Civil Dispute Resolution

CLASS 1 Intro to Dispute Resolution



How does a problem turn into a Dispute?

 Disputes that we see are only a small fraction of the disputes that exist … some disputes remain

forever (Abel, Sarat) as “unperceived injurious experience”

 Where injury is actually perceived (a.k.a. “Naming”)

o some individuals may decide to simply avoid the conflict (“Dispute Avoidance”)

o others may take the step of “blaming” the injurious experience on others

o Even when a dispute is „named‟ and „blamed‟ … there is no clear means for anyone outside the

dispute to organize it unless the final step of “claiming” is taken… which involves asking for a

legal or other remedy



Conflict: o Opportunity for growth, Change … positive

o Generally our society is viewed in negative outcomes

terms

o Can have a resolution Sources of Conflict:

o Progressive debate o Money

o Impetus for change o Ideology

o Compromise o Scarce Resources

o Opportunity to develop or enhance one‟s o Personal or Family-based relationship

dispute resolution skills o Vested interest

o Employment



“The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…” W. Felstiner, R.

Abel, and A. Sarat



Where Disputes Come from and How They Develop? Series of Transformations:

 Naming: saying to oneself that a particular experience has been injurious

 Blaming: occurs when a person attributes an injury to the fault of another individual or social entity

(transformation from perceived injurious experience to grievance)

 Claiming: occurs when someone with a grievance voices it to the person or entity believed to be

responsible and asks for a remedy

 A claim is transformed into a dispute when it is rejected in whole or in part.

 By including fault within the definition of grievance, we limit the concept to injuries viewed both as

violations of norms and as remediable… which takes the perspective that the injured party must feel

wronged and believe that something might be done in response to the injury .



The Characteristics of Transformation:

 Perceived injurious experience, grievances and disputes have the following characteristics:

o they are subjective (content of the dispute is transformed in the mind of the disputant),

o unstable (feelings may change repeatedly… where transformation is nothing more than

change in feelings),

o reactive (since disputes are claims & rejections),

o Complicated and incomplete (process involving ambiguous behaviour, faulty recall,

uncertain norms, conflicting objectives, inconsistent values and complex institutions)



Subjects and Agents of Transformation:

 One way to organize the study of the transformations of PIE‟s, grievances, and disputes is to identify

what is being transformed (the subjects of transformation) and what does the transforming (the

agents of transformation). Not possible to present them in a simple matrix…since every element can

be construed as both…

 The parties to a conflict are central agents, as well as objects, in the transformation process.

 Personality variables that may affect transformation include risk preferences, contentiousness, and

feelings about personal efficacy, privacy independence, and attachment to justice

 Relationship between the parties

 Includes:

o Attribution Theory … asserts that causes a person assigns for an injurious experience will be

important determinants of the action he or she takes in response to it… people who blame



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themselves are less likely to see it as injurious or to voice a grievance … while they are more

likely to do so if blame can place the blame on another especially if that responsible agent can

be seen as intentionally causing or aggravating the problem … degree and quality of the blame

(counselling v. confrontation & litigation) also produces further transformations;

o Scope … the dispute might be claimed based on a particular incident but at its core it is based

on a series of interactions or an ongoing issue in a relationship (wife hitting the lover of

husband with rock)

o Choice of mechanisms

o Objectives sought … Relationship between objectives and mechanisms is reciprocal … not

only do objectives influence the choice of mechanism, but also the choice of

mechanisms may alter objectives >> the further towards the litigation end of spectrum,

the less relevant the needs of the party to solution, where lump sum awards are the norm

rather than periodic payments

 The experience of disputing may stimulate a participant to take steps to avoid similar

disputes in the future or to structure his behaviour so to place him in a stronger position

should a dispute occur

o Ideology … individual‟s sense of entitlement to enjoy certain experiences and be free

from others is a function of the prevailing ideology of which law is simply a component … legal

change may sometimes be a highly effective way of transforming ideology to create a sense of

entitlement … this is the sense in which, contrary to conventional wisdom you can legislate

morality

o Reference groups… disputes may be transformed through interaction with audiences or

sponsors… a tenant‟s dispute with a landlord may be the cause around which a tenants‟

association is formed

Conflict Management Strategies

The Mediation Process, C. Moore

 Range of Approaches … depends on a variety of criteria, including the outcome that is desired and the

strategy that is to be used….our personal reactions to conflict appear to be shaped in large measure

by the social and cultural contexts in which we and our disputes are situated….

 5 general strategy options:

1. Competition

 Interest so narrow, only met with a few solutions

 Choose a competitive approach – win-lose outcome

 Competitive approaches include litigation, arbitration, and extralegal activities such as

tactical non-violent direct action and violence.

 Issues to asses in choosing such a route:

 What are the long term & short term goals

 Whether preserving future relationship is important

 Does the party have enough power to guarantee win

 Will this provoke competition in other areas

 Will a competitive strategy lead to the most desirable solutions

2. Avoidance or Stalemate

 Conflict avoidance can be either productive or unproductive in satisfying interests

 Various levels of avoidance: neutrality, isolation, withdrawal

 People or groups that have been repeatedly defeated frequently use withdrawal to ensure their

continued existence and to avoid any conflict that might lead to another defeat.

 Withdrawal means total disassociation of disputants.

 Strategy does not encourage or promote mediated negotiations.

3. Accommodation

 One party agrees to meet the interests of another at the expense of its own needs.

 Pursued when sacrifice of some interests is required to maintain a positive relationship,

desirable to foster cooperation, interests interdependent

 Parties lack the power necessary to pursue alternative strategy

 Parties are passive or unassertive

 Parties have a lower investment in the outcome

4. Negotiated Compromise

 Do not perceive the possibility of a win-win – divide and share.

 Interest not perceived as interdependent or compatible



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 Parties don‟t trust each other

 Parties are sufficiently equal in power so that neither can force the issue.

 Many out-of-court settlements are negotiated compromises.

5. Interest-Based Negotiation

 Seek to enlarge the range of alternatives so that the needs of all parties are addressed and

met to the greatest extent possible.

 Work best when:

o Parties have a minimal level of trust

o Parties have some mutuality interdependent interests

o Equal, but not necessarily similar, means of influence exist

o Parties have a high investment in a mutually satisfactory outcome because of mutual

fear of potential costs that might result from impasse.

o Parties desire a positive future relationship.



Conflict and Rules:

 RULE BASED APPROACH to study of Conflict  imposing a framework of rules onto the study of

conflict means that conflict is understood as either a clash of rule systems or an illustration of what

happens when rules are broke.

o As a consequence, conflict is seen as an manifestation of deviant or dysfunctional behaviour

and debate tends to centre on how to ensure that behaviour conforms to the rules… rather

than on asking how & why the conflict arose in the first place

 SYSTEMS ANALYSIS OF CONFLICT  The work of Gulliver is often seen as a turning point in

anthropology as attention shifted from rules and institutions to cases & disputants … also other social

action theorist began to explore how expectations & roles are developed and how social meaning is

constructed

o A systems analysis has also been associated with a consensus approach that assumes that

morals codes are largely implicit and shared… the assumption of homogeneity and coherence in

the systems approaches has been criticized by successive scholars in a range of disciplines.

o The criticism of the above two (rules & systems) has led to shift of focus towards a study of

changes in conflict … where such conflict situations may lie anywhere between the extremes of

peaceful bargaining in the market place and open violence… the existence of such a situation

tends to produce not a unitary but a plural society.



Silbey and Sarat, Dispute Processing in Law and Legal Scholarship

 Attention to disputes emerged as part of a more general resistance to the structural

functional paradigm which had dominated anthropological research and which had been used to

describe relationships among social process and institutions such as law & society;

 structural functional paradigm … was criticized for its ahistorical (ethno-graphic) quality and its

reliance upon a consensual vision of social order which viewed conflict as matter of failed conformity

 Laura Nader took up the cause & actively championed the concept of dispute as a way for social

scientists to study law…

o From this perspective, disputes are windows in society, opening in the social fabric, moments

of exploration in which the collectivity is challenged, transformed or repaired …

THE ROOTS OF CONFLICT



Mayer, The Dynamics of Conflict Resolution: A Practitioner‟s Guide

 people engage in conflict because of their needs and conflict cannot be transformed or settled unless

these needs are addressed in some way

 “needs” are in the centre of the wheel and the surrounding parts are forces that basic sources of conflict:

1) Communication

 humans are imperfect communicators (conflicts frequently escalate because people act on the

assumption that they have communicated accurately when they have not)

 the greater duress one is under, the harder it is to communicate

 one the greatest sources of difficulty … & thus also a resolution tool

 culture, gender and age contribute to ability to communicate

2) Emotions

 the energy that fuels conflict (at times emotions in control of behaviour… also at times source

of power for disputants … contribute to strength & courage)



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 but they are also a key to deescalating it

 in conflict it is possible and necessary to work specifically on the emotional content of the

experiences

 this usually requires creating some opportunity to express and release emotions

3) Values

 when a conflict is defined as an issue of values, it becomes more charged

 disputants have a choice whether they will define a conflict in this way … when individuals are

confused, unsure or under attach, it is particularly tempting to define disputes as matters of

right or wrong … this tends to escalate or perpetuate the conflict

 they can also, however, be a source of commonality and a restraint on conflict escalation

4) Structure

 can include, available resources, decision-making procedures, time constraints, communication

procedures and physical settings

 for example, the litigation process as a structure can exacerbate conflict (win-lose)

 other structural elements that often affect conflict include proximity of the disputants,

distribution of resources, access to info, political pressure

 OFTEN however, part of what that process must accomplish is an acceptance of the structural

elements that are unlikely to be altered.

5) History

 provides the momentum for the development of conflict

 conflicts, as such, cannot be resolved without an understanding of the historical context

 Other Sources not included in the wheel …as they cut across all sources are: culture, power

and data cut across all the other sources

 Culture affects conflict b/c it is embedded within one‟s styles, history, etc.

 power can confuse our thinking

 data themselves are not sources of conflict, but how they‟re handled and communicated can

lead to conflict





The Continuum of Human Needs



 Survival needs --- to interests to --- identity-based needs 



 Survival Needs: food, shelter, health and security

 Interests: Substantive, Procedural, Psychological

 Interest-based needs: Meaning, Community, Intimacy, Autonomy



Interests

 the needs that motivate the bulk of people‟s actions

 challenge is to determine what level of needs/ interests best explain a conflict: to superficial does not

help, too deep makes conflict harder to resolve

o must not focus too deeply b/c it would not be amenable to a practical resolution process

 Moore suggests 3 types of needs:

o Substantive (concerns about tangible benefits),

o Procedural (concerns about a process for decisions, interacting, etc.)

o Psychological (concerns about how one is treated, respected or acknowledged)



Identity-Based Needs

 these are people‟s needs to preserve a sense of who they are and what their pace in the world it

 meaning: establishing a purpose in one‟s life

 community: feeling of being connected with groups with which they can identify

 intimacy: goes beyond wanting to be special, it implies some form of reciprocity

 autonomy: need for sense of independence, freedom and individuality





3 basis of conflict

o Rights…

o Interests… triangle of substantive interests, procedural interests, emotional interests



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o Power…



CIRCLE OF CONFLICT: Causes & Interventions

Moore, „The Mediation Process‟

The Circle consists of 5 factors:

I. Relationship Conflicts are Caused by … strong emotions, misperceptions or stereotypes, poor /

miscommunication, repetitive negative behaviour

 Possible Relationship Interventions … control expression of emotions through procedure of

ground rules, caucusing … but also promote expression of emotions & legitimize … but

clarify perceptions & block negative repetitive behaviour

II. Data Conflicts are caused by … lack or misinformation, different views on what is relevant or

interpretation of data, different assessment procedures...

 Possible data Intervention … reach agreement on what data are important … develop

common criteria & use 3rd party experts to gain outside opinion

III. Interests Conflicts are Caused by … perceived or actual competition over substantive (content)

interests, procedural interests, psychological interests

 Possible interest based interventions… focus on interests & not positions, look for objective

criteria… develop integrated solutions & address the needs of all parties … search for ways

to expand options or resources

IV. Structural Conflicts are Caused by … destructive patterns of behaviour or interaction, unequal

control/ownership/distribution of resources, unequal power/authority,

geographical/physical/environmental factors that hinder cooperation… time constraints

 Possible Structural Interventions … clearly define & change roles…replace destructive

behaviour … relocate ownership or control of resources, establish a fair and mutually

acceptable decision making process

V. Value Conflicts are Caused by … different criteria for evaluating ideas or behaviour … Exclusive

intrinsically valuable goals… different ways of life, ideology or religion

 Possible value related interventions… avoid defining problem in terms of value … allow

parties to agree to disagree, create a sphere of influence in which one set of values

dominates … search for superordinate goal that all parties share



THE COURSE OF CONFLICT



The Development of Competitive Relationships and Processes

 conflict often results in competitive relationships as each party makes efforts to win the argument

Deutsch, The Resolution of Conflict

Typically a competitive process tends to produce the following effects:

a. Communication between the conflicting parties is unreliable and impoverished; any opportunities are used

to mislead or intimidate each other; little confidence is placed in info. that is obtained from the other

b. it stimulates the view that the solution of the conflict can only be imposed by one side or the other by

means of superior force, deception or cleverness

c. it leads to a suspicious, hostile attitude that increases the sensitivity to differences and threats while

minimizing the awareness of similarities: permits outrageous behaviour that would otherwise be

considered outside the “norm”





Conflict Escalation



Rubin, Pruitt and Kim, Social Conflict

Five transformations “warning signs”:

1) Light  heavy: from light influence attempts to heavy threats, etc.

2) Small  large: tendency for parties to become increasingly absorbed and increases resources

3) Specific  general: small concrete concerns can escalate into larger, all encompassing issues

4) Doing well  winning  hurting other: starts from an individualistic goals & interests and

progresses to competitive goals of wanting to do better than the other side (outdoing and hurting the

other)

5) Few  many: few participants to a large collective effort (in the face of party‟s failure to prevail)





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J. Rubin, D. Pruitt, & Kim “Social Conflict”

Conditions That Encourage Conflict

1) Periods of rapidly expanding achievement: as things get better, peoples‟ aspirations can begin to grow and

outstrip reality; also, if it takes a sudden downturn or plateaus, conflict can arise …

ex: civil liberties of African Americans in 1960s, although their rights increased, so did their agitations,

since the civil rights movement gave them the expectations of more rapid social change that was

unrealistic

2) Ambiguity about relative power: tends to lead to incompatible aspirations and therefore conflict… wishful

thinking can lead to incompatible aspirations

ex: Vietnam war… where differing military technologies let both sides to infer that they would win…

only years later it became apparent that US lost!

3) Invidious comparison: when one person gets better privileges than another and that other person sees

that they are all equal but is not receiving the same privileges

4) Status inconsistency: exists when there are multiple criteria for assessing one‟s merit; some people feel

that they are more deserving than others

ex: when educated work with the experience, each thinks their group is more valuable

5) Weakening normative consensus: tends to result in people having different norms and aspirations, hence

conflict arises… NORMS are broader & longer lasting rules which serve the function o dovetailing the

aspirations of potential opponents … CONFLICT is particularly common at times when social norms are weak

& changing

6) Zero-sum thinking: leads to conflict, as there can only be one winner>>> often in matters regarding

nature and distribution of resources which have limited magnitude

7) Communication among group members: conflict likely to result when members are in close proximity to

one another, and have access to technology of communication

8) Availability of leadership: conflict emerges when a group feels ready to organize with a leader



Attribution:

 As conflict escalates, the griever looks around for explanations of what is perceived (key factor subjective

interpretation of the victim and not facts) as the injurious experience… if intentionality is perceived on the

part of the person responsible for the injury, then the level & intensity of the conflict rises.

o THUS attributions play a critical role in development of conflict

o Some theorists view the attribution process as a logical, rational process of the grievors searching

for an answer (why & how excusable are the actions that caused the injury)… while other theorists

hold that there are certain patterns in attribution that may be less rational (excusing our own

behaviour far more readily than others‟ or excusing behaviour of those within our own „social

group‟ in comparison to the „outsiders‟)



Allred, Anger and Retaliation in Conflict: The Role of Attribution

 people strive to understand the causes of events around them, and other peoples‟ behaviour, because

accurate understanding of these causes helps people make appropriate and adaptive responses to those

events



Davis & Kelley suggest that an attributor consider 3 kinds of information when attempting to determine

whether a person behaved three things:

1) Does the person (perpetrator) behave the same way only in a particular kind of circumstances?

2) Across many circumstances or

3) Unique in the situation or whether other people also behave this way in the same circumstances.



 fundamental attribution error: research shows that people tend to over-attribute behaviour to dispositions

 actor-observer error: we tend to attribute our own behaviour to circumstances, rather than our

disposition

 intergroup attributional bias: one frequently attributes an out-group‟s behaviour to disposition than an in-

group person‟s behaviour



Entrapment

Deutsch, The Resolution of Conflict

 describes entrapment as a force that prevents the disputants from pulling back once they have invested

heavily in the outcome of the conflict



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 our continued involvement justifies our past involvement

 she uses example of war in South Vietnam and America‟s continued involvement



 reactive devaluation: one an offer is rated more negatively when offered by a disputing party then it

would have been if offered by a third party neutral





Conflict De-Escalation and Resolution



A) Communication

Fisher, Generic Principles for Resolving Intergroup Conflict

1) Parties must engage in face-to-face interaction under norms of mutual respect, shared exploration and

commitment to resolution without a fixed agenda but with a progression of topics

2) Conflict confrontation must take place under the facilitative conditions of inter-group contact, a

cooperative task and reward structure and the involvement of competent and well-adjusted individuals

(people with equal status)

3) The interaction must incorporate the qualities of productive intergroup confrontation, including open and

accurate representation, recognition of intra-group diversity and gender equality, integration of

both parties‟ knowledge and skills, sensitivity to cultural differences and power imbalances, and persistence

and discipline to attain mutually acceptable outcomes

4) Confrontation must follow the strategies of collaboration, including the seeing the conflict as a

mutual problem to be solved and working to maximize the gains of both parties



B) Trust

Lewicki and Wiethoff, Trust, Trust Development and Trust Repair

◦ Calculus Based Trust (CBT): based in ensuring consistency of behaviour; deterrence based trust

grounded in fear of punishment and rewards for preserving it

o actions that build CBT: if people, a) behave the same appropriate way consistently, b) meet stated

deadlines and c) perform tasks and follow through with planned activities

o strategies for managing CBDis-Trust (CBD): agree explicitly re: expectations, increase awareness

of how one‟s work is perceived by others, agree on monitoring procedures

◦ Identification Based Trust (IBT): based on identification with the other‟s desires and intentions; exists

b/c one can understand and appreciate the other‟s wants; they will more clearly understand what to do to

maintain the other‟s trust; has strong emotional component

o actions that build IBT: specific time must be set aside to share values, perceptions, goals and then

resonance (discovering commonalities)

o strategies to manage IBDis-Trust (IBD): some of the same ideas under CBD and talk talk talk



C) Alignment

◦ consists of efforts made to reduce the discrepancy between a previous act and the violated norms of the

offended person

◦ can take forms such as, explanations, excuses or partial apologies

◦ they can be authentic or strategic



D) Integrative Problem Solving

Rubin, Kim and Pruitt, Social Conflict

◦ must identify underlying interests: through active listening with a third ear or purely talking about them

◦ then they must look for the interests underlying the interests: create an interest tree for each party and

eventually you will hopefully find an interest that is compatible with the other‟s interests (e.g. son who

wants to impress females plays soccer instead of purchasing motorcycle b/c dad doesn‟t like it)

◦ one can also try to identify polar opposites that are not necessarily in conflict (see p.99): e.g cares about

substance vs. a party who merely cares about appearance



Interests underlying interests

Learning about the first-level interests that underlie the others proposals is often not enough. Party must

seek the interests underlying these interests, and further interests underlying those. The point is that

interests are organized into hierarchical trees with more basic interests underpinning more superficial

ones.



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Same Issue-Different meaning

There may be situations where both parties are saying the same thing but understanding the issue in

different ways.



Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving

◦ although litigants typically ask for money/ damages, this is usually a proxy for more basic needs or

objectives

◦ by indemnifying those needs, one can reach a better solution

◦ important to recognize that both parties have needs

◦ wherever possible, try to convert zero-sum games into non-zero-sum or positive sum games

◦ this is done by expanding resources: exploring what could be distributed, when it could be distributed, by

whom, how and how much



Underlying principles of problem solving

Parties to a negotiation typically have underlying needs or objectives-what they hope to achieve,

accomplish, and/or be compensated for as a result of the dispute or transaction. The principle underlying

such an approach is that unearthing a greater number of the actual needs f the parties will create more

possible solutions because not all needs will be mutually exclusive. Though some needs may not be

compensable completely, such as an injury that has left a permanent scar, it will nonetheless be dealt

with the best possible solution that is available.

It is important to recognize that both parties have such needs that may not be fully met.



Expanding the resources available

Expanding resources or the material available for division may satisfy more of the parties‟ total set of

needs. Various substantive strategies may increase the material available for distribution. Resources can

be expanded by exploring what can be distributed, when it could be distributed, by whom it could be

distributed, how it could be distributed and how much of it could be distributed.



P. Emond, “ADR: A conceptual overview”



Relating Disputes to Process

It has been suggested that dispute resolution processes can be divided first between the irrational and the

rational. Of the two, rational processes deserve further examination. Almost every characteristic which one

would use to describe a dispute resolution process falls between two extremes which fall along the

continuum. Refer to pg 105 of text for the rational dispute resolution model.



