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1. Psychological Types: Negotiation & MediationConflicts and solutions suggested by the Myers-Briggs Type Indicator (MBTI)Prof. John BarkaiWilliam S. Richardson School of LawUniversity of Hawaii

2. www2.hawaii.edu/~barkai Google: John Barkai

3. www2.hawaii.edu/~barkai Today’s Presentation Google: John Barkai

4. ADR since 6 B.C.

5. 1979 Honolulu

6. 1979 Honolulu

10. Models of Mediation

11. Models of Mediation Wide variety (largely very similar) Almost anything works (sometime) Are there “Best Practices?”

12. Pepperdine STAR Model of mediation

14. Josh Stulberg BADGER Model of mediation

15. Josh Stulberg’s Badger Mediation Model Begin the discussion Accumulate information Develop the agenda & discussion strategies Generate movement (options) Escape to private meeting(s) Resolve the conflict

16. The Practice of MediationFrenkel & Stark 1. Opening the Process, Developing Information 2. Expanding the Information Base, Identifying Issues, Organizing an Agenda 3. Problem-Solving and Persuasion 4. Dealing with Impasse, Closing

17. Golann’s 6 Step Strategy 1. Build a foundation for success 2. Allow participants to argue and express feelings 3. Moderate the bargaining 4. See out and address hidden issues 5. Test the parties’ alternatives: If necessary, evaluate the adjudication option 6. Break bargaining impasses

18. Joel Lee and Teh Hwee Hwee,

19. A Mediator's View of the Bargaining Process 1. Getting the parties unstuck 2. Moving the bargaining along. 3. Closing the gap.

20. A Mediator's View of the Bargaining Process 1. Getting the parties unstuck get the first new offer. a change in position or a shift to interests. 2. Moving the bargaining along. - generate significant movements in the bargaining. multiple concessions or the reformulating interests. 3. Closing the gap. - moving beyond original bottom lines

21. Perspective View

23. I’ve got it again Larry. An eerie feeling like there is something on top of the bed.

30. 傍目八目Okame Hachimoku(Japanese proverb) The onlookers see more than the players. Japanese

31. 当局者迷，旁观者清Dang Ju Zhe Mi, Pang Guan Zhe QingOnlookers see more than the players

32. “紙にも表裏がある”“Even a sheet of paper has two sides”

33. Two Key Ideas • about Mediation • 1) Focus on Interests • not positions • 2) Improve the • communication

34. GETTING TO YES Separate People from Problem Interests not Positions Invent Options Objective Criteria BATNA http://mediationadvocacy.com/Getting%20to%20Yes.pdf

35. Interests Drive Negotiations Iceberg Theory

36. Iceberg Theory “Below the line” issues Huge & invisible. Purposely hidden, or simply Out of awareness

37. MBTI Functions are Interests

38. Traditional reasons Why should you use mediation? Compared to litigation • Faster • Cheaper • Private - confidential • Less formal • Parties remain in control of their dispute

39. Why should you use mediation?The truth is …the parties are stuck Almost all psychology principles work against negotiators to make them over-value their case Many negotiators need a mediator’s help overcoming strategic barriers to successful negotiations

40. Changing Minds The Work of Mediators and Empirical Studies of Persuasion James Stark & Douglas Frenkel http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1769167 Persuasion by: Role reversal Apologies Rhetorical questioning -a question that is asked in order to make a point Direct statements - 2-sided messages w/ reasons why 1 side will win and explicit conclusions Negative Emotions: Fear and Guilt Group brainstorming (induced cooperation) Sequential requests are best, either - Foot-In-The-Door (a little at first, then for more) or - Door-In-The-Face (ask for more than can be gotten first, then fall back)

41. Tips and Techniques For Helping Parties Move Ahead And Overcome Roadblocks – J. Settle (82 techniques) Don't get too specific too early Emphasize the future and de-emphasize the past Use a "ground rule" that will allow you to bring them back to a focus on the future. Take ownership of the process: "I want to spend the rest of our time today talking about where we go from here.“ Invite the parties to focus on options or solutions rather than “the problem." “In principle" technique – when there is discomfort about the details although the core idea is good, or they are moving and the devil is in the details! Example: "I know there's a lot of important considerations and details to work through, but IN PRINCIPLE, if Bob could get the right kind of job for you in that other division, do you think that might work for you?“

42. Tips and Techniques For Helping Parties Move Ahead And Overcome Roadblocks – J. Settle (82 techniques) Resolve the core of an issue involving complex, secondary details "in principle" and temporarily move on Brainstorm- suggest as many ideas as they can create, without evaluation, criticism, or obligation Use an easel or blackboard as a group memory Hypotheticals are a creative, non-threatening, and non-coercive way for you to introduce or reframe ideas for parties to consider, and can be part of brainstorming. A classic hypothetical is the "what-if." Example: “I was just wondering –what if the employer were to provide a retroactive within-grade salary increase – might that help since they can't seem to see their way clear to a promotion?" I once had a case” A variation of the hypothetical is the "some folks I know once …" Convert their statements, ideas, objections, and fears into statements you all can work with – sometimes in joint session, sometimes in caucus. Here are some examples: "Would you like to propose that idea as a solution?” Or "can I take that to [other party] as an offer?" "So ideally you would like [x]. Is there a way we can develop that idea into a plan?" Or "how can we get from here to there?" Or "what can we do to make that into something that [other party] is likely to consider?" "I see you have some concerns about how that proposal would work for you. What would it take to make that into something you could accept?" "What do you think it will take for [other party] to accept your proposal?" "[in caucus] “Let's spend some time on how to 'sell' your solution to [other party]."

44. Plaintiff’s View of the Case Defendant’s View of the Case

45. 10 Psychological Issues Affecting Decision Making 1. Anchoring 2. Availability 3. Selective Perception 4. Reactive Devaluation 5. Overconfidence 6. Attribution 7. Framing 8. Risk Preferences 9. Endowment Effects 10. Behavioral traps

46. 10 Ways We Get in Our Own Way • We pick crazy reference points Availability • We get stuck on them Anchoring • We think too highly of ourselves Positive Illusions • We don’t know what we don’t know Overconfidence • We think we can beat the odds The Illusion of Control • We love our stuff The Endowment Effect • We hate to lose Irrational Escalation • We love to be right Confirmation Biases • We are suckers (sometimes) Reciprocity • We get fooled by illusions Loss Aversion Professor Richard Birke

47. What do these “Hall of Fame” type baseball players have in common? • Reggie Jackson • Sammy Sosa • Alex Rodriguez • Ken Griffey • Bobby Bonds • Mickey Mantle • Harmon Killebrew • Mark McGwire • Derek Jeter

48. They are among the career leaders in STRIKE OUTS Reggie Jackson 2,597 Ranked 1 - 563 HR Sammy Sosa 2,306 Ranked 3 - 609 HR Mickey Mantle 1,710Ranked 21 - 536 HR

49. INSIGHTFUL or WISHFUL:Lawyers’ Ability to Predict Case OutcomesGoodman-Delahunty, Hartwig, Granhag, & Loftus16Psychology, Public Policy & Law, No. 2, 1–157 (2010) • Lawyer’s are overconfident predicting trial outcomes • Greater confidence  greater overconfidence • Accuracy did not improve with experience • Men were more overconfident than women Predicting Trial Outcomes