions as they attempt to split up a fixed pie.
James While criticizes principled b/c it fails to consider the distributional aspects of negotiation.
Rather than assuming the pie is expandable, distributive bargaining assumes zero-sum negotiations, where plus one
for me = minus one for you.
B. Negotiation Strategies & Behavior
1. Principled Negotiation
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   focuses on principles and separating the people from the problem. Involves
preventing perceptual & psychological errors in communication & interpretation from skewing analysis of the
substantive issues presented by the bargaining problem. Focus on interests rather than positions. Invent options for
mutual gain.
The most distinctive characteristic of principled bargaining is the use objective criteria which are
important b/c they illustrate a fair & unbiased criteria by which to come to an agreeable outcome.
 
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Feels as though the authors of Getting to Yes seem to deny the existence of a significant part of
the negotiation process, & to oversimplify or explain away many of the most troublesome problems inherent in the
art & practice of negotiation.
White states the biggest weakness of Getting to Yes is that the book¶s emphasis upon mutually
profitable adjustment, on the ³problem solving´ aspect of bargaining, b/c emphasis of this aspect of bargaining is
done to almost total exclusion of the other aspects of bargaining, ³distributional bargaining (one for me is one less
for you.´ Book looks at only part of bargaining process.
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Comments on White by stating that, instead of focusing on the substantive issues as delineated by
White, one should focus on the process for resolving the issue, & objective criteria assists in addressing the process.
White denies the existence of objective criteria. One for you doesn¶t have to be minus one for me as White states
and Distributional issues-White overlooks the shared issues parties have in resolving the substantive difference.
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2. Cooperative verses Competitive Negotiation
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The ingredient¶s of a tough negotiation approach:
1) making high initial demands;
2) maintaining a high level of demands;
3) making few concessions;
4) making small concessions when they are made; &
5) having a generally high level of aspiration.
The elements of a cooperative approach are seek common ground by communicating a sense of
shared interests, values, & attitudes using rational, logical persuasion as a means of seeking cooperation, through
promoting a trusting atmosphere, & seeking little to no special advantage & feel a high commitment to fairness (as
opposed to a game)
Cooperative strategies are often more effective than tough strategies for 2 reasons: they produce
more favorable outcomes, & they result in fewer ultimate breakdowns in bargaining. However, it is vulnerable to
exploitation.
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The three reasons for competitive bargaining are:
1) by inclination or calculation, they view the negotiation as a kind of competition, in which
they wish to win or gain as much as possible;
2) they do not trust the other party; &
3) defending or retaliating against the competitive moves directed against them. It is likely
that competitive negotiators will win against cooperative negotiators. See the prisoner¶s
dilemma.
A careful cooperative negotiator protects against being taken advantage of by competitive
negotiators by:
1) defensive cooperativeness;
2) fractionating concessions;
3) ambiguous or disownable signals;
4) employing ³directional´ information;
5) demanding reasoned justifications;
6) using contingent cooperativeness & the reformed sinner strategy;
7) using strategy imitation or tit-for-tat; &
8) timeouts.
Negotiators are most likely to compete purposefully when:
1) the parties have an adversarial relationship
2) a negotiator has a bargaining power advantage & can dominate the situation
3) a negotiator perceives an opportunity for gain at the expense of the other party;
4) the other party appears susceptible to competitive tactics;
5) the negotiator is defending against competitive moves; or
6) there is no concern for the future relationship between the parties
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Cooperative effectives are seen as friendly & trustworthy, whereas effective/competitives are seen
as dominating, forceful, tough, arrogant, uncooperative, make high opening demands, threats, stretch facts to favor
their client, stick to their position, only concerned w/maximizing their benefit, & are parsimonious (sparing) with
case information
3. Problem-solving Negotiation



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The crux of problem solving approach is the conceptualization & planning which precede any
execution of the negotiation. Engage in two-sided brain storming sessions.

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A. Introduction
The most widely used approaches are facilitative, evaluative, & transformative. Facilitative style of
mediation most underscores the differences b/w the role a mediator plays & that of an attorney or judge. It
emphasizes skills that generally are not learned in law school & is the style used in all mediation settings outside the
conventional lawsuit. Even the most evaluative mediators acknowledge that their first efforts in a mediation are
usually facilitative.
B. Initial Consideration
1. Mediation Process
a. The Beginning ± includes the pre-mediation set-up, any review made of preliminary information
about the facts & circumstances, & the mediator¶s opening statement
b. Accumulating Information ± this includes the parties & attorneys recounting what happened.
c. Developing an Initial Agenda ± assist parties in organizing their conversations to reach their needs,
interests, & concerns
d. Generating Movement ± help others understand the situation in a new way & consider creative
alternatives
e. Ending Mediation ±
1) full resolution w/ written agreement signed by all parties;
2) full resolution of the dispute w/ no written agreement;
3) partial resolution which is written & signed by the parties;
4) a cessation of the mediation session w/ an agreement to return to mediation; or
5) no agreement w/ no future plans to mediate further
2. The Mediator
The role of the mediator includes assisting the parties in identifying issues, fostering joint problem
solving, & exploring settlement alternatives.


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1) reasoning ± to reason logically & analytically, effectively distinguishing issues & questioning
assumptions
2) analyzing ± to assimilate large quantities of varied information into logical ideas or concepts
3) Problem Solving ± to generate, assess & prioritize alternative solutions to a problem, or help the
parties to do so
4) Reading Comprehension ± to read & comprehend written materials
5) Writing ± to write clearly & concisely, using neutral language
6) Oral Communication ± to speak w/ clarity, & to listen carefully & empathetically
7) Non-verbal Communication ± to use voice inflection, gestures, & eye contact appropriately
8) Interviewing ± to obtain & process info from others, eliciting info, actively listen, & facilitating
an exchange of info
9) Emotional stability/maturity ± to remain calm & level-headed in stressful & emotional
situations
10) Sensitivity ± to recognize a variety of emotions & respond appropriately
11) Integrity ± to be responsible, ethical & honest
12) Recognizing Values ± to discern own & others¶ strongly held values
13) Impartiality ± To maintain an open mind about different points of view
14) Organizing ± to manage effectively activities, records, & other materials
15) Following procedure ± to follow agreed-upon procedures
16) Commitment ± interest in helping others to resolve conflict
3. Mediator Functions
1) Gathering Background Information
2) Facilitating Communication
3) Communicating Information to Others
4) Analyzing Information
5) Facilitating Agreement
6) Managing Cases
7) Documenting Information
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4. Beginning the Mediation Process

