POWER TOOLS AND MAGIC KEYS II:Proposed Contents of a Clients’ Interview, Impediments to use facilitative mediation

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Conflict Management HRM624

Lesson 43

POWER TOOLS AND MAGIC KEYS II

Invisible Veil Consideration

Reasons for needing conflict diagnosis are often hidden. Conflict escalation obscures important information

and disempowers participants. Anger is part of the invisible veil. It hampers rationality and curtails your

capability to see the hidden interests. As a consequence, your ability to understand conflict is impaired.

Factors thought to impede the usefulness of facilitative mediation

FACTORS

EFFECTS

Other disputant/team refusing

May not be possible to use facilitative mediation. Even if other teams

to participate

participation can be coerced, quality of consent may be impaired.

Unfamiliar format disturbing

Quality of consent may be impaired.

to other disputant/team

One or both disputants or their Quality of consent may be impaired.

teams unsure of their BATNAs

Large differences in

Impasse may result unless BATNAs are clarified

perceptions of fact or law

Immediate enforcement

Irreparable harm may result from failure to act decisively.

needed

Untrustworthy disputant

Irreparable harm may result from failure to act decisively.

Underlying interest in legal

Consensual processes may not address underlying interests.

reform

Disempowered disputant

Exploitation of disempowered disputant may occur in any dispute

resolution process. Decisions will reflect poor quality of consent

unless disputant acquires more power.

Time and/or money very

Facilitative mediation can take longer than more evaluative, informal

limited

processes.

Proposed Contents of a Clients' Interview

A summary of the client's interview

A description of the client's presenting problems and goals

A description of the likely sources of the conflict

A sociogram showing he participants and their roles

An exploration of the client's underlying interests and goals, as well as the other disputants likely

goals and interests (it is helpful analytically to use interest trees)

Analysis of how the other participants interests may play into exacerbating or resolving the conflict

A sense of how escalated the conflict has become and the state of trust between the parties

An initial list of the apparent impediments to cooperative resolution

An assessment of the various sources of power held by the client and the other disputant

10.

An analysis of the client's BATNA, including a case evaluation, and the same for the other

disputant

11.

A list of the information needed to prepare the case, including any analysis of the legal and factual

issues

12.

An analysis of what strategy would best help the client meet his or her underlying goals, interests,

and needs, with the discussion of the tactics that might be useful

13.

A section discussing "next steps"--further interviews, investigation, legal research, referrals, and so

fourth

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Conflict Management HRM624

Collaborative Law

A form of lawyering currently seen primarily in family law and based on a contractual relationship between a

lawyer and a client is called collaborative law. This contract generally specifies the lawyer's duty to seek

collaborative and interest-based document with the other disputant. If litigation commences, the lawyer is

required to withdraw from representing the client.

Fitting the Forum to Fuss (Brainchild of Frank Sander and Stephen Goldberg)

Basic Ideas:

Different dispute resolution processes are better at different things and different things are important to

different people.

Fitting the Forum to the Fuss  Sander/Goldberg List of Client Objectives

1. Minimize costs

2. Speed

3. Privacy

4. Maintain/improve relationships

5. Obtain vindication

6. Obtain neutral opinion

7. Obtain precedent

8. Maximize or minimize recovery

How to use fitting the forum to the fuss

VALUE

CLIENT OBJECTIVE

("I")

Minimize costs

Speed

Privacy

Maintain or improve relationship with other disputant

Obtain vindication

Obtain a neutral opinion

Obtain a precedent

Maximize or minimize recovery

OTHER -

Describe___________________________________

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Conflict Management HRM624

Filling in the Grid - Step 1

Early

Neutral

Summary

Evaluation

Jury Trial

Arbitration Litigation

Mediation

Minitrial

3x 5 15 2x

5 10 2x

5 10 3x

15 1x

Costs

Speed

Privacy

Maintain/

Improve

Relationships

Obtain

Vindication

Obtain neutral

opinion

Obtain

precedent

Maximize/

Minimize

Recovery

SUM

Another client objective filled in

VALUE

CLIENT OBJECTIVE

("I")