CHART: Rational Dispute Resolution Model



1.Consensual Models of Dispute Resolution ----------------8.Command Models of Dispute

Resolution



o negotiation maximizes disputant participation

o participation is a dynamic feature of any dispute resolution process: parties will tend to change over time

o advantage of describing these processes as a continuum is to remind parties that they are not mutually

exclusive and can be mixed and matched



o sometimes argued that all disputes involving “unequal” parties should be adjudicated as opposed to

negotiated or mediated









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CLASS 2: Negotiation Part 1



NEGOTIATION

Negotiation pervades everyday life. If we shift the focus from the individual as he or she goes about his or

her day to collective social action and the cooperation of groups, the pervasiveness of negotiation is even

more evident. Corporate transactions, internal and external, structure the production and distribution of

goods and services. Negotiations are always being made.

The study of negotiation can help everyone as they negotiate the obstacles of everyday life.



What is negotiation?

Negotiation can be defined as a discussion between two or more parties aimed at resolving incompatible

goals. Negotiations are a way of dealing with social conflict. Conflict often results from dissatisfaction with the

status quo, and it often leads to negotiation about how to do things differently. Negotiation is a process pf

potentially opportunistic interaction by which two or more parties, with some apparent conflict, seek to do

better through jointly decided action than they could do otherwise. Negotiation is a fact of life, it‟s a way of

getting what you want from others. It‟s a process of adjustment of existing differences, with a view to the

establishment of a mutually more desirable legal relation by means of barter and compromise of legal rights

and duties and of economic, psychological, social and other interests.



The Essence of Negotiation: Value Claiming and Value Creation

Before examining the arguments about the nature or essence of negotiation, a number of basic negotiation

concepts need to be understood.



D.A. Lax and J.K. Sebenius, The manager as Negotiator

People faced with upcoming negotiations often seek advice. Invariably, many if not al of their questions have

a tactical slant: should I make the first contact? By phone or in person, by mail, or through a third party?

Should I wear a dark suit and meet in a fancy restaurant?

By focusing on such tactical choices, negotiators may miss a more fundamental point. The current negotiation

is but a means to an end: one seeks by negotiation to satisfy one‟s interest by jointly decided action rather

than something otherwise.





D. Pruitt and P.J. Carnevale, Negotiation in social conflict



Goals, limits and demands

Most negotiators have goals otherwise they would blunder along not knowing what direction to take. In

addition there are always limits to how far they will concede. Demands, however, are more ambitious than

goals, which are more ambitious than the limits for what can and cannot be attained through the negotiation.



Determinants of goals and limits

It is rational for negotiators to limit their concessions to what Fisher and Ury call the “best alternative to a

negotiated agreement” or BATNA. Negotiators can increase their chances of success by surveying the options

that are available to them outside of negotiation in search for a favourable BATNA.

It seems reasonable to assume that limits will be lower and therefore negotiators will be more willing to

concede, the greater is the perceived cost of failing to reach an agreement.

Negotiator goals are never lower than their limits and hence are influenced by all the determinants of limits.

In addition they are affected by what seems feasible.

NOTES:

 Your aspiration level is the ideal result you would like to achieve in the negotiation

 Your negotiating goal is what you feel and can realistically aim for in the negotiation

 Your reservation price identifies the point a which you will break off negotiations.

 For each party to the negotiation, the area between the negotiating goal and the reservation price

defines a range of possible agreements to which they may consent. This is their bargaining zone.







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 A settlement zone or zone of possible agreement exists when there is an overlap between the

bargaining zone of each party to the negotiation. If there is no overlap, there is not point in

negotiating because the parties will not be able to reach an agreement.

 The no-agreement alternative for each party consists of what they will do if the negotiation is

unsuccessful.

 The best alternative to a negotiated agreement (BATNA) is the action each party will take if

the parties fail to reach an agreement.



Warring conceptions of Negotiation

There are two groups of negotiators that are guided by the warring conceptions of the bargaining process:

value creators and value claimers.



Value creators

This group tends to believe that, above all, successful negotiators must be inventive and cooperative enough

to devise an agreement that yields considerable gain to each party relative to no-agreement possibilities.



Value claimers

This group tends to see this drive for joint gain as naïve and weak minded. For them, negotiation is hard

tough bargaining. The object of the negotiation is to convince the other guy that he wants what you have to

offer much more than you want what he has.



There is nevertheless tension between these two models, because no matter how much of the pie each

person gets, it makes a difference who made the pie and who had the first piece of the pie.



A fundamental tension of Negotiation

Both of these above images of negotiation are incomplete and inadequate. Value creating and value claiming

are linked parts of negotiation. Both processes are present. No matter how much creative problem solving

enlarges the pie; it must still be divided; value that has been created must be claimed.



Tension at the tactical level

The tension between cooperative moves to create value and competitive moves to claim it is greatly

exacerbated by the interaction of the tactics used to create or claim value. Tactics for claiming value can

impede its creation. Exaggerating the value of concessions and minimizing the benefits of others‟ concessions

presents a distorted picture of ones relative preferences; thus mutually beneficial trades may not be

discovered. Approaches to creating value are vulnerable to tactics for claiming value. Revealing information

about ones relative preferences is risky. In tactical choices, each negotiator thus has reasons not to be open

and cooperative. Each also has apparent incentives to try to claim value. Moves to claim value thus tend to

drive out moves to create it. Yet if both choose not to claim value, by being dishonest or less than

forthcoming about preferences, beliefs, or minimum requirements, they may miss mutually beneficial terms

for agreement.





Chapter 2 – Negotiation

D. A. Lax and J.K. Sebenius “The Manager as Negotiator: Bargaining for Cooperation and

Competitive Gain”

- Negotiations usually take place in many steps and each tactical choice can be understood as having

the structure of the Negotiator‟s Dilemma.

- A new study in which strategies were employed the results implied that being open in each round to

cooperation conditional on an opponent‟s openness elicits payoffs from cooperation sufficient to offset

the costs of occasional defections. Attempt to be conditionally open, warily seeking mutual

cooperation, reading to punish of claim value when his counterpart does so, but ultimately forgiving

transgressions.

- When the game is about to end defections are likely because players tend to cooperate only whey

they know that their actions will affect future payoffs and their defection will not cause future

undesirable effects.

- Therefore, common and suggested tactics for eliciting cooperation essentially involves enhancing the

likelihood of repetition. And many tactics for claiming value involves moves to eliminate meaningful

repetition.



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- When claiming is more likely to be detected, it is less likely to occur.

- There is one large difference between the prisoner‟s dilemma and negotiation and that is that

negotiators can discuss future intentions. They can talk to the other side to make binding

commitments and this can improve the likelihood of cooperation.

- Tactics to have more creating value actions than claiming value actions:

o Instead of announcing others to announce their positions on the issues first, talk about

underlying interests. Brainstorming with no criticism can also be useful

o Create and highlight repetition to induce cooperative behavior.

o Invoking repeated dealings such that you may have repeated encounters with the other side so

that you can agree to cooperate more.

o Make norms for appropriate behavior more salient and penalize blatant claiming tactics.



R. Fisher, B. Patton and W. Ury “Getting to Yes”

- 3 steps in negotiating the rules where the other side is using a tricky tactic: recognize the tactic, raise

the issue explicitly, and question the tactic‟s legitimacy and desirability.

- Often just brining it up will neutralize it or at least make it less effective. Make sure you separate the

people from the problem. Don‟t attack the person personally for using a tactic you consider

illegitimate (they may not give up the tactic or will have residual anger afterwards).

- Focus on interests, not positions.

- Invent options for mutual gain. Insist on using objective criteria and at a last resort turn to your

BATNA and walk out.



Negotiating Style and Effectiveness

- Most effective negotiators combine empathy (i.e. understanding the other side‟s needs without

necessarily agreeing) and assertiveness (i.e. advocacy of ones own needs, interests and perspective)



R.H. Mnookin, S.R. Peppet, and A.S. Tulumello “Beyond Winning”

- 3 common negotiation models: compete, accommodate or avoid.

- Competing:

o Doing lots of asserting but very little empathizing.

o Eager, enthusiastic and impatient.

o Typically try to control the agenda and frame the issues.

o They stake an ambitious position and they stick to it

o Creates risk of stalemate and escalation

o They tend to be hard on themselves and feel responsible for a poor outcome, and may often

feel embarrassed if they lost self-control

o They may damage relationships

- Accommodating:

o Substantial empathy but little assertion.

o Wants to be liked, exudes concern, compassion and understanding

o May be too quick to give up on their own interests when they fear the relationship will be

disrupted.

o They have better relationships and are trustworthy

o They tend to create a less stressful atmosphere

o One disadvantage is that they can be exploited by persons holding the relationship hostage.

They may pay insufficient attention to both disruptive issues and value-creating opportunities

- Avoiding:

o Displaying little empathy or assertiveness

o They feel uncomfortable with disagreement. They appear unenthusiastic and uninterested.

o It can work to their advantage and things can just go away and they make have a more

persuasive impact when they finally do speak up. Also, others are unaware of their intentions

and interests which can have a strategic advantage.

o Greatest disadvantage is that they avoid opportunities to solve conflict. They are rarely better

off. They may be seen by others as cool and distant and therefore it may be hard for them to

develop relationships.

- Interactions among styles:

- Competitor-competitor: energetic negotiation, likely to reach stalemate and be very explosive.





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- Competitor-Avoider: avoiders drive competitors crazy. They refuse to engage the competitor‟s need

for control. They need to try and encourage the avoider to come to the table. Avoiders have to try

and open up without being bullied or intimidated.

- Competitor-Accommodator: Competitors often exploit the accommodator as they desire to keep

the relationship. Accommodators can help by developing assertive skills.

- Accommodator- Accommodator: May fail to assert their interests adequately and overlook value-

creating opportunities. They may overlook some aspects of conflict in order to keep the peace.

- Accommodator-Avoider: Usually ends quickly, unless the accommodator can keep the emotional

temperature of the interaction low enough to get the avoider to participate.

- Avoider- Avoider: They never face the conflict in the first place.



G. R. Williams “Style and Effectiveness in Negotiation”

- Effectiveness as a negotiator depends not on which approach you adopt but on what you do with the

particular strategy.

- Cooperative objectives: conduct themselves ethically, maximize settlement for client, get a fair

settlement. They like win-win.

- Aggressive objectives: maximize settlement for client, obtain a profitable fee, outdo or outmaneuver

the opponent. They like win-lose

- Therefore the objectives are similar.

- Ineffective cooperative traits: trustworthy, ethical, fair, trustful, courteous, personable, sociable,

friendly, gently, obliging, patient, forgiving, intelligent, dignified, self-controlled.

- Ineffective aggressive traits: irritating, unreasonable opening position, bluffs, uses take it or leave it,

withholds information, attacking, argumentative, quarrelsome, demanding, aggressive, rigid,

egotistical, headstrong, arrogant, disinterested in others‟ needs, intolerant, hostile.

- Its not that all these traits are ineffective, but they can be.

- Cooperative v. cooperative – most stable, if the problem can be solved they will solve it.

- Aggressive-aggressive: high risk of breakdown, takes longer and consumes for resources.

- Cooperative-aggressive: do not understand each other as they do not speak the same language.

Cooperative are problem solvers and there instinct is to lay the facts out on the table. Aggressive are

warriors and they attack. They tend to both be wrong. A fully developed negotiator should be capable

of appropriately adopting either one in the proper circumstances.

- Aggressive negotiators can open with a high demand, but they tend to begin reasonable and escalate

over time. They use intimidation, maneuver their opponents and try not to make concessions.

- Cooperative negotiators tend to make a fair, objective statement of the facts and they are eager to

solve the problem on its merits. They make reasonable demands and to try and ignore intimidation

and bluffing. They try to develop a trusting atmosphere and shared values. They try to model their

behavior to the other side, however they must be careful not to be exploited.









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Class 3: Negotiation: Part II – Power

Power in Negotiation

 All Negotiations take place within a context that determines the distribution of power between the parties

involved.

 Naïve to deny existence of power differentials, as “power will always be at play” (Andrew Pirie)

 In discussion of negotiation styles, race & gender, the primary concern is power when negotiation

involves a weaker party who is vulnerable to exploitation – DANGER TO allow stronger party to impose an

unconscionable and onerous agreement… (accident victim negotiating with insurance company, consumer

v. corporation, victim spouse v. abusive spouse)

o Modify distribution of power through effective preparation and appropriate strategies.

o Power depends a great a deal on the perception of the parties… negotiators often tend to

overestimate the power of the other party & THUS the vulnerable party may be able to alter

the distribution of power in his or her favour.



The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain, Lax and Sebenius,



Setting the Search for Negotiating Power on a New Path

 Common notions of what gives power include:

o Inflict harm (US v. Vietnam), more resources (rich person‟s child is kidnapped & yet ends up

paying), having someone in your debt, being rational and persuasive (yet the party that is

irrational & insists on having it his way sometimes wins in the bargaining process);

o In each of these cases, the supposedly powerful party‟s interests do not appear to have been

advanced. The common generalizations do not quite work.

 Yet this is not to say that such power imbalances do not have favourable results for

the more powerful party, only that negotiations are not a forgone conclusion.



Interpreting Some Common Ideas of Power

 Ability to inflict harm may fail to influence bargaining if it goes unnoticed or cannot be communicated:

o Not credible… US v. Vietnam (threat of nuclear attack was not realistic)

o Capacity for harm can fail if the other side fails to perceive it as harmful.

o Inflicting harm often fails to produce desired outcome as it provokes conflict escalation.



Everybody Has a List

 Underlying bases of power – 5 basic factors:

o Coercion

o Remuneration – set up trading opportunities

o Identification – charismatic person

o Normative conformity – claim that one‟s position is right, legitimate and principled – work

to limit bargaining set in a way favorable to the person who invoked the principle.

o Knowledge

 Where these bases of power have their supposed effects, they do so by advantageously changing the

bargaining set. However, seemingly powerful conditions can lead to naught when they do not cause

such changes.

Principles and Negotiation

 Principles can be sincere, opportunistic or a combination of the two.



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 Use of principles in negotiations is opportunistic if parties define a principle in order to make a

commitment that is advantageous in their own value claiming rather than because of a sincere

commitment to the principle as such.

 Principles can operate at different levels that correspond to the categories of interests discussed

previously.

o Substantive justice (i.e. bottom line on matters)

o Procedural justice (i.e. procedure for reaching agreement)

o Distributive justice or fair division (i.e. equality and equity)

 Principles can play two roles in negotiations:

o Provide framework for resolving conflict if the parties are motivated to finding an acceptable

agreement.

o Exacerbate the conflict by providing justification for its continuance if parties have too much

invested in the conflict to work to reach an agreement.





Negotiation in Social Conflict, Pruitt and Carnevale

Norms and Negotiation

 Norms are almost always important in negotiation… affect the positions taken, arguments and

concessions made

 Fairness principles are particularly important, negotiators are usually more concerned about fairness to

themselves than fairness to others.

 To apply the equity rule it must be possible to compare the ratio of benefits to contributions across the

parties….to apply the needs rule, it must be possible to evaluate the relative strengths of the parties‟

needs. Such a comparison is not always possible.



Variations of the Equality Rule

 4 types of equality rule:

1. Equal outcomes

 Both parties benefit equally in the final agreement.

2. Equal concessions

 When outcomes cannot be compared, it is sometimes possible to identify equal concessions.

3. Aspiration balance

 Negotiators sometime equate concessions by comparing their levels of aspiration to those of

the other party.

4. Outside precedent

 Comparing a negotiator‟s outcome with those achieved by similar parties outside the

negotiation.

 Fairness then becomes equating these two outcomes.

 First settlement achieved in an industry sets the pattern for all others.



Fairness Principles and Prominent Solutions

 Outcomes that satisfy a clear-cut fairness principle are prominent solutions – solutions that stand out as

inevitable.

 Both parties are likely to view fair outcomes as correct and inevitable cannot expect other party to accept

an offer that is less than a fair outcome.

 Even where there is a principle that clearly applies to the issues under consideration, agreement is not

always reached.



Multiple Principles

 The situation is more complicated if two or more principles are applicable.

o Solution easy if principles point to same outcome, but if they point to different outcomes then

more difficult because each party is likely to show a partisan bias toward the principles that

favours its own interests.

 Lamn and Keyser argue that it is better to have multiple principles pointing in different directions than

no principles at all, because multiple principles tend to limit the range of options under consideration.

o The problem with this argument is that principles then have an emotional appeal – they seem

righteous and moral, even when self-serving – encourage rigidity with respect to one‟s





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demands…Likely to reduce the amount of problem solving and diminish the likelihood of

agreement.



A Critique of Principled Negotiation

 Clear-cut situations as described by Ury and Fisher are not that common.

 Emotions accompanying such principles may make it difficult for either side to concede, prolonging rather

than solving the conflict.



Overcoming Principle-Based Rigidity

 In addition to negotiators being advised to seek jointly acceptable principles, they should also be taught

how to back off from these principles if the other side does not agree with them.

 Should also be taught how to overcome the other sides principle-based rigidity.

 Mediators could also benefit from this training.

 Training should include the following methods:

o Persuade the committed party that the principle is inapplicable to the case at hand.

o Persuade the committed party that another more equally or more valid principle contradicts the

one that is being advocated.

o Persuade the committed party that the principle, while applicable, can be satisfied in some

other way.

o Find a win-win solution that satisfies both the committed party‟s principles and one‟s own

priorities.

o Try to shift the discussion from principles to concrete issues.

 No easy answers to the question of the appropriate balance between principled stances and negotiated

agreement. Pruitt suggests that in order for a conflict to be “ripe” for settlement, the parties

must perceive one or more of the following:

o A hurting stalemate

o A recent catastrophe

o An impending catastrophe

o An enticing opportunity

The Negotiation Process

 3 basic stages:

1. Planning

2. Implementation

3. Reaching an agreement or bringing negotiation to an end.

The Art and Science of Negotiation, Raiffa

A Checklist for Negotiators

 Preparing for Negotiations

1. know yourself

2. know your adversaries

3. give thought to the negotiating conventions

4. consider the logistics of the situation

5. remember that simulated role playing can be of value in preparing your strategy

6. iterate and set your aspiration levels

7. sometimes psychology can be a barrier to successful negotiation; self-awareness and reality

checks are crucial.

 Information is power … thorough understanding of both sides‟ BATNAs may allow you to walk

away from a negotiation when otherwise you could not!



 Barriers to effective negotiation planning:

o Irrationally escalating commitment to an initial course of action

o Assuming your gain must come at expense of other – miss trade-off opportunities

o Based judgments off of irrelevant information like initial offer

o Being overly affected by the way information is presented to you

o Relying too much on readily available information, while ignoring relevant data

o Failing to consider what you can learn by focusing on the other side‟s perspective

o Being overconfident about attaining outcomes that favor you







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 Purpose of planning is to minimize the impact of irrationality, biases, and manipulation by other party

or parties in order to achieve an agreement that meets the real interests or needs of those involved.

 Important to have clear understanding of one‟s objectives and finding as much information as possible

about the parties with whom you will be negotiating.

 Relationship interests are extremely important.

o In the planning for negotiation the assessment of the impact of the relationship is critical to

the choice of strategies… especially if in long term relationships



Negotiation: Lewicki, Litterer, Minton and Saunders

Defining the Issues

 First step in negotiating planning is to define the issues to be deliberated – need to analyze the conflict

situation in order to identify the issues at stake … usually negotiations include 1 or 2 major issues &

several minor issues.

 Complete list of issues is best derived from these sources:

 Analysis of conflict problem

 Past experiences in similar conflicts

 Research

 Consultation with experts



Assembling Issues and Defining the Bargaining Mix

 Next step is to assemble all the issues into a comprehensive list – combination of both parties‟ lists in the

negotiation determines the bargaining mix.

 In generating list of issues tendency to put too much on table at once or raise too many issues.

 However, Success is often more likely with a longer list of issues, so long as the issues are “real”….Larger

bargaining mix gives us more possible components and arrangement for settlement, but can lengthen

negotiations – more combinations to consider and evaluate.

 Next step is for the negotiator to prioritize the issues. Must do 2 things:

 Determine which issues are most important and which are lower in importance.

 Determine whether the issues are connected or separate.



Defining Your Interests

 After defining issues must proceed to define underlying interests and needs – even distributive

discussions can benefit from identifying key interests…ask why we want something.

 Interests can be:

o Substantive (directly related to the focal issues under negotiation)

o Process-based (manner in which dispute is to be settled)

o Relationship-based (current or desired future relationship between the parties)

o Based in principles and standards (tied to intangibles or negotiation or referring to informal

norms)



Consulting with Others

 Before formal negotiations begin negotiator must:

o Consult with constituencies

o Consult with other side – clarifying issues, discussing agenda, negotiating ground rules

o Pre-negotiate other elements of negotiation protocol:

 Location

 Time period

 What other parties might be involved

 What might be done if negotiation fails

 Really important when bargaining relationship is new – test to see how negotiations on

substantive issues will proceed.



Prioritizing – Defining the Relative Importance of Our Issues

 Determine relative importance of issues.

o When negotiators don‟t have priorities may be more likely to yield on those points aggressively

argued by the other side, rather than to yield on issues that are less important to them.

 Could rank order issues, or group issues into categories of low, medium or high importance.

 Constituency should be involved in setting priorities.



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 Setting priorities is also important on both the intangible and intangible issues.



Assessing the Other‟s Priorities

 Put yourself in the other party‟s shoe or gather information that might help you learn about their issues,

interests and priorities.

o Might call them for an interview in advance.

 By comparing this assessment against our own, we can begin to define areas where there may be a

strong conflict, simple tradeoffs or no conflict at all.