Can be held anywhere, but location should consider neutrality, comfort, accessibility, etc« & room
setup (seating is huge)
C. Mediation Process
1. Mediator¶s Opening Statement
The 5 Reasons for Introduction/Opening Statement are:
1) to establish the ground rules & the mediator¶s role;
2) to put people at ease;
3) to convey a sense of mediator competence & skill, thereby inviting trust & comfort w/ the
process & the mediator;
4) to reconcile any conflicting expectations regarding what will happen in mediation;
5) to satisfy ethical requirements (if applicable).
The 6 Basic Components to an opening statement are:
1) introductions of the mediator, disputants & others present;
2) establishing credibility & impartiality;
3) explaining the process of mediation & the role of the mediator;
4) explaining the procedures which will govern the process (including the possibility of caucusing,
speaking order, note-taking, etc.);
5) explaining the extent to which the process is confidential or inviting parties to set the terms of
confidentiality; &
6) asking the parties if they have any questions.
2. Accumulating Information
a. Pre-mediation Information / Case File
b. The Disputants¶ Opening Statements
c. Notes
The 3 purposes of a mediator¶s notes are:
1) identification of the issues which the disputants w/ to address;
2) clarification of statements/issues for the mediator; &
3) a record of ³movement w/ regard to offers & solutions.
The 2 practical dangers that arise by taking two many notes are:
1) if the disputants observe the mediator taking voluminous notes, they may become more
cautious in what they say
2) in taking copious notes the mediator must look at what is being written rather than devote
eye contact, concern, & attention to the person who is speaking which undermines the personal rapport.
d. Listening Skills
1. Taking Change/Managing Conflict by Joseph B. Stulberg
The guidelines a mediator can follow to make certain the she receives all that is transferred are:
1) concentrate by minimizing distracting activities;
2) monitor the rate of the communication;
3) be patient;
4) don¶t interrupt; &
5) understand the positions before you begin your evaluation.
The 3 serious mistakes of parroting/reflexive listening are:
1) if a mediator understands what was said, she should show it by summarizing the
statements in her own words
2) from the moment a person begins to serve as mediator she should try to reorient the
way the parties view their situations; &
3) parties to a dispute have strong emotions.
The signs to demonstrate confirmation of listening are:
1) effective & appropriate eye contact;
2) appropriate facial gestures;
3) appropriate affirmative head nods (agreement v. acknowledgement);
4) avoidance of actions or gestures that suggest boredom;
5) asking clarifying questions;
6) paraphrasing using neutral words;
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7) not interrupting the speaker; &

8) Not talking too much;
9) acknowledging & validating feelings & thoughts.
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What are the different types of questions & how are they used?
1) Clarifying: used to gather a clearer understanding or to confirm a piece of info, & are typically used at
the beginning of the mediation.
2) Open: designed to get or keep the disputants talking, & are typically used in the early stages of
mediation to give the disputants the opportunity to share their experiences & shape the dialogue.
3) Closed: These are questions which can be answered w/ merely a ³yes´ or ³no´ response, that should be
used infrequently & w/ discretion, & typically toward the end of the mediation or w/ disputants who will
not volunteer a lot of info, & the mediator is trying to limit their domination of the mediation.
4) Justification: usually begins w/ ³why´ & calls on someone to justify their position, & should try to be
avoid as it fosters positional bargaining.
5) Compound: typified by multiple questions asked w/ one question & runs the risk of confusing the
person which will lead to a confusing answer, &, therefore, should be avoided.
f. Non-Verbal Communication (posture, mediator & parties both, 55% of info from behavior; 38%
from tone; 7% words)
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The various components of agenda development are as follows:
1) Characterizing the Issues in neutral terms;
2) Assigning them Priorities;
3) Structuring the discussion by:
a) categories
b) nature of remedies
c) time
d) relationship of the party to the issue, or
e) logic
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a. Procedural Items
Procedurally a mediator can generate movement by:
1) alternating discussion of issues;
2) focusing on the future;
3) being positive;
4) using silence; &
5) using humor (if appropriate).
b Informational Items
A mediator can generate movement through the use of information as follows:
1) creating doubts;
2) proposing integrative solutions;
3) using facts for & against each party;
4) establishing priorities & trade-offs;
5) using role reversal;
6) pointing out inconsistencies;
7) identifying constraints on others;
8) being the agent of reality (BATNA & WATNA).
c. Relationship Issues
A mediator can generate movement through the use of relationships as follows:
1) appealing to past practices; &
2) appealing to commonly held standards & principles.
5. The Separate Session (Caucus)
a. Rationale & Sequence of Separate Sessions
The reasons why a mediator might want to meet individual w/ are party can be represented by the
acronym ³ESCAPE.´
"xplore settlement options
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onfirm movement
,ddress recalcitrant party
ause
"valuate
b. Why Not Meet Separately?
A mediator should not meet separately when:
1) it is unnecessary;
2) there is a low level of trust b/w the parties; or
3) the physical arrangements preclude separate sessions.
c. Principles of the Separate Session
There are 3 approaches to caucus confidentiality:
1) the mediator keeps everything confidential unless authorized to disclose what was said;
2) the mediator is permitted to disclose anything that was said unless otherwise told not to disclose the
information; or
3) the mediator could inform the parties at the beginning that nothing said in caucus would be considered
confidential.
The 2 purposes of meeting w/ both parties each time a caucus is called are:
1) it reduces the level of suspicion about what happened during the caucus in which one party
participated & the other did not; &
2) it provides each party an opportunity to share information w/ the mediator.
The mediator should have an identifiable reason for meeting separately w/ the parties, & the amount of
time does not need to be equal.
d. Mechanics of the Separate Session
Prior to the caucus, the mediator should:
1) state the intention to meet separately w/ each party;
2) indicate the meeting sequence;
3) indicate the approximate length of the meeting; &
4) excuse the party from the room in which the mediator will conduct the caucus.
The practices that a mediator should consider employing when in caucusing are:
1) record the time that the caucus;
2) separate caucus notes from regular notes;
3) review the rules of confidentiality of the caucus & the purpose for the meeting w/ the party;
4) continue to employ the use of neutral language;
5) have the reason for calling the caucus shape the caucus agenda; & 6) ask about hypothetical
situations.
The 3 options for revealing consensus:
1) ³After speaking w/ each of you there appears to be agreement on«´;
2) ³Will you please share your proposal on«´; or
3) some combination of the above.
6. Concluding the Mediation (see above)
There are 4 ways to end a mediation session:
1) the parties do not reach an agreement;
2) the parties request to continue mediation after a specific period of time;
3) the parties have a partial agreement on some issues & request a trial or other type of dispute
resolution on those which they were unable to resolve; &
4) the parties reach an agreement on all the issues.
a. No Agreement
Before concluding mediators should typically do the following:
1) review w/ the parties any issues that were resolved & explore the possibility of a partial
agreement outlining what issues have been resolved & what issues still need to be resolved;
2) encourage post-mediation communication b/w the parties by asking the parties if they wish to
exchange contact info.;
3) encourage the parties to consider returning to mediation if they think it would be helpful; &
4) end on a positive note.
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b. Agreement
The 5 basic elements of an agreement are:
1) Who the parties are;
2) What the parties have agreed to;
3) Where the agreement will be satisfied, the exchange will occur, etc.;
4) When the date will agreement will be satisfied, the exchange will occur; &
5) how the agreement will be satisfied/the exchange will occur.
i. Format
ii. Enforcement;
Since parties worked out the settlement terms themselves, they are more likely to understand
them, believe they are fair & workable, & feel compelled to honor them

