1 GLASGOW 2017

2 INADR Philosophy As we travel around the world conducting mediation tournaments, we see the use of mediation expanding (at various stages) everywhere. It is a major objective of the InterNational Academy of Dispute Resolution that students leave this competition with an enhanced vision of what mediation is and can be. We try to vary the types of case scenarios to allow the students to experiment with as many different techniques and styles as possible. While there may be different approaches and philosophies adhered to or taught by professional mediators, college and law school professors, and mediation trainers, we believe there is no one right way to mediate in general or in any specific dispute. A good mediator will be flexible and open to using the best approach and applying the best principles relevant to the specific dispute s/he is mediating. Professional mediators often start by taking a 40-hour training course to become certified by various sanctioning bodies. Law students often spend an entire semester merely learning about the breadth and scope of mediation. The brief training presented in conjunction with out tournament is provided as a basic introduction to the wide world of mediation. While we hope you find it helpful, it is certainly not as comprehensive or expansive as the many fine courses and textbooks currently available on the subject. It is our desire by offering some training along with the competition to whet your appetite and start you on your journey into the world of mediation with a very basic overview.

3 Who Are We? Mediators/Trainers/Teachers/Lawyers Board Members INADRRichard Calkins, Dennis Favaro, Nancy Schultz, Case Ellis For bios see

4 Who Are You? Schools from 15 countries 8 schools from India9 UK schools (England, Northern Ireland & Scotland) US schools from 9 states and the District of Columbia 8 EU countries

5 Dealing With Conflict Conflict arises (two or more parties)Options – Fight/flight, suffer in silence, argue, negotiate , complain to authority, finally to lawyer – litigation/arbitration ensues In today’s world, at some point, “mediation” becomes an option “Time-out” in formal proceeding while parties go to mediation - “Christmas Armistice”

6 Law School Training HOW ARE YOU DOING?

7 A New Tool in the lawyer’s toolboxLearn the difference between ADVOCATING and COLLABORATING when representing clients The future’s best lawyers will master the traditional skills to zealously promote their client’s interests in negotiations or court AND the ability to peacefully resolve their client’s case in a most favorable manner Train and become a mediator

8 What is Mediation? Simply stated, mediation is a non-binding process for resolving disputes between adverse parties with the assistance of a trained and experienced neutral third-party.

9 Breadth and Growth of MediationConcept as old as the first societies – tribal elders King Solomon – split the baby In later half of Twentieth Century found its way into the “Legal System” –began to expand exponentially Acceptance by Courts, Lawyers, Businesses and Social Institutions School and Faith based programs Grown in virtually all types of legal and quasi-legal settings Peer mediation in school…and growing

10 The Language of MediationConference/Joint In the presence of all parties and advocates (joint session) Caucus/Private Private session by mediator with one party/advocate Facilitative Mediator acts as bridge or conduit between the parties Evaluative Mediator opines if requested Restorative Evolution of “Restorative Justice” principles Transformative Empowerment & recognition trumps “settlement” Collaborative Four way contract to work cooperatively And ever growing… (Narrative etc.)

11 Chief Justice In the 1980s, Chief Justice Warren Burger of the United States Supreme Court observed that “the American judicial system is too costly, too lengthy, too destructive, and too inefficient for a civilized people.” Mid-Year Meeting of the American Bar Association, 52 U.S.L.W. 2461, 2471 (Feb. 28, 1984).

12 Abraham Lincoln Nearly 150 years ago, Abraham Lincoln gave this sage counsel to attorneys: “Persuade your neighbor to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time.”

13 Mahatma Gandhi There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts. Culture of the mind must be subservient to the heart.

14 Mediation Procedure Overview (one model )Pre-mediation Preparation: Mediator reviews submissions, Advocates/clients prepare 2. Opening session ( usually in conference) Mediator’s opening remarks – set tone, review process Parties’ Opening Remarks (advocate AND party encouraged to participate) 5. Problem Solving Phase – issues and areas of agreement/disagreement identified, Mediator decides to move to caucus or remain in conference session. 6. Process continues- in conference and/or caucus 7. Re-convene everyone - formalize agreement, suspend, or terminate

15 Cases mediated now in US CourtsFamily Probate Commercial Chancery Tort Transactional Class Actions Employment Appellate SMALL CLAIMS At the request of US judges in many jurisdictions, judges in virtually ALL civil divisions (other than Juvenile) may now refer cases to mediation

16 Spreading Worldwide EU Mandates not only Rules for Court Mediation in all member states, but also mandates Rules for ODR Australia, Asia, are developing programs In its “infancy” in South America and Africa but interest is growing rapidly - all starting to develop rules and programs to implement mediation programs

17 Drop the “A” A new worldwide view of dispute resolution is emerging

18 Advantages of Mediation It is Not BindingDoes NOT deprive the parties of their right to a trial May result in a “binding” agreement, fully enforceable in a Court of Law Usually VOLUNTARY (Sometimes Mandatory)

19 Speed of Resolution People do not like being in conflict. It is troublesome, time consuming, and a drain on both financial, emotional and management resources. Mediation sessions can be set up quickly – unlike disputes working their way through the judicial system or arbitration. In commercial disputes it can be most important that the normal flow of business continues. Backlog, “justice delayed is justice denied,” peace of mind restored sooner rather than later.

20 Cost Savings This is a fairly obvious and a major advantage. Because cases can be settled quickly, legal costs and time costs are kept to a minimum. Voltaire “I was never ruined but twice … Once when I lost a lawsuit and once when I won one.