Knowing Our Limits

 What happens if the other party in a negotiation refuses to accept some proposed items for the agenda or

states issues in such a way that they are far below our resistance point? Can they be dropped or

postponed?

o If not, answer may be not to negotiate.

 Above all else negotiation planning must be realistic. If needs can be addressed adequately without

negotiation or if the costs exceed the gains that it may be appropriate to forego negotiation altogether.



Goal Setting

 Next step is to define goals on the key issues in the bargaining mix.

 Where to start – optimistic, realistic, or pessimistic?

o Need to consider 4 key points:

 Target point (realistic expectation)

 Resistance point (least acceptable settlement point)

 BATNA

 Asking price or opening bid (optimistic expectation – best deal you could possibly hope

to achieve).

o When goal setting, negotiator ought to start from where they feel comfortable or at starting,

target or resistance points that are clearly dictated by research and preparation.

o Next the negotiator should move into an area they may be inclined to avoid or think carelessly

about.



Developing Supporting Arguments – Research

 Important that you are able to present your case clearly and to marshal ample supporting facts and

arguments; another is to be able to refute the other party‟s arguments with counterarguments.

 Questions to ask include:

 What facts support my view? What substantiates or validates this information as factual?

 Who may I consult or talk with to help me elaborate or clarify the facts? What records, file or data

sources exist that support my arguments?

 Have these issues been negotiated before?

 What is the other party‟s point of view likely to be?

 How can I develop and present the facts so they are most convincing.

Analyzing the Other Party (“in their shoes”)

 Must examine the other party‟s:

o Current resources, interests and needs

o Objectives

o Reputation and negotiation style

o BATNA

o Authority to make an agreement

o Likely strategy and tactics

Legal Negotiation and Settlement, Williams

 Negotiations are a repetitive process that follows reasonably predictable patterns over time... Yet in legal

disputes, so much of the attorney‟s attention & energy are absorbed by pre-trial procedures & trial

strategy that they fail to recognize the identifiable patterns and dynamics of the negotiation process.

 4 stages can be identified in legal negotiations:

1. Orientation and Positioning (each side creates the illusion of being inalterably committed to the

opening poison … time span of this phase usually measured in moths or years)

2. Argumentation (each side seeks to discover & reduce the real position of the other side)





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3. Emergence and Crisis (deadlines approach…each side realizes they must make concessions or

admit deadlock & resort to trial)

4. Agreement of Final Breakdown

Choice of Strategies

 When planning the negotiation it is necessary to develop a strategy for achieving the defined objectives.

 A strategy is the negotiator‟s planned and systematic attempt to move the negotiation process toward a

resolution favourable to his client‟s interests.



Think Before You Speak: A Complete Guide to Strategic Negotiation, Lewicki and Haim

Tactics

 In competitive strategy a lot of jockeying for position and psyching out the other party.

 Tactics used to better one‟s position and diminish the others.

 Used to manipulate the other party into thinking that this is the best possible settlement.

 Tactics can easily backfire, with the result that emotions may escalate and negotiations may be abruptly

halted.

Commitments

 Number of ways to show commitment; assertions, threats, using public and political means to underline

your commitment, final offers.

o To get out of commitments you may say that the situation has changed, new information or let

is die quietly or change the statement to more general terms.

o If other party makes commitments they need to abandon – usually astute to help them save

face.

o Hardball – playing tough guy, starting with extreme offer, refusing to make concessions – can

result in loss of reputation, negative publicity, loss of deal, becoming brunt of other‟s anger.

o Good Guy/Bad Guy – good guy cuts deal before bad guy returns – disadvantages are that it is

usually obvious, alienates other party, energy spent on tactic rather than on negotiation.

o Highball/Lowball – make ridiculous first offer, force other party to reassess its position.

o Bogey – pretend that an issue is important when it really isn‟t, then trade it off later for

something that is really important. If other side is using same tactic can be difficult to figure

out what really is important.

o Nibble – wait until the end of proceedings, when everything is almost decided and then ask for

something that was never even brought up before as an issue.

o Chicken – chicken is used in competitive negotiations to bluff and threaten to get what you

want. Problem is that the stakes are high and you have to follow through on your threat.

o Intimidation and Aggressiveness – anger, appeal to their sense of guilt, being pushy, attacking

other person‟s point of view, asking for explanations for positions.

o Deadline, Scheduling and Delays

 Other competitive tactics (these tactics can lead to complete negotiation breakdown)

o Manipulate the other party‟s impression of your outcome concerns.

o Make the costs of negotiation seem higher

o Manipulate the actual costs of delay or ending negotiation

o Conceal information

o Use emotional tactics

o Ally with outsiders





Steps in the Collaborative Strategy

 Identify the Problem

 Use neutral language and keep it impersonal.

 Define problem as common goal.

 Need to be assertive but cooperative at the same time, relationship is important.

 Avoid discussing solutions until you have thoroughly defined and understood problem.

 Understand the Problem

 Get behind the issues to the underlying needs and interests

 Learn about needs, interest, fears and concerns

 Interests offer multiple ways to think about a problem.

 Ask why... dig deeper into the reasons for each party‟s position.

 Interests can change.



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 Generate Alternative Solutions

 You want to find a group of possible solutions, then select from among them the best solution for

both parties.

 2 ways to find a solution i) redefine problem into win-win ii)generate long list of options

 Redefining the Problem

o Expand the pie

o Logroll – trade offs

o Offer non-specific compensation

o Cut costs

o Bridge – invent new options that meet each other‟s needs

 Generating a List of Solutions

o Don‟t evaluate options

o Both parties engage in trying to solve the other party‟s problem as much as they do their

own.

o Number of ways to generate ideas for solutions:

o Brainstorming

o Piggybacking – used in conjunction with brainstorming

o Nominal group – small groups generate ideas and share with larger group

o Surveys

 Prioritize the Options and Reduce the List

o Important to maintain attitude of firm flexibility

o Only prioritizing not deciding

o Be assertive in defending and establishing your basic interests, but do not demand a

particular solution

o Practice listening skills

o Be willing to modify a position

o Show willingness to problem solve

o Keep lines of communication open

o Underscore what is most important to you

o Re-evaluate any points on which you disagree

o Eliminate competitive tactics by identifying them and either confronting them or

renegotiating the process

 Barriers to Joint Problem Solving and Corresponding Responses:

Normal to react to competitive tactics aggressively – action-reaction cycle – perpetuates conflict and

opens up one party to exploitation… Competitive party may: be expressing negative emotion such as fear

or distrust through value claiming or adopt positional behaviour to avoid having to give in, devalue any

position put forth or use power plays in effort to win negotiations (see it as win-lose, zero-sum game);

 Responses:

Collaborative party should master his or her reactions – going to the balcony – take a step back – get

perspective – break off the action-reaction cycle. Create climate that encourages collaboration – avoid

adversarial behaviour…Learn to reframe issues into a joint problem. Make it easy for other party to agree

by highlighting mutual benefits –enable them to save face.









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Class 4: Introduction to Mediation

Definitions

 Mediation is not a monolithic process, and its many variations and adaptations reflect a diversity of

philosophies … mediation aims to produce a voluntary, consensual settlement outcome… mediators do

not have the authority to impose an outcome on the authorities;

 C. Moore: “Mediation is the intervention into a dispute or negotiations by an acceptable, impartial and

neutral third party who has no authoritative decision-making power to assist disputing parties in

voluntarily reaching their own mutually acceptable settlement of the issues in dispute”

 Emphasis on the parties reaching their own agreement

 Mediators broaden options; mediation allows discussion not only about entitlements but also about

interests behind demands



J. Macfarlane: The Mediation Alternative

 Exploring the other side‟s interests enables each party to understand the other

 Distinguishes justifications (rights-based) and motivations (interest-based) – a paradigm shift how

disputants think about the resolution of their conflict

 Generally, there are no externally imposed standards to mediation therefore parties have some

flexibility for remedies that could go beyond that available to the court (apology, etc.)

 mediation is “without prejudice” if you then move to the courts

 Because you do not “present” a legal case you can turn to settlement early in the process



Chornenki and Hart, ByPass Court

 low risk opportunity to explore settlement options

 mediators, however, are advocates for resolution

 parties play a more significant role in mediation than in other avenues and are expected to participate

and have authority to settle

 principally an oral process

 you can expect impartiality from a mediator – they have no stake in the outcome

 author then lists 14 things that the mediator does to facilitate a resolution (create an atmosphere

conducive to discussion, elicit factual info, understand the dispute from each parties perspective,

manage the interplay between the parties, help parties identify strengths & weaknesses of their case,

work with parties to get beyond their positions, smooth communications between parties, assist

parties in analyzing their alternatives, control pace of negotiations, display endless optimisim)



Diversity

 there is wide variation on how mediation is actually conducted

 this is partially explained by the fact that there is no public prototype- it is private, off-the-record

forum

 some see this as a good thing, lending to flexibility and others see this as confusing the public





J. Nolan-Haley reviewing K. Kovach, Mediaiton Principles and Practice

 “much of what passes for mediation today resembles evaluative services, hybrid settlement

processes, or rough justice” … worst-case scenes are dismal: mediators with just a few hours of

training engaging in strong-armed persuasion to produce settlements; retired judge mediators tell

parties that the law is against them so they should settle for specific $$... quick settlements are all

too important;

o Now that mediation has advanced beyond experimentation, it seems important to be clear

about the process… parties that participate in mediation must know what to expect, how to

prepare, and in some cases how to protect themselves.

o Mediators must not only be versed in problem solving but also knowledgeable in legal,

ethical and policy issues associated with mediation practice today.



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Menkel-Meadow reviewing Kolb‟s The Many Ways of Mediation:

 purest form, facilitative: very rare for mediator not to intrude at all

 newest form, evaluative: hybrid of mediation and arbitration; could suggest outcomes or help with

negotiation

 transformative mediation: seeks to change either the dispute or the disputants (e.g. legal dispute to a

business decision)

 bureaucratic mediation: occur in institutional settings which control an limit the process and

outcomes; generally, greater rigidity

 Mediation can be open or closed: meaning the degree to which the parties control the process



Mediating Styles & Strategies

Relationship to parties and role played is critical to how and what type of solutions result



Moore, The Mediation Process

3 types of mediators:

1) Social network:

◦ connected to disputants

◦ part of a common social network

◦ has a desire to help maintain the relationships

◦ can extend to implementation of agreement, thereby ongoing and enmeshed

◦ there is a level of trust and respect

◦ examples include, a priest, rabbi, community leader, politician, tribe leader, respected community

member, even a friend or business colleague

2) Authoritative/administrative/managerial:

◦ more superior position, powerful

◦ usually try to influence parties indirectly but do not make the decisions, can exercise significant

leverage

◦ usually three sub-types: benevolent, administrative/managerial and vested interest

◦ benevolent: no need to get their own interest met , want a mutually satisfactory resolution, concerns

with fairness, efficiency and minimization of overt conflict. Ex: CEO and 2 Dept heads who disagree

◦ Admin: can establish bargaining parameters; has a substantial interest in the outcome that is

institutionally or legally mandated (e.g. cultural dispute, can have decision-making authority but

instead helps to reach an agreement)

◦ vested: has both procedural and substantive interests and pushes them with enthusiasm (e.g. mainly

in international disputes and US‟s role in helping); mediator with muscle

3) Independent:

◦ impartiality and neutrality

◦ perceived to have no personal vested interest

◦ most commonly found in cultures in which there is a tradition of an independent judiciary

◦ now considered the North American model of mediation

◦ Impartiality: refers to the absence of bias or preference in one or more negotiators or their interest

◦ Neutrality: refers to the relationship or behaviour between intervener and disputing parties

◦ this doesn‟t mean, however, that a mediator will not have a personal opinion about a desirable

outcome to a dispute



The Evaluative – Facilitative Debate

Should the mediator be facilitative or evaluative?

 Evaluative are usually appointed because of their expertise and authority in an area



Riskin, Mediator Orientations, Strategies and Techniques

 mediators with a narrow focus (litigation issues) assume that the parties have come to them for

help in solving a technical problem; emphasis is therefore on positions

 mediators with a broad orientation (substantive issues business/personal/societal) assume

that parties can benefit from mediation going beyond narrow issues

 Evaluative assumes participants want and need the mediator to provide some direction as to

appropriate grounds for settlement





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 Facilitative assumes the parties are intelligent and capable of understanding their situations

better than the mediator, believes its inappropriate for the mediator to give his opinion.

Evaluative/ Narrow:

◦ assumes that she is qualified and that parties want some direction

◦ techniques include, propose compromise agreements, persuasion, directly assesses strengths and

weaknesses of each side

Facilitative/ Narrow:

◦ assumes parties are intelligent and that his mission is to enhance and clarify communications

between parties

◦ should not give opinions

◦ techniques include, asking questions

Evaluative/ Broad:

◦ emphasizes the parties‟ interests over positions and attempts to find a solution to accommodate these

interest

◦ techniques include, encourage participation, ask about interests

Facilitative/ Broad:

◦ encourages parties to understand interests

◦ techniques include, joint sessions, encourage and help parties to develop their own proposals

◦ does NOT provide assessments or proposals

◦ legal argument generally occupies lesser position



Waldman:

Norm-Generating Model:

a) Introductory/Contracting phase b) Storytelling/information gathering c) Ordering/Structuring stage d)

Exchange of views e) Option-generating/brainstorming f) Agreement writing

Norm-Educating Model:

Norm-Advocating Model:



Silbey and Merry, Mediator Settlement Strategies

Bargaining Mediation style:

 more structured process

 less direct disputant discussion

 ignores emotional demands and focuses on demands that can be traded off

 mediator is to be an agent of reality

Therapeutic Mediation Style:

 parties encouraged to fully express emotions and attitudes

 mutual understanding through collective agreements

 self-enforcement of agreements

 facilitate conversation not to bargain



Baruch and Folger, The Promise of Mediation

The Transformative Vision of Mediation:

 involves changing not just situations, but the people themselves, thus making a “better world”

 only a changed world with changed people can make people better off for the long-term

 it is being better off that matters, it is being better

 mediation is the only process that can achieve transformation

 mediation is like this because it assumes people are competent

 emphasis on transformation of human moral awareness and conduct

 most mediators are taking an approach to practice that focuses on finding good solutions to problems that

frustrate the fulfillment of parties‟ needs … this is classified as the Satisfaction Story

- this is often connected to a lack of concern empowerment and transformation

- therefore practice has moved from Transformation to Satisfaction



Lande, How Will Lawyering and Mediation Practices Transform One Another?

Mediation shopping can create different labels for various types of mediators, which are often associated with

the mediator‟s goals…these can include, settlors, fixers, protectors, reconcilers, empowerors

Settlors: see their job as settling cases, period; see disputants as wanting to et rid of the case; usually

directive style



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Fixers: emphasizes development of optimal solutions; getting-to-yes joint problem solvers; creative,

knowledgeable and smart

Protectors: concerned with fairness and equality of both parties; focus of avoiding harm rather than

producing the optimal benefit; prudent

Reconciler: concerned about relationship between parties and possibly more important than the agreement

itself; sensitive or therapeutic

Empowerors: reject a directive approach and focus on self-determination of the parties; thorough and

systematic

 settlement rates are important more and more as an index for success in mediation





Alfini, Trashing, Bashing and Hashing it Out: Is this the End of „Good‟ Mediation?

Author looked at circuit court mediation (mandatory and conducted by legal professionals) and found 3

styles:



1)Trashing:

 direct party communication is discouraged

 parties are separated

 mediator tears down case by pointing out all the deficiencies to get plaintiff to entertain more realistic

settlement options

 same then with defence

 once an agreement is reached the parties may or may not see each other again



2) Bashing:

 mediators bash away at the two positions and try to get a settlement somewhere in between. Focus on

the offers not the case

 shorter sessions than trashers



3) Hashing it Out:

 direct communication between parties

 more flexible approach

 if a party wants to leave the mediation they can because it has got to be voluntary



Mayer, The Dynamics of Conflict Resolution

Dimensions of resolution parallel the dimensions of conflict- cognitive, emotional and behavioural

dimensions… full resolution only occurs when there is resolution among all 3 dimensions

Cognitive:

◦ usually develops in tandem with other dimensions

◦ how they view the situation

◦ difficult to reach because people hang on to their views, but can have profound impact

◦ Technique here is cognitive dissonance: two competing values and you have to choose one and

possibly change your value system (askig divorcing wife „do you love your kids more than you hate

your ex-husban?‟)

Emotional:

◦ the way they feel and emotional energy

◦ the amount of energy is a clue as to how the resolution is coming

◦ occurs as a result of time and distance but also can occur when parties feel their needs are getting

met, feel they are being heard, their values are no longer under attack

◦ the role of apology can be critical here, but they must be genuine and unconditional

Behavioural:

◦ what people will do as according to an agreement

◦ the typical idea we associate with resolution

◦ can have 2 aspects: discontinuing the conflict and also implementing a new mode of interaction





Mediation Process Models:



Noone, Mediating Personal Injuries Disputes



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Classic example of mediation process for personal injuries

Preparation:

 should normally hold a short preliminary conference because they are prone to settle shortly after holding

these

 Preliminary conference: mediator has opportunity to observe the dynamics; can also tidy up procedural

and evidential loose ends

At the Mediation:

 start positive and assert authority but maintain that the parties have control generally

 The parties opening statements: plaintiff should always make personal statement here so that he/she can

let off steam

- Issue identification and Agenda setting: locate and define all the contentious issues; mediator

should not allow too much digression; reframe issues in problem-solving format

- First joint negotiation session: thinking about range of options; try to steer parties from

reverting into position-based negotiation mode

- First private sessions with each side: assure parties of confidentiality; obtaining new

information but also probing in a way one cannot do in joint sessions; often both sides will

reveal their range of settlement options; mediator learns what the true gap is

- Second joint sessions and further private and joint sessions as needed: concentrate on common

ground; private sessions can be used to attempt to get further concessions. Focus on best and

worst alternatives. Remind parties of uncertainties in litigation and personal litigation in

particular.



- Working out details of settlement: costs, etc.

- the Memorandum of Agreement: get them to sign it before they leave; can be quite simple





Pre- Mediation Stage:



Bennett and Hermann, The Art of Mediation

Contracting stage:

 mediator monologue, does most of the talking here

 parties agree on structure, rules and goals of the mediation

 usually ends with parties signing a written agreement to mediate, which is theor undertsaning on the

process, spells out mediators role an details like costs and fees

Contracting Goals:

 beyond the usual basic information, the mediator must make a tentative diagnosis to determine whether

mediation is appropriate

7 main tasks of mediators at the contracting stage:

1) Explain process, etc. to parties (time, location, fees etc.)

2) Develop rapport with parties and build trust

3) Learn what parties bring to the process in order to develop foundation for later

4) Determine suitability of mediation

5) Establish clarity re: rules

6) Set a positive tone and workable structure

7) Obtain signed agreement to mediate



Love and Stulberg, Practice Guidelines for Co-Mediation

 They can be used in situations such as divorce where attorney and mental health professional make

up the mediator team to address both legal and psychological issues

 Effective co-mediation can…enhance insights and expertise, create balance (male/female, race, etc.),

give two perspectives

 Other adv of co-mediation: allow one mediator to take a risk while allowing the other to make a save,

divide tasks and increase efficiency,

 Possible disadvantages of co-mediation include, more time-consuming, might step on toes or try too

hard to avoid stepping on the other‟s toes and hesitate to make moves that they otherwise would

have made, conflict between mediators is possible

 Guidelines for good co-mediation include, choose a partner with a similar vision, assign specific tasks,

non-competition, unified focus, be flexible and support each other



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Private Caucus and Joint Sessions

 Joint sessions are ideal for, effective listening between parties, information exchange,

acknowledgement of other side‟s concerns and interests, building rapport

 Private Caucus is ideal to, seek or convey sensitive information, clarification, allow patries to vent,

evaluating settlements proposals, give parties a rest



Moore, The Mediation Process

Caucuses

Factors that may necessitate a caucus:

a) Problems with the relationships within the teams or between the parties: to allow for venting, to limit

unhelpful communications, to clarify misperceptions

b) Problems with the negotiating process: to deisgn new procedures, or to break the flow of negative

procedures

c) Problems with substantive issues under discussion: explore def. of interests, weighing of another party‟s

proposal, etc.



Timing: there is no correct time to call a caucus because it is dependent on the needs of the parties

◦ Progress from caucus to joint session must be conducted smoothly so as not to interrupt the flow of

negotiations

◦ Mediator should confer with the other party before reconvening

◦ Though trust and rapport are important, care must be taken to maintain neutrality



Location: There needs to be genuine separation of the parties.



How to Overcome Barriers of Confidentiality in Private Caucus:

 ask permission to disclose info to other side

 ask instead what they do not want disclosed



Caucuses and Manipulation:

 Hotly debated topic

 Proper role of the intermediary

 Mediator can be put into a bind and therefore can tell parties what they are willing and not willing to

hear

 Some mediators refuse to assure any confidentiality to avoid this bind, but this is not common



Med/Arb

Another variation on mediation process is to offer the parties the opportunity for mediation followed, in the

event of a failure to resolve the dispute by binding arbitration. The same person may be appointed for both

roles.

 This agreement may take place in advance of mediation and include an agreed period within which the

parties must resolve the matter using mediation or face binding arbitration.

 A number of concerns are expressed about med/arb … generally whether the type of open

communication sought in mediation may be constrained if the parties are aware that the matter could

shortly be arbitrated by the same individual.

o It can also be argued that this same factor may provide a good catalyst for the bargaining

process in lieu of the knowledge that failure will lead to quickly imposed decision.









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CLASS 5: Mediation Advocacy

Chapter 1 – pg. 68-87



How does the Legal System Understand Conflict?