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A. Mediation & the Legal System
1. Is Mediation the Practice of Law? By Carrie Menkel-Meadow
2. Lawyers Who Mediate Are Not Practicing Law by Bruce Meyerson
To practice law, one must have a client. If the parties are represented by counsel, or if the mediator has
carefully clarified that the unrepresented parties do not view the mediator as their lawyer, cannot imagine a
situation where parties to the mediation will be confused about the mediator¶s role & mistakenly assume that
the mediator is functioning as a lawyer
If mediators are practicing law any time they give evaluations or predict outcomes, a number of
undesirable consequences:
1) lawyer-mediators would be subject to all of the duties & obligations under Model Rules &
presumably would owe these duties to the parties in the mediation, which is fundamentally
incompatible w/ the role of an attorney.
2) a conclusion that mediation is the practice of law would raise the specter that thousands of
professionals in other disciplines are engaged in the unauthorized practice of law
3) if mediation is the practice of law, judges presiding over settlement conferences would be
breaking ethical rules.
3. Public Values & Private Justice: A Case for Mediator Accountability by Judith Maute
B. Special Ethical & Practical Issues Facing the Lawyer-Mediator
No longer are attorneys limited to traditional role of advocate in civil litigation. They now report their
activities to include:
a) Negotiating
b) Advocating in mediation, arbitration, or litigation settings; or
c) when no conflicts of interest arise, serving as third party neutrals
1. Confusing the Role of the lawyer-Mediator
Two ethical problems exist:
1) disputants in a mediation may experience role confusion if they are unsure whether a lawyer-
mediator is merely acting as a neutral or instead also representing their interests
2) ABA model rules recognize that a lawyer-mediator must deal w/ some unique conflict of
interest issues, such as profit sharing, advertising, soliciting, etc«
2. ABA Model Rules of Professional Conduct Rule 1.12
Former Judge, arbitrator, mediator, or other third-party neutral
(A) except as stated in paragraph (d), a lawyer shall not represent anyone in connection w/ a matter in
which the lawyer participated personally & substantially as a «mediator«unless all parties to the
proceeding give informed consent, confirmed in writing
(B) a lawyer shall not negotiate for employment w/ any person who is involved as a party or as lawyer for a
party in a matter in which the lawyer is participating personally & substantially as a mediator «
(C) If a lawyer is disqualified by paragraph (a), no lawyer in a firm w/ which that lawyer is associated may
knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter & is apportioned
no part of the fee there from; &
(2) written notice is promptly given to the parties & any appropriate tribunal to enable them to
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ascertain compliance w/ the provisions of this rule

3. Conflict of Interest Issues Facing the Lawyer-Mediator
a. Lawyer Mediators: Meeting the Ethical Challenges by Loretta W. Moore
b. With conflicts at Issue, Florida Firm & Its Former Partners Restructure ADR ± Again
4. Fee Sharing Issues Facing Lawyer-Mediators
5. Advertising & Solicitation Issues Facing Lawyer-Mediators
6. Business Concerns Facing the Lawyer-Mediator

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A. Mediator Orientations:
A lawyer-mediator is often tempted to apply his knowledge & experience during the mediation & offer the
mediator¶s personal evaluation of the case. However, & evaluative orientation is inconsistent w/ the notion of the
mediator as a communication facilitator & that the mediator¶s orientation should be a strictly facilitative one. There
has been an increasingly strong interest in having the mediator adopt a transformative orientation.
1. Facilitative v. Evaluative
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Riskin¶s system is based on the answers to 2 questions:
1) Does the mediator tend to define problems narrowly or broadly?; &
2) Des the mediator think she should evaluate ± make assessments or predictions or proposals
for agreements ± or facilitate the parties¶ negotiation w/o evaluating?´

Mediator Orientations Table

ROLE OF THE MEDIATOR
EVALUATIVE
Urges/pushes parties to accept Urges/pushes parties to accept broad
narrow (position-based) settlement (interest-based) settlement
Proposes narrow (position-based) Develops & proposes broad (interest-
agreement based) agreements
Predicts court or other outcomes Predicts impact (on interests) of not
Assesses strengths & weaknesses or settling
each side¶s case Educates self about parties¶ interests
Helps parties evaluate proposals
Helps parties develop & exchange
Helps parties evaluate proposals
narrow (position-based) proposals
Helps parties develop & exchange
Asks about consequences of not
broad (interest-based) proposals
settling
Helps parties develop options that
Asks about likely court or other
respond to interest
outcomes
Helps parties understand interests
Asks about strengths & weaknesses
of each side¶s case
FACILITATIVE

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An evaluative mediator gives advice, makes assessments, states opinions (including likely court
outcome), etc« These activities, however, are inconsistent with the role of a mediator.
1) The roles & related tasks of evaluators & facilitators are at odds;
2) Evaluation promote positioning & polarization, which are antithetical to the goals of mediation;
3) Ethical codes caution mediators ± & other neutrals- against assuming additional roles;
4) If mediators evaluate legal claims & defenses, they must be lawyers; Eliminating non-lawyers
weakens the field
5) there are insufficient protections against incorrect mediator evaluations;
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6) Evaluation abounds: the disputing world needs alternative paradigms;

7) Mediator evaluation detracts from the focus on party responsibility for critical evaluation, re-
evaluation & creative problem-solving;
8) Evaluation can stop negotiation;
9) A uniform understanding of mediation is critical to the development of the field;
10) Mixed processes can be useful, but call them what they are!
c. In Praise of Party Empowerment ± & of Mediator Activism, by Donald T. Weckstein,
This article attempts to answer questions concerning when, if ever, a mediator should give an opinion, evaluation,
suggestion, recommendation, or prediction, or offer pertinent information or advice.
The key to self-determination is informed consent. A disputant who is unaware of relevant facts or law that, if
known, would influence that part¶s decision cannot engage in meaningful self-determination; a mediator should
encourage the party to get the information from another source. If the party chooses to ignore the lack of
information it will be their intentional choice & not a default due to ignorance. Accordingly, the relevant inquiry
should not be whether to inform the parties, but how to inform them.
One option is for the mediator to volunteer information short of professional advice. However,
this raises several important questions:
1) is the mediator qualified by training & experience to give such advice;
2) can the mediator give such information w/o sacrificing impartiality; &
3) is there really a difference between offering such information & offering professional
advice, assuming the later to be impermissible.
Another, if parties are not represented & the mediator is qualified, is for the mediator briefly state the law.
Still another, if the parties are represented, it is for the mediator to ask the parties¶ attorneys to briefly state the law
as they understand it.
When the mediator does offer a prediction on the possible outcome there is a risk of misinterpretation. To avoid
party misinterpretation, the mediator should explain that the prediction is only an estimate & that the actual outcome
may differ for various reasons, including, for example:
1) differences in the orientations & perceptions of judges, juries, & arbitrators;
2) the actual evidence offered & admitted in the adjudication; &
3) other environmental factors. Further the mediator must emphasize that the prediction is not
a directive or recommendation, & that the parties should reach their own agreement.
2. Transformative Mediation
A transformative mediation offers the parties opportunity for personal empowerment & encourages the
parties to give & receive recognition of each other¶s interests, concerns, & needs. Bush & Folger distinguish
transformative mediation from problem-solving mediation. They argue that the mediator¶s activities in a problem-
solving mediation are too directed toward achieving the goal of an outcome that will satisfy the parties rather than
providing the parties w/ opportunities for empowerment & recognition.
Bush examines ³the special powers of mediation´ in developing his ³empowerment-and-recognition´
conception of the mediator¶s role. He rejects two popular conceptions of the mediator¶s role ± the ³efficiency´
conception & the ³protection-of-rights´ conception ± b/c they are not in line w/ mediation¶s unique character, b/c of
the following 2 observations & 2 flaws: (observation 1) both take an essentially negative view of mediation as the
avoidance of something bad, & (observation 2) both conceptions of the mediator¶s role are flawed in that (flaw 1)
efficiency & protection-of-rights can better be enforced by someone other than a mediator & (flaw 2) they are
incapable of service either of those ideas separately.
B. Mediator Styles
1. Trashing, Bashing, & Hashing it Out: Is this the End of ³Good Mediation´, James A. Alfini
Trashing: The mediators who employ a trashing methodology spend much of the time ³tearing apart´
the cases of the parties. By tearing apart & then building their cases back up they try to get the parties to a point
where they will put a realistic settlement on the table. This discourages direct party communication after the
opening statements, & predominantly employs shuttle mediation. Most often experienced trial lawyers adopt this
methodology.
Bashing: The mediators who use a basing technique tend to spend little or no time engaging in the
kind of case evaluation that is aimed at getting the parties to put realistic settlement offers on the table, & spend
more time focusing on the settlement offers that the parties bring to mediation & bashing those until the parties
come to a middle ground. Most often retired judges adopt this methodology, & employ their prestige as a factor.
Hashing it out: Hashers place a greater reliance on the direct communication b/w the opposing
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attorneys & their clients, &, therefore, is a much more flexible approach that allows the use of varying styles.
Typically they favor direct communication b/w the parties. One other unique difference is that hashers are more
likely to meet w/ the attorneys or clients separately if they feel that it will be helpful, unlike bashers or thrashers.

