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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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