- In the legal system there are several assumptions about the nature of conflict and how to manage

disputes. For example, the way in which a body of rules or principles develops must assume that

these can be culturally “neutral” in their impact. Further, there is a strong commitment to rationality

– emphasizing consistency and certainty – about the matching of outcomes to disputes in a

precedent-based system. Finally, the legal system assumes a clear preference for behavioural rather

than emotional or cognitive levels of resolution.

- 3 further assumptions that the legal system makes about the nature of conflict: conflict is a fight over

principle, conflict is a win-lose proposition, and conflict should be resolved through an accountable

public process.



Conflict is a fight over principle

- The adjudicative approach assumes that conflict either is or can be transformed into a matter of

values and principles rather than a battle over resources or a thirst for power.

- The rights-based model emphasizes and individualistic approach and assumes the source of the

conflict is an uncompromisable moral principle.

- If conflict is essentially normative, such that it is over values and principles, the only fair and rational

way to resolve incompatible aspirations is to adjudicate which one has the strongest moral appeal or

in law the strongest “rights” claim.

O. Fiss “Against Settlement”

- Settlement appears to achieve exactly the same purpose as judgment (i.e. peace between the parties)

but at considerably less expense to society.

- The courts are reactive institutions such that they wait for others to bring matters to their attention.

Therefore, a settlement deprives a court of the occasion and perhaps the ability to render an

interpretation. This might mean that parties are settling while leaving justice undone.

- Settlement forces the disputants to choose between “justice” and “peace”. Public adjudication enables

structural transformations that would never be achieved through private settlements, which do not

address power imbalances or the public interest.



J. Macfarlane “Why Do People Settle?”

- When an ethical and value-related issue is deeply embedded in the substance of the dispute, it is

extremely difficult for the parties to settle.

- The extent to which the disputant perceives the conflict to be over values is critical to her cognitive

framing of the dispute. The more value-related the disputant perceives the issues to be, the more

adverse settlement will seem as it appears to be moral surrender

- This tendency is further aggravated by the litigation model. There is only winning and losing and

therefore winning is the only acceptable outcome. The winner will be the party whose arguments are

judged as the most compelling using criteria which assume the essential moral basis of any conflict.

- As a rule, those involved in conflict will quickly rationalize their claim or defence as having a moral or

ethical basis. Any kind of compromise or accommodation appears totally unacceptable.

- In a different situation, where bargaining is over resource allocation and distribution, settlement tends

to be more straightforward. It can be divided between the parties and have win-win outcomes. You

can “expand the pie” and both sides can achieve some of their objectives. Integrative solutions or

trade-offs are usually possible.

- In practice, however, resource-based disputes quickly and easily become transformed into disputes

over values and principles. It moves from the original point of disagreement and on to other, deeper

issues such as the motivation of the other party, the intentionality of their acts and how they respond

to the matter in dispute.

- Disputants almost always characterize their conflict as “a matter of principle”. The language of

principle often signals that the issues that the parties are now most aggrieved about are not the same

as those that were the subject of the initial “blaming”





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- Disputes that have been shifted to a values focus are characterized by attributions that are highly

personalized. Each parties attributes the cause of the conflict to the behaviour of the other.

Disputants who now understand their conflict as “a matter of principle” tend to emphasize

dispositional factors (relating to personality traits of the other) over situational facts (external

pressures or needs beyond the other‟s control).

- As focus shifts from resources to values, a conflict which may have started as a specific complaint can

become a generalized grievance questioning the fundamental integrity and moral motivation of the

actor. Therefore they can no longer discuss settlement with a person who, in their view, is not

negotiating in good faith. Therefore, settlement may be hopeless to all parties, therefore they turn to

the decision of a judge.



Conflict Resolution Is a Win-Lose Proposition

- In the adjudicative model there are winners (who receive the remedy) and losers (who get nothing).

L. Riskin “Mediation and Lawyers”

- A lawyer‟s standard philosophical map differs radically from that which the mediator must use.

- There are two assumptions about matters that lawyers handle. 1) that the disputants are adversaries.

2) that disputes may be resolved through application, by a third party, of some general rule of law

- These assumptions are the polar opposite of those in mediation: 1) that all parties can benefit through

a creative solution to which each agrees. 2) that the situation is unique and therefore not to be

governed by any general principle except to the extent that the parties accept it.

- These assumptions tend to make lawyers not use mediation and to blind lawyers to information that

are essential for a mediator to see. The lawyer‟s duty to represent the clit zealously within the bounds

of the law discourages concern with both the opponent‟s situation and the overall social effect of a

result.

- Victory reduces nonmaterial values to a money judgment. This can have two effects. First, in some

case these values are excluded from the decision makers considerations and thus give the impression

to the lawyer that they are irrelevant. In others, they are present by transformed into a justification

for the money damages (therefore only relevant for this purpose).

- Lawyers are trained to put people and events into categories that are legally meaningful, to think in

terms of rights and duties established by rules, to focus on acts more than persons. This leads to a

strong cultivation of cognitive capabilities and an under-cultivation of emotional faculties.

- Many lawyers, tend not to recognize mediation as a viable means of reaching a solution and worse,

they see the kinds of unique solutions that mediation can produce as threatening to the best interest

of their clients.

- However, the lawyers view is dominant for many reasons. 1) it is consistent with expectations of

most clients. 2) It is often functionally effective at getting the results expected from a victory in the

adversary system. 3) Economically beneficial to lawyers and often to clients. 4) It gives the

appearance of clarifying law and making it predictable. 5) It is consistent with the widely-shared

assumptions that we will achieve the best society by giving individual self-interest full expression. 6)

Legal education is thoroughly pervaded by this view.



J. Macfarlane “The New Advocacy: Implications for Legal Education and Teaching Practice”

- Information is gathered in order to substantiate a particular version of events and all other

information is discarded or ignored.

- Presenting information as evidence means presenting it as “fact” and requires the denial of any

ambiguity, circumstances or context (unless self-serving)

- Information is for winning and not for sharing, and certainty not for enhancing the possible options

available to the parties.

- Settlement negotiations are the exchange of highly positional arguments based on each side‟s

appraisal of their best legal case. Negotiations will only take place once the lawyer‟s on both sides are

confident that they have obtained as much legally relevant information as possible (i.e. post-

discovery)

- ADR processes recognize that the ability to identify information essential to early resolution, both for

their own client and for the other side, as a critical skill

- Therefore we need enhanced law school teaching on negotiation and value-creating strategies.

Outcomes are dependent on good faith exchange of information and therefore lawyers need to build

trusting relationships with other counsel.





27

L. Mather and B. Yngvesson “Language, Audience, and the Transformation of Disputes”

- The transformation of a dispute involves a process of rephrasing (i.e. reformulation into a public

discourse)

- The mediator often reframes until both parties can agree on a single version of facts, and can exert

influence by rephrasing the message that is being delivered.

- Narrowing is the most common process of dispute management. It means fixing or circumscribing the

framework in which the dispute is defined, rather than simply reducing or limiting the number of

issues.

- Expansion, by contrast, refers to rephrasing in terms of a framework not previously accepted by the

third party



C. Menkel-Meadow “The Transformation of Disputes by Lawyers”

- The process of narrowing disputes occurs at various stages of the laywer-client relationship.

- At the initial interview the lawyer asks questions that are likely to elicit legally relevant information.

The lawyer then begins to categorize the case, and place the dispute in a legal context. The lawyer

will construct a story that is recognizable to the other side and that will lead to a remedy (i.e. where

there is a cause of action). It will further be narrowed by requirements of the substantive law,

pleading rules and rules of procedure.

- The real needs of the parties are not expressed, resolved or explored and it negotiations become talks

about money.



Conflict Should Be Resolved Through an Accountable Public Process

- Faced with overcrowded dockets, judges may be willing to rubber stamp private settlements and cases

are settled with a “gag” order such that the outcomes will not be available to be shared with anyone

other than the individual parties.



E. Zweibel and J. Macfarlane – Evaluation of Mediation at Canadian Human Rights Tribunal

- Monetary settlements can be an effective means of influencing change. They are a tangible

expression of accountability and respondents may think twice about their future conduct and alter

their behaviour.

- However, there is considerable frustration that monetary settlements do not achieve broader societal

objectives which would be expected are intrinsic to a human rights complaint.





Chapter 2 – Lawyers, Ethics and Negotiation

C. Menkel-Meadow “Toward another view of legal negotiation”

- The lawyer should make sure that in negotiations he is remaining within their code of professional

conduct.

- The lawyer and client might ask each other what detrimental effects their solution might have on

themselves, the other party and the rest of society. No current rule requires this dialogue, however it

should be done.

- Justness or rightness of a negotiation can be considered not only from the ends produced, but also

from the process.



Negotiation and the Law

- In our legal system we give people considerable freedom for negotiating agreements. This freedom

also entails the responsibility to take care of oneself

- Value is subjective and traditionally the law has been reluctant to regulate the negotiation of

agreements. Law and morality are not identical.

- Walford v. Miles (1992)

o In this case, the plaintiff is suing for breach of the agreement for the defendant to terminate

negotiations with third parties over the sale of their business.

o House of Lords said that an agreement to negotiate is unenforceable because it lacks the

necessary certainty.

o Each party to the negotiations is entitled to pursue their own interests, so long as they avoid

making misrepresentation. A person is entitled to threaten to withdraw from further

negotiations, in the hope of getting improved terms. But the court cannot police such an

agreement.



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o Either party is entitled to withdraw from negotiations at any time and for any reason.





Fraud and Misrepresentation

- False or misleading representations of facts fall into three categories: Fraudulent misrepresentation

(i.e. deliberate lies and distortions made dishonestly), innocent misrepresentation (i.e. acted without

fault and intention) and negligent misrepresentation.

- Fraud is difficult to prove, given that knowledge of false information must be established (or willful

blindness to check the truth of a statement)

- Negligent misrepresentation: Queen v. Cognos Inc. (1993) SCC

o Queen took a position with the Cognos Inc and they did not inform him that they had not

formally gotten financing or approval for the budget in spite being aware of these facts. Queen

resigned his other job and moved.

o SCC concluded that Cognos has to compensate Queen for negligent misrepresentation during

the course of the precontractual negotiations leading up to the employment contract.

o Five requirements:

 1) there must be a duty of care based on a special relationship

 2) the representation in question must be untrue, inaccurate or misleading

 3) The representor must have acted negligently in making the said misrepresentation

 4) the representee must have relied, in a reasonable manner, on misrepresentation

 5) the reliance must have been detrimental to the representee in the sense that

damages resulted

- In this case, Queen established all the elements and was awarded damages.



Duty to Divulge Information

- Common law says that there is no general duty of disclosure when negotiating agreements

- Parties must answer any questions honestly to the best of their abilities or refuse to answer, but they

do not have to initiate the sharing of information unless asked (there are certain exceptions).

- It is possible to answer a vague question with an honest but vague answer, and therefore take

advantage of inexperience. Silence is not misrepresentation

- If the party has a fiduciary obligation to the other party, they will have to reveal all relevant

information (i.e. a lawyer must reveal all material facts to a client to negotiate a deal).





Chapter 3 Mediation in Context



When might mediation be appropriate?

- Most common factors are to save time and cost and whether the parties have an ongoing relationship

- Some reasons by Eric Green:

o Law or standards in the area may be in a state of flux or may be changing in a way that does

not benefit this client

o Evidence may be disappearing because documents are difficult or impossible to locate;

witnesses dying or disappearing

o Damages may be accumulating

o One side is ready to negotiate and while the other is less prepared (tactical advantage)

o The dispute may have a negative impact on business acquisitions, marketing, product

development, etc.

o There is negative publicity.

o Clients are experiencing litigation fatigue or boredom

- Mediation is unsuitable when the parties are significantly unequal

- (i.e. family disputes where there are entrenched power dynamics)

- It is often good for: interpersonal issues, a dispute that is over more than just money, a dispute

primarily over allocation of resources, has the potential for an integrative solution, remedy that the

court cannot provide, arose from a communication breakdown, speedy resolution is important,

external pressures on one side to settle quickly, important to maintain a relationship, client will do

well in mediation, client has a weak BATNA, public precedent is not important to your client, and you

believe the other side will mediate in good faith.





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Good Candidates for Mediation – Family

Divorce Act 1990, now requires lawyers ti discuss with their clients the possibility of mediation to

resolve disputes arising out of divorce.

- Those who can articulate their own interests in the presence of their partner, without fear of reprisal

and who can listen and take into account the needs of others

- Has a desire to reach a reasonable and fair agreement that meets everyone‟s needs.

- Those who are informed about their legal rights and have access before settlement for independent

legal advice.

- Someone who will enter the mediation in good faith

- If there is a long history of conflict, high levels of anger or distrust, or either party suffers from serious

emotional disorders or substance abuse, mediation is unlikely to be the right process.



Advising Clients About Mediation

- Divorce Act, Section 9(2) requires lawyers to advise their clients to consider mediation to resolve any

disputes before using litigation

- In the past lawyers have given their clients little information, were unfamiliar with mediation, were

unaware of qualified mediators, or were concerned about losing clients, therefore they did not do

much with this obligation

- In the future it is likely that it will be mandatory for lawyers to discuss alternative methods and is

becoming increasing popular in law school and continuing legal education.



Practice Issues – Advantages of mediation in family disputes

- Therapeutic (strong emphasis on education and therapy and the emotional aspects) versus structured

(process and outcome of the mediation focused only on the settlement of the dispute)

- Ongoing conflict btw parants has the most damaging effect on the future adjustment of children,

adversarial process polarizes the parents against each other

- Improved communication as parties meet face to face with a mediator to help them through the

process

- Structure and Clarity in Parenting plans: parents can explain how they plan on carrying out their plan,

it‟s not about rights as in court, but can divvy up responsibilities and how to parent etc.

- Timely resolution – family disputes often take 2 years or more, mediation resolves it in a few weeks

- Less Formality – less adversarial

- Less Expense –mediator‟s charged a lower hourly rate than lawyers, counsel‟s role is more focused, no

pre-trial and trial proceeding costs

Increased Commitment to the Result – would be more likely to resist a structure imposed on you by

the court.









Issues for Family Mediation:

Divorce and Separation:

Parenting Arrangements: appointments, extra-curriculars, attendance at school events, birthdays,

holidays etc.

Financial Issues: Spousal and child support, division of assets debts etc. Cheaper b/c couples can use

the same impartial evaluator to evaluate net worth etc, rather than have competing ones and argue in court.

Post Decree: Choose to use mediation years after divorce in order to resolve new issues that have

arise such as: move to new location, introduction of new partner, changes in child‟s relationship with parent.

Child Welfare – child in need of protection etc.

Adoption

Parent Child disputes

Sibling disputes



E Krurk: “Family Mediation in Canada: The State of the Art”

-Our mediators are extremely educated and qualified

-come from mental health professionals, social workers, psychologist and lawyers

- Therapeutic (strong emphasis on education and therapy and the emotional aspects) versus structured

(process and outcome of the mediation focused only on the settlement of the dispute)



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- Many see mediator as including both roles

- Many mediators think that they should be interventionist (actively intervening in situations of power

imbalance, empowering the weaker party in the negotiations and controlling the process of mediation)

- Appropriate post-divorce parenting plans should include several factors: parental

cooperation/reduction in conflict, maintenance of meaningful relationships with both parents, open

and supportive communication with children about divorce, security and continuity, not placing

children “in the middle”, mutual respect for each other‟s parenting, focusing on child‟s interests,

financial security and shared parenting arrangement.

- Lawyers like a more structured and mental health and lawyer-mediators prefer a therapeutic. Court-

based mediators lean more therapeutically, and are more interventionist.



Collaborative Family Lawyering:

-a contracture commitment btw lawyer and client not to resort to litigation to resolve a client‟s problem.

Lawyer focuses on developing a negotiated consensual outcome. This is all pre-lawsuit work b/c it is argued

that once a legal action is commenced, the temptation to use a legal discourse and paradigm for analysing

disputes is irresistible.



Rule 24.1 of the Rules of Civil Procedure = Mandatory Mediation in order to reduce cost and delay in litigation

and facilitate the early and fair resolution of disputes.



Mediating Community Disputes

- There is a long history of community-based dispute resolution services in Canada.

- They generally deal with disputes that are not yet before the courts

- Usually done by volunteers and the major goal is the empowerment of community members to deal

constructively and responsibly with their own conflicts, rather than submitting to the formal justice

system.

- They tend to prefer not to be formally associated with law enforcement agencies, which can cause the

problem of keeping an adequate flow of cases. Others have links with formal justice system



R. Shonholtz. “Neighbourhood Justice Systems”

- Based on 4 rationales:

o Diversity and complexity of societal life directly encourage the strengthening of nonstate social

entities. Commitment of community resources and the taking of responsibility

o Suppression of conflict is destructive to the safety and vitality of individual and community life.

Community justice forums provide a ready vehicle for the early expression and potential

resolution of conflict.

o Conflicts provide important contextual material for individuals and communities.

o Development and maintenance of community justice forums is a democratic right and

responsibility of citizens

- Four basic assumptions underlie the community approach:

o Conflict is seen as having a positive value (conducive to improvement and change). The

justice system sees it as deviance and social illness and avoids and suppresses it. That is

destructive to individual change and community awareness.

o Peaceful expression of conflict in the community is also seen as having positive value. It

serves to inform and educate which creates understanding and mutual work between

disputants. This leads to reduced tensions. The justice system does not address the

underlying problems so does not resolve any issues.

o The community board approach emphasizes that the individual and the neighbourhood should

exercise responsibility for a conflict. The state deskills communities and individuals and makes

them dependent on the state. The forum is the community‟s statement of its capacity and

confidence to accept responsibility for handling conflict which serves to enhance the vitality and

stability of the neighbourhood.

o Voluntary resolution of conflict is held to have positive value because coerced resolutions have

inherent limitations such that they require coercion to be maintained. There can also be

increased participation by more than just the disputants.

o Neighbourhood diversity and tolerance for differences are positive values. People learn to

respect differences and willing to learn from others. This also serves to destroy false





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stereotypes. In the justice system, all people are equal under the law and by nature does not

take diversity into account.



Mediating Criminal Matters

- Offers the possibility of face-to-face discussion between complainant/victim and offender/accused.

The can come to a solution that cannot be reached by the courts (i.e. apology)

- You can also include more than just these two in the resolution (i.e. family members, friends, etc.) It

is more about restorative justice than about retributive justice of the criminal justice system.



Institutional Applications for Mediation Processes

- More and more, public and private organizations are examining the potential of mediation to solve

internal disputes. It has been seen as a means to change workplace culture.



The Role of Legal Counsel and Other Party Representatives in Mediation

- They can help move clients towards satisfactory resolution

- Must use interest-based bargaining, helping the party evaluate their BATNA, ask questions of the

other side, appraising proposals or simply providing moral and emotional support.

- Two important considerations are their level of expertise in mediation and their ability to remain

emotionally detached from the substance of the dispute

- Their first role is to assess whether mediation will advance the client‟s interests.





P 426 Comparison of Retributive vs Restorative Justice Model

Retributive Restorative

-crime about violation of rules and relationship Crime defined by harm to ppl

-State as victim PPL and relationships are

victim

-State and Offender are parties Victim and Offender primary

parties

Guilt is absolute Degrees of responsibility

Debt paid by punishment Debt paid by making right

Blame fixing central Problem solving central

Focus on past Focus on future

Victims needs ignored Victim‟s needs central

Restitution rare Restitution normal



M Umbreit “Mediation of Victim Offender Conflict”

-victims often feel powerless and vulnerable. Some even feel twice victimized first by the offender and then

again by the justice system because it does not have time for them.

-The primary goal of victim offender mediation is to provide a conflict resolution process which is perceived

fair to both victim and offender.

Process:

-A structured but informal process using a third party who in most cases has no coercive power.

-In most cases the two parties are strangers. There is a clear victim and clear perpetrator who has plead

guilty. Guilt is not the focus of the mediation it is a problem solving intervention designed to promote a more

restorative sense of justice through the sharing of information and the negotiation of restitution by the victim

and offender.

-Victims must have absolute voluntary choice in participating in the program

-Far less emotional and historical baggage entering the mediation process with two ppl who don‟t know each

other.

-Power imbalance; not only victim-offender but usually the offender is a juvenile while the victim an adult.

Particularly when the offender is inarticulate, it‟s important to meet with them first and help coach them as to

questions the victim might want answered.

-At the sentencing stage some native communicates are using a circle proves based on aboriginal traditions

of consensual decision making and community responsibility.









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Consensus Process: Is one in which all those who have a stake in the outcome aim to reach agreement on

actions and outcomes that resolve or advance issues related to environmental, social and economic

sustainability. Participants work together to design a process that maximizes their ability to resolve

differences.

-Designed to find the common ground and a mutually acceptable decision that can be implemented.

Many instances of them being used Ex: Ontario – a negotiated settlement for First Nations due to mercury

contamination of an Aboriginal Fishery.



4 Stages to the Consensus Process

1) Assessment – identify who might participate, the issues and the matters that might be addressed

2) Structuring the Process – design the process, written rules or protocols formally agreed to by all

participants

3) Finding Common Ground – goal is to reach a joint definition of issues and design solutions that

work, agreements must be technically, fiscally, socially and culturally viable.

4) Implementing and Monitoring Agreements



Consultation and Consensus both have the same purposes: To build a consensus as a basis for a decision, to

inform and become informed, to achieve stakeholder input and buy in and to meaningfully involve interested

parties.