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A. Introduction: 3 challenges the presented:
1) Individual differences require the mediator to be sensitive to how different backgrounds & values affect
he manner in which individuals participate in the discussion process; a mediator must deploy her communications
skills to ensure that mediated conversations foster maximum participation & understanding by all participants.
2) Parties, in light of their difference, command different resources & skills that affect how they negotiate;
the dangers is that mediation participants, through the dynamics of the bargaining process, might accept proposed
settlement terms that exacerbate pre-existing inequalities, thereby raising the undesirable possibility that
participating in mediation undermines rather than advances a person¶s fundamental interests.
3) Since each party in mediation decides what priority to attach to various principles & norms to resolve
their dispute, the possibility arises that settlement terms acceptable to individuals might clash w/ outcomes required
by law.
B. Diversity, Individual Differences & the Resolution of Disputes
1. Conflict & Culture: Research in 5 Communities in Vancouver, B.C. by Michelle LeBaron Duryea & J.
Bruce Grundison
The 4 components of Immigrant Syndrome are:
1) the linguistic choke (parties w/o skills to communicate w/ the dominant culture turn to their
children to help them w/communication);
2) the cultural choke (individuals are faced w/ a value system different from the one they were
accustomed to in their countries of origin);
3) the social-familial choke (social & familial changes in the family structure as young people
adapt to the new culture more swiftly than the elderly); &
4) the loss of identity choke (immigrants attempt to build a community by trying to adapt to the
new social identity assigned to them by the dominant culture).
2. Her Place at the Table: A Consideration of Gender Issues in Negotiation by Deborah M. Kolb & Gloria
C. Coolidge
3. Community Dispute Resolution & Training Manual by Joseph B. Stulberg & Lela P. Love
C. Power & the Resolution of Conflict
1. An Empirical Study of the Effects of Race & Gender on Small Claims Adjudication & Mediation, by
Michelle Hermann, Gary LaFree, Christine Rack & Mary Beth West,
D. Privilege
1. The Mediation Privilege¶s Transition from Theory to Implementation: Designing a Mediation Privilege
Standard to Protect Mediation Participants, the Process & the Public Interest, by Alan Kirtley
The difficulty is crafting a mediation privilege that is neither over nor under inclusive. Most traditional
privileges arise when a professional relationship exists, & mediation is an emerging professional activity.
Narrow approaches only find evidence as privileged if the mediation occurred under the auspices of a particular
statute, court, mediation program, or if ADR procedures or mediators w/ specified qualifications &/or training
were employed.
Broad approaches hold that any information disclosed in mediation is privileged. Rarely do these statutes
define mediation.
A third approach is to activate the privilege when the mediation occurs pursuant to an order of court or
agreement b/w the parties, which generally require the agreements to be in writing.
The remaining issues are:
1) who is covered by the privilege;
2) in what subsequent proceedings will the privilege be effective; &
3) who holds the right to waive the privilege.
2. Uniform Mediation Act
SECTION 2. DEFINITIONS. In this [Act]:
(1) "Mediation" means a process in which a mediator facilitates communication & negotiation b/w
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parties to assist them in reaching a voluntary agreement regarding their dispute.

(2) "Mediation communication" means a statement, whether oral, in a record, verbal, or nonverbal,
that is made or occurs during a mediation or for purposes of considering, conducting, participating
in, initiating, continuing, or reconvening a mediation or retaining a mediator.
(3) "Mediator" means an individual, of any profession or background, who conducts a mediation.

(7) "Proceeding" means:

(A) a judicial, administrative, arbitral, or other adjudicative process, including related pre- &
post-hearing motions, conferences, & discovery; or
(B) a legislative hearing or similar process
(8) "Record" means information that is inscribed on a tangible medium or that is stored in an
electronic or other medium & is retrievable in perceivable form.
SECTION 3. SCOPE
(a) Except as otherwise provided in subsections b) or c), this [Act] applies to a mediation in
which:
(1) the mediation parties are required to mediate by statute or court or administrative agency
rule or referred to mediation by a court, administrative agency, or arbitrator;
(2) the mediation parties & the mediator agree to mediate in a record that demonstrates an
expectation that mediation communications will be privileged against disclosure; or
(3) the mediation parties use as a mediator an individual who holds himself or herself out as a
mediator or the mediation is provided by a person that holds itself out as providing mediation.
(b) This [Act] does not apply to a mediation:
(1) relating to the establishment, negotiation, administration, or termination of a collective
bargaining relationship;
(2) relating to a dispute that is pending under or is part of the processes established by a
collective bargaining agreement, except that the [Act] applies to a mediation arising out of a
dispute that has been filed with an administrative agency or court;
(3) conducted by a judge who might make a ruling on the case; OR
(4) conducted under the auspices of:
(A) a primary or secondary school if all the parties are students; OR
(B) a correctional institution for youths if all the parties are residents of that institution.
(c) If the parties agree in advance in a signed record, or a record of proceeding reflects agreement
by the parties, that all or part of a mediation is not privileged, the privileges under Sections 4
through 6 do not apply to the mediation or part agreed upon. However, Sections 4 through 6 apply
to a mediation communication made by a person that has not received actual notice of the
agreement before the communication is made.
SECTION 4. PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY
(a) Except as otherwise provided in Section 6, a mediation communication is privileged as
provided in subsection (b) & is not subject to discovery or admissible in evidence in a proceeding
unless waived or precluded as provided by Section 5.
(b) In a proceeding, the following rules of privilege apply:
(1) A mediation party may refuse to disclose, & may prevent any other person from
disclosing, a mediation communication.
(2) A mediator may refuse to disclose a mediation communication, & may prevent any other
person from disclosing a mediation communication of the mediator.
(3) A nonparty participant may refuse to disclose, & may prevent any other person from
disclosing, a mediation communication of the nonparty participant.
(c) Evidence that is otherwise admissible or subject to discovery does not become inadmissible or
protected from discovery solely by reason of its use in a mediation.
SECTION 5. WAIVER & PRECLUSION OF PRIVILEGE
(a) a privilege under Section 4 may be waived in a record or it may be waived orally during a
proceeding if it is expressly waived by all mediation parties, &:
(1) in the case of the privilege of a mediator, it is expressly waived by the mediator; &
(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty
participant.
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(b) A person that discloses or makes a representation about a mediation communication that
prejudices another person in a proceeding is precluded from asserting the privilege under Section
4, but only to the extent necessary for the person prejudiced to respond to the representation or
disclosure.
(c) A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or
to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege
under Section 4.
SECTION 7. PROHIBITED MEDIATOR REPORTS
(a) Except as required in subsection (b), a mediator may not make a report, assessment, evaluation,
recommendation, finding, or other communication regarding a mediation to a court, administrative
agency, or other authority that may make a ruing on the dispute that is the subject of the
mediation.
(b) A mediator may disclose:
(1) whether the mediation occurred or has terminated, whether a settlement was reached, &
attendance;
(2) a mediation communication as permitted under Section 6; or
(3) a mediation communication evidencing abuse, neglect, abandonment, or exploitation of an
individual to a public agency responsible for protecting individuals against such mistreatment.
(c) A communication made in violation of subsection (a) may not be considered by a court,
administrative agency, or arbitrator.
SECTION 8. CONFIDENTIALITY. Unless subject to the [insert statutory references to open
meetings act & open records act], mediation communications are confidential to the extent agreed by the parties or
provided by other law or rule of this State.
D. Exceptions
1. The Mediation Privilege¶s Transition from Theory to Implementation: Designing a Mediation Privilege
Standard to Protect Mediation Participants, the Process & the Public Interest, Alan Kirtley,
2. Uniform Mediation Act
SECTION 6. EXCEPTIONS TO PRIVILEGE
(a) There is no privilege against disclosure under Section 4 for a mediation communication that is:
(1) in an agreement evidenced by a record authenticated by all parties to the agreement;
(2) available to the public under [insert statutory reference to open records act] or made
during a session of a mediation which is open, or is required by law to be open, to the public;
(3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(4) intentionally used to plan, attempt to commit, commit a crime, or to conceal an ongoing
crime or ongoing criminal activity;
(5) sought or offered to prove or disprove a claim or complaint of professional misconduct or
malpractice filed against a mediator in a proceeding; or
(6) except as otherwise provided in subsection (c), sought or offered to prove or disprove a
claim or complaint of professional misconduct or malpractice filed against a mediation party,
nonparty participant, or representative of a party based on conduct occurring during a
mediation; or
(7) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a
proceeding in which a child or adult protective services agency is a party, unless the:
[Alternative A: [State to insert, for example, child or adult protection] case is referred by
a court to mediation & a public agency participates.]
[Alternative B: public agency participates in the [State to insert, for example, child or
adult protection] [mediation].
(b) There is no privilege under Section 4 if a court, administrative agency, or arbitrator finds, after
a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown
that the evidence is not otherwise available, that there is a need for the evidence that substantially
outweighs the interest in protecting confidentiality, & the mediation communication is sought or
offered in:
(1) a court proceeding involving a felony [or misdemeanor]; or
(2) except as provided in subsection (c), a proceeding to prove a claim to rescind or reform or
a defense to avoid liability on a contract arising out of the mediation.
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(c) A mediator may not be compelled to provide evidence of a mediation communication referred
to in subsection (a)(6) or (b)(2)
(d) If a mediation communication is not privileged under subsection (a) or (b), only the portion of
the communication necessary for the application of the exception for nondisclosure may be admitted.
The admission of evidence under subsection (a) or (b) does not render the evidence, or any other
mediation communication, discoverable or admissible for any other purpose.
3. R.S.Mo. § 435.014 (see handout & accompanying notes)
1. If all the parties to a dispute agree in writing to submit their dispute to any forum for arbitration,
conciliation or mediation, then no person who serves as arbitrator, conciliator or mediator, nor any agent or
employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process
of setting up or conducting the arbitration, conciliation or mediation.
2. Arbitration, conciliation & mediation proceedings shall be regarded as settlement negotiations. Any
communication relating to the subject matter of such disputes made during the resolution process by any participant,
mediator, conciliator, arbitrator or any other person present at the dispute resolution shall be a confidential
communication. No admission, representation, statement or other confidential communication made in setting up or
conducting such proceedings not otherwise discoverable or obtainable shall be admissible as evidence or subject to
discovery.
4. Ten Ways to Get Sued: A Guide for Mediators, by Michael Moffitt
Several factors are likely to contribute to the historical lack of litigation against mediators (happy w/ services);
qualified or quasi judicial immunity; confidentiality & privileges protections; legal requirements of likely causes of
action present considerable obstacles to any P seeking to recover from a former mediator
Four basic sources for sanctions:
1) personal civil liability (penalty is compensation);
2) criminal behavior (penalty is fine to imprisonment);
3) referral programs & their complaint mechanisms (includes community programs, court
sponsored, court annexed mediation programs (penalty is reprimand to disqualification);
4) membership in voluntary associations (penalty is subject the association)
Ten Ways to get sued as a mediator:
1) Fail to disclose a conflict of interest (but only if the mediator¶s bias led him/her to take actions
that resulted in injury to a mediation party); Poly Software International; opens the door; does not
extinguish at conclusion of mediation
2) Breach a specific contractual promise regarding structure or outcome (i.e. pre-commitments
regarding mediation structure; processes, etc«); express/implied promises of particular outcomes
3) Engage in the practice of law (includes drafting settlement docs whose terms go beyond those
specified by the disputants; also, if advance one settlement as more favorable than other)
4) Engage in the Practice of Law Badly (negligence; subject to professional negligence & legal
malpractice suit; applies to both attorney-mediator & non-attorney-mediator
5) Breach Confidentiality Externally (civil liability if shows injury from confidentiality breach
6) Breach Confidentiality Internally
7) Maintain Confidentiality Inappropriately (mandatory reporting; range of sanctions; Tarasoff);
may create an obligation to breach confidentiality
8) Advertise Falsely
9) Inflict Emotional Distress on a Disputant
10) Commit Fraud (knowingly misrepresents a material fact & mediation party reasonably relies
on that misrepresentation to his or her detriment)
Consider: Mediate Poorly; i unprepared, inappropriate suggestions, misreads concerns; worsens the parties¶
relationship, listens horribly, etc«

