MEDIATION SKILLS - Hamline Law

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