But that is where the similarity ends

Consultation Consensus

Participants Advocates Decision makers

Objectives Hear the voices of many interests Speak for a single voice that speaks

for all interests

Activity Make representations Find trade-offs

Approach Positional Interest Based

Process Predetermined by decision maker Participant designed

Interaction Varies Relationship builds among the parties through the

process

Negotiation “Back Room” No consensus required Explicit

Outcomes Inputs to ultimate decision maker One output, consensus

recommendation to dec-maker

Time Lines Prescribed Participant driven. Sometimes with

parameters.









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Class 6: Mediation Practice Skills, Effective Communication in Dispute Resolution P 396.



Chapter 3 – Mediation Micro Skills

Listening

– May be the most important skills for any mediator.

– Listen for content (i.e. facts & arguments) and feelings (motivations, emotions).

– “Active listening” is essential for reducing anger and stress – person (the speaker) sees that someone is

listening and feels listened to. Three of the active listening behaviours are as follows:

o Attending Behaviours: demonstrate through non-verbal communication. Examples: eye contact,

leaning toward the speaker, avoid distracting behaviours.

o Acknowledgment: mediator identifies what is occurring at the time in order to retain control over

the mediation process. Example: “It is clear that discussing this is very difficult for you”.

o Paraphrasing and Summarizing: brief summary of what one person understands another to

have said. Avoids people moving forward on the basis of incorrect assumptions. Can ask one party

to paraphrase what the other party said.



M. LeBaron Duryea, Conflict Analysis and Resolutions as Education: Culturally Sensitive Processes

for Conflict Resolution

– “Active listening” – listen in a way that you are actively engaged in hearing the other (content & feeling)

and communicating your understanding. Four steps to active listening:

o Reflect the feelings expressed before addressing the substance: assist parties to safely and

constructively express and work through their feelings (i.e. It was disappointing to you that you

did not get the result you were looking for). Important to do this reasonably and accurately –

feelings such as anger can become more intense. Acknowledging feelings helps make it possible to

move onto a discussion of content.

o Restate or paraphrase what was said: reflect the content of what was heard without adding

any judgment or new content. Restate in less bellicose manner.

o Ask an open-ended question (cannot be answered with yes\no): objective is to expand the

discussion and give an opportunity for parties to clarify and add to what they said.

o Continue to gather information, while noting possible options to include in the solution

of the problem: help clarify options imbedded in statements made by the parties. BUT, should

not give advice.

– The following are some of the things people first using active listening say\feel:

o It feels artificial: new skills often feel artificial until they can be full integrated. Active listening

means an understanding of the feeling and substance but not necessarily agreement with what is

being said.

o It is irritating: use of active listening can put people off. If do well, becomes part of normal

conversation. Need to practice.

o It can escalate the conflict: use with caution. In some situations it may be more adaptive to do

something other than “try to find out more” (through active listening).

o Worried about alienating the person by making wrong assumptions or guess about their

feelings (i.e. you feel angry): if you are unsure, ask an open question. Example: How did that

feel?



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o Concerned that use of active listening may be misinterpreted in cross cultural situations:

inappropriate\disrespectful to use active listening where a speaker may take offence. Make

decision on use of active listening on your knowledge of the cultural contexts of the parties

(observations, non-verbal communication, etc.).



Questioning

– Questioning is the most valuable tool for a mediator.

– “Open-ended” questions – ask party to tell their side of the story in their own words. Allow for self-

exploration of the topic by the person while answering. Elicits a lot of information quickly.

o Questions often begin with: what, where, when, how, and why. Use caution with “why” as it is

often seen to be judgmental and treated an invitation to defend earlier statements.

o Excellent means of probing behind position statements – discover underlying assumptions.

o Mediator needs to redirect or clarify the question if the responding party goes off on a tangent.

o Mediator has a responsibility to provide a safe environment to discuss matters – should intervene

with reframes, acknowledgments, and paraphrases when inflammatory remarks are being directed

by one party at another.

– “Close” questions – useful for clarifying facts and arguments in joint session where it is important for the

other side to hear the answer and in caucus where the information might be sensitive.

– “Justifying & Consequential” questions - confront the parties with their own inconsistencies in reasoning

and demands and have them consider the impact of particular facts and arguments on their position.



M. LeBaron Duryea, “Conflict Analysis and Resolution as Education

– “Clarifying” questions – sharpen the listener‟s understanding of what has been said. Ex: So it was not so

much the loss of the contract that concerned you as it was the loss of the relationship?

– “Justifying” questions – ask speaker to give some evidence for the view expressed. Useful where there is

incongruence between what the speaker has said on different occasions and between what they have said

and their body language. Use caution when dealing with parties from a hierarchical culture\organization.

– “Consequential” questions – reality test question; to ask about potential solutions or to look at the

possible consequences of a position taken or a solution. Ex: If you go on as planned, who will be most

affected?

– “Hypothetical” questions – afford a means or proposing new idea in a neutral and unthreatening way.

Especially useful in private caucus. Ex: how would you respond to the idea of selling the house and

splitting the proceeds 50-50?



Reframing

– Described as tool by which mediators move parties towards settlement.

– “Reframing” – taking a negative or blaming statement and rewording it to identify and emphasize positive

goal(s) and\or underlying concerns or interests. Aims to remove the “sting” or blaming in negative

statement. Also aims to create the opportunity for constructive discussion about the reframed statement

(good for joint session). Reframed statements may identify:

o One party‟s proposal as a legitimate option to be considered along with others;

o The need or concern implied in a demand or offer;

o Any positive aspect of the original negative statement;

o Overlapping concerns or requirements in a potential settlement, and;

o Strong feelings indicating a real determination to make progress towards settlement.

– Reframed statements should acknowledge the parties‟ right to feel strongly about a matter without

indicating support or criticism of the position taken (need to maintain neutrality).

– Reframing needs to be genuine and thoughtful to be effective.



B. Mayer, The Dynamics of Conflict Resolution

– Reframing works in different ways at different levels. Below is a list of different levels of reframing.

o Detoxification Reframing: change the verbal presentation of an idea, concern, proposal or

question so that the party‟s essential interest is still expressed but unproductive language,

emotion, position taking, and accusations are removed. Need to ensure that neither the underlying

concerns nor the intensity of those concerns get minimized (discounted). Most common approach

is to replace value laden language and positional demands with interest-based formulations.

Ex: He could care less about the child, all he wants is to know how much child support will cost





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-You don‟t think that he is really motivated by your child‟s well being, but you are clear he wants to minimize

how much he has to pay



o Definitional Reframing: redefining the issue or conflict so that the resolution process can be

more integrative. Involves conceptual reframing and presenting an issue as a mutual problem to

be solved. Key is to incorporate the essential needs \ concerns of all the parties. Should not define

issues too narrowly (underlying concerns not addressed) or broadly (immediate interests are lost).

Ex: We have to decide who has custody and where they will live and how much they can visit

-We have to decide how we are going to share responsibilities as parents and what kind of time the children

will spend in each home.



o Metaphoric Reframing: find a new or altered metaphor for describing a situation or concept –

change the way it is viewed. This could include the finding of a metaphor which all the parties can

use of translating one party‟s metaphor into a metaphor recognized by the other party. Need to be

perceptive about which metaphors can shut down or open up communication.

Ex: You want this into a hunter‟s paradise at the expense of defenseless animals

-Humans and animals need to live in balance with each other in this eco system



o Shifting the Conflict Paradigm Through Reframing: changing the way the parties see

view\analyze the conflict and themselves in the conflict system. Often involves changing the story

line – the dramatic view people have of their conflict. By changing how the action is described,

how different participants are characterized, and how the setting is presented, the dramatic frame

can be altered.

– Reframing is essential part of the communication process that leads to resolution, but it can also be

manipulative (talk people out of their concerns, feelings, etc.).

Ex: One side complaining about kids do well in school but affirmative action hurts them; the other about

being a minority they have endured inferior conditions and need the opportunity.

-We need leaders to over come racial history, diversity is an asset in the student body, still it must be a

meritocracy etc.





A. Garcia, “The Problematics of Representation in Community Mediation Hearings”

– Types of representation which occur in mediation may be described as a continuum – disputant self

expression providing the most autonomy and mediators replacing the disputant providing the least.

– Three types of mediator representation: paraphrasing, extending and replacing:

o Paraphrasing a Disputants‟ Position: mediator repeats or rephrase a position expressed by

disputant. Summarizing a disputants‟ position may make them feel understood and may make the

opposing disputant more likely to listen.

o Extending or Elaborating a Disputant‟s Stated Position: mediator makes an argument

consistent with a disputant‟s expressed position by goes beyond what was actually said

(elaborate).

o Replacing: mediator takes the place of the disputant in the negotiation, expressing positions or

justifications that were not expressed by the disputant. This affects the opposing disputants‟ self-

representation.









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Critical Issues in Mediation

1. Neutrality: the ideal mediator has an objective sense of fairness and is unaffected by the context or the

parties.



C. Morris, “The Trusted Mediator”

 What is the difference between “impartiality” and “neutrality”?

 The concepts buried within these terms include at least the following: non-partisan fairness, the degree of

mediator intervention, role limitation, and objectivity

 Non-partisan fairness refers to the general concept of fairness to all parties – attending equally to the

needs and interests of all parties with equal respect, without discrimination and without taking sides

o Evenhandedness and lack of prejudice based on the parties‟ personal characteristics, background,

or performance at the mediation

o Must not have a pecuniary or any other kind of self-interest in a particular settlement

o Explicit duty to reveal any conflict which may exist between their responsibility to their employers

and their responsibility to act impartially between the parties

 Degree of mediator intervention – much debate over this. Some codes of conduct suggest that

mediators should intervene to eliminate manipulative or intimidating techniques, or when the mediator

believes that the parties are about to make an extremely unfair agreement

o Some suggest a less interventionist approach, where the duty of the mediator is to assist

participants to reflect upon and consider how their proposed arrangements meet the needs and

best interests of other affected persons

o Intervene only where the process itself is being compromised, but not when it comes time for

them to reach an outcome, unless the agreement is “unconscionable”

o The extent to which mediators intervene depends largely on the context (i.e. commercial

mediators are more laid back, while family mediators get more involved to prevent harm to

children)



Taylor, A., “Concepts of Neutrality in Family Mediation”

 Strict neutrality: probably has a legal background, prefers non-interventionist approach, no emotional

or intrapersonal conflict, no therapeutic mediation, problem solving is the goal as opposed to personal

transformation

 Expanded neutrality: probably has a therapy or counselling background, would want to make up for

any power imbalances, openly deal with emotions, therapeutic mediation, personal transformation as

opposed to simple problem solving

 Family mediation requires a good mix of both types, depending on what the subject matter is

 Undue influence on the parties, however, is coercive and is unacceptable if it takes away client self-

determination

 Remember, clients are driving the process, not the mediator – cannot impose an agreement upon them



J. Rifkin et al, “Toward a New Discourse for Mediation”

 Traditionally, neutrality is understood as incorporating two qualities:

o Impartiality – unbiased relationship with disputants

o Equidistance – the process by which partiality is used to create symmetry. You temporarily

pretend to be one of the disputants to help them articulate their position

 These two concepts are somewhat paradoxical – the mediator introduces himself as a neutral party, but

when the disputants finish elaborating on their side of the story, the mediator must facilitate disclosure

using equidistance





37

 This is contradictory to the notion of impartiality – the facilitation of disclosure contradicts the denial of

alliance because the disputants receive mixed messages that confuse their relationship with the mediators

 The authors of this article suggest an alternative approach – encourage the parties to use storytelling to

facilitate the disclosure of their interests

 Mediators become like managers of the storytelling process



2. Power: can undermine the mediation process if exercised inappropriately by either party or the mediator.

One of the tasks of the mediator is to create a power balance.



D. Kolb, “The Question of Mediator Power”

 Although mediators are technically “impartial”, mediation is a business like any other

 And as a business, mediators want referrals and high settlement rates

 Consequently, some mediators will be driven by self-interest and use their power to push parties in the

direction of a settlement

 The use of coercive power by the mediator occurs along a spectrum:

o Can be very subtle (i.e. remind the parties of the possible consequences of failure to reach

agreement

o Can be very blunt (i.e. tell them they will probably lose at trial)

 Mediator pressure is also exerted by reminding parties to behave, refrain from talking about irrelevant

matters, to offer compromises, etc…

 Mediators also exert pressure by choosing the format of the mediation (i.e. the use of caucuses, the

choice of venue, public announcement, involvement of experts, etc…)

 He argues that we should not be secretive about the fact that mediators use power to their advantage

because doing so prevents people from writing about the topic and prevents us from understanding the

limits of mediator power



C. Moore, “The Mediation Process: Mediator Power and Influence”

 Mediators use various means of influence to change the dynamics of bargaining

 Power or influence is the capability of a person to modify the outcome of a situation

 Mediators generally use twelve forms of influence:

o Management of the Negotiation Process – can be highly directive or can leave much of the

structure in the hands of the parties themselves

o Communication Between and Within Parties – manage communication behaviour and

structure in negotiations by using active listening and issue reframing. This helps with clarification

and problem definition. The use of caucusing may also help.

o Physical Setting and Negotiations – seating arrangements, table shape, room size

o Timing in Negotiations – the duration, the imposition or removal of deadlines for settlement,

etc…

o Information Exchanged Between Parties – mediator can vary the content and form of what

information is exchanged and when. They can request or even demand information be presented,

or perhaps be the source of information for the parties

o Associates of the Parties – mediators should assess when friends, family, colleagues, etc…

should be included or excluded from the mediation

o Experts – mediator can involve experts to help parties toward settlement

o Authority – may exercise authority as a result of their affiliation with a government body (i.e.

court-connected mediation). Parties may defer to the mediator on issues of procedure and even

substantive issues because they acknowledge the mediator‟s skills

o Habits of Disputants – can appeal to personal habits to reach settlement (i.e. business

disputants may be open to continuing their established accounting practices)

o Parties‟ Doubts – mediators often use doubt to influence parties toward settlement. Mediator can

instil doubt about a party‟s legal position during caucus to make them more open to the idea of

settlement

o Rewards or Benefits – usually occurs in international disputes when the mediator is a rich

country. May offer aid as an incentive to reaching an agreement

o Coercive Influence – use of force to change another‟s opinion or behaviour. Usually only occurs

with court-connected mediation, international mediators, or med-arb hybrids where the mediator

actually has some decision-making power.



38

B. Mayer, “The Dynamics of Power in Mediation and Negotiation”

 There are many sources of power, but for the most part they can be divided into ten categories: formal

authority, expert power, associational power (knowing people with power), resource power,

procedural power, sanction power, nuisance power (ability to cause discomfort to a party),

habitual power, moral power (appeal to widely held values), and personal power.



G. Chornenki, “Exchanging „Power Over‟ for „Power With‟”

 „Power with‟ is the power of association, or the power of the team

 It is not the absence of conflict, but the focusing of individual abilities on a common goal that meets

needs on each side

 It occurs in a mediation when the parties begin to answer the same joint problem-solving question or to

bargain in order to bring about a mutually acceptable agreement





S. Younger “Effective Representation of Corporate Clients in Mediation” p 474

II. Inform the Client Early on about Mediation Options

 Mediation can be used at the earliest phase of the dispute, before battle lines have been drawn, emotional

levels risen, and large litigation budgets have been spent.

 Most effective when it is used early – requires early client education about the mediation option.

 To convince client of benefits of mediation – use cost-benefit analysis to weigh the advantages and

disadvantages of mediation versus litigation.



III. Describe the Mediation Process to Your Client

 Thoroughly explain mediation process to your client.

 Non-binding nature allows clients to control their own destiny.

 Small investment of client‟s time.

 Requires a good faith effort to discuss potential methods of resolving dispute

 Begins with written premediation statements

 Joint sessions, oral presentations, no testimony, no record is kept

 Series of private sessions – shuttle diplomacy

 May not receive advisory opinion



IV. Study the ADR Provider, the Mediation Rules, and the Mediator

 Essential that mediator have the necessary skills to handle the proceeding effectively.

 Basic qualifications include:

o Past experience

o Respect of the parties

o Good inter-personal skills

o Knowledge of the subject matter



V.Select the Best Client Representative for the Process

 Selecting the correct person to represent the corporate client in mediation is an important consideration.

 Corp. rep. should be someone who can maintain their composure.

 Should have working familiarity with the facts.

 Useful to choose someone not directly involved in the key facts so that an element of independence can

be maintained.

 Must have full settlement authority



VI. Explore Settlement Options with the Client and Develop a Negotiation Strategy

 Client should understand that mediation can yield a broad range of potential resolutions

 Explore potential non-monetary avenues



VII. Thoroughly Review with the Client the Strengths and Weaknesses of the Case

 First session of mediation is devoted to a review of the merits of the case.

 The client‟s assessment of the value of the case should take into account both the strengths and

weaknesses.



VIII. Explore the Interests of Your Client and the Adversary

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 In preparing for mediation, it is worthwhile exploring with the client what is driving the dispute from the

adversary‟s perspective.

 The lawyer should also examine what is driving their own client‟s agenda and what the client‟s principal

objectives are.



X. Be Patient During the Mediation Process

 Client and lawyer must be patient and try to explore whatever avenues may be available through the

mediation process to reach a resolution.

 Need to be flexible and listen to new ideas.

 Open-minded problem-solver will generally provide the best service to the client in the mediation process.



“Preparing for Mediation and Negotiation”, Guittard

 To build up your client‟s mental fortitude to deal with the opponent all day long during an intense

negotiation, refer to page 480 for a list of tips.



Tips on how to develop an effective opening statement:

 Capture the other side‟s attention, be courteous and respectful

 Express commitment to mediation process

 Allow client to deliver some of the statement

 Be willing to acknowledge error or contributory fault

 Communicate directly with the client on the other side

 Avoid repeating at the outset the last offer that you made

 Be clear about your clients‟ interests

 Stick to the moral high ground

 Try to be persuasive – opening statement sets the tone









Standards, Qualifications, and Ethics

 Due to the increasing popularity of mediation, there is some pressure to make the profession regulated by

standards of ethical conduct

 However, there is some debate as to whether this is appropriate or even possible, given the wide variety

of mediation styles



C. Picard, “The Emergence of Mediation as a Profession”

 Those opposed to credentialing for mediators fear that elitism may threaten personal and social

empowerment

 There are many problems with proposed credentialing:

o What qualifies a person to act as a mediator?

o How do we assess competency?

o What initial and ongoing training is required?

o Who should govern the credentialing of mediators?

 Those in favour of credentialing argue that it would protect the consumer and the integrity of the

profession

 Others say that inappropriate barriers for entry into the profession would prevent those with good

peacemaking skills from ever getting involved



C. Reeve, “The Quandary of Setting Standards for Mediators”

 This author opposes having a province-wide regulatory body for a number of reasons:

o No current organization has the ability to oversee all mediators in Ontario

o Many different types of mediation available

 Author proposes that each individual type of mediation (i.e. commercial, family, etc…) have its own

organization which issues certificates of accreditation

 There are two different types of regulation:

o Input regulation – once you get the certificate, you‟re on your own

o Output regulation – no certificate, but the agency ensures ongoing quality is good

40

 Author doesn‟t like output regulation because the profession is not homogenous and it is difficult to come

up with uniform mediation standards

 Author prefers “registration”, which is a form of input regulation because it is more flexible (similar to how

paralegals are treated)

 It would not be mandatory, so some mediators would be certified and others would not – let the

organizations choose who they want to hire



“The Standards of Conduct for Mediators”

 Self-Determination: mediator must recognize that the parties must be allowed to reach a voluntary,

uncoerced agreement. A party may withdraw at any time.

 Impartiality: avoid conduct that gives the appearance of impartiality

 Conflicts of Interest: must disclose all actual and potential conflicts of interest reasonably known.

Mediator must withdraw unless the parties agree to retain the mediator despite the possible conflict

 Competence: must possess necessary qualifications to satisfy the reasonable expectations of the parties

 Confidentiality: a mediator shall not disclose any matter that a party expects to be confidential unless

given permission by all parties or unless required by law

 Quality of the Process: must conduct the mediation fairly, diligently, and in a manner consistent with

the principle of self-determination. Must ensure mutual respect among the parties, with an equal

opportunity for each party to participate in the discussion.

 Advertising and Solicitation: must be truthful and refrain from making promises and guarantees of

results

 Fees: must disclose and explain the basis of compensation to the parties. The fees should be reasonable,

taking into account the complexity of the matter, the expertise of the mediator, the time required, and

the customary rates in the community. Written agreements are best.



Legal Issues

 Confidentiality: parties would be reluctant to negotiate openly and honestly if statements made could be

used against them in litigation

o Thus courts have adopted the rule that communications between parties in the course of

negotiating a settlement of a dispute are not admissible in evidence to prove admissions made

therein except with the permission of both parties

o The words “without prejudice” are not necessary to invoke the privilege, but the communication

must be made with the intention that its contents will not be disclosed if efforts to settle should fail

o Mediation agreement should stipulate whether the mediator will be permitted to testify

o The mediator‟s privilege is not absolute – courts can compel their testimony in certain situations if

it is in the best interests of justice

o Rule 24.1.14 of the Rules of Civil Procedure – all communications during a mediation shall be

deemed to be without prejudice discussions, thus cannot be used in evidence



 Binding Agreement: courts will enforce settlement agreements as binding contracts

o Agreement must be clear and consent must be final

o The agreement to settle will only be binding if the threat of litigation is made honest and in good

faith (i.e. the threat to sue must be based on reasonable grounds)









Class 7: Critical Issues in Dispute Settlement: Confidentiality, Ethics, Race & Gender

Chapter 1 – Conflict Analysis:

Situating Conflict Analysis in the Personal

Feminist and Gender Perspectives on Conflict



D. Tannen, You Just Don‟t Understand

41

– Storyline: couple lost driving around; the man (Driver) will not stop to ask for directions; the woman

(passenger) feels she would have stopped to ask.