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A. Introduction
B. The Relationship Between Mediation & Litigation
1. How Will Lawyering & Mediation Transform Each Other? By John Lande
C. Lawyer¶s Role as Representative in Mediation
1. Lawyer¶s Duty to Advise Their Clients about Mediation
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a. At Issue: PR ± Should There be a Duty to Advise of ADR Options? Yes: An Aid to Clients by
Frank E.A. Sander,
b. At Issue: PR ± Should There be a Duty to Advise of ADR Options? No: An Unreasonable Burden
by Michael L. Prigoff
2. Does the Participation of Lawyers Benefit or Harm the Mediation Process?
a. Lawyers & Divorce Mediation: Designing the Role of ³Outside Counsel´ by Mary C. Rutherford
b. Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce
Mediation by Craig A. McEwen, Nancy H. Rogers & Richard J. Maiman
c. Disputing Through Agents: Cooperation & Conflict b/w Lawyers in Litigation by Ronald J. Gilson
& Robert H. Mnookin
d. Uniform Mediation Act § 10 / General Standards of Conduct for Mediators (1994)
1) Self-determination: mediator shall recognize that mediation is based on the principle of self-
determination by parties
2) Impartiality: a mediation shall conduct the mediation in an impartial manner;
3) Conflict of Interests: a mediator shall disclose all actual & potential conflicts of interest
reasonably known to the mediator. After disclosure the mediator shall decline to mediate unless
all parties choose to retain the mediator. The need to protect against conflicts of interest also
governs conduct that occurs during & after the mediation;
4) Competence: a mediator shall mediate only when the mediator has the necessary qualifications
to satisfy the reasonable expectation of the parties;
5) Confidentiality: a mediator shall maintain the reasonable expectations of the parties w/ regard to
confidentiality;
6) Qualify of the Process: a mediator shall conduct the mediation fairly, diligently, & in a manner
consistent w/ the principle of self-determination by the parties;
7) Advertising & solicitation: a mediator shall be truthful in advertising & solicitation for
mediation;
8) Fees: a mediator shall fully disclose & explain the basis of compensation, fees, & charges to the
parties; &
9) Obligations to the Mediation Process: Mediators have a duty to improve the practice of
mediation.
3. Lawyers Role in Selecting A Mediator
a. Mediation of Legal Malpractice Cases: Prevention & Resolution by David Geronemus
The two points about choosing the right mediator for the case are:
1) given the extent of the differences, at least for cases w/ relatively high stakes, it is
important to spend time learning in some detail about prospective mediators;
2) the choice of the mediator ought be made w/ reference to the barriers to the settlement of
the case & to your goals in the dispute.
b. Lawyers¶ Representation of Clients in Mediation: Using Economics & Psychology to Structure
Advocacy in a Non-adversarial Setting by Jean R. Sternlight
Two rather vague guides to how attorneys should advise clients in mediation are the Model Rules
of Professional Conduct & the Model Code of Professional Responsibility. Both sets of rules
essentially require the lawyer to defer to her cline on major matters (ends) while allowing the
lawyer the leeway on tactical choices (means).
Traditional approach contends that expert attorneys should behave very directively toward their
typically passive clients.
The participatory approach urges that b/c many strategic decisions involve important choices on
ultimate objectives, attorneys need to work closely & consultatively w/ their clients.
4. Should Lawyers be Advocates for their Clients in Mediation?
a. Ethics in ADR: New Issues, No Answers From Adversary Conception of Lawyers¶ Responsibility by
Carrie Menkel-Meadow
The first & most important dilemma is: the powerful heuristic of the adversary model & its concrete
expressions in legal dispute resolution as a paradigm which does not aid, indeed, makes more difficult, the
resolution of ³ethical´ dilemmas when one seeks to sue other processes.
5. Lawyers¶ Role as Representative of Clients in Mediation
To be an effective advocate, the lawyer should become familiar w/ the law & the facts of the case, work w/
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one client to decide on a theme & strategy for the mediation, & decide which if any exhibits or demonstrations shall
be used at the mediation.
The attorney should also become familiar w/ the underlying needs & interests of the client, anticipate the
projected interests of the opposing party, begin to brainstorm regarding possible solutions, consider settlement
rangers & limits, & map out a settlement strategy.
Preparation of the client for the mediation is also crucial, & it is vital that they understand the purpose of a
mediation, how it differs from litigation, what the different stages of the mediation will be, & what roles the client &
the attorney should each play in the mediation.
a. 20 Common Errors in Mediation Advocacy by Tom Arnold
1) Wrong client in the room.
2) Wrong lawyer in the room.
3) Wrong mediator in the room.
4) Wrong case.
5) Omitting client preparation ± the difference b/w their interests & their legal positions, the variety of
options that might settle the case, the strengths & weaknesses of the case, objective independent standards of
evaluation, the importance of apology & empathy.
6) No letting a client open for herself.
7) Addressing the mediator instead of the other side.
8) Making the lawyer the center of the process.
9) Failure to use advocacy tools effectively.
10) Timing mistakes.
11) Failure to listen to the other side.
12) Failure to identify perceptions & motivations.
13) Hurting, humiliating, threatening, or commanding.
14) The backwards step.
15) Too many people.
16) Closing too fast.
17) Failure to truly close.
18) Breaching confidentiality.
19) Lack of patience & perseverance.
20) Misunderstanding the conflict.
b. What¶s a Lawyer to Do in Mediation? By Jean R. Sternlight
The few selections of literature that offer comprehensive suggestions on how attorneys can best
represent their clients in mediation can be divided into 2 major categories:
1) those arguing that the attorney should play virtually no role in the mediation, &
2) those arguing that the attorney should participate very actively in the mediation in order to
adequately advocate for the client & also protect the client from potential harm.
Counsel should always keep in mind some of the basic insights offered by economists & psychologists
who have studied the question. Look at non-monetary solutions/benefits (apology / venting); MIT case
Attorneys & clients view the world differently. Clients tend to be overly optimistic as to their chances
of success, are more willing to gamble regarding perceived losses that perceived gains, & prefer settlements that
appear to be just. Parties are frequently interested in monetary outcomes, ³venting,´ receiving or giving an apology,
or achieving vengeance or publicity. Lawyers tend to be far more objective in their settlement approach & focus on
the settlement¶s bottom-line dollar value rather than process issues or surrounding emotional concerns.
Mediation can permit the client to communicate directly w/ the opposing party & its attorney, &
eliminate the erroneous transmissions that inevitably occur when one person acts as the agent for another. Where
attorneys take over the mediation & silence their own clients, they remove one of the mediation¶s primary potential
benefits & convert the mediation back into a negotiation among attorneys. Allowing the clients to participate in the
process helps alleviate any non-monetary interests that the party may have.

