MEDIATION SKILLS - Hamline Law
MEDIATION SKILLS - Hamline Law
MEDIATION SKILLS - Hamline Law
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Required Texts<br />
<strong>MEDIATION</strong><br />
Summer 2008 Dispute Resolution Institute<br />
Professor James Coben (Room 306a; 651-523-2137)<br />
jcoben@hamline.edu<br />
• THE MIDDLE VOICE: MEDIATING CONFLICT SUCCESSFULLY, Stulberg and Love<br />
(Carolina Academic Press, forthcoming 2008), hereafter "MV"<br />
• <strong>MEDIATION</strong>: PRACTICE, POLICY & ETHICS, Menkel-Meadow, Love, and Schneider<br />
(Aspen, 2006), hereafter "MPPE"<br />
Specific readings assignments are noted in the syllabus below. I recommend reading as much of<br />
both texts as you can in advance of the course.<br />
Recommended Reading<br />
• GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN, by Fisher, Ury and<br />
Patton (Houghton Mifflin 1991) (if you have never read this classic, I highly recommend<br />
you do so).<br />
Class Sessions<br />
July 15-17, 21-23 & 25 (4:30-9:15 p.m.)<br />
July 19 (9:00 a.m. - 5:00 p.m.)<br />
Course Description<br />
Through discussion, simulations, and role-play, this course focuses on the structure and goals of<br />
the mediation process and on the skills and techniques mediators use to aid parties in<br />
overcoming barriers to dispute resolution. The course also examines the underlying negotiation<br />
orientations and strategies which mediators may confront and employ; the roles of attorneys and<br />
clients; dealing with difficult people and power imbalances; cultural, race, and social identity<br />
considerations; and ethical issues for lawyers and mediators. In addition, special attention is<br />
devoted to the art of successful representation of clients in mediation.<br />
3 law school credits; qualifies for 35 CLE credits. This course satisfies the MN Rule 114<br />
certification standards for civil facilitative/hybrid neutrals (see Rule 114.13). As a result,<br />
students who complete the course may apply to be listed as a "qualified neutral" eligible to<br />
accept a court referral to mediate a Minnesota state district court case.<br />
Course Objectives<br />
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This course is designed to: 1) increase your understanding of mediation theory and practice; 2)<br />
improve your skills in listening, questioning, problem-solving, persuasion, and professional<br />
judgment that are necessary for effective participation mediation; and 3) encourage active<br />
reflection on your work in dispute resolution (as a representative of parties in conflict, or as a<br />
neutral intervener).<br />
My Biases<br />
I want to reiterate up front my personal biases so you can understand the filter through which I<br />
deliver information in class: I believe that mediation (in its many varied forms) is valuable and<br />
vital. The potential for fundamental and positive transformation of conflict management is very<br />
real (and not just for the "docket management" reasons that so appeal to judges and court<br />
administrators). That said, I remain troubled and challenged philosophically by the "left"<br />
critique that mediation is but another attack on the activist state and progressive courts -- another<br />
form of potentially dangerous deregulation -- one that “permits private actors with powerful<br />
economic interests to pursue self-interest free of community norms.” 1 I also am deeply<br />
suspicious of the notion that “self-determination” alone is a sufficient “prime directive” for an<br />
entire movement. How can "self-determination" be a guiding principle for justice in a society<br />
plagued with all sorts of inequalities? Finally, in my work representing clients in mediation, I<br />
have noticed a significant gap between theory and practice. Regardless of what neutrals say they<br />
do, I have often felt that mediation is a forum ripe with manipulation and deception conducted by<br />
the mediators themselves (often unintended, but sometimes overtly intentional and defended<br />
simply because the conduct facilitates settlement).<br />
Notwithstanding my proclaimed biases, I encourage (and expect) a vigorous debate. Your<br />
willingness to engage in public discourse on these subjects is critical in making this course a<br />
success.<br />
Course Requirements<br />
Preparation, attendance, and participation are central to learning in any context, especially in<br />
courses like this one designed around in-class exercises, simulation, and discussion.<br />
