15 chapters
have results for negotiation
Chapter 3. Mediation as Facilitation of Negotiation 49 results (showing 5 best matches)
- Distinct types or underlying premises of negotiation have been identified. Most of these theories can be understood by contrasting two approaches to negotiation. Two primary theories of negotiation have been explored in detail: the dichotomy of negotiation as either distributive or integrative, and the negotiation process as either positional or principled.
- Mediation is quite often considered to be the facilitation of a negotiation. A mediator essentially intervenes in an unresolved negotiation. The parties are, for a variety of reasons, unable to reach an agreement without the assistance of an outside neutral person. The mediator’s role is to assist with, or facilitate, their negotiation. Because the bulk of the mediator’s work involves diagnosing, and then repairing difficulties in negotiation, it is imperative that mediators possess a working knowledge of the negotiation process.
- A noticeable increase in the understanding of the variety of dimensions of negotiation has occurred over the last few decades. Until these more recent considerations, the art and science of negotiation consisted primarily of specific tactics, strategies and attitudes that were thought to be effective. Negotiation was often not considered a process with distinct stages and essential elements. Rather negotiation was viewed as a strategic battle to get more-or pay less. Although some more elaborate literature existed, the majority was focused on “winning” the negotiation—on getting more. These readings provided specific tactics that one could employ to gain advantage over the other person. But
- Negotiation, like any activity when dissected, can be broken down into distinct stages. A closer examination of the various stages or phases assists the mediator in understanding the sequence of the negotiation process. While not all phases proceed in a systematic manner in each negotiation, it may be helpful to use a stage model outline as a focal point for analysis. Awareness of the phases can also assist the mediator in recognizing what may have been overlooked in terms of process points when the negotiation does not proceed as expected or desired.
- A Practical Guide of Negotiation
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Chapter 2. The Mediation Process 10 results (showing 5 best matches)
- To date, however, little work has been done with regard to mediation use in transactions. Articles are scarce and few mediators have actively marketed their business as assisting with transactional matters. The negotiation literature, particularly that addressing barriers and difficulties in negotiation, appears to have applicability in the negotiation of transactions as well as disputes. Likewise, articles demonstrating the mediator’s assistance in negotiation have dual application. As time passes, additional use of mediation in commercial transactions is likely (Peppet).
- Prior to the modern mediation movement, negotiation courses were offered in a few law schools, but they were not regarded as a common part of the curriculum. Often negotiation was included as a part of a client interviewing and counseling course. Arbitration was likely studied in the labor law arena, but distinct dispute resolution courses were rare. As interest in mediation surged, activity among academics, primarily those in legal education, grew. Separate law school courses were offered, beginning with a dispute resolution overview and negotiation. Courses have continued to grow in number and in scope, and currently over one-thousand dispute resolution courses are offered at 180 ABA accredited law schools. Courses range from the theoretical to the practical. They include selections such as ADR process and policy, mediation, arbitration, advanced dispute techniques, and public policy dispute resolution.
- Bargaining and Negotiation
- If these negotiations result in an agreement, the mediator will outline it, and in most instances, draft either the complete agreement or a memorandum of settlement. If no agreement is reached, the mediator will usually restate where the parties are, in terms of potential settlement. Generally, the final stage in mediation is closure, although in some models subsequent action is required by the mediator regarding follow up and enforcement of the agreement.
- In a legal model of mediation, Professor Dwight Golann divides the stages of mediation into three parts: Joint Session, Private Caucuses, and Moderated Negotiations. In each segment, a number of specific goals and objectives similar to the models discussed earlier are included.
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Chapter 12. Derivative, Combination and Hybrid Processes 14 results (showing 5 best matches)
- While the regulatory negotiation process is similar to consensus building, a primary difference is that reg-neg is more narrowly focused. In the consensus building process, usually there is an issue that needs closure or a dispute that needs to be resolved, but the specifics of a solution are left to the parties involved. In regulatory negotiation, however, the goal is specifically identified at the beginning of the session: to draft a regulation. Thus, the entire process is focused and structured. Likewise, in general consensus building, anyone with an interest in the outcome may participate. In regulatory negotiation, the convener may limit the number of parties to fewer than fifteen, or she may allow as many as twenty-five, but rarely more than that are included (Harter). Moreover, in reg-neg only those ...proposed rule may attend the session. Another distinction is that in regulatory negotiation the convener rarely does any follow-up work. Once a consensus is reached, the...
