You be the Judge

Preface Acknowledgements Introduction Chapter 1: Negotiation What You Need To Know About Negotiation Style Positional or Win/Lose Negotiation Deadlock The Deadly Circle Win/Lose Negotiation Produces Anger Vested Interests in Negotiation The Zero-Sum Game Dammit. I'm Right and They're Wrong Bias and Subjective Evaluation Interest-Based or Win/Win Negotiation Best-Case Scenario or Walk-Away Position A Typical Interest-Based Negotiation What Style of Negotiation Best Suits Mediation? Reactive Devaluation Impasse in Negotiation The Whack-Um Game Diagnosing the Problem Additional Strategies to Break Impasse Litigation Mode is not Negotiation Power in Negotiation Power Imbalances Negotiating Tips Leave Them Better Than You Found Them Be Assertive, Not Rude Don't Complain or Explain Send Reinforcing Positive Messages Negotiate in Good Faith End the Negotiation On a Positive Note Chapter 2: What is ADR? The Need for Change The Litigation Process Step 1 Step 2 Step 3 Step 3A Step 4 Step 5 Step 6 Step 7 Step 8 Step 9 Step 10 Step 11 The Delay Factor The Historical Context ADR Street Negotiation Mediation The Mini-Mall Arbitration Rights-Based "Mediation" Court Mediation in Detail Advantages Of Mediation The Decision to Mediate Getting the Other Side to the Table Direct Approach Indirect Approach Government Mandates Other Inducements Should I Mediate? Essential Elements Intent to Negotiate in Good Faith Authority Relationships Is the Relationship Worth Preserving? Flexibility When is the Best Time to Mediate? The Role of the Lawyer The Stages of Litigation Possible Outcome of Trial and its Influence on Mediation When to Avoid Mediation Withheld Information The Single-Issue Dispute: All or Nothing Arbitration An Alternative or Supplement to Mediation What is Arbitration? Mediation vs. Arbitration Mediation/Arbitration (Med-Arb) An Alternative Chapter 3: The Mediation Process A Step-by-Step Look at a Typical Mediation Stage One The Convening Stage The Agreement to Mediate Location How Long Should the Mediation Last? Stage Two Introductions and Ground Rules Intention Authority Goals Participation Stage Three Information Exchange and Issue Identification Watch, Listen, and Learn Opening Statements: You Are Up Opening Statements: They Are Up Clarification and Amplification The Break Regrouping What's Really Going On? Private Meetings: Party-Mediator Process Options After the Break: Remain Separated or Resume Joint Session? Reconvening Remaining Separate to Develop Common Ground Stage Four Problem Solving Generating Options Testing Alternatives Against Your Walk-Away Position The Analysis Valuable Non-Monetary Elements of Resolution Vindication/Saving Face Apology Money Now vs. Money Later Stress Avoidance Risk Aversion or Certainty Business Concessions Avoiding Bad Publicity Cost Avoidance Good Publicity Avoiding a Bad Precedent Stage Five Resolution If Agreement Isn't Possible Mediation Process Checklist Chapter 4: The Role of Mediators and Lawyers Mandatory Court-Connected Mediation Role of the Mediator Qualities of a Good Mediator History Experience and Training Must the Mediator Have Knowledge of the Issues? Does the Mediator Have to Have Insurance? Style of the Mediator Directive Mediation Interest-Based Mediation Mediator Ethics Coercion Mediators Must Not Provide Legal Advice or an Opinion Impartiality Conflict of Interest Mediator Must Respect Confidences Integrity of the Process How to Find the Right Mediator Buyer Beware Mediation Service Providers Mediator Associations Court Rosters Referral Service Role of the Lawyer Legal Ethics in Mediation Interview Guide Checklist Chapter 5: Barriers to Success Anger How to Recognize Anger in Yourself and Others What to Do about Your Own Anger What to Do when Confronted by an Angry Opponent Anger and Mediation The Myth of Litigation Bottom Lines Heck, It Really is Only about Money Lack of Preparation Understand Your Interests Understand Their Interests Who Should Attend the Mediation? Consider Power, Cultural Differences, and Gender Anticipate Impasse or Deadlock Prepare a Mediation Brief The Law It is Important Role at the Table Preparation Checklist Disclosure of Information Getting Critical Information without Discoveries Your Information Their Information Difficult People Difficult Behaviour Bad Timing Unrealistic Expectations Missing Party Overemphasis on Settlement Cultural Barriers Power Imbalances Lack of Resources Institutional Barriers What if the Mediation Becomes Deadlocked? Chapter 6: Agreement Getting There Closure Separate Proposals or Offers Single-Text Agreement Who Makes the First Move? Momentum Settlement Remorse Hallmarks of a Good Agreement Testing the Agreement Efficient Fair Durable Enforceable The Agreement Tips for Getting a Good Agreement Write it Up The Agreement is Public Unless Otherwise Stated If You Want it to Be Confidential, Say So Remember it is the Parties' Agreement Tie Down all Loose Ends Use the Mediator Don't Use the Mediator to Draft the Agreement Use a Dispute Resolution Clause Does the Agreement End the Dispute? What it's Over, it's Over! What Happens if the Agreement is Broken? Non-Agreement Chapter 7: All Disputes are Not the Same Commercial Cases Process Design Personal Injury Claims Attitudes Towards Mediation Disability Claims Divorce and Family Mediation Employment Disputes Emotions Preparation The Agreement to Resolve Family Business Disputes Family Councils Preventative Medicine Construction Cases Construction Liens Partnering Estate Disputes Estate Planning Preventing Disputes Estate Disputes Bankruptcy and Insolvency Timelines Complexity Flexibility Problem Solving and Consensus Building Choice of Mediator Process Emotion Court Supervision Not Dismissed Multiparty/Multiissue Disputes Mediator's Knowledge of the Issues Medical Malpractice Timing of the Mediation Appropriate Party Complaints about Doctors and Other Health-Care Professionals Government Disputes Neighbourhood and Community Disputes Chapter 8: Conclusion Appendix A Glossary of Dispute Resolution Terms Appendix B Agreement to Mediate Appendix C Arbitration and Mediation Institute of Canada Inc. Code of Ethics Model Standards of Conduct for Mediators List of References Index