Class Participation<br />
For your contributions to class discussion, I will be favorably looking to comments that<br />
offer unique but relevant perspectives that move the discussion and analysis forward.<br />
Effective comments avoid the “I feel” syndrome, and demonstrate recognition of key<br />
concepts, with concrete links where possible to assigned reading.<br />
1 McThenia & Shaffer, For Reconciliation, 94 Yale L.J. 1660, 1665 n. 33 (1985).<br />
2
Simulation Participation<br />
In order for the exercises to be useful as learning experiences for all students, please<br />
make a good faith effort at playing your assigned role as realistically as possible (but<br />
always keeping in mind that you will be serving as a mediator too!). In giving feedback<br />
to mediators, please be honest and respectful; include positive and negative critique; be<br />
specific; relate your feedback to the concepts we are studying.<br />
Attendance Policy<br />
Attendance at all class sessions is mandatory. Students who successfully complete the<br />
course may apply to join the roster of neutrals maintained by the Minnesota Supreme<br />
Court. Students are roster eligible ONLY IF they do not miss any part of any class.<br />
Grading<br />
Your grade will be based on the following three short writing assignments (all due no<br />
later than 4:30 p.m. on Friday, August 8th; more specific details about each assignment<br />
will be distributed in class):<br />
1) a five (5) page reflection on your experience in one of the concluding<br />
mediation simulations of the course;<br />
2) a five (5) page memo to a client about the selection of a mediator and<br />
preparation for mediation; and<br />
3) a five (5) page mediation policy analysis.<br />
Exceptional class participation (active and constructive contributions to class discussions,<br />
role plays and simulations) will earn you a bump up in your grade; exceptionally poor<br />
class performance may result in a lowering of your grade.<br />
Daily Topics and Reading Assignments<br />
(unless otherwise noted, read entire chapters)<br />
Tuesday, July 15<br />
Course Introduction; Overview of Conflict and Dispute Settlement Processes; Mediation's<br />
"Value-added"<br />
Lecture, general discussion, and exercises examining assumptions about dispute settlement,<br />
analyzing various dispute settlement methodologies, and exploring the role of mediation within<br />
that context. We will examine origins and causes of conflict, conflict transformation, and<br />
alternative models of conflict resolution, as well as negotiation and bargaining theory, including<br />
principled negotiation and interest-based v. positional bargaining.<br />
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REQUIRED READING<br />
MV Chapters 1-3<br />
MPPE Chapters 1-2; Chapter 3 (pp. 91-112)<br />
Wednesday, July 16<br />
Overview of the Mediation Process; Mediator Roles, Orientations, & Styles; Opening<br />
Statement<br />
Introduction to, and overview of, the mediation process, with practical focus on the opening<br />
statement.<br />
Accumulating Information and Listening Constructively<br />
Demonstration and analysis focusing on fact-gathering techniques, note-taking skills, and<br />
questioning skills. Interactive exercises will illuminate the task of translating hostile and<br />
adversarial communication into building blocks of collaborative dialogue.<br />
Required Reading<br />
MV Chapters 4-7<br />
MPPE Chapter 3 (pp. 113-134) & Chapter 6 (pp. 213-255)<br />
Thursday, July 17<br />
Framing Interests and Issues to Construct the Agenda<br />
Lecture and discussion examining the mediator's role in, and responsibility for, identifying,<br />
framing and ordering the issues in dispute. Exercises will follow.<br />
Diversity, Power and Fairness<br />
Discussion, analysis and exercises focusing on interpersonal and communication skills critical to<br />
facilitating dialogue in contexts in which issues of cultural, gender and ethnic diversity are<br />
pervasive. What role, if any, does the mediator play in "balancing" power?<br />
Required Reading<br />
MV Chapter 8<br />
MPPE review pp. 213-255 in Chapter 6 (with special attention to pp. 253-255);<br />
Chapter 7 (pp. 290-301)<br />
Saturday, July 19<br />
Mediator Strategies for Generating Settlement<br />
Lecture, discussion, and exercises examining the rationale of various settlement strategies that a<br />
mediator can use to move the parties towards agreement. Analysis will highlight persuasive<br />