- Several other dispute resolution processes resemble mediation, particularly in their theoretical basis. Yet, while sharing philosophical roots, these other dispute resolution techniques are sufficiently distinct to warrant different names and descriptions. These derivative processes include consensus building, conciliation, collaborative law, and regulatory negotiation.
- The philosophical foundation of collaborative law is nearly identical to that of mediation. Specifically, collaborative lawyers (and other professionals) are trained to negotiate settlements or resolutions of divorce with the focus on consensual resolution. A foundation of the process is an interest-based, or problem solving negotiation approach.
- The initial step is a determination of those affected by the proposed legislation. Secondly, the convener decides whether it would be feasible to use negotiation among all of those affected to resolve any disputed issue. At the meetings, interested parties help draft the new legislation, eliminating the normal waiting period for feedback and revision.
- Regulatory Negotiation and the Legitimacy Benefit
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- Although criminal trials often receive an enormous amount of media attention, most criminal matters are resolved without the necessity of a trial. This usually occurs in what is commonly known as ‘plea bargaining,’ a negotiation between the prosecutor and the defense counsel regarding the outcome of the case. Usually the defendant will plead to a specific charge, and the corresponding punishment will be negotiated. The use of mediation to assist prosecutors and defense lawyers in the plea bargaining process has not been very common, although the United States Department of Justice, in its general dispute resolution initiatives, has made some effort to educate prosecutors about the potential of mediation. In at least one jurisdiction, however, courts have begun to use mediation with greater frequency to facilitate plea bargains (Laflin). As courts have become more familiar with mediation, a few jurisdictions have now begun to experiment with mediator assisted plea negotiations.
- With the advent of collaborative law, the use of mediation in family law may be decreasing. As discussed in the next chapter, collaborative law is a process where the lawyers representing parties agree in advance that they will make good faith efforts to resolve all matters without litigation in court. More specifically, the lawyers and parties all agree to use interest based negotiation and problem solving to resolve all matters in the divorce, and to refrain from court intervention. Although somewhat
- varying concepts of the appropriate role of an intermediary in negotiation. One culture may favor a more adjudicative model of dispute resolution, based upon individual rights, whereas another is partial to a consensus, community approach. Even within a more facilitative model, mediators can take on a number of different tasks, ranging from providing assistance with the relationships and helping in data collection or exchange to providing advice for decision-making. While the first two may be seen as traditional mediation techniques, the last is seen primarily in other ADR processes. Mediators in these matters must be sure that the parties are clear about what their role is to be before initiating the process.
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Chapter 1. Mediation Distinguished From Other Dispute Resolution Processes 7 results (showing 5 best matches)
- The primary purpose of neutral case evaluation is to provide an objective, non-binding, confidential evaluation of the case which may be used by the lawyers and clients to further settlement negotiations. Common terms used to indicate case evaluation include early neutral evaluation (ENE), neutral case evaluation, and moderated settlement conference.
- Certainly throughout history, individuals involved in disputes and conflicts did engage in some negotiation and found ways to compromise. This, however was generally not a first step or initial response. Yet, in those cases where the parties had to work or live with each other, finding ways to compromise was necessary. In most instances, this consisted of each person making concessions, which resulted in various levels of process and substantive satisfaction.
- Both of these options provide what is termed a “reality check” to the parties. This type of evaluative feedback is then used to continue negotiations, sometimes directly and other times with assistance, to effectuate a final resolution to the matter. In the third category, facilitative processes, the neutral(s) help the disputing parties achieve a mutually satisfactory resolution by assisting in communication, understanding, and problem solving. In some instances, however, some mediators move to a more evaluative style. (See Chapter Two, Section G for a discussion on the stylistic differences in mediation).
- Many dispute resolution processes involve the assistance of a third-party neutral, which can be one person or several individuals. In addition, direct negotiation, whether conducted by the parties themselves or their agents, such as lawyers, is also considered a type of ADR. The ADR processes utilizing neutrals can be viewed in three primary categories: adjudicative, evaluative and facilitative. Within the categories, different processes exist. A few are described below so that mediation may be clearly distinguished from them. It is also possible to combine ADR process with one another. The most common is med-arb, that is mediation followed by arbitration, often with the same individual serving in both roles. Examples of the combination and hybrid processes which involve mediation will be examined in Chapter Twelve.
