Index

Stephen B. Goldberg (Professor Emeritus, Pritzker School of Law, Northwestern University, Chicago, IL, USA)
Jeanne M. Brett (Professor, Kellogg School of Management, Northwestern University, Evanston, IL, USA)
Beatrice Blohorn-Brenneur (Mediator, Council of Europe, Judge (ret.), Paris, France)

How Mediation Works

ISBN: 978-1-78714-223-7, eISBN: 978-1-78714-222-0

Publication date: 20 April 2017

This content is currently only available as a PDF

Citation

Goldberg, S.B., Brett, J.M. and Blohorn-Brenneur, B. (2017), "Index", How Mediation Works, Emerald Publishing Limited, Bingley, pp. 113-118. https://doi.org/10.1108/978-1-78714-222-020171003

Publisher

:

Emerald Publishing Limited

Copyright © 2017 Emerald Publishing Limited


INDEX

Active listening
, 37

Adler, Peter
, 97–98

ADR (alternative dispute resolution) processes
, 11, 93, 99, 102, 103

blogs
, 107–111

organizations and journals, links to
, 105–106

“ADR as a 1st Career”
, 99, 107

Agreement(s)

between parties with continuing relationship
, 47–48

confidentiality
, 82–83

contingent
, 46

disputing parties’ inability to reach
, 59–62

limited duration
, 46

narrowing/expanding scope of issue in dispute
, 48

non-precedent setting
, 47

splitting the difference
, 49–50

tentative
, 74

trade-off
, 46

Alternatives
, 103

American Arbitration Association
, 84

American Bar Association (ABA)
, 84, 103, 107

Model Rules of Professional Conduct
, 89

Section on Dispute Resolution
, 103

Arbitration
, 6–7, 11

distinguished from court
, 7

Arbitrator
, 6

Association for Conflict Resolution (ACR)
, 84, 103

Association of Family and Conciliation Courts
, 103

BATNA (Best Alternative to a Negotiated Agreement)
, 13, 14, 30, 51–54, 60–62, 70–72

mediator aiding parties to evaluate BATNA
, 51–54

Behavioral issues

disruptive behavior
, 68–69

irrelevant issues, raising
, 68

silence
, 67

Bias, mediator avoiding appearance of, See Mediator(s)

