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When is Mediation Likely to Work?. Northwestern University study of cases handled by 4 national providers:. 78% overall settlement rate 81% if both “evaluative” and “facilitative” techniques used 76% in “mandatory” situations (court order, contract clause). When is Mediation Likely to Work?.

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When is mediation likely to work
When is Mediation Likely to Work?

Northwestern University study of cases handled by 4 national providers:

  • 78% overall settlement rate

  • 81% if both “evaluative” and “facilitative” techniques used

  • 76% in “mandatory” situations (court order, contract clause)


When is mediation likely to work1
When is Mediation Likely to Work?

  • In “jackpot” cases (where plaintiff sees slight chance of huge recovery)

  • Where a party has no financial incentive to settle

  • In some court-conducted ADR programs

Mediation is much less effective:


Quick quiz
Quick Quiz

Select a range of answers so as to have a 90% chance of being correct:

LOW HIGH

1. Martin Luther King’s age at this death _____ _____

2. Length of the Nile River (miles) _____ _____

3. Number of OPEC member countries _____ _____

4. Number of books in the Old Testament _____ _____

5. Diameter of the moon (miles) _____ _____


Quick quiz1
Quick Quiz

Select a range of answers so as to have a 90% chance of being correct:

Low High

6. Weight of an empty Boeing 747(pounds) _____ _____

7. Year of Wolfgang A. Mozart’s birth _____ _____

8. Gestation period of Asian elephant (days) _____ _____

9. Air distance from London to Tokyo (mi) _____ _____

10. Deepest (known) point in ocean (mi) _____ _____


Why do negotiations fail
Why Do Negotiations Fail?

  • There are three general kinds of barriers:

    • Process

    • Psychological/ Emotional

    • Merits


Process issues
Process Issues

  • Lack of a settlement event

  • Positional bargaining: Lock-in, escalation

  • Disagreement over procedure or process

  • Wrong people at the table: Missing decision-makers


Process issues1
Process Issues

  • Lack of Bargaining Authority

  • Hidden issues: Emotions, economics, other disputes

  • Inconsistent interests


Psychological emotional problems
Psychological/Emotional Problems

  • Strong personal emotions

  • Cognitive barriers re: bargaining or merits assessment

  • Moral or symbolic issues


Merits issues
Merits Issues

  • Inadequate information

  • Different evaluations of the outcome in adjudication

  • Concerns about precedent or reputation


Mediation is
Mediation is:

A voluntary, non-binding, and private dispute resolution process, in which a neutral person helps disputants to reach a negotiated settlement.


There are different styles of mediation
There are different styles of mediation:

  • Broad or Narrow

  • Facilitative or Evaluative

  • Restrained or Active


What style of mediation will you use
What Style of Mediation Will You Use?

  • Activist or restrained?

  • Focus on legal issues or on hidden concerns?

  • Help participants to assess the legal merits or give an evaluation?

  • Support interest-based, principled or positional tactics?


What will influence your choices
What Will Influence Your Choices?

  • Your personality

  • Your professional training

  • Your life experiences, both personal and professional

  • The nature of the dispute


A basic mediation strategy
A Basic Mediation Strategy

  • Create a Settlement Event

  • Allow the Participants to Argue and Vent

  • Moderate the Bargaining

  • Test the Parties’ Alternatives


A basic mediative strategy
A Basic Mediative Strategy

  • Probe for and Address Hidden Issues

  • If Necessary, Evaluate the Adjudication Argument

  • Propose a Settlement Package


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