- In private contractual arbitration, the parties agree in advance to arbitrate should a dispute arise, although it is also possible to agree to private arbitration after a conflict occurs. The outcome or award is generally binding and is, in fact, more binding than court, as very little opportunity for appeal exists. In most instances, the arbitration clause sets forth the obligation to arbitrate along with details surrounding the proceeding such as selection of arbitrator(s), administrative issues, and governing rules of the process. Once a dispute occurs, one party will initiate arbitration by filing a request with a designated provider or alternatively notice the other party. Recently some arbitration clauses have included a first step of mediation or direct negotiation prior to arbitration.
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Appendix A. Standards of Conduct 1 result
Index 6 results (showing 5 best matches)
Appendix B. Uniform Mediation Act 2 results
- (1) “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.
- (1) relating to the establishment, negotiation, administration, or termination of a collective bargaining relationship;
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Chapter 5. The Obligation to Mediate 5 results
- Understanding and Dealing with Deception in Legal Negotiation
- Note, Leading Horses to Water: May Courts Which Have the Power to Order Attendance at Mediation Also Require Good Faith Negotiation?
- reached on a specific definition of the phrase in the context of negotiation and mediation. Even so, many individuals including legislators, judges, lawyers and parties assume they already know what good faith means.
- Most, if not all of the ethical rules and regulations set out in Attorney Codes of Professional Responsibility address the lawyer’s work in an adversarial setting. Yet, the concept of lawyering has expanded and encompasses general problem solving activities as well as representation in non-adversarial situations such as transactions, mediations and negotiations. Most of the rules have
- A recognition that different types of lawyering may require distinct standards and ethics has been expressed (See Alfini, Bordone, Kovach, Rapoport). Separate standards have been advocated in a number of practice areas, including representation in mediation (Kovach). Specific ethical guidelines for lawyers who represent clients in a mediation or problem solving (non-adversarial) negotiation may include duties not generally found in the adversarial sphere. These may embrace conduct such as good faith, empathy, honesty, communication, and even an ethic of care. While such rules or standards have not been drafted or adopted by any group, related issues are being considered, particularly in the context of lawyer representation in mediation. Similarly, it has also been recognized that additional education for lawyers is beneficial to effective representation in mediation, a less adversarial process for dispute settlement. (Abramson).
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Outline 4 results
Chapter 7. Confidentiality in Mediation 5 results
- From a legal perspective, the long-standing exclusionary rules surrounding negotiation settlement discussions provide another policy consideration for the establishment of confidentiality in mediation. Arguments for confidentiality in mediation are similar to those underlying Federal Rule of Evidence (FRE) 408. Rule 408 and its state counterparts essentially prohibit the use of settlement offers as evidence of liability in the trial of a lawsuit. The primary purpose underlying these rules is the encouragement of settlement discussions.
- Another policy favoring confidentiality is tied to the concept of mediator neutrality. In mediation, the mediator facilitates a negotiation as a neutral third party. If the mediator is either able or required to later convey information to a decision maker, her neutrality may be compromised. Both sides would urge the mediator to testify on their behalf; yet generally one perspective would prevail. In testifying, maintaining impartiality is nearly impossible.
- In addition, strict confidentiality also conflicts with a general need for evidence, which litigants are entitled to in court proceedings. Most courts however, adhere to the general rule that statements made during mediation sessions are considered for evidentiary purposes as having been made in the context of settlement negotiations. Therefore, they are inadmissible in court, although a few courts have ruled otherwise. In essence, the extent and limits of confidentiality have not been consistently defined by the case law.
- Parties probably would resist actively participating in settlement negotiations if the content of those discussions could be used against them in a subsequent trial. With the assurance of confidentiality as an evidentiary exclusion, parties and lawyers are more willing to openly discuss all matters and propose settlements. Settlement agreements, as well as offers to compromise in disputed claims, have traditionally been inadmissible at trial in order to prove liability. It follows logically that the same treatment, for the same reasons, should be afforded to mediation discussions. Mediators and lawyer representatives in mediation often rely on these grounds to assure
- ...a mediator is prohibited from disclosing anything that happened at mediation other than the fact that the parties were present (and some would contend even the fact of attendance is confidential), then parties might misuse the mediation session to accomplish other objectives. One example is scheduling mediation for the sole purpose of delaying litigation or to postpone a trial setting. Another tactic is for a party to voluntarily attend mediation and, once present, refuse to negotiate. Misrepresentations of information during the mediation have also been reported, and the confidential aspect of mediation could encourage some participants to be less than honest in their negotiations. If a party relies on misrepresentations made by the other side during mediation, it would be nearly impossible to prove a contract defense of fraud if the mediation were deemed strictly confidential. These problems demonstrate a few situations which have concerned practitioners about possible...
