Goals Studying mediation helps you understand that disputes can
be resolved successfully without courts or lawyers. Knowledge
Objectives Most disputes are resolved outside the court system.
Mediation is a popular and effective form of dispute resolution.
Mediation is voluntary and confidential. The steps of a typical
mediation.
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Skills Objectives Identify what kinds of cases are suitable for
mediation. Listen effectively by restating another partys
perspective. Identify underlying interests in a dispute. Identify
alternative solutions to a dispute. Express an agreement in
writing. Attitude Objectives Disputes have multiple perspectives
and potential solutions. Disputes can be resolved successfully
without courts or lawyers.
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Today we will be exploring a popular method for resolving
disputes outside of the formal court systemmediation. Although
trials are often reported in the news and portrayed on popular
television shows like Law and Order, very few civil disputes ever
make it to trial. Indeed, very few disputes ever enter the court
system at all.
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Give reasons why so few cases are resolved through the court
system. The court system takes time. More civil cases are being
filed. Courts have limited resources. Criminal cases take priority
over civil cases due to the criminally accused right to a speedy
trial under the Sixth Amendment to the U.S. Constitution.
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The court system can harm ongoing relationships. Taking a
dispute to court can cause anger and bitterness e.g. divorce and
child custody disputes The court system is expensive. A trial and
the preparation leading up to it can generate thousands of dollars
in legal fees. Quickly note the availability of contingency
agreements and their advantages/disadvantages.
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Identify the three most common ways to resolve disputes out of
court. NegotiationArbitrationMediation
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The disputing parties talk to each other about their problem
and try to reach a solution that is acceptable to them. Note that
negotiation can be used to settle disagreements ranging from minor
disputes between siblings to multi-billion dollar lawsuits between
large corporations. Negotiation
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The disputing parties agree to have another person listen to
their arguments and make a decision for them. Note that the
arbitrator is like a judge, but the process is less formal than a
trial. Arbitrators have the authority to make the final decision
and the parties must follow it if it is binding arbitration. If it
is nonbinding arbitration, the parties are not bound and hence do
not have to follow the final decision. Arbitration is common in
contract and labor-management disputes. Note that many sales and
service agreements have an arbitration clause requiring binding
arbitration. Arbitration
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A person not involved in the dispute helps the disputing
parties talk about their problem and settle their differences.
Mediation
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The parties decide whether they want to come to the mediation.
The parties decide how they want to resolve the dispute. Mediators
do not impose a decision on the parties. Mediators instead listen
carefully to both parties, try to help them understand each others
position, and find ways to resolve the dispute. The parties are
free to leave at any time. Voluntary
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Law makes mediation sessions confidential. Parties can talk
without worrying about hearing it later in court. Mediator cannot
be called to testify in court as a witness for a partys case.
Confidential
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Allows disputing parties to vent their frustrations. Avoids
placing blame and concentrates on the future relationship between
the parties. Allows parties to come up with creative solutions that
are not available through the court system e.g. periodic payments
Because the solution is created by the parties, the parties are
more interested in making it work and more willing to live up to
it. Effective
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If a settlement is reached, it can be written as legally
binding contract. Note that written agreements are almost always
more effective than oral agreements. If it is not written down, the
agreement is not legally binding. Enforceable
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Many community mediation programs offer free mediation e.g. the
University of Washington Law School Mediation Clinic Mediation is a
common way to resolve disputes between husbands and wives,
landlords and tenants, and consumers and businesses. Note that some
schools train students to mediate disputes between students that
occur at school. Free
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IntroductionTelling the story Identifying positions and
underlying interests Identifying alternative solutionsRevising and
discussing solutions
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Introduction Mediator will explain the ground rules e.g. no
name calling, no interruptions Mediator will inform parties that he
or she cannot provide legal advice. Mediator will verify that the
parties agree to mediate in good faith, meaning that each party is
there to listen with an open mind and is not held to a fixed
position. Mediator will confirm that all relevant parties with the
power to make decisions are present.
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Telling the story Mediator will ask each person to tell what
happened. After each disputing party speaks, mediator will
summarize what the disputing party said. Why might the mediator do
this? To check for understanding To let the party know that he or
she has been heardthe power of empathy.
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Identifying positions and underlying interests Mediator will
try to accomplish as he or she summarizes each partys perspective
of what happened.
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Identifying alternative solutions Disputing parties will think
of possible solutions to the problem. Mediator will make a list and
ask each disputing party to explain his or her feelings about each
possible solution.
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Revising and discussing solutions In response to the feelings
shared by the disputing parties, the mediator may help the parties
change some of the possible solutions and identify a better
solution to which the parties can agree.
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Reaching an agreement Mediator helps the disputing parties
reach an agreement that both can accept. The agreement is written
down. The agreement addresses what will happen if one of the
parties does not follow through on its promises in the
agreement.
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Each person will receive confidential instructions. It is
completely up to the disputing parties to reveal whatever
confidential information is contained in the instructions during
the mediation. SamChris Mediator The mediator will help the
disputing parties write an agreement. Each mediator will be asked
to read the groups written agreement at the end of class.
Debriefing Mediation Role Play Read your specific role
background information GD
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Mediator: briefly summarize the mediation and read the
agreement they reached, if any. Disputing parties: describe your
experiences. Share your overall impression of the role play and
mediation.