techniques for moving parties from impasse to settlement.<br />
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Meeting Separately with the Parties<br />
Examination of the purposes and strategies of meeting in caucus sessions with the parties.<br />
Participants will assume either the mediator's or a party's role and conduct a caucus. Analysis<br />
will follow.<br />
Co-Mediation<br />
Discussion and analysis of strengths and weaknesses of a co-mediation approach and the<br />
principles guiding the effective execution of team mediation.<br />
Ethics<br />
Discussion and exercises focusing attention on ethical dilemmas faced by mediators, particularly<br />
challenges to a mediator's impartiality, and the potential for abuse of discretion and power.<br />
Required Reading<br />
MV Chapters 9, 10 & 12<br />
MPPE Chapter 5 (pp. 183-197); Chapter 6 (pp. 256-269); Chapter 9; Appendix B<br />
(Model Standards of Conduct for Mediators)<br />
Monday, July 21<br />
Closure and Agreement Writing<br />
Strategies for effectively closing a session will be explored and practiced. Discussion and<br />
exercises regarding what should or should not be committed to the written agreement. Particular<br />
attention will be focused on format, language, "traps" to avoid, and other principles of good<br />
drafting.<br />
Minnesota Rule and Statute Supplement<br />
An overview of the regulatory framework for the practice of mediation in Minnesota, including<br />
standards of practice and mediator introduction pursuant to the Civil Mediation Act, and<br />
rules, statutes and practices governing mediation in the trial court system (with special<br />
focus on confidentiality).<br />
The "Administrative" Side of Mediation<br />
Using a complex, multi-party mediation as a focal point, students will explore the myriad<br />
challenges neutral organizations may face in getting disputing parties to the mediation table.<br />
Required Reading<br />
MV Chapter 11<br />
MPPE Chapter 8<br />
Minnesota Supplement (to be distributed in class)<br />
Tuesday, July 22<br />
Representing Clients in Mediation<br />
The Preamble to the American Bar Association Model Rules of Professional Conduct states that<br />
the advocate's job is to "zealously assert the client's position under the rules of the adversary<br />
system." What does this mean when the forum is mediation? Using lecture, discussion,<br />
simulation, and role play, we will review existing paradigms for lawyer behavior in mediation<br />
and explore how lawyer participation impacts the mediation process. From the practice<br />
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perspective, we will explore advocacy skills for each stage of the typical mediation, including<br />
mediator selection, case preparation, client preparation, and advocacy at the mediation session<br />
itself.<br />
Drafting Clauses and ADR Process Choice<br />
How do you advise clients about choice of ADR process? If clients want to be obligated to use<br />
mediation (or other forms of ADR), how do you draft contracts to achieve this objective?<br />
Required Reading<br />
MPPE Chapter 5 (pp. 157-183; 197-214) and Chapter 11<br />
Wednesday, July 23<br />
The <strong>Law</strong> of Mediation<br />
Review of key legal principles: enforceability of mediated agreements; confidentiality; court<br />
"policing" of mediation participation (attendance; good faith; sanctions), and other issues.<br />
Exploring the "Dark Side"<br />
Mediation is no panacea. We will explore some of the standard critiques of mediation,<br />
including, I hope, some of your own. What are the dangers, disadvantages, and concerns with<br />
actively promoting use of mediation?<br />
Required Reading<br />
MPPE Chapters 7 and 14; review Chapter 8 (confidentiality); skim Appendix A<br />
(Uniform Mediation Act)<br />
Friday, July 25<br />
Closing simulations<br />
Each student will get the opportunity to mediate a case from start to finish. One of your course<br />
writing assignments is to critically reflect on this "capstone" experience.<br />
Future Possibilities and Limitations<br />
What does the future hold? What models of mediation are likely to see sustained growth? How<br />
does mediation work in the international context?<br />
Course Evaluation and Close<br />
Required Reading<br />
MPPE reread pp. 113-134 in Chapter 3 (explicating different models of<br />
mediation); Chapter 10 (pp. 402-415); skim Chapter 13 (international<br />
mediation)<br />
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