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Chapter 4. Getting to the Mediation 2 results
- Legal Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation and Pursue Alternatives to Litigation
- Throughout legal ethics, discussion continues over the allocation of decision-making between the lawyer and the client. One guideline is the means-ends dichotomy. The lawyer alone can make decisions concerning the specific means of achieving a result as long as it is consistent with the ends desired by the client. In the context of dispute resolution, it would seem that the final decision with regard to mediation use would remain the purview of the client, particularly if settlement is a desired objective. On the other hand, many lawyers contend that they are in a better position to make the process decisions because they are more knowledgeable about methods of settlement. Issues concerning allocation of decision-making also exist with regard to how the mediation is conducted, including the extent of information to disclose, choice of mediator, strategy in negotiation and final decisions regarding outcomes.
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Chapter 9. Ethical Considerations 4 results
- to the national standards. Problems arise, however, when the parties and their lawyers engage in an adversarial negotiation approach, which may include thus far accepted elements of deception. (See Section F in this Chapter for further discussion of this issue). Mediators then, face the tension between compliance with ethical provisions encouraging honesty, and allowing the deceptive conduct, which is permissible for lawyers.
- Existing ethical rules and opinions can also present difficulties for mediators, particularly in situations where duties and responsibilities may conflict. For example, as noted in Chapter Two, the ABA Model Rules permit a level of deception in negotiations which was extended to mediation by ABA Formal Opinion No. 06–439. Such interpretation is in direct conflict with the provision of the national standards which urges mediators to promote honesty and candor in the process.
- Party self-determination is another element at the very core of the mediation process. self-determination can be considered in two separate, but related component parts. One component deals with the process itself, while the other is focused on the outcome. These matters have been examined in a variety of contexts, including those related to the debate regarding evaluative and facilitative mediation methods. Essentially, as discussed in Chapter Two, some mediators facilitate and assist the parties in reaching their own agreement, while others evaluate probable outcomes, urging parties to reach a specific settlement. Most experts appear to agree the mediator should disclose the primary approach that will be used. A difficulty with disclosure though, is that sometimes what is necessary to assist parties in overcoming barriers in their negotiation is not apparent until long into the mediation process.
- In some instances, mediators may “change hats” during the session in order to assist the parties in their negotiations and reaching a resolution. Most experts contend that should this occur, a need for disclosure arises. In fact, a requirement of disclosure to the mediation participants about matters such as the mediator’s qualifications and
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- The content of the agreement refers to the substance of resolution. In most instances, the agreement will conform quite accurately to what the parties decided in their discussions and negotiations. In some instances, specific content will be referenced in a general way. For example in personal injury cases, the conditions of release may
- In some instances, the parties will not be able to reach a complete full and final agreement concerning every item or point in disagreement. In some of these instances, mediators find that it is valuable to ascertain whether a partial or limited agreement is feasible. Partial agreements may involve an agreement on a few of the substantive issues. In other cases, partial agreements can address information that is lacking and provide options for the parties to continue their negotiations, either by participating in another mediation or negotiating directly with one another after the information is acquired. In most instances, mediators put any partial agreement in writing, and have it signed by all of the participants.
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- At first glance, it seems easy to require that mediators remain impartial with regard to the process and content of the mediation, as neutrality has been considered a core element in the definition of mediation. Yet many cases present circumstances where it may be necessary for the mediator to intervene to prevent one party from taking advantage of the other. One instance is where such substantial imbalance exists between the parties during negotiations that most likely if an agreement
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- Publication Date: September 25th, 2014
- ISBN: 9780314291523
- Subject: Dispute Resolution
- Series: Nutshells
- Type: Overviews
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Description:
This title provides a comprehensive, yet concise examination of the primary aspects of mediation practice. In doing so, the book considers the legal, philosophical, policy and practical issues surrounding mediation use. Matters include issues such as levels of participation in mediation, enforceability of mediated agreements, regulation of practice including ethical issues, and a survey of the specialized applications of mediation. The extent and limits of confidentiality are examined along with consideration of the Uniform Mediation Act. Each chapter also contains an extensive bibliography and listing of the leading cases in each subject area.