– Justifications – difference in behaviour between men & women:

o When offer\request information, the information itself is the message. BUT, the person who has

the information, sends a “metamessage” of superiority.

o Finding one‟s own way is an essential part of independence that men perceive to be a prerequisite

for self-respect.

– Note: another story on men v. women voicing their opinion on negative feelings or doubts in a

relationship – did not include it – pg. 59-60.



T. Grillo, “The Mediation Alternative: Process Dangers for Women”

– Some of mandatory mediation‟s dangers affect men and women equally – BUT, others fall

disproportionately on women.

– Study  44% of the reasons given by women who rejected mediation services centered around their

mistrust, fear, or desire to avoid their ex-spouse. Alternatively, men rejected mediation because they

were skeptical of the mediation process or convinced they could win in court.

– Carol Gilligan describes two different gender modes of thought:

o “Ethic of Care” (Female mode) - emphasizes nurturance, connection with others, and contextual

thinking. Leads women to strive for connection

o “Ethic of Justice” (Male mode) – emphasizes individualism, use of rules to resolve moral dilemmas,

and equality. Leads men to strive for individualism and autonomy.

– Those who operate in a “female mode” will respond more selflessly to the demands of mediation. Many

women see themselves, and judge their worth primarily in terms of relationships – this could have

consequences for how they function in mediation.

– If mediation (the session) does not introduce an ethic of care – could be disastrous for women who

embraces a relational sense of self.

o If she is easily persuaded to be cooperative, but her partner is not – she can only lose.

o If she has been rewarded previously for being caring and focused on relationships and

characterized as “unfeminine” when she departs from this behaviour – she is vulnerable.



Conflict, Race and Racism



H. Gadlin, “Conflict Resolution, Cultural Differences, and The Culture of Racism

– Culture of racism ensures differing experiences of race, racial conflict, and the perpetuation of ongoing

racial antagonism.

– Whites – understand racism in terms of individual prejudice and attitudes. Racism refers to actions,

beliefs, which are directed, often intentionally toward harming, insulting, or discriminating against people

of color. The belief is racism is the exception.

– People of Color – racism is embedded in the structure of everyday life grounded in institutions and

culture. Most people of color experience themselves as living in a culture organized around white privilege

– set of assumptions whites have about the culture being theirs, about belonging and taking for granted

that is rarely available to people of color.

– Each group assumes that its experience can not be understood or appreciated by the other, but also best

efforts at communicating would not allow for a significant understanding of the other‟s position in the

social world.

– Conflict provides the stimulus to withdraw from communication rather than to engage in it. Eventually

some features of a particular dispute might be resolved, but the fundamental underlying conflict is

untouchable.

– Note: did not include the Case of Alice – a story in the article – pg. 65.





Negotiating Styles, Race, and Gender



Systemic Biases in Negotiation

 Although there has been a shift in attitude that makes intentional discrimination unacceptable, the

benefits of society are not shared equally across all groups, and negotiated outcomes are not the same

for all groups





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 In spite of human rights and pay equity legislation, women who work outside the home still earn on

average 73 cents for every dollar a man earns

 Intentional discrimination may be less of a problem than adverse-effects discrimination



“Fair Driving: Gender and Race Discrimination in Retail Car Negotiation”

 Testers of different races and genders entered new car dealerships and negotiated the purchase of a new

vehicle, using uniform negotiation strategy

 White males received better prices than blacks and women. White women paid 40% higher than white

man, black men had to pay more than twice as much and black women up to three times as much

 Testers were systemically steered toward salespeople of their own race and gender, were asked different

questions and told about different qualities of the car

 This type of subtle discrimination is not covered by civil rights legislation

 The price dispersion engendered by the bargaining process indicates that the scope of the civil rights laws

has been under-inclusive



C.M. Rose, “Bargaining and Gender”

 People assume that women are weak and men are strong

 As a result, they will be more willing to challenge a woman as opposed to a man

 In negotiation, this creates a perception that women are more “cooperative” than men. This perception

that she is more cooperative plays a large role in creating patterns that make her life more difficult



Impact of Race and Gender on Negotiating Style

 Negotiators tend to bargain cooperatively with an opponent of the same race and black people tend to

bargain more cooperatively than whites

 Shared cultural understandings may influence negotiation outcomes

 Women are more sensitive to the interpersonal aspects of their relationship with the opponent, while

males are more sensitive to maximizing their own earnings

 While a cooperative strategy will maximize their earnings, males will use it. The converse is also true



D. Kolb, “Her Place at the Table”

 Women view things in terms of relationships. They are oriented toward nurturance and affiliation and

make meaning through interconnection

 As a negotiating party, a woman conceives of her interests within the context of her responsibilities and

commitments

 Expressing emotions and feelings and learning how others experience situations are as important as the

substance of the discourse

 Women have trouble separating the people from the problem

 Women believe that negotiation should be viewed in the larger context against the background from

which it emerges, not as a separate game with its own set of rules

 In terms of power, women feel that assertiveness can lead away from connection, so they tend to allow

others to feel powerful, which may make women come across as passive

 Dialogue is central to a woman‟s model of problem solving – joint exploration of ideas

 Goals emerge through mutual inquiry and not from position-based exchanges

 Women have a lower tolerance for antagonistic situations and do what they can to smooth over

differences, even if it means making sacrifices



R. Fisher et al, “Getting to Yes: Negotiating Agreement without Giving In”

 Most negotiations take place in the context of an ongoing relationship

 Therefore, a negotiator always has two interests: the substance of the negotiation and the relationship

 Oftentimes, negotiators have trouble separating the people from the problem

 Positional bargaining puts relationship and substance in conflict – I see your position as a statement of

how you would like the negotiation to end; from my point of view it demonstrates how little you care

about our relationship

 Positional bargaining may lead to a better substantive outcome for you, but at the expense of your

relationship with the other party. So if long-term relationship is important, then ya gots to be nice







43

Cross-Cultural Negotiation

 Experiments performed comparing negotiators from different countries found that although the

negotiation outcomes were quite similar, there were significant differences in the negotiation process

 Americans try to obtain higher profits by making the opponent feel uncomfortable, while Japanese

negotiators do the opposite

 Chinese negotiators asked more questions and used the word “no” less frequently

 Cross-cultural negotiations generally will result in poorer outcomes

 There are eight ways in which cultural differences influence negotiations:

o Definition of Negotiation – Americans view it as a competitive process while Japanese view it as

an opportunity for information sharing

o Selection of Negotiators – Different cultures put more emphasis on certain criteria (i.e.

knowledge, seniority, gender, age, experience, and status)

o Protocol – Americans are very informal, while Japanese and Europeans are very formal (i.e. use

proper titles, attire, business cards)

o Communication – body language, showing of emotion, type of handshake, eye contact, etc…

o Time – Western culture values being prompt and not wasting other peoples‟ time. Fast is seen as

better than slow because it is more productive. Other cultures however prefer to focus on the

negotiation, regardless of how long it takes

o Risk Propensity – some cultures are quite conservative when it comes to risk while others (like

Americans) will take more chances. Risk avoiding cultures will seek further information and will

adopt a “wait-and-see” stance

o Groups Versus Individuals – some cultures prefer to work in groups while others prefer one-on-

one negotiation

o Nature of Agreements – Americans typically make agreements based on logic and are often

formalized and enforced through legal system. Other cultures focus more on who you are, as

opposed to what you can do for them (i.e. status).



Ethical Frameworks for Negotiation

 Since information is a source of power in negotiation, some argue that lying to conceal your true position

may result in a better outcome for you

 If one party lies successfully, he or she is likely to be more successful in achieving advantageous results,

but if both parties lie, they are both likely to be worse off.

 The negotiation process will be distorted by false information, they will not be able to make possible joint

gains, and the value claimed may be illusory

 If both parties tell the truth, they are both better off, although individually, neither may achieve the

results possible if he or she is the only party to lie



R.J. Lewicki et al, “Truth-Telling”

 Some argue that, short of outright cheating, negotiators should play the game as poker players do

(concealing information, bluffing, deception)

 If you refuse to bluff periodically and feel obligated to tell the truth all the time, then you are probably at

a heavy disadvantage in business dealings

 Critics of this view argue that corporations should be held to a higher standard of ethical conduct

 Arriving at an acceptable negotiated agreement depends upon the parties‟ willingness to share

information about their interests, but at the same time many parties are unwilling to share information for

fear of jeopardizing their position

 Deception in negotiation may take several forms:

o Misrepresentation of one‟s position to another party

o Bluffing

o Falsification

o Deception

o Selective disclosure



Lawyers, Ethics, and Negotiation

 When lawyers negotiate, their involvement may raise particular ethical issues because of their duties to

their clients





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 The Rules of Professional Conduct have certain provisions which might be applicable in the context of

negotiation:

o Rule 2.02(5) – cannot knowingly assist a client to be dishonest or instruct them on who to violate

the law and avoid punishment

o Rule 6.01(1) – must maintain integrity of the profession

o Rule 6.03(1) – lawyer shall be courteous, civil, and act in good faith

o Rule 6.03(3) – shall not take advantage of slips, irregularities, or mistakes on the part of other

lawyers not going to the merits or involving the sacrifice of client‟s rights









Class 8: Culture and Dispute Resolution



Conflict and Cultural Norms

The cultural background of the disputants, primarily their ethnicity or gender, is seen as a factor in preferring

certain processes over others and setting particular goals. The implication is that many of our reactions and

responses to conflict, which might otherwise appear illogical, irrational, or even sometimes contrary to self-

interest, can be explained as learned, albeit unconscious, cultural responses.



Chapter 1 – Conflict Analysis –

Conflict and Culture Norms

Introduction – Conflict and Cultural Norms

– The cultural background of disputants (primarily ethnicity and gender) is seen as a factor in preferring

certain processes, setting particular goals (community harmony or individual recognition and awards),

and generalizable conflict orientations and bargaining styles (for certain groups).

– “Culture”– shapes the organization of our thinking and the construction of out social world, AND as a

result, shapes the way we understand conflict and its resolution.

– Culture in conflict needs to include all the values and beliefs that affect how each individual understands

his or her experiences of conflict.

– Implication that many of our reactions to conflict can be explained as learned, unconscious cultural

responses.



S. Silbey and S. Merry, “What Do Plaintiffs Want?”

– Concept of dispute analysis has acquired an implicit set of assumptions about the nature of disputing as

rational, self-interested, choice-making, and fundamentally instrumental behaviour.

– Disputants are perceived to make decisions between alternative courses of action on the basis of the

stakes, costs, and anticipated outcomes.

– This model underestimates the role of cultural norms and values for the substance and process of dispute

behaviour.

– Ladinsky – suggests cultural values as well as opportunity costs may account for a number of consumers

who fail to complain about unsatisfactory consumer transactions.

– Disputes are cultural events, evolving within a framework about what is worth fighting for, what is the

normal or moral way to fight, what kinds of wrongs warrant action, and kinds of remedies are acceptable.

– Dispute behaviour is affective and habitual and is not entirely a matter of rational calculation; much

behaviour is also unconscious and this too may be rational or non-rational.

– Dispute behavior continues to be governed by affect, habit and conceptions of right, appropriateness, or

fittingness that are not subject to rational evaluation but are part of the taken-for-granted quality of daily

life in particular communities (culture).



J.P Lederach, Preparing for Peace: Conflict Transformation Across Cultures

– Social constructionist view of conflict – suggests the construction of social meaning, as an intersubjective

process, lies at the heart of how human conflict is created.

– Social conflict emerges and develops on the basis of meaning and interpretation that people attach to

action and events.



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– Conflict is connected to meaning, meaning to knowledge and knowledge is rooted in culture.

– Basic working assumptions of a constructionist view:

o Social conflict is a natural, common experience present in all relationships and cultures.

o Conflict is a socially constructed social event – people are active participants in creating situations

and interactions they experience as conflict.

o Conflict emerges through an interactive process based on the search for and creation of shared

meaning.

o Interactive process is accomplished through and rooted in people‟s perceptions, interpretations,

expressions and intentions – each of which is connected to their common sense of knowledge.

o A person‟s common sense and accumulated experience and knowledge are the primary basis of

how they create, understand and respond to conflict.

o Culture is rooted in the shared knowledge and schemes created and used by a set of people for

perceiving, interpreting, expressing, and responding to social realities around them.

o Connection of social conflict and culture – requires investigation into the archeology of

accumulated shared knowledge common to a set of people.

– In Summary: people act on the basis of the meaning things have for them – meaning is created through

shared and accumulated knowledge. People from different cultural settings, have developed ways of

creating, expressing, interpreting and handling conflict.



Disputing Behaviour and Cultural Norms

– Everything we do ourselves is connected to our understanding of what others are doing, and vice versa.

– Potential for misunderstandings and conflict is greater when the disputants do not share the same cultural

or social behavioural norms.

– See D. Guterson article below.



D. Guterson, Snow Falling on Cedars

– Defendant in a murder trial – a Japanese-American man facing a jury of whites – reflects on what he

intended his impassive expression during the trial to convey to the jury, and what it was understood to

mean by the jury.

– He had intended to project his innocence through his passive composure – he had been told this by his

father – the greater the composure, the more revealed one was, the truth of one‟s inner life was

manifest.

– Looking in the mirror, he saw that he appeared defiant. He did not respond to anything that happened,

did not allow the jurors to read his face or his emotions.

– His face (mask) communicated haughtiness, a cryptic superiority over the court and the prospect of death

that confronted him.



S. Ting-Toomey, “Toward a Theory of Conflict and Culture”

– Conflict as a form of social action is continuously regulated by the underlying normative movements of a

particular culture.

– “Culture Demands” – set of cultural ideologies or implicit standards that a collective group of individuals

more or less ascribes to (the oughtness of how things should be done)

– “Cultural Constraints” – broken down into three types:

o Cultural Cognitive Constraints – belief systems or ideologies that prevent or discourage group

members from cognitively thinking in a particular direction.

o Cultural Emotional Constraints – cultural norms that dictate what sorts of emotional expressions

(anger, frustration, grief) are acceptable to be displayed in the public cultural context.

o Cultural Behavioural Constraints – cultural rules and codes that govern the behavioural

appropriateness of a given gesture, or words and phrases in a socio-cultural context.

– A low cultural demand\low cultural constraint system represents a diverse, heterogeneous cultural

paradigm (i.e. US culture).

– A high cultural demand\high cultural constraint system represents a unified, homogenous cultural

paradigm (i.e. Japan).

– The cultural context in which a conflict occurs (high\low) will have a profound impact on how the conflict

will be interpreted and analyzed.

– In a normative heterogeneous system in which individual opinions and differences are highly treasured

and tolerated, a certain degree of conflict is likely viewed as productive and functional.





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– In a normative homogeneous system in which group harmony and consultative decision-making are

highly valued, interpersonal antagonisms and public tensions are probably scorned and suppressed.

– In a high cultural demand\high cultural constraint system, preventative strategies are typically used

before the conflict has had a chance to come to the surface. Whereas, in low cultural demand\low cultural

constraint system, overt confrontations of ideas and argumentation by reasoning are viewed as the

positive characteristics of an open, democratic system.

– Low-context cultures refer to cultures that value individual orientation, overt communication codes, and

maintain a heterogeneous normative structure with low cultural demand\low cultural constraint

characteristics.

– High-context cultures refer to cultures that value group-identity orientation, covert communication codes,

and maintain a homogeneous normative structure with high cultural demand\high cultural constraint

characteristics.



Disputing Language and Cultural Norms



D. Tannen, The Argument Culture

– Culture is an environment of narratives that we hear repeatedly until they seems to make self-evident

sense in explaining human behaviour.

– All languages use metaphors to express ideas, many of these metaphors are calcified (part of) the

language.

– We often use expressions without thinking about their metaphoric implications – but these implications

are still influencing us.

– Americans talk about almost everything as war.

– The terms in which we talk about something shape the way we think about it – and even what we see.

– Language invisibly molds our way of thinking about people, actions and the world around us. Military

metaphors train us to think about and see everything in terms of fighting, conflict and war.



G. Lakoff and M. Johnson, Metaphors We Live By (American)

– Argument is war metaphor is one that Americans live by in their culture; it structures the actins they

perform in arguing (verbal battle with attack, defence, counterattack).

– The essence of a metaphor is understanding and experiencing one kind of thing in terms of another.

– Argument is partially structured, understood, performed and talked about in terms of war. The concept is

metaphorically structured, the activity is metaphorically structured, and the language is metaphorically

structured.

– Our conversational ways of talking about arguments presuppose a metaphor we are hardly ever conscious

of.



Bernard Mayer, The Dynamics of Conflict Resolution (Culture & Power)

– Much of what appears to be cultural conflict is really an attempt at cultural domination or forced

acculturation.

– When one culture is in a more powerful social position and can impose many of its norms and structures

on other cultures, then the dynamics of dominance and submission must be considered.

– The less powerful culture may in fact intrude many of its norms into the more dominant group, despite its

weaker position.

– Occasionally it is cultural difference that genuinely fuels conflict, more often it is the threat that a

privileged group or elite feels from a subservient one that is the driving force.

– Conflicts are more often about power and social justice than about the clash of cultural values.



Additional Notes on Culture

– There can be intra-cultural conflict – there is often much diversity within single cultural communities,

reflecting a range of “persona” conflict orientations.



J.Z. Rubin and F.E.A. Sander, “Culture, Negotiation, and the Eye of the Beholder”

– Culture is a powerful organizing prism through which we tend to view and integrate all kinds of disparate

interpersonal information.

– Stereotyping has several apparent “benefits”: allows the perceiver to reduce the world of enormous

cognitive complexity (in terms of black v. white, good v. evil) making it easier to code the things and





47

people one sees; Secondly, it becomes far easier to communicate in short hand fashion with others we

suspect share our views.

– However, stereotyping may rob both perceiver and victim of a sense of underlying individuality. Once

preconceived notions are set in place there is little that the object (person) of stereotyping can do to undo

or reverse these prejudices.

– Implications for more effective negotiation across cultural\national boundaries:

o While cultural\national differences exist, much of what passes for such differences may be the

result of expectations and perceptions which, when acted upon may become a self-fulfilling

prophecy.

o Enter negotiations with self-conscious awareness of the powerful tendencies we share toward

stereotyping.

o Enter negotiations (across cultural\national lines) by trying to give your counterpart the (cultural)

benefit of the doubt – try to avoid making mistaken assumptions about other persons.





Protecting Confidentiality in Mediation – Owen Gray

– Generally thought that an expectation of confidentiality on the part of participants is critical to a

successful mediation process.

– The parties will be wary and guarded in their communications (what they reveal) if they think the

information may be used later outside of the mediation process to their disadvantage.

o Concerned that the information revealed may be used by the opposing party in subsequent

litigation.

o “ “ might be used by other adversaries or potential adversaries including public authorities.

o “ “ may prejudice them in commercial dealings or embarrass them in their personal lives.

– Parties may be reluctant to share information with the mediator in caucus (private sessions) such as

motivations, expectations, interests, confidential information – without the assurance that the mediator is

both willing and able to maintain confidentiality.

– As a result, parties normally address confidentiality concerns in the contract\rules that they agree will

govern mediation. Terms normally included are: participants will keep mediation communications

confidential, parties will not seek to compel the mediator to testify about mediation communications, or to

produce their notes in subsequent legal proceedings.

– There maybe legal limits on confidentiality – i.e. participants may have an obligation to report risk of

harm to a child, threats of harm to a third party, etc. A court or tribunal may require a party or the

mediator to testify about information communicated during mediation.

– Mediators do not like the idea of being compelled to testify as it could affect their image regarding their

ability to maintain confidentiality and possibility impartiality.

– These concerns could affect the way the mediators conduct themselves in session – possibly reducing the

amount of notes they take or reducing the information they solicit.



Legal Bases For Protecting Mediated Settlement Discussions (still part of article)

– Basic premise of adversarial litigation – all relevant probative evidence should be available.

– Relevant, trustworthy, and probative evidence may be excluded if doing so serves some judicial or public

policy that outweighs the public interest in having all probative evidence.



Common Law Privilege for Settlement Communications

– Communications made by the parties in an attempt to settle (pending or contemplated litigation) are

generally treated as inadmissible at common law.

– Rationales:

o Concessions and offers made in settlement discussions are hypothetical, conditional, reflect a

desire to purchase peace – do not constitute admissions.

o When parties engage in “without prejudice” communications, implied agreement to preserve

confidentiality.

o Public policy – there is a public interest in encouraging settlement.

– Settlement privilege applies both at discovery and trial.

– Where it is alleged there is an agreement, evidence of the discussions will be admitted to prove the

existence of the terms of the alleged agreement (if not allowed – agreement could not be enforced).

– Evidence of threats made during settlement (i.e. criminal conduct, contempt, breach, factual issues hat

would publicly embarrass the other party) may not be protected by privilege.



48

Privilege Based on the Wigmore Test For Privilege

– Wigmore proposed that communications should be treated as privileged only if the following four

conditions are met:

o The communications must originate in a confidence that they will not be disclosed.

o This element of confidentiality must be essential to the full and satisfactory maintenance of the

relation between the parties.

o The relation must be one which in the opinion of the community ought to be sedulously fostered.

o The injury that would inure to the relation by the disclosure of the communications must be

greater than the benefit, thereby gained for the correct disposal of litigation.

– Test approved by the S.C.C. in Slavutych and Gruenke.

– In Gruenke, S.C.C. observed that privileges fall into two categories:

o “Class” or “blanket” – privilege for which there is a presumption of inadmissibility when the

relationship falls within the class (i.e. solicitor client). The privilege is rebuttable.

o “Case by Case” – presumed admissible unless it can be demonstrated using the Wigmore test.