21 Don’t be this lawyer! Bleak House

22 Improves/Restores CommunicationThe filing of a lawsuit or arbitration action usually cuts off all direct communication between the parties. The face-to-face meeting which occurs at a mediation’s joint sessions allows open communication directly between the parties again. The mediator can oversee the discussion to make sure passions and emotive language do not interfere with the settlement process.

23 Improves/Restores CommunicationDivorce – still will be raising children together Business breakup & other commercial disputes may have future business relationship – or at least travel in the same business circles Probate – may bring families back together-can affect generations

24 Confidentiality It is a confidential proceeding!!!!!!!!Reputations may be saved from the adverse publicity resulting from a public (as in Court) airing of the dispute Binding precedent avoided

25 It’s Simple! Easily explained procedure with few “rules”Limited “paperwork” or “procedures” Relatively short duration and conclusion

26 However………. The process is capable of handling the most complex cases, for example… Class Actions Multi Party Litigation Multi Issue Litigation where not all parties involved in all issues Sensitive issues dealing with peoples’ private lives

27 Sample Confidentiality AgreementIN THE CIRCUIT COURT OF THE TWENTY-SECOND JUDICIAL CIRCUIT MCHENRY COUNTY, ILLINOIS Plaintiff, Case No: _______________ vs. Defendant. CONFIDENTIALITY AGREEMENT AND NONREPRESENTATION ACKNOWLEDGEMENT IT IS HEREBY AGREED by and between the mediation participants and Mediator, that all matters discussed during any and all mediation sessions shall be confidential and shall not be disclosed by the participants or the Mediator in any court of law. It is further acknowledged by the parties to this lawsuit that the Mediator Nancy Jones is not representing any party to this lawsuit and is not affording or providing any legal advice to any such party. Dated: _________________________ ______________________________ _____________________________ Mediator, Nancy Jones  ___________________________________ _______________________________ Sample Confidentiality Agreement

28 It's Flexible Mediation has few formal rules or procedures, so the mediator can use the process’ flexibly to suit the circumstances of the dispute. Options for resolution – not available in court/arbitration split the baby, apology, reframed working relationship, recognition and public acknowledgement of wrong, pick of the litter…etc., etc.,etc. . .

29 Allows parties to Control Their own DestinyThird party decision maker is replaced by self determination by the parties Issues regarding Judge, Arbitrator*, JURY (USA) are eliminated *Sometimes multiple (2 biased) arbitrators

30 Reviewing courts favor mediationArbitration Clauses vs Mediation Clauses

31 It Addresses Unreasonable Claims and ExpectationsPeople who believe they are in the right very often become self-righteous, and get an inflated perception of their position. A skilled mediator will succeed in getting the party to view the case from the other party’s point of view. Constant development is the law of life, and a man who always tries to maintain his dogmas in order to appear consistent drives himself into a false position. MG

32 It Works! Mediation operates under the Rule of Common Sense/Social Living rather than the Rule of Law, because the aim of mediation is to solve problems, not assess fault. A word about “real world” and practice/mock mediations (Charlie’s Nigerian student) It allows each party the opportunity to “get things off their chest” (vent) and tell the other party “face-to-face” their perception of what has occurred and the effect it has had on them (and possibly others).

33 It Works! It provides the equivalence of a party’s day in court - the mediator's mere presence as an outside party can fulfill that emotional need. It gives people a chance to see their advocates in action (that they are prepared and concerned) It is a chance to hear ALL the issues and facts – some of which they may be completely unaware and MANY of which may be inadmissible in Court due to evidentiary rules

34 It Works! It unearths the real issues – not just those falling within the “framework” of legally enforceable (relevant, admissible) causes of action. (Remove attorney focus on legally significant elements of case) It allows a party the opportunity to briefly “walk in the other parties’ shoes” (develop empathy). It’s about HUMAN needs and interests It knows no CULTURAL boundaries

35 4 countries/cultures-1 solution

36 Replace Dispositional Attribution with Empathy“When I was five years old, my mother always told me that happiness was the key to life. When I went to school, they asked me what I wanted to be when I grew up. I wrote down "happy". They told me I didn't understand the assignment, and I told them they didn't understand life.” ….JL Replace Dispositional Attribution with Empathy

37 Magic Mirror

38 It Works! It provides BOTH parties with a high degree of “self determination.” They can participate in shaping the outcome rather than leaving their fate to a disinterested third party. Can a Judge possibly know your children, your business, your emotional needs etc as well as YOU? Mediation COMPLIANCE rates exceed compliance with Court ordered outcomes

39 It Eliminates Risk The WORST that can happen may very well be the outcome ordered by a third party. Provides a forum for a RISK/BENEFIT analysis that is fluid, flexible, and current.

40 “It’s not a justice system – it’s a legal system”…Chief Wiggums

41 “Justice” Mediation provides not only “substantive justice” but also provides “procedural justice” England/Wales Small Claims mediation program “favorable” rating

42 ADVOCATING AT MEDIATIONMind shift from Negotiation/Advocacy to Collaboration Encourage your client to be sincere, discourage them from destructive conduct but don’t discourage genuine emotion If caucusing, have a “team” mindset –you, the client, and the mediator are a team with a common goal – to reach a resolution acceptable to the client.

43 SAMPLE MEMORANDUM OF AGREEMENTSTATE OF CONFUSION IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT COUNTY OF BEDLAM  ) Hillary Trump, Plaintiff ) v. ) NO. Donald Clinton, Defendant ) MEMORANDUM OF AGREEMENT We, the undersigned, having participated in a mediation session on this 15th day of October, 2016, and being satisfied that the provisions of the resolution of our dispute are fair and reasonable, hereby agree to abide by and fulfill the following: ________________________________________________________________ __________________________________________________________________ ________________________________ _______________________________ Mediator __________________________________________ ______________________________