Bingham, Gail
, 101

Buckley, M.
, 103

Candor in mediation
, 79–84

Carrel, Alyson
, 99

Carter, Jimmy
, 99

Case of the Travelling Mechanic
, 40–43

Coaching of parties by mediator
, 43–44

Commitment to abide by mediation rules
, 29

Confidentiality agreements
, 82–83

Mediator’s responsibilities regarding
, 83–85

Conflict, defined
, 1

Conflict Resolution Quarterly
, 104

Conflicts of interest
, 87–88

Contingent agreements
, 46

Continuing education
, 91–92

Court

distinguished from arbitration
, 7

provision of mediators by
, 18

Court-connected mediation
, 80

Credentials to mediate
, 101–102

Day job

“don’t quit”
, 104

Defining issues
, 30–31

Disputants

choice whether to settle in mediation, preservation of
, 90–91

obligations to attend/engage in mediation
, 85–87

Dispute resolution

three approaches
, 2–3

Dispute Resolution Journal
, 103

Dispute Resolution Magazine
, 103

Dispute resolution processes
, 5–14

arbitration
, 6–7

choosing
, 10–14

court
, 6

hybrid
, 10

mediation. See Mediation

negotiation
, 5–6

Disputes, defined
, 1

Disruptive behavior
, 68–69

DVDs, mediation
, 55, 75

Echo or mirror reformulation
, 38

Economic force
, 2

Emotions
, 63–64

Entry-level mediator qualifications
, 91

Ethical standards for mediators, See Mediators

Evaluative mediation. See Rights-based approach to mediation

Evidence, rules of
, 29

Facilitative mediation. See Interest-based approach to mediation

Family Court Review
, 104

Federal Rule of Civil Procedure 26(b)
, 79

Federal Rule of Evidence
, 408, 79

Fees for mediator services
, 23

structure of
, 88

First offer, unwillingness to make
, 62–63

Greenbaum, Marcia
, 98

Harvard Negotiation Law Review
, 103

Hybrid dispute resolution processes
, 10

Impasse, mediator techniques for dealing with
, 69–73

Interest-based approach to mediation
, 8–9, 12, 65–66

Interests
, 3

techniques for identifying
, 30–39

Irrelevant issues, raising
, 68

Isaacson v. Isaacson
, 88

Joint or separate meetings to begin mediation
, 25–26

Journal of Dispute Resolution
, 103

Law and mediation
, 77–93

Lawyer representation in mediation
, 18

Legal standards applicable to mediation, enforcement of
, 90

Limited duration agreements
, 46

Liquidated damages
, 83

Marketing of mediation services
, 102–103

Mayer, Bernie
, 98

McEwen, Craig
, 97

Mediation

agreements, different types
, 46–50

beginning
, 27

behavioral issues
, 67–69

candor in
, 79–84

communications
, 80, 83, 89

cost of
, 12

defining and ordering issues
, 30–31

developments in
, 103–104

disputants’ obligations to attend and engage in
, 85–87

distinguished from negotiation
, 19

DVDs demonstrating mediation
, 55, 75

ending
, 54

exclusion of disputes from
, 92

getting to
, 17

impasse, techniques for breaking
, 69–73

inability of parties to reach agreement, mediator’s goal
, 59–62

interest-based approach to
, 8–9, 12, 65–66

interests and priorities, techniques for identifying
, 30–39

joint or separate meetings
, 25–26, 31–32

law and
, 77–93

lawyer representation in
, 18

one party more sympathetic/appealing
, 69

opening statements
, 30

organizations and journals, links to
, 105–106

place and time of, choosing
, 23–24

positions to interests, moving from
, 30

pre-mediation discussions/agreements
, 24–26

privilege
, 80–82

provider organizations
, 57

quality enhancement
, 91–92

reasons for choosing
, 11–14, 17

reluctance to mediate, addressing
, 18–21

rights-based approach to
, 9–10, 13, 65

rules of
, 28–30

rules of evidence, relevance
, 29

self-determination, parties’ right to
, 53–59

separate sessions
, 31–34

services, marketing of
, 102–103

venting
, 63–64

voluntary nature
, 30

Mediation service providers

list of
, 57

provision of mediators by
, 18

Mediator(s)

appearance of bias, avoiding
, 28

BATNA, aiding parties to evaluate
, 51–54

becoming
, 97–104

coaching the parties
, 43–44

confidentiality, mediator responsibility
, 83–85

conflicts of interest
, 87–88

continuing education and evaluation
, 91–92

credentials
, 101–102

disclosure by
, 22, 35–37

entry-level qualifications
, 91

ethical standards
, 77–93

fees
, 23, 88

first career, mediation as
, 99

goal
, 59–62

guidelines for conducting separate sessions
, 32–34

impartiality of
, 87–90

integrity of
, 87–90

listening, active
, 37–38

marketing of services
, 102–103

mentors
, 102

mixed professional practices
, 89

Model Standards of Conduct for Mediators
, 83–84, 87–90

Model Standards of Practice for Family and Divorce Mediation
, 84

proposals
, 48–50, 71–72

provision of by mediation service firms and courts
, 18

quality
, 91–92

questioning
, 35–37

rewards of serving as
, 97–98

role of
, 27

selection of
, 21–22

success, keys to
, 27, 100

training courses
, 100–101

unfair tentative agreement, dealing with
, 74

warning to parties of termination of mediation
, 71

Mitchell, George
, 99

Mixed professional practices
, 89

Model Standards of Conduct for Mediators, (see Mediators)

Model Standards of Practice for Family and Divorce Mediation, (see Mediators)

National Association for Community Mediation
, 103

Negotiation
, 5–6, 11

distinguished from mediation
, 19

failure of
, 13

Negotiation Journal
, 103

Non-precedent setting agreements
, 47

No separate sessions
, 34

Ohio State Journal on Dispute Resolution
, 103

Opening statements
, 30

Ordering issues
, 30–31

Over-promising
, 89–90

Parties

ability to determine mediation procedures
, 25

availability in mediation, ensuring
, 28

behavioral issues
, 67–69

best settlement proposals, encouraging
, 50–51

bringing together for final settlement effort
, 70–71

coaching of
, 43–44

continuing relationship
, 47–48

creative proposals, seeking
, 44–45

inability to reach agreement
, 59–62

involvement in mediators’ separate session
, 66–67

one more sympathetic/appealing
, 69

proposals, working with
, 45–46

self-determination in mediation
, 53–54

Place of mediation
, 23–24

Positive reformulation
, 38–39

Power
, 2

Pre-dispute resolution provisions
, 11

Pre-mediation briefs
, 24

Pre-mediation discussions/agreements
, 24–26

briefs
, 24

joint or separate meetings, begin mediation with
, 25–26

written agreements
, 24–25

Priorities, techniques for identifying
, 30–39

Privilege, mediation
, 80–82

Quality of mediation
, 91–92

Questioning by mediator
, 35–37

Reactive devaluation
, 49

Reformulation

echo or mirror
, 38

positive
, 38–39

synthesis
, 39

Reluctance to mediate, addressing
, 18–21

Rights
, 2–3

Rights-based approach to mediation
, 9–10, 13, 65

Rules of evidence in mediation
, 29

Rules of mediation
, 28–30

Self-determination in mediation
, 53–54

Separate meetings/sessions

mediation with
, 25–26, 31–32

mediator guidelines for conducting
, 32–34

parties not candid with mediator
, 66–67

Settlement

agreements between parties with continuing relationship
, 47–48

contingent agreements
, 46

creative proposals from parties, seeking
, 44–45

encouraging by focus on interests and priorities
, 50–51

freedom of choice whether to settle
, 53–54

limited duration agreements
, 46

mediator proposals
, 48–50, 71–73

trade-offs
, 46

working with parties’ proposals
, 45–46

Skills
, 100

State v. Castellano
, 81

Sympathetic parties
, 69

Synthesis reformulation
, 39

Tentative agreement
, 74

Term sheet. See Written agreements

Time of mediation
, 23–24

Trade-offs
, 46

Training courses, mediation
, 100–101

Uniform Mediation Act
, 80–82, 84, 89, 91

Venting, see Mediation

Voluntary nature of mediation
, 30

World Arbitration and Mediation Report
, 103

Written agreements
, 24–25

Zone of potential agreement (ZOPA)
, 69–70