Note: did not include information on the American experience.



Canadian Legislation – Mediation of Disputes

– Note: Labour Relations Act – states that conciliators can not be called on to testify – example of statutory

protection.

– Rule 24.1.14 in the Ontario Rules of Civil Procedure provides “all communications at a mediation session

and the mediator‟s notes and records shall be deemed to be without prejudice to settlement discussions”.

o Rule leaves confidentiality of mediations subject to all the law (inconsistent decisions) concerning

settlement discussion privilege (see above).

o Mediators may be obliged to testify about mediation communications whenever parties would be

permitted to do so – i.e. dispute about the existence, meaning, or enforceability of an agreement.

o The rule does not appear to afford the mediation process the sort of independent protection that it

arguably should have (statutory confidentiality protection).



Conclusion

– Courts‟ use the notions of relevance to determine boundaries between communications that serve the

purpose of the privilege, and should therefore be protected, and those that do no and should not.

– This rights-based approach may disadvantage the kind of negotiation mediation encourages – common

law privilege may have to be rethought, clarified and adjusted to facilitate the growing use of mediation

as a means of resolving disputes.

– Does not support an overly broad confidentiality rule for mediated negotiation (similar to blanket

privilege).

– Any effort to craft appropriate protection for confidential mediation communications must address

questions: 1) what communications should be protected from disclosure of any kind; 2) what testimonial

immunity the mediator should have. Note: the interests of mediators in maintaining the appearance of

impartiality, and the public interest in the efficacy of mediation ought to be given significant weight.

– Exceptions to privilege for actions to enforce \ set aside a mediated agreement and for actions between

the parties and the mediator – are an example of a more general issue about maintaining the

enforceability of the legal obligations that, but for the privilege, would exist or arise during the mediation

process.

– No compelling reason why evidence of serious criminal conduct committed during mediation should be

inadmissible in proceedings. Similarly, evidence of tortuous misconduct that occurs during mediation

(conversion, assault, defamation) should be admissible in an action to remedy that misconduct.



Ministry of the Attorney General – Code of Conduct (Mediators)

– I. Application of Code – 1. Local Mediation Committee (LMC) in each

– Applies to all mediators under the country where mandatory mediation

Mandatory Mediation Program. applies.

– Conduct of all mediators under the MMP o Keep roster.

must adhere to the code. o Monitor performance of mediators on

– II. General the list.





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o Respond to complaints about o Must disclose conflicts of interest.

mediators named on the list. o Must withdraw as mediator unless

– III. Additional Requirements under MMP the parties consent to retain the

– 1. Mediators from the roster shall: mediator.

o Provide services at a fee stipulated – VI. Confidentiality

by regulation. o Not disclose to anyone (not a party)

o Conduct 12 hrs of pro bono any information or documents

mediations per year. obtained through mediation.

o Maintain liability insurance – o Exceptions to rule above:

minimum $1M  Written consent of parties.

– 3. Mediators shall ensure that they are  Court ordered

competent to render mediation.  Threat to human life.

– 4. Mediators shall limit themselves to the – VII. Quality of the Process

role of mediator. o Conduct process where parties have

the opportunity to participate and

– I. Objective for Model Code of Conduct for which encourages respect.

Mediators. – VIII. Advertising

o Provide guiding principles for o Refrain from guaranteeing

mediator‟s conduct. settlement or promising specific

o Provide a means of protection for results.

the public. – X. Agreement to Mediate

o Promote confidence in mediation for o Ensure parties understand terms of

resolving disputes mediation whether in a written

– III. Principe of Self-Determination agreement\contract to mediate.

o Parties have the right to make their Shall include:

own voluntary and non-coerced  Confidentiality.

decisions.  Right of mediator\parties to

o Must inform parties about the terminate\suspend.

mediators‟ role and the fact that the  Fees

authority for decision making rests  Mediator is not compellable

with the parties. as a witness in court.

o Mediators shall not provide legal – XI. Termination or Suspension of Mediation

advice to the parties. o Can suspend mediation if in the

o Responsibility to advice mediators‟ opinion:

unrepresented parties to obtain  Process likely to prejudice

independent legal advice, where one or more of the parties.

appropriate.  A party is using the process

– IV. Impartiality inappropriately.

o Serve only in matters in which they  A party is delaying the

can remain impartial. process to the detriment of

o Duty to remain impartial. the other.

o Must disclose to the parties if they  Process is detrimental to one

can not remain impartial. or more of the parties.

– V. Conflict of Interest  Party not acting in good faith.





¶Rogacki v. Belz (2003) Ontario Court of Appeal

Facts & Pleadings:

 Appellant appealing from an order holding him in contempt of court for breach of confidentiality arising

from a mandatory mediation

 Prior to mediation parties had signed the standard mediation agreement which includes a

confidentiality clause… and the mediator emphasized the significance of the clause;

 The appellant (after the mediation) wrote an article in a paper which included the results of the

process, names of the participants and the P‟s rejection of the offer given during that MM session.

 After going through discovery, the appellant once again wrote another article recalling the content of

the questions he was asked & provided editorial comments concerning some of the questions;

Analysis:





50

 Respondent‟s position that appellant was in contempt of court for breach of 24.1.14 & the

confidentiality provisions of the MM agreement;

 There significant discussion of Rule 60 (Enforcement of Court orders) and whether the breach of the

abovementioned were by nature court orders. Nevertheless, the court still held inherent jurisdiction

to find contempt even if breach of confidentiality did not fall under Rule 60.

Decision: Allow appeal & set aside the findings of contempt

 Re: Rule 60, such a contempt finding cannot be made against appellant since there was no court order

prohibiting publication of articles & respondent has not provided any authority that the breach of a

rule of court or a private agreement is equivalent to an order of the court within meaning of Rule 60;

o Rules of Civil Procedure Contain many expressed sanctions where party has failed to comply

with the specific court rules, but 24.1 is not included.

o THUS the motion judge misapprehended the contempt power of R.60 & R. 24.1.14 which does

not actually provide for confidentiality of MM… Rather R.24.1.14 codifies the principle that

communications made without prejudice in an attempt to resolve a dispute are not admissible

evidence unless they resulted in a concluded resolution of the dispute. (promotion of fee &

frank settlement discussions while protecting communications in light of subsequent

proceedings)

 Re: Inherent Jurisdiction… for the appellant to be found in contempt of court, the respondent was

required to prove that the appellant had both the actus reus & mens rea … no doubt he published the

articles, however the respondent has not proved that such act was completed with intent to have

significant adverse effect on the administration of justice (nothing on record of this case supports such

a finding)

o 3 principles to be considered in assessing an impugned pre-trial publication:

I. the issues must not be prejudged in a manner likely to affect the mind of the trier of

fact;

II. contempt exists only if there is real risk of prejudice as opposed to mere possibility of

interference with administration of justice

III. the rule applies even if the litigation is in a quiescent stage, such as during protracted

settlement discussions;

Concurring Decision:

 R. 24.1.14 does not create an enforceable guarantee of confidentiality but there exists significant

public policy reasons for keeping mediation sessions confidential:

o Failure to protect confidentiality could profoundly prejudice the effectiveness of mandatory

meditation … without it difficult for parties to have frank & open discussions designed to effect

settlement

 Analogy made with the court‟s use of contempt for anyone who breaches an implied undertaking not

to use discovery evidence for a collateral or ulterior purpose (see Goodman v. Rossi) … such

protection of confidentiality during discovery process is equally applicable to MM;

o Thus wilful breaches of confidentiality can create a serious risk to MM, but given the potential

gravity of the consequences of contempt finding, should only be exercised when circumstances

are beyond reasonable doubt… which not the case here;



¶Rudd v. Trossacs Investments Inc. [2004] ONSC

Facts & Pleadings:

 P motion seek an interim order requiring the mediator to give evidence as to what transpired at a

mediation between the parties & including the terms of the settlement reached

o P‟s position is that the minutes of the settlement, which were handwritten by the mediator with

the input of counsel, inadvertently left out one party to the settlement when clearly the

intention was that he be made a party;

Analysis & Decision: Motion allowed

 In Rogacki v. Belz court held that communications are not admissible „unless they result in a

concluded resolution to the dispute‟ and that there is protection from compelled disclosure in

circumstances when mediation fails

o This implies that mediation privilege is not absolute … when settlement discussion are

successful and result in consensual agreement, then the communication may be tendered in

proof of a settlement… in such instances disclosure of mediation discussions may be necessary

to ensure substantive justice





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 Yet privilege & confidentiality are critical to success of mediation & there must be evidence adduced on

the motion to demonstrate that the evidence sought via disclosure will have minimal impairment to

mediation process, while benefiting the court to have the evidence.



¶¶¶Rudd v. Trossacs Investments Inc. 2006 Appeal

Grounds for Appeal:

 Leave was granted, Ontario Bar Association was granted intervener status … appellants argued:

o that the motions judge erred by dealing only settlement privilege & failing to consider whether

there is a general mediation privilege protecting mediators from testifying on the Wigmore

principles;

o ALSO they argued that the confidentiality agreement between the parties bars the testimony of

the mediator

o Finally argued that the evidence was neither relevant nor admissible, because of the parol

evidence rule & because a settlement at mediation is enforceable only if in writing

Analysis:

 Rule 24.1.14 states that all communications at mediation session and the mediator‟s notes/records

are deemed to be without prejudice settlement discussions;

 Court looks at Rogacki (highlights [distinguish] the fact that case dealt with party writing an article

but still not found in contempt and did not deal exhaustively with issue of privilege communications in

mediation & never addressed the common law principles relating to privilege) & the motion judge in

this case who interpreted the words of Boris J in Rogacki as meaning that mediation privilege is not

absolute & thus in situations where there has been an agreement, communications are admissible;

 Common law principles have recognized a privilege for confidential communications in certain

important societal relationships;

 SCC in Salvutych (1975)…has held that 4 conditions from Wigmore on Evidence should be applied to

determine whether communications are privilege:

1. Communications must originate in confidence that they will not be disclosed;

2. the element of confidentiality must be essential to the maintenance of the relationship;

3. The relationship must be one which, in the opinion, of the community ought to be „seriously

fostered‟

4. The injury caused to the relationship by disclosure must be greater than the benefit gained for

the correct disposal of the litigation;

 A number of courts have applied the Wigmore conditions to determine that mediation communications

are privileged unless there were overreaching interests in disclosure --- ex: to protect children at risk

from criminal activity (Pearson)

Decision: Appeal Allowed & order of Motion Judge is set aside

 In this case the motion judge failed to conduct an analysis based on the Wigmore conditions & instead

focused solely on without prejudice settlement … HAS he Erred?

o Condition 1 is met in mediations;

o Condition 2 is met in part in review of Owen Gray as to reasons that confidentiality is vital to

operation of mediation process: “mediator encourages parties to be candid, not just about

compromise, but also about needs & interests underlying their positions … parties would

otherwise be concerned that their communications might be used by other adversaries

including public authorities in present or future conflicts… or prejudice / embarrass them in

public or commercial dealings”

o Condition 3 is met as there is clearly a significant public interest in protecting the

confidentiality of discussions at mediation in order to make the process as effective as possible;

o Condition 4 … where it is necessary to balance the public interest in disclosure against the

interest in preserving the confidentiality of communications>> In this case there is important

public interest in maintaining the confidentiality of the mediation process, which outweigh the

interest in compelling the evidence of the mediator

 The motion judge was of the view that the disclosure would not undermine the

mediation process

 It is true that the mediator‟s evidence might be of some assistance, but this info can

also be obtained via the parties who were present & are in best position to clarify the

intention of the resolution achieved;

 The parties entered into an agreement not to make the mediator a witness… the

potential harm is more than what the motion judge identified, since the reason for the



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privilege was not only to protect parties admissions against their interests… but also as

set out in GRAY‟s article confidentiality is important also as they wish to keep settlement

and information revealed to mediator from possible injury or impact on relationship with

others

 The ability to engage in full & frank disclosure is fundamental to likelihood of

resolution of a dispute

 ALSO there is a danger that mediators will loose their appearance of Neutrality if

required to testify which is compounded by Mandatory Mediation where parties have no

choice & thus the procedure becomes a mere formality pre-litigation



¶Hagel v. Giles (2006) Ontario Superior Court of Justice

 HELD since the parties had settled the dispute at mediation, the D were granted to be awarded a

judgement with accordance to that settlement

 D (group of police officers) brought a motion to court saying that settlement was reached in mediation

with P

 P had agreed to withdraw action

 P states that there was no such agreement … that the usual process of mediation under the rules was not

followed: 1) no written mediation agreement was signed; 2) D failed to get an order from court that they

were allowed to be in attendance via phone conference; 3) the parties did not sign the settlement, rather

they agreed to a settlement & following the mediation the parties agreed that the D‟s solicitor would take

out an order dismissing the action without cost … this affidavit was accepted by the court



Facts: Motion by defendants for judgment in accordance with an alleged oral settlement reached at a

mandatory mediation, whereby parties agreed to dismiss the action without costs. Plaintiff sued

defendant police officers for alleged torts committed in the course of their employment. The

parties and their counsel attended a mandatory mediation. A settlement was reached but no

agreement was signed at the time. A mediator's report was delivered stating that a complete

settlement occurred at the end of the mediation session. Plaintiff denied that legally

enforceable settlement was concluded as agreement was not signed and he was coerced into

agreement.



Decision: Motion granted. The parties had concluded valid settlement agreement. No public policy or

legal principles existed on which to withhold judgment based on the settlement. Plaintiff had

advice from own counsel that he should settle on terms suggested by mediator. Plaintiff offered

to settle action on terms that action would be dismissed without costs. Defendants accepted

the offer. There was no evidence that settlement should be found unenforceable on grounds of

coercion. No improper conduct was alleged against defendants. The fact that no written and

signed agreement existed did not mean that the agreement reached during mediation was

unenforceable. Second thoughts did not constitute a valid reason for refusing to enforce the

agreement.





Ministry of the Attorney General - Code of Conduct

I. Application of Code

 The CBAO Model Code of Conduct attached, applies in its entirety to all mediators under the Mandatory

Mediation Program (MMP) except for section IX. Fees, which is replaced by the fee regulation under the

Administration of Justice Act. Paragraph III of this document imposes additional requirements.

 Any reference to the Code of Conduct under the MMP means the CBAO Model Code of Conduct for

Mediators and this document. The Code of Conduct will apply to all mediators who have been selected by

a Local Mediation Committee to be on the roster of mediators for the MMP.

 While mediators may come from varied professional backgrounds and disciplines, the conduct of all

mediators under the Mandatory Mediation Program must adhere to this Code of Conduct.

 For the purposes of this program, any conflict between this Code and the Code of Conduct of any

regulated profession shall be resolved in favour of the MMP Code of Conduct. In the event of any conflict

between the CBAO Model Code of Conduct or any other Code of Conduct binding on mediators, this

document prevails under this program.



II. General



53

1. In each county where mandatory mediation applies under the Rules of Civil Procedure, a Local Mediation

Committee (LMC) will be appointed with responsibility for:

 compiling and keeping current a list of mediators in accordance with the guidelines approved by the

Attorney General;

 monitoring the performance of the mediators named in the list; and

 Receiving and responding to complaints about mediators named in the list.

 Each LMC will apply this Code of Conduct in ensuring that mediators' performance is monitored in a

consistent manner across the province.



III. Additional Requirements under the Mandatory Mediation Program

2. Mediators are expected to observe the spirit as well as the letter of the Code of Conduct.

3. Mediators shall ensure that they are competent to render mediation services having regard to the nature

of the dispute.

4. In conducting mediations under Rule 24.1 and Rule 75.1, mediators shall limit themselves to the role of

mediator.

5. A mediator shall not knowingly contract for mediation services which cannot be delivered or completed in a

timely manner as stipulated under Rule 24.1 and Rule 75.1.

6. In representing themselves on promotional materials or describing their relationship to the MMP, mediators

shall use only the terminology approved by the MMP.



Canadian Bar Association - Ontario ADR Section Model Code of Conduct for Mediators





MODEL STANDARDS OF CONDUCT FOR MEDIATORS --- American Bar Association



Preamble

 Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are

designed to serve as fundamental ethical guidelines for persons mediating in all practice

contexts. They serve 3 primary goals: to guide the conduct of mediators; to inform the mediating

parties; and to promote public confidence in mediation as a process for resolving disputes.

 Mediation is a process in which an impartial third party facilitates communication and negotiation

and promotes voluntary decision making by the parties to the dispute.

 Mediation serves various purposes, including providing the opportunity for parties to define and clarify

issues, understand different perspectives, identify interests, explore and assess possible solutions, and

reach mutually satisfactory agreements, when desired.



Note on Construction

 These Standards are to be read and construed in their entirety. There is no priority significance

attached to the sequence in which the Standards appear..

 Various aspects of a mediation, including some matters covered by these Standards, may also be

affected by applicable law, court rules, regulations, other applicable professional rules,

mediation rules to which the parties have agreed and other agreements of the parties. These sources

may create conflicts with, and may take precedence over, these Standards. However, a mediator

should make every effort to comply with the spirit and intent of these Standards in resolving such

conflicts. This effort should include honoring all remaining Standards not in conflict with these other

sources.



Standard I. SELF-DETERMINATION

A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-

determination is the act of coming to a voluntary, uncoerced decision in which each party

makes free and informed choices as to process and outcome. Parties may exercise self-

determination at any stage of a mediation, including mediator selection, process design,

participation in or withdrawal from the process, and outcomes.

1. Although party self-determination for process design is a fundamental principle of mediation

practice, a mediator may need to balance such party self-determination with a mediator‟s duty

to conduct a quality process in accordance with these Standards.







54

2. A mediator cannot personally ensure that each party has made free and informed choices to

reach particular decisions, but, where appropriate, a mediator should make the parties aware

of the importance of consulting other professionals to help them make informed choices.

B. A mediator shall not undermine party self-determination by any party for reasons such as higher

settlement rates, egos, increased fees, or outside pressures from court personnel, program

administrators, provider organizations, the media or others.



Standard II. IMPARTIALITY

A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner.

Impartiality means freedom from favoritism, bias or prejudice.

B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the

appearance of partiality.

1. A mediator should not act with partiality or prejudice based on any participant‟s personal

characteristics, background, values and beliefs, or performance at a mediation, or any other

reason.

2. A mediator should neither give nor accept a gift, favor, loan or other item of value that

raises a question as to the mediator‟s actual or perceived impartiality.

3. A mediator may accept or give de minimis gifts or incidental items or services that are

provided to facilitate a mediation or respect cultural norms so long as such practices do not

raise questions as to a mediator‟s actual or perceived impartiality.

C. If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator

shall withdraw.



Standard III. CONFLICTS OF INTEREST

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and

after a mediation. A conflict of interest can arise from involvement by a mediator with the subject

matter of the dispute or from any relationship between a mediator and any mediation participant,

whether past or present, personal or professional, that reasonably raises a question of a mediator‟s

impartiality.

B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a

reasonable individual would consider likely to create a potential or actual conflict of interest for a

mediator. A mediator‟s actions necessary to accomplish a reasonable inquiry into potential conflicts of

interest may vary based on practice context.

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that

are reasonably known to the mediator and could reasonably be seen as raising a question about the

mediator‟s impartiality. After disclosure, if all parties agree, the mediator may proceed with the

mediation.



Standard IV. COMPETENCE

A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the

reasonable expectations of the parties.

1. Any person may be selected as a mediator, provided that the parties are satisfied with the

mediator‟s competence and qualifications. Training, experience in mediation, skills, cultural

understandings and other qualities are often necessary for mediator competence. A person who

offers to serve as a mediator creates the expectation that the person is competent to mediate

effectively.

2. A mediator should attend educational programs and related activities to maintain and

enhance the mediator‟s knowledge and skills related to mediation.

3. A mediator should have available for the parties‟ information relevant to the mediator‟s

training, education, experience and approach to conducting a mediation.

B. If a mediator, during the course of a mediation determines that the mediator cannot conduct the

mediation competently, the mediator shall discuss that determination with the parties as soon as is

practicable and take appropriate steps to address the situation, including, but not limited to,

withdrawing or requesting appropriate assistance.









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Standard V. CONFIDENTIALITY

A. A mediator shall maintain the confidentiality of all information obtained by the mediator in

mediation, unless otherwise agreed to by the parties or required by applicable law.

1. If the parties to a mediation agree that the mediator may disclose information obtained

during the mediation, the mediator may do so.

2. A mediator should not communicate to any non-participant information about how the

parties acted in the mediation. A mediator may report, if required, whether parties appeared at

a scheduled mediation and whether or not the parties reached a resolution.

3. If a mediator participates in teaching, research or evaluation of mediation, the mediator

should protect the anonymity of the parties and abide by their reasonable expectations

regarding confidentiality.

B. A mediator who meets with any persons in private session during a mediation shall not convey

directly or indirectly to any other person, any information that was obtained during that private

session without the consent of the disclosing person.

C. A mediator shall promote understanding among the parties of the extent to which the parties will

maintain confidentiality of information they obtain in a mediation.



Standard IX. ADVANCEMENT OF MEDIATION PRACTICE

A. A mediator should act in a manner that advances the practice of mediation. A mediator promotes this

Standard by engaging in some or all of the following:

1.Fostering diversity within the field of mediation.

2. Striving to make mediation accessible to those who elect to use it, including providing

services at a reduced rate or on a pro bono basis as appropriate.

3. Participating in research when given the opportunity, including obtaining participant

feedback when appropriate.

4. Participating in outreach and education efforts to assist the public in developing an improved

understanding of, and appreciation for, mediation.

5. Assisting newer mediators through training, mentoring and networking.



B. A mediator should demonstrate respect for differing points of view within the field, seek to learn from

other mediators and work together with other mediators to improve the profession and better serve

people in conflict.









