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Bar Journal - December 1, 2003

Mediation of Civil Cases: Is It Only About Money?

By:
 

INTRODUCTION

How often have you heard the mediator say, "This case is only about money? The only relief the court can order is money damages." This view of civil mediation is prevalent among attorneys and has emerged since mediation has become institutionalized in the courts.1 The courts mandating civil mediation and only using attorneys as mediators has hastened this trend.2 In many instances what now occurs at civil mediation is a discussion of evidentiary issues and possible outcomes at trial.3 Mediation, the least formal of the Alternative Dispute Resolution (ADR) processes, now reflects features that are normally associated with the adjudicatory process.4

These trends are taking mediation further away from its original goals and objectives. Mediation as part of the assortment of processes called Alternative Dispute Resolution (ADR) was supposed to be an alternative to the legal process.5 This original view was premised on the parties actively participating and communicating with each other, helped by the assistance of the mediator to find creative ways to resolve their dispute.6 The central quality of mediation was supposed to be its ability to reorient the parties toward each other by helping them achieve a new and shared view of the problem.7

This approach was demonstrated during a mediation between a bank and