Factors and Considerations in Facilitative Mediation for Dispute Resolution, Study notes of Conflict Management

Download Factors and Considerations in Facilitative Mediation for Dispute Resolution and more Study notes Conflict Management in PDF only on Docsity! 145 Lesson 43 POWER TOOLS AND MAGIC KEYS II Invisible Veil Consideration Reasons for needing conflict diagnosis are often hidden. Conflict escalation obscures important information and disempowers participants. Anger is part of the invisible veil. It hampers rationality and curtails your capability to see the hidden interests. As a consequence, your ability to understand conflict is impaired. Facilitative mediation can take longer than more evaluative, informal processes. Time and/or money very limited Exploitation of disempowered disputant may occur in any dispute resolution process. Decisions will reflect poor quality of consent unless disputant acquires more power. Disempowered disputant Consensual processes may not address underlying interests.Underlying interest in legal reform Irreparable harm may result from failure to act decisively.Untrustworthy disputant Irreparable harm may result from failure to act decisively.Immediate enforcement needed Impasse may result unless BATNAs are clarifiedLarge differences in perceptions of fact or law Quality of consent may be impaired.One or both disputants or their teams unsure of their BATNAs Quality of consent may be impaired.Unfamiliar format disturbing to other disputant/team May not be possible to use facilitative mediation. Even if other teams participation can be coerced, quality of consent may be impaired. Other disputant/team refusing to participate EFFECTSFACTORS Factors thought to impede the usefulness of facilitative mediation Proposed Contents of a Clients’ Interview 1. A summary of the client’s interview 2. A description of the client’s presenting problems and goals 3. A description of the likely sources of the conflict 4. A sociogram showing he participants and their roles 5. An exploration of the client’s underlying interests and goals, as well as the other disputants likely goals and interests (it is helpful analytically to use interest trees) 6. Analysis of how the other participants interests may play into exacerbating or resolving the conflict 7. A sense of how escalated the conflict has become and the state of trust between the parties 8. An initial list of the apparent impediments to cooperative resolution 9. An assessment of the various sources of power held by the client and the other disputant 10. An analysis of the client’s BATNA, including a case evaluation, and the same for the other disputant 11. A list of the information needed to prepare the case, including any analysis of the legal and factual issues 12. An analysis of what strategy would best help the client meet his or her underlying goals, interests, and needs, with the discussion of the tactics that might be useful 13. A section discussing “next steps”—further interviews, investigation, legal research, referrals, and so fourth docsity.com 146 Collaborative Law A form of lawyering currently seen primarily in family law and based on a contractual relationship between a lawyer and a client is called collaborative law. This contract generally specifies the lawyer’s duty to seek collaborative and interest-based document with the other disputant. If litigation commences, the lawyer is required to withdraw from representing the client. Fitting the Forum to Fuss (Brainchild of Frank Sander and Stephen Goldberg) Basic Ideas: Different dispute resolution processes are better at different things and different things are important to different people. Fitting the Forum to the Fuss – Sander/Goldberg List of Client Objectives 1. Minimize costs 2. Speed 3. Privacy 4. Maintain/improve relationships 5. Obtain vindication 6. Obtain neutral opinion 7. Obtain precedent 8. Maximize or minimize recovery CLIENT OBJECTIVE VALUE ("I") Minimize costs Speed Privacy Maintain or improve relationship with other disputant Obtain vindication Obtain a neutral opinion Obtain a precedent Maximize or minimize recovery OTHER - Describe___________________________________ 5 How to use fitting the forum to the fuss docsity.com 149 Filling in more of the Grid Mediation Minitrial Summary Jury Trial Early Neutral Evaluation Arbitration Litigation Costs Speed Privacy Maintain/ Improve Relationships Obtain Vindication Obtain neutral opinion Obtain precedent Maximize/ Minimize Recovery SUM 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x2x 2x 2x 2x 2x 2x 2x 2x 2x 2x 2x 3x 1x 1x 1x 1x 1x 1x 1x 1x 1x 3x 1x 0 0 0 0 0 0 0 0 0 0 0 5 15 5 5 5 5 510 10 15 5 15 5 5 5 5 510 10 15 Completing the client objectives CLIENT OBJECTIVE VALUE ("I") Minimize costs Speed Privacy Maintain or improve relationship with other disputant Obtain vindication Obtain a neutral opinion Obtain a precedent Maximize or minimize recovery OTHER - Describe___________________________________ 5 5 1 docsity.com 150 Entering Remaining Objective Utilities on the Grid Mediation Minitrial Summary Jury Trial Early Neutral Evaluation Arbitration Litigation Costs Speed Privacy Maintain/ Improve Relationships Obtain Vindication Obtain neutral opinion Obtain precedent Maximize/ Minimize Recovery SUM 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x2x 2x 2x 2x 2x 2x 2x 2x 2x 2x 2x 3x 1x 1x 1x 1x 1x 1x 1x 1x 1x 3x 1x 0 0 0 0 0 0 0 0 0 0 0 5 15 5 5 5 5 510 10 15 5 15 5 5 5 5 510 10 15 1 3 1 3 3 3 93 6 6 5 15 5 5 5 5 510 10 5 2 2 2 2 2 2 2 2 2 2 1 1 4 4 4 4 4 2 62 2 4 6 66 6 6 32 44 84 12 Mediation Minitrial Summary Jury Trial Early Neutral Evaluation Arbitration Litigation Costs Speed Privacy Maintain/ Improve Relationships Obtain Vindication Obtain neutral opinion Obtain precedent Maximize/ Minimize Recovery SUM 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x 3x2x 2x 2x 2x 2x 2x 2x 2x 2x 2x 2x 3x 1x 1x 1x 1x 1x 1x 1x 1x 1x 3x 1x 0 0 0 0 0 0 0 0 0 0 0 5 15 5 5 5 5 510 10 15 5 15 5 5 5 5 510 10 15 1 3 1 3 3 3 93 6 6 5 15 5 5 5 5 510 10 5 2 2 2 2 2 2 2 2 2 2 1 1 4 4 4 4 4 2 62 2 4 6 66 6 6 32 44 84 12 48 45 48 53 44 27 Calculating the Scores for Dispute Resolution Processes Conflict Diagnosis Approach 1. Facilitative mediation is the default choice 2. If there are reasons not to use facilitative mediation: – Try to work around them – If not possible, use fallback choices docsity.com 151 Resulting Quality of Consent R ed uc es In vi si bl e V ei l T hi nk in g highlow effective ineffective Litigation Arbitration Nonbinding Evaluation Evaluative Mediation Facilitative Mediation Featuring Compromising Pure and Transformative Mediation Med-Arb Dispute Resolution, Invisible-Veil Thinking, & Quality of Consent ispute esolution, Invisible-Veil Thinking, uality of onsent Impediments to use facilitative mediation There are certain hindrances to use facilitative mediation which are given below. 1. The other team won’t play 2. Worry about signaling weakness 3. Unknown or uncertain BATNA 4. Wildly divergent BATNA assessments 5. Limited time, money 6. Need for immediate enforcement 7. Other disputant a nasty fellow 8. Underlying interest in legal reform 9. Facilitative process already tried, settlement did not result Theories of conflict, cooperation, and competition, and negotiation style, suggest that the best processes for promoting constructive, equitable, and efficacious dispute resolution are those in which the participants are consistently guided away from invisible veil, zero-sum thinking and toward collaborative, integrative problem solving. These processes include (1) pure mediation geared directly toward promoting collaborative problem solving and (2) transformative mediation. docsity.com