Class 9 ADR in Practice & Lecture Notes:



PANEL Final Night:

 Community mediation came out of justice system reform (not needing needs of working &

marginalized class) and also from communities who wanted to take back the conflicts from the state …

wanting to deal with it (voluntary process) … cases come forward by referral by police or court

system… social workers

o Distinguished from other mediation processes: 1) the objective of the process is not conflict

resolution, it is rebuilding of relationships & restoration … conflicts are looked upon as an

opportunity re-establish positive community relations … 2) it is meant to be done by those who

are involved in conflict, ordinary people within community & not expert mediators / judges …

does not mean it is not professional & not highly trained… very disciplined process

o Process is rigorous … specific model always starts with 2 mediators (co-mediators) used for

understanding the values and the underlying interests of the conflict & represent the disputing

parties (both sides… taking into account culture, age, gender) … always involves caucusing…

encouraging the parties to listen to each other & must respond to each other that they are



56

hearing them >>> make the parties communicate to each other their views & acknowledge

each other TRANSFORMATIVE PIECE …

o Effectiveness … is contingent upon parties having interests of maintaining the relationships

(families, neighbours etc)

o Issue possible vast power imbalances

 Organizational Conflict …

o Changing nature of internet & spread of democracy… rise of competition and access to

complaint mechanisms … thus conflict is on the rise & faced by organizations … businesses

have increasing challenges not only from customers but also from internal employees &

community members … also government challenges (regulating both businesses & the

customers) …

o Customers bypassing the organizations & filing complaints via web with government regulatory

bodies

o CHALLENGE for organizations to educate the customers as to benefits of maintaining long term

relations with one business …

o Tools via technology resolving disputes on line









Facilitative Evaluative

Mediator encourages parties to evaluate the Mediator evaluates the case.

case.

Interest based Rights based

 personal  legal merits

 professional

 business

 economics

 legal merits

Broader more open approach Narrow more directed

Win/win Win/lose

Value creating Value claiming

Broadest set of options Zero sum

Techniques: joint meeting Techniques: Shuttle diplomacy

Client driven Lawyer driven

Mediator makes no recommendations Mediator may make recommendations

Grew out of a community model Grew out of settlement conference model

Cons:

 Limits outcomes

 Could destroy relationship – b/c it‟s win/lose

 Client loses voice b/c lawyer driven

 Parties become polarized – b/c mediator tells

party who has better case – no incentive to

negotiate

 Some say it‟s not mediation it‟s something

else









Markowitz‟s Notes On How To Negotiate

57

3 defining characteristics  set positive tone – makes it easier to

overcome natural tendency to be hostile

1. Scarce resources- money, time

4. Ask questions

2. Terms of potential agreement can be valued

if not valued then there‟s nothing to 5. Listen – pay attention to other side and don‟t

negotiate only focus on what your agenda is



3. Parties to negotiation are partially dependent 6. Ensure other side understands what you have

on each other agreed on

each has more to gain by negotiation than  fosters a win/win – Encourages flexibility

by not negotiating. when dealing with disagreements



Negotiation is best viewed as a win/win 7. Put nonflexible points on paper

 people argue with people not documents

 Both parties gain what they perceive as  write-down agreements

valuable – there‟s enticement for both

parties to keep their end of the bargain 8. Check ego at door

 negative emotions foster conversation but

 If win/lose than the loser feels no obligation kills communication

to keep their end of the bargain and tries to

subvert the agreement – becomes a lose/ 9. Don‟t stop at first acceptable outcome

lose proposition  there are more to come

 try to get the best outcome not the first

Preparation acceptable one

Well-prepared negotiator knows his and opponents

goals Common mistakes

1. Team approach – group smarter than individual 1. never allow negotiations to boil down to one

 fewer blind spots issue

 team willing to accept greater risk than  if it is an important one you are setting

individual yourself up for a win/lose situation



2. know your walkway positioned in advance 2. never pre-negotiate with yourself

 if you are not successful how can you  pre-negotiation is when you develop a

otherwise satisfy your needs proposal and then rework it before you

 must know all your options present it (ex. lower price)

 BATNA  problem is that the concession you made

with self has no value to other party – you

3. prepare to negotiate from other parties gave away bottom line

perspective  other party still wants concessions

 list your assumptions and test them – we

assume what we want is what they want 3. never argue but question for understanding

 take nothing for granted

Don‟t give up – what to do at an impasse

Conducting the negotiation 1. Understand why the other side is saying no

1. Have an open mind –  is there a supervisor or a board saying no

 look for mutually beneficial solution behind the opposition

 brainstorm  everyone has to negotiate within their own

 explore opportunities organization



2. Trust – can the opposition trust you? 2. Separate problem from person

 if they don‟t trust you they won‟t share info  be hard on problem and soft on people

or give you true information

3. Never make concessions the minute you know

3. Speak first – you can

 you set tone for negotiations  take your time, use time to add value to

 rehearse and prepare opening statements any concession you make



58

 never make a concession if you cannot concession to change your original position

explain what value new info you got for the









LECTURES

Conflict v. Dispute:

o Transformation of conflict to dispute … via naming, blaming, and claiming

o Conflict is the more generic term used, while dispute is a more particular description



Arguments in Negotiations for 5$ bill:

o Entitlement & Rights (laws, regulations, policies, procedures) as basis for resolving disputes … with

litigation as most common

o Need

o Future prospects

o Interests



3 basis of conflict

o Rights…

o Interests… triangle of substantive interests, procedural interests, emotional interests

o Power…



Avoidance:

o Power imbalance

o Emotions are high & not capable

o Insignificant matters

o Costly





Accommodate:

o Give in & self sacrifice

o Important to let them know you did accommodate, so it can be used as a chip in future negotiations



Compromise:

o Giving up some interests (splitting difference… not true win-win

o Some importance on outcome & the relationship



Collaborate:

o Meet every one‟s interest

o Family disputes (shared interest of child)

o Parties have to trust each other

o By nature collaborate on big issues



Competitive:





59

 Resolution suggests more than mere settlement… it can involve change in attitude, more lasting solution

o Modification of deep seeded behaviour

 Transformative model of mediation… what is more important is parties changing their perspective

(concepts of recognition & acknowledgment)



Dispute Resolution Spectrum:

o See Handout Notes on Degrees of Parties‟ CONTROL, PRIVACY, 3 RD PARTY INVOLVMENT, POWER,

RIGHTS & INTERESTS



NEGOTIATIONS:

o Definition of mediation = assisted negotiation

o The process of negotiation is often shaped by personal & cultural frameworks

o Negotiations can be complex, dynamic, unpredictable

o Its success depends on through preparation

o Analysis in negotiations can assist … page 110

o Study of negotiations has become inter-disciplinary… study of psychology, sociology

o There are many definition of negotiations … page 115-6

o As the research shows… even though general notion is to reach agreement… parties should be aware

not to reach agreements if it does not meet their essential needs / responsibilities

o Characteristics of negotiations… 2 or more parties; parties can negotiate either directly or indirectly

via reps; obviously there is some type of conflict in the interests of parties and search for solution

 Parties negotiate because of belief that they can get something better than what is offered

freely

 Usually expect give and take… start high and modify or give in as they go through the process

 Successful negotiation requires the management of intangible factors, as well as tangible

factors >> intangibles are the psychological motivations of the other side which directly or

indirectly influence the behaviour





o Negotiation Models:

 Cooperative (integrative model or interest-based or value creating or mutual gain model or

positive bargaining) … collaborative & integrated approach [principled negotiations … developed

by Fisher & Ury]

 Article the manager as negotiator … page 118 these 2 models are intertwined… no

matter how much cooperative model enlarges the pie, it still must be divided…

 Value creating / problem solving exercise … joint venture … brain storm

 Negotiators learn from each other what is possible & what is desirable

 Communicate information … very important to negotiation process … Ury & Fisher

 Objectives are to explore & cultivate shared interests … to maintain relationships & to

find joint gains

 Expand the settlement pie…via effective communication & thinking outside the box…

 131-144 … Negotiators dilemma … tension between creating & claiming value

 focusing on the psychology / intangible factors of the other side

 maintaining a long-term relationship

 might be viewed as soft… afraid to walk away where negotiation outcome not desirable

nor durable… might be faced by the other side using competitive approach



 Competitive (distributive model or zero sum gain) page 131 dividing a pie of fixed size, thus

I need to limit how much I give you… Creating value v. claiming value … Focus on positions and

not interests… the tension between these two models…the key to an effective negotiation is to

manage this tension …

 The object is to claim as much value as you can … so every dollar earned is dollar lost

by other party … trying to get largest possible share of a fixed resource

 Negotiators are advancing their own interests… within an adversarial climate

 The objective is to convince the other side that he or she wants what you have to offer

… much more than what you want that he has to offer… where you have no time

deadlines and the other side has pressing deadlines…





60

 Often start with high opening demand… very slow to make concessions through out the

negotiations… the concessions are often inflated in value… and try to minimize

concessions made by other side… often try to conceal information or misinform the

other party… try to out last their opponent … telling half-truths … threatening the other

side

 Relies on the exercise of rights & powers

 When both parties compete … very hard to get agreement, as both sides remain rigid…

agreements often reached at last minute… low level compromise (very little time to

think about)

 Usually very little chance of creative solution & not much value on continuing

relationship

 Read article on lawyers negotiating competitively v. cooperatively… where the

competitive negotiator is likely to succeed against the cooperative …

 Disadvantages … could miss the opportunity to seek mutual joint gains that are

creative… thus only reaching minimum outcomes … relationship is likely to be damaged

…





o Fisher & Ury … PRINCIPLED NEGOTIATION

 The party always should know what yours and their BATNA … & try to improve the BATNA as

you going through the negotiation process

 Also notions of W(orst)ATNA & MO(st)L(ikely)ATNA

 Focusing on interest and not positions … which may uncover mutual interests

 The way to get at interest is to ask open-ended question (who, what, when, where &

why & how)

 Generate options to satisfy the interests of the parties… brainstorm settlement options

without evaluating them … where negotiation ground rules should be established from

the outset (parties should not commit to any options … sometimes bad options lead to

good options)

 Notion of Legitimacy … Fisher & Ury

 Objective criteria >> after brainstorming settlement options, then reach point of

evaluating using objective criteria which the parties have agreed to before

negotiations begin

o Even if the parties cannot agree on what standard to use, focusing on

objective criteria can close the gap

 Communication … reframing, open-ended questions

 Parties listen to each other and refrain from criticism

 Concept of Relationship between the parties… focus on the problem & not the people …

separate the people from the problem >>> be soft on the people and hard on the

problem





Buzz Hardgrove Video… Negotiation tactics:

o Negotiation problems… begin within the camp… egos, power structure … obligations… interests,

conflict over procedural approach… structural interests

o Last minute offer… low pitch… playing on time restrictions

o Ownership change …

o Militant membership “no surrender”… loss of 4000 jobs …

o Buzz concerned with keeping parties at the negotiating table

 Has to play both sides and try to inform his own side of the interests of the other side

 Union represents both plant and office workers… 2 sets of interests / concerns

 Buzz has to try and keep all the constituents happy

o Company under restructuring… new project … ultimately some have to loose

 Pension increase, … job amalgamation

o Local Union concerned with chance of jobs lost …

o Final Offer…

 1000 pages … constituents find 41 problems “sticking a knife in our back”





61

 each group ready to strike on different issues … lack of unity … differing interests … issue

amongst the bargaining committee

 “you guys don‟t want to settle”

 “trust is a both way street”

 “I don‟t have a problem with people taking positions, but there is no way out…

don‟t do this”

o general membership votes without knowing about the details of the battle … workers are unaware

o tactic of going to the press

o other side:

 “our success not contingent on a clause… it is about cooperation”



 national union entering the other sides turf



Sentencing Circles:

 aboriginal community mechanism for restitution of offenders… the restitution goes beyond just the

victim and has to address the community at large … the community bears responsibility for deviant

behaviour ... viewed as a 2-way street

 it is a growing area in dispute resolution … application to different disputes …

 issue of application within the common law / criminal system

 impact of circle… removing physical barriers & formality

 The heartmath solution… Doc Childry Institute in California … children having trouble in class room …

tied to notion of emotional intelligence… holistic approach of being one with self & as groups we

become inter-connected

 Aboriginal view the world through the energy dimension

 Judges unlike mediators, cannot be facilitative (which requires independence as an agent) … they

are rather Evaluative

 Legal disputes / arbitration… work within the framework of assessing breaches in law and possible

legal redress … BUT can such a dispute be mediated … where interests are going beyond the scope of

the available remedies and medium of dispute resolution…

 At issue is that most cases on the eve of trial are there because the costs have gotten out of

hand, and each party hopes to win in court and avoid the costs… taking the risk that they

might have to pay the whole, given that pre-trial parties will not agree to split the costs

 RE: Decision making by Mediators

 External process… feeding information as authority to parties (it is skewing the process, unless

it is an interactive process where notions are challenged… the notion of accountability demands

this interaction, as one person [mediator] does not have the ANSWER)

 Internal process …

 To what extent can judges be expected to step outside their scope and act as a mediator?

 Pre-trial conference is an opportunity for settlement? No (although there is an opportunity for

it) … more for purposes of expediting the process (given the limited time allotted for such

conferences) by evaluating the issues that have merit and taking off the table others…

highlighting the difficulties of the case… judges & the weight of the authority provide a judicial

settlement

 Advantages: litigants feel that they have been heard … leading to higher rate of

settlements // provide opportunity for take part in formulation of the settlement //

process that is emotionally sanitized… putting a distance between issue

 Disadvantages: framing an issue as legal dispute may be too narrow (as interests may

not be covered by the remedies available)… more time is required by parties who need

closure/healing from the dispute settlement process which a pre-trial conference does

not provide // judges are not true mediators





Negotiation Exercise --- Workplace Harassment:



Employer (Jamie)

 Interests:

o Procedural (at negotiation, skip mediation, arbitration)… concerned about publicity





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o Substantive … does not want to loose job … validity of harassment … tarnishing his reputation…

IPO (5$Mill)



Employee (Lindsay)

 Interests:

o Procedural …

o Substantive …



Resolutions:

 Communicate issues in future before taking it to next level

 Set caps on overtime

 Sensitivity training

 Transfer & promotion

 Working within same department under the supervision of another person

 Performance assessments done by other actors







Negotiation Prep:

 Pg 222-237 try find out as much as you can about the other side (other reps with differing interests)

o Are the negotiations going to be open or closed … will there be observers

o What is the relationship between parties presently & in the past

o Why is negotiation desired… is there a sense of urgency

 Identify the issues for all parties (what we want)

o Assemble the „bargaining mix‟ 225-7… has the conflict escalated to the point that the issues

have been defined & interests are outlined…

 Prioritize the issues & importance laid on them by each side

 Are the issues separate or joined in any way

 What is the scope of the issues that are going to be addressed during the negotiations

 What are the interests of the parties (why we want what we want)

o In some situations, you might want to clarify the issues and what the process would be ….

Including ground rules …

o Formulate your representation (single or in team)

o Typically when negotiating with government it is hard to figure out if the negotiator is the

decision maker… or if not get a commitment that they would get instructions from those

decision makers during negotiations with you

 Figure out what each sides BATNA is & develop your arguments

 Define or set your goals in the bargaining mix … plan the interaction / structure of the negotiation …

the agenda

 Arranging the negotiation site & timing … (atmosphere of the environment should make parties equal)





POWER:

 We have to be aware of it… sources, issues …

 How to redress the power imbalances

 Acting as mediators … what are the appropriate limits on the use of our power & influence during the

process to address the imbalances

 Burney Mayer… Power within an interaction … all the parties have the power to bring the conflict to

bear … both the sources and relationship of power can change (fluid, multi-faceted and subject to

change

o Two main sources of power:

 Structural Power… organizational … formal authority or association with particular

association… also objective resources (technological or legal resources)

 Personal power… personal / strong attributes (charismatic, knowledgeable)

o common sources of power … gender, access to info, financial, education, religion … age (both

young and old), neutrality (Jimmy Carter),







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 Christopher Moore… Mediator‟s power 1) managing the negotiation process (control over the events

sequence in ADR), 2) communication between the parties (manage communication behaviour &

structure … via caucusing & re-framing… timing plays role in managing power imbalance; 3) Physical

setting ; 4) timing (controlling when it starts/finish …timelines for communicating settling agreement;

5) information exchanged between the parties (controlled by mediator… difficulty as lawyer mediators

is that we cannot be practising as such when acting as neutral mediators {giving info that could be

construed as legal advice… a fine line} converse is true for non-lawyer mediators giving legal advice);

6) Associates … who the parties are associated with, as the mediator can control who can enter into

mediation; 7) power of experts… parties influenced to settle via experts; 8) authority via associations

of the mediator; 9)Using reality testing can influence settlements … discussing the viability of the

parties‟ positions … normally reality testing in caucusing situation; 10) coercive means … threatening

to quit mediation



 Strategies used to balance power … caucusing / changing pace … holding separate sessions/

introducing ground rules/ mediator being more interactive & controlling the process / addressing the

power imbalance with the disadvantaged party





MEDIATION:

 Assisted negotiation via 3rd party (neutral) … facilitating communication between the parties

 Why does the intervention of the neutral party change the dynamics?

 Def: Collaborative problem solving process, in which an impartial party helps those in disputes to

communicate and make informed voluntary choices about how to address the differences in way to

satisfy their needs

 Potential Benefits:

o Neutral party is not emotionally attached (empathetic) … and intellectually able to analyze the

problems

o Ground rules & managing the process … also setting a safe non-threatening environment

o Confidentiality

o Use of active listening skills by mediator to move the parties forward

o Lack of procedure rules (compared to litigation) allows for flexibility & adaptation

o Reality Checking … allows for informed decisions and getting past unreasonable positions

o Parties have control over the outcome

o Settlement arrived at… is binding agreement >> parties can also register the settlement via

the court

o Time & costs

o Perform an educative role and help parties reconcile their competing

 MODELS OF MEDIATION:

o Facilitative Mediation… avoid positions & have parties negotiate their underlying interests

o Evaluative Mediation … rights based model, where the mediator (often at request of parties)

will provide a neutral evaluation what the chances of the parties would be if there was no

settlement >>> thus evaluative mediator would have expertise in the subject matter of the

dispute

 Objective to have them reach an agreement within the spectrum of the parties‟ rights

o Therapeutic Model: where mediator works to heal relationships, similar to facilitative working to

try & uncover their interests (family, business & workplace, community and victim-offender

mediations

o Transformative Model: coined by Fuldger & Bush … goal of parties see each other and the world

in different light, not so much focused about reaching a settlement, but rather have the parties

been empowered & changed through the mediation process

 Can be used in victim offender & youth justice & family disputes

o Bureaucratic Model: attached to an institution (with its own rules & process) such as

administrative tribunals

 Formats:

o Joint sessions (most difficult type of mediation, but also one of the most rewarding … where

parties work together)

o Caucusing … parties brought together at the outset, but then separated with shuttle mediation

(confidential conversations… information actually exchanged must be based on consent)



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o Telephone mediation… used bureaucratic situations… issue is when parties need to be face to

face and issues regarding viewing evidence

 Mediation Briefs… are to be submitted 7 days before mediation (P includes all the pleadings factual &

legal and remedy sought… positions & interests) … Defendant also provides a brief

 Pre-mediation meeting… covering non-substantial issues which include setting & procedure

 Mediation Agreement … has to be signed by the parties





COMMUNICATION:

 70-80% body language

 vocal … tone, volume, speed

 non-verbal… posture



 Active Listening Skills:

o Empathy … demonstrating listening & letting them know where they are coming from

(emotional interests being understood… but avoid sounding condescending)… different

sympathy & pity (where you are on their side & feeling hopelessness of situation)

o Questioning… uncovering the underlying interests (open-ended {who, what, when, where &

how}or close-ended {which only elicit yes / no responses}

o Clarifying information

o Paraphrasing

o Summarizing

o Re-framing (taking a negative statement & turning it into a positive statement)

o Validating … like empathy … trying to understand what parties are going through … just to push

the disclosure process forward

o Giving Feed-back … speaking about how the actions of one side might be perceived by the

other side

o Confrontation & Censoring … taking a break and asking or telling the party what the impact of

their behaviour is on the other side



Confidentiality in Mediation:

 Owen Gray Article  a labour arbitrator … he says that it is critical that confidentiality in mediation

process be respected: “the parties will be vary & guarded…”

 Concern that the main purpose of the settlement discussions is being compromised & they would

otherwise be held accountable

 Mediators are concerned about being compelled to testify in mediations … concern about their

impartiality …

 it also acts as a strong deterrence for parties engaging mediation to engage the process again

 Common Law Privilege for settlement discussions  all evidence that is relevant & probative,

that relates to dispute in issue, should be available to court to call on to resolve the dispute

o Public policy & judicial concerns may override the privileged communications … note however

those same public interests include promotion of facilitated settlement

 1886 Pierry v. Wild … when parties enter into discussions to settle a dispute (pending litigation) then

those communications are generally inadmissible & will be protected by the court

 The courts have held that when parties enter into a settlement with an agreement, & then one party

breaches the agreement  then evidence or info that transpired with respect of agreement will be

disclosed

 Another privilege is the 4 conditions of Wigmore





CULTURE:

 Michelle L‟ Bearen … when you teach culture it is important to teach it as a component of each lecture

on ADR

o When people come from diff cultural backgrounds that has an impact… on ADR and in certain

instances, the process of ADR (with lack of procedural safeguards might not address power

imbalances, cultural norms might not allow for private interaction)

o Physical, social, environmental shape person‟s perception & reaction





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