Presentation on theme: "Mediation Information Role Play Case Study. Goals Studying mediation helps you understand that disputes can be resolved successfully without courts or."— Presentation transcript:
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.
Skills Objectives Identify what kinds of cases are suitable for mediation. Listen effectively by restating another party’s 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.
Today we will be exploring a popular method for resolving disputes outside of the formal court system—mediation. 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.
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.
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.
Identify the three most common ways to resolve disputes out of court. NegotiationArbitrationMediation
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
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
A person not involved in the dispute helps the disputing parties talk about their problem and settle their differences. Mediation
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 other’s position, and find ways to resolve the dispute. The parties are free to leave at any time. Voluntary
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 party’s case. Confidential
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
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
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
IntroductionTelling the story Identifying positions and underlying interests Identifying alternative solutionsRevising and discussing solutions
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.
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 heard—the power of empathy.
Identifying positions and underlying interests Mediator will try to accomplish as he or she summarizes each party’s perspective of what happened.
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.
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.
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.
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 group’s written agreement at the end of class.