Minimize costs

Speed

Privacy

Maintain or improve relationship with other

disputant

Obtain vindication

Obtain a neutral opinion

Obtain a precedent

Maximize or minimize recovery

OTHER -

Describe___________________________________

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Conflict Management HRM624

Filling in the Grid Next Step

Early

Neutral

Summary

Evaluation

Jury Trial

Arbitration Litigation

Mediation

Minitrial

Costs

Speed

Privacy

Maintain/

Improve

Relationships

Obtain

Vindication

Obtain neutral

opinion

Obtain

precedent

Maximize/

Minimize

Recovery

SUM

More client objectives filled in

VALUE

CLIENT OBJECTIVE

("I")

Minimize costs

Speed

Privacy

Maintain or improve relationship with other

disputant

Obtain vindication

Obtain a neutral opinion

Obtain a precedent

Maximize or minimize recovery

OTHER -

Describe___________________________________

148

Conflict Management HRM624

Filling in more of the Grid

Early

Summary Neutral

Mediation Minitrial Jury Trial Evaluation Arbitration Litigation

5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5

Costs

5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5

Speed

Privacy

Maintain/

Improve

Relationships

Obtain

Vindication

Obtain neutral

opinion

Obtain

precedent

Maximize/

Minimize

Recovery

SUM

Completing the client objectives

VALUE

CLIENT OBJECTIVE

("I")

Minimize costs

Speed

Privacy

Maintain or improve relationship with other

disputant

Obtain vindication

Obtain a neutral opinion

Obtain a precedent

Maximize or minimize recovery

OTHER -

Describe___________________________________

149

Conflict Management HRM624

Entering Remaining Objective Utilities on the Grid

Early

Summary Neutral

Mediation Minitrial Jury Trial Evaluation Arbitration Litigation

5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5

Costs

5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5

Speed

1 3 3x 1 3 2x 3 6 2x 3 6 3x 3 9

Privacy

Maintain/

5 15 2x 5 10 2x 5 10 1x 5 5

Improve

Relationships

Obtain

2 2

2 2 1x

2 4

Vindication

Obtain neutral

2 6

2 6 3x

6 3x

opinion

Obtain

2 3x

precedent

Maximize/

4 4 1x 4

4 1x

4 2x 4

4 12

Minimize

Recovery

SUM

Calculating the Scores for Dispute Resolution Processes

Early

Summary Neutral

Mediation Minitrial Jury Trial Evaluation Arbitration Litigation

5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5

Costs

5 15 2x 5 10 2x 5 10 3x 5 15 1x 5 5

Speed

1 3 3x 1 3 2x 3 6 2x 3 6 3x 3 9

Privacy

Maintain/

5 15 2x 5 10 2x 5 10 1x 5 5

Improve

Relationships

Obtain

2 2

2 2 1x

2 4

Vindication

Obtain neutral

2 6

2 6 3x

6 3x

opinion

Obtain

2 3x

precedent

Maximize/

4 4 1x 4

4 1x

4 2x 4

4 12

Minimize

Recovery

SUM

Conflict Diagnosis Approach

1. Facilitative mediation is the default choice

2. If there are reasons not to use facilitative mediation:

Try to work around them

If not possible, use fallback choices

150

Conflict Management HRM624

Diispute Resollution, IInvisible-Veil Thiinking,

D spute Reso ution, nvisible-Veil Thnking,

& Quallity off Consentt

& Qua it y o Consen

effective

Pure and Transformative Mediation

Facilitative Mediation

Featuring

Compromising

Evaluative Mediation

Nonbinding Evaluation

Med-Arb

Arbitration

Litigation

ineffective

low

high

Resulting Quality of Consent

Impediments to use facilitative mediation

There are certain hindrances to use facilitative mediation which are given below.

1. The other team won't play

2. Worry about signaling weakness

3. Unknown or uncertain BATNA

4. Wildly divergent BATNA assessments

5. Limited time, money

6. Need for immediate enforcement

7. Other disputant a nasty fellow

8. Underlying interest in legal reform

9. Facilitative process already tried, settlement did not result

Theories of conflict, cooperation, and competition, and negotiation style, suggest that the best processes for

promoting constructive, equitable, and efficacious dispute resolution are those in which the participants are

consistently guided away from invisible veil, zero-sum thinking and toward collaborative, integrative

problem solving. These processes include (1) pure mediation geared directly toward promoting collaborative

problem solving and (2) transformative mediation.

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