AÚ
Ú 

A. Small Claims
Susan E. Raitt, Jay Folberg, Joshua Rosenberg & Robert Barrett, The Use of Mediation in Small Claims
Court
B. Family
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Mary Kay Kisthardt, The Use of Mediation & Arbitration for Resolving Family Conflicts: What Lawyers
Think About Them
C. Business
Lawrence I. Drath, Business Mediation: All in the Family
D. Labor & Employment
Jonathan R. Harkvay, Privatizing Workplace Justice: The Advent of Mediation in Resolving Sexual
Harassment Disputes
E. Criminal Law
Mark S. Umbreit & William Bradshaw, Victim Experience of Meeting Adult v. Juvenile Offenders: a
Cross-National Comparison
F. Peer Mediation in Schools
Kay O. Wilburn & Mary Lynn Bates, Conflict Resolution In America¶s Schools: Diffusing an
Approaching Crisis
G. Health Care Disputes
1. Medical Malpractice
a. Edward A. Dauer, Leonard J. Marcus, & George O. Thomasson, Transsformative Power: Medical
Malpractice Mediations may Help Improve Patient Safety
2. Bioethical Disputes
a. Nancy Neveloff Dubler, Heroic Care Cases: When Difficult Decisions about Care are Near,
Mediation can Help Bridge Communications Gap
H. Community Disputes
Lela P. Love & Cheryl V. McDonald, A Tale of Two Cities: Day Labor & Conflict Resolution for
Communities in Crisis
I. Environmental
Janet C. Nueman, Run River Run: Mediation of a Water-Rights Dispute Keeps Fish & Farmers Happy ±
For a Time

AÚ  ,

 
A. Policy
1. Michael L. Prigoff, Toward Candor or Chaos: The Case of Confidentiality in Mediation
Confidentiality is vital because
1) effective mediation requires candor,
2) fairness to the disputants requires confidentiality,
3) the mediator must remain neutral in fact & in perception, 4) privacy is an incentive for many to
choose mediation, &
4) mediators, & mediation programs, need protection against distraction & harassment.
B. Evidentiary Exclusions; Introduction
1. As the court points out in Macaluso, the mediator was ³the one person whose testimony could have
resolved the factual dispute.´ Yet, the court upheld the revocation of the subpoena of the mediator b/c ³the complete
exclusion of the mediator testimony is necessary to the preservation of an effective system of labor mediation.
2. FRE, Rule 408; Compromises & Offers:
The court will likely exclude evidence of compromises & offers & third-party compromises when
the evidence of compromises & offers is offered to prove liability for, or the invalidity of, a claim or its amount,
even though the evidence of compromises & offers may be admitted when offered for another purpose (i.e., proving
bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution) & evidence that is otherwise discoverable & disclosed during settlement negotiations
may be admitted, at least so long as the claim or amount is disputed, the policy for encouraging people to settle law
suits is implicated, the compromises & offers are in the course of settlement negotiations, or at least so long as the
prejudicial effect of the evidence outweighs its probative value., & a limiting instruction is offered if requested.
FRE 408, 401-403, 105.
FRE 408: Evidence of 1) furnishing or offering or promising to furnish, or 2) accepting or offering
or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was
disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule
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does not require the exclusion of any evidence otherwise discoverable merely b/c it is presented in the course of
compromise negotiations. This rule also does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort
to obstruct a criminal investigation or prosecution.
a. Charles W. Ehardt, Confidentiality, Privilege, & Rule 408: The Protection of Mediation
Proceedings in Federal Court
Two theories have provided rationale for FRE 408. Wigmore¶s view is that an offer is not
motivated from a belief that the adversary¶s claim is well-founded but rather a desire for peace. Most Modern
commentators argue that the justification for the rule excluding such evidence is one of privilege.
FRE 408 is inapplicable in the following situations:
1) documents presented during settlement negotiations are not protected;
2) if the witness takes the stand, bias or prejudice evidence may be admissible;
3) an act or wrong committed during settlements can be admitted into evidence;
4) if a party testifies at trial, a statement of fact made by the party during settlement
negotiations may be offered as a prior inconsistent statement to impeach credibility.
b. Vernon v. Acton ± If the evidence addresses whether or not a settlement agreement was reached &
not to the merits of the action, the trial court erred in excluding this testimony.
C. The Role of the Mediator
1. Role Conception
a. Efficiency & Protection, or Empowerment & Recognition?: The Mediator¶s Role & Ethical
Standards in Mediation, by Robert A. Baruch Bush,
Similarly, Bush examines ³the special powers of mediation´ in developing his ³empowerment-
and-recognition´ conception of the mediator¶s role. He rejects two popular conceptions of the mediator¶s role ± the
³efficiency´ conception & the ³protection-of-rights´ conception ± b/c they are not in line w/ mediation¶s unique
character, b/c of the following 2 observations & 2 flaws: (observation 1) both take an essentially negative view of
mediation as the avoidance of something bad, & (observation 2) both conceptions of the mediator¶s role are flawed
in that (flaw 1) efficiency & protection-of-rights can better be enforced by someone other than a mediator & (flaw 2)
they are incapable of service either of those ideas separately.
2. Mediator Accountability
a. Environmental Mediation & Accountability Problem by Lawrence Susskind
The 9 steps that must be completed for mediation to be successful are:
1) all the parties that have a stake in the outcome of a dispute must be identified;
2) the relevant interest groups must be appropriately represented;
3) fundamentally different values & assumptions must be confronted;
4) a sufficient number of possible solutions or options must be developed;
5) the boundaries & time horizon for analyzing impacts must be agreed upon;
6) the weighting, scaling, & amalgamation of judgments about costs & benefits must be
undertaken jointly;
7) fair compensation & mitigatory actions must be negotiated;
8) the legality & financial feasibility of bargains that are made must be ensured; &
9) all parties must be held to their commitments. Although these will ensure a fair & efficient
process, the success of the mediation effort must also be judge in terms of the fairness &
stability of agreements that are reached.
Environmental mediators ought to accept responsibility for ensuring:
1) that the interests of parties not directly involved in negotiations, but w/ a stake in the
outcome, are adequately represented & protected;
2) that agreements are as fair & stable as possible; &
3) that agreements reached are interpreted as intended by the community-at-large & set
constructive precedents.
An environmental mediator should be committed to procedural fairness ± all parties should have an opportunity
to be represented by individuals w/ the technical sophistication to bargain effectively on their behalf.
b. The Theory & Practice of Mediation: A Reply to Professor Susskind by Joseph B. Stulberg
The basis of the article is a that Susskind¶s demand for a non-neutral intervenor is conceptually &
pragmatically incompatible w/ the goals & purposes of mediation. It is precisely a mediator¶s commitment to
neutrality which ensures responsible actions on the part of the mediator & permits mediation to be an effective
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principled dispute settlement procedure.

Susskind¶s 4 distinct ways that a mediator of environmental disputes should not be neutral:
1) the impacts of negotiated agreements on under-represented or unrepresentable groups in
the community;
2) the possibility that joint net gains have not been maximized;
3) he long-term or spillover effects of the settlements they help to reach; &
4) the precedents that they set & the precedents upon which agreements are based.
What functions of office does a mediator have that enable him to ensure that the negotiated
agreements are fair?:
1) catalyst;
2) educator;
3) translator;
4) expand the resources available to the parties;
5) bearer of bad news;
6) agent of reality; &
7) scapegoat.
What are the 3 qualities of a mediator that Stulberg focuses on?:
1) A mediator must have the capacity to appreciate the dynamics of the environment in which the dispute is
occurring by appreciating the real world constraints, pressures & frustrations under which the parties act;
2) A mediator must be intelligent, but may or may not need to be knowledgeable about the substantive area
in dispute, depending upon the substantive area in dispute;
3) A mediator must be neutral w/ regard to outcome. By being neutral the mediator:
a) invites a bond of trust to develop b/w him & the parties;
b) ensures confidentiality; &
c) fosters the parties¶ feeling that they have nothing to lose & everything to gain by the mediator¶s
intervention.
Stulberg further states that, while every mediator is not neutral to everything, a mediator must
maintain his impartiality. How should the mediator deal w/ a situation when the mediator determines that the
mediated agreement is unethical? The mediator should press the parties to examine whether or not they believe that
1) they would be acting in compliance w/ the law or w/ principles they would be willing, as rational
gents, to universalize;
2) their activities will be acceptable to their respective constituencies & not overturned by public
authorities; &
3) in the short & long run, their proposed actions are not contrary to their own self-interest. If the
parties listen to these arguments & still find the proposed course of action acceptable, the mediator can
withdraw from his service as the mediator.

Class Notes

Prisoner¶s Dilemma ± 2 defendants, taken into custody, interviewed separately, encouraged to turn the other in for
lighter sentence

History
-Mediation is no more than facilitated negotiation
-negotiation is the foundation of which mediation is built
Guidelines (to be continued)
1) when someone is speaking, give them your full attention
2) active listening, etc« other skills

Mediation v. Arbitration how lawyers view the world? i outside objective rules
Not binding binding mediators rules are from the parties themselves
Decision from Adjudicatory
the parties process

Why Mediate?
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1) economics & cost ± less costly than litigation

-what if you don¶t solve anything? More costly?
-more informed even if nothing is solved
2) narrow the issues & focus
-in litigation, petition includes everything! (strategy as opposed to what the parties really want)
3) Can get remedies that you could not get in court
a) an apology
b) legal remedy may be inadequate (i.e. child support) so you could get something afterall
c) community disputes (taking to court breeds hostility « i.e. neighbors or barking dog)
4) on-going relationship preserved
-more likely preserved in mediation
-i.e. families & child custody (mandated in Jackson County)
-to win custody dispute, make other parent look as bad as they can (litigation)
-far more damage has been done b/c that person is still the parent
-landlord/tenant, employee/employer, etc..
-Hypo: barking dog; there is no effective legal remedy; can get it from mediation through the cooperation
of both parties
5) generally speaking, mediation is quicker (SAVES TIME)
6) more satisfied that they, the parties, made the agreement
-people are more likely to comply w/ agreement they made than one that was forced on them

If you have a situation in which you need precedent or the power of the court (i.e. child support; civil rights cases
where there are structured injunctions), adjudication is a better alternative b/c mediation is not binding)
What about publicity or precedent?
-privacy is another reason to mediate
-confidentiality privileges
-neutral 3rd party! Facilitates
-much mediation is no longer voluntary
-3 forms
-facilitated shift to evaluative; and also transformative
-lawyers changed mediation more than mediation changed
-lawyer attempts to µsell¶ the evaluative / deal -assess, evaluate, use court as backdrop
-mediators as orchestrater v. deal maker
-lawyers µevaluate¶ based on what the court would decide
-transformative ± change peoples behavior as well as their attitudes (more so about the attitudes) i.e. postal service
shooting eachother

A
Does not Confess Confesses

Does Not 1 yr A 6 mo A Cooperative is the upper left corner & your best
option;
Confess 1 yr B 15 yr B Competitive is the lower right corner
B
Confesses 15 yr A 7 yrs A
6 mo B 7 yrs B

Class Exercises: listening & assumptions; key here is that once you make the assumptions, you may not go back &
clarify the information
Interest conveyed; proposal; issues; feelings; principle; value
Who is going to do the cleaning? / How professor is communicating w/ the student? Where the car is parked?
Dog?

Empowerment & Recognition

1) compliment productive behavior
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2) highlight common interests

3) develop the information base
4) explore each party¶s vision of an ideal relationship or arrangement
Agreement / Settlement
5) Develop trade-offs
6) Look for integrative solutions
7) Reality orientation / explore costs of no agreement

Peter Schloss ± could I be a lawyer & a mediator?

-litigation i presentation of the past so someone decides the future; my client¶s position is right
-mediation i let them make their decisions; no one is right or wrong
What they say they want is one thing, but what is behind it is another
Be mindful of people¶s values
Silence is really powerfuli they will be more uncomfortable than you, so use it as a trick/tip; also, ask questions
More than meets the eye (i.e. when kid calls step-mom ³mom´; you can¶t have an order telling a 4-year old not to
call her mom)
What is a success to Pete? When 2 people leave the room, have legitimate eye contact, & the mediation was
beneficial
You can rarely make a mistake when asking questions; learn to ask questions
Learn not to try & solve their problems
-as a mediator, your job is to give them a forum for a solution to solve their problems
-you have to recognize that you can¶t change who the parties are, but you can only provide them with the
opportunity to change
-serenity prayer ³«wisdom to know the difference«´
Hyper awareness is key; observe everything
Multiple dimensions
-metaphor of the Orange
-assumption is to cute the orange in two
-the dimensions are not mutually exclusive; best result is to give the peel to A & the fruit to B
-³if you bring food to the table, they will bring their table manners´
-good collaborative attorneys have excellent mediation skills either by practice or learning
µif the only tool in your toolbox is a hammer, then all problems look like nails´

Mediation Advocacy ± Role of Counsel *The key to a successful mediation is knowing these
things and preparation
1. willingness to settle
2. select the mediator (orientation, reputation, experience)
3. give legal advice outside
4. draft or review agreement (but limit your scope to cover yourself)
5. broad view ± client involvement (preparation / coaching); ask ³why hasn¶t this settled yet?´
6. Realistic expectations

Lawyers reluctant to mediate because it is cheap discovery & gives up your position (cheaper to mediate earlier i
practical note)
Lawyer send clients to mediator; build relationships
-does mediator shopping begin? Does that create bias? Arbitration is like this; more likely to favor for the
referred client
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It¶s ok for client to stop the mediation & talk to the lawyer

-20 Common Errors see outline above

-if you want precedent, mediation might not be appropriate
-having the right parties/mediator
-power imbalances
i domestic abuse i manifests in very subtle ways
i someone seeking vengeance
-you want the right lawyer
-mediator orientation
-working w/ clients

Mediator Styles/Orientation; Trashing, Bashing & Hashing

-Basher = deal maker
-trashing = highly evaluative
-hashing = most flexible; process; orchestraters

Island Hypo: Woman sleeps w/ man to get access to his boat so she can meet her lover. Who do you like the best?

-Is a mediator ever truly neutral? We constantly form opinions & ultimately create bias
-Other kinds of bias?
-Aspects of cultural differences that need to be intone with:
-Emotion ± expressions (anger not always bad), volume, communication
-decision-making; individual v. extended group (who makes the decisions)
-Use of language, gestures, eye contact
-Role of Women
-Mistrust of authority figures
-changing roles i language i children parentified
-Gender / women
Objectivity (rules) i Men Imbedded
Relationship i Women notion of agency
Study
Game & Rules
Boys i play by the rules or you are out
Girls i change the rules so everyone plays
Passive i equivocal = weakness / vulnerable
Aggressive
Men are more likely to be able to separate the ³game´ from reality
Women are more likely to intertwine the two (won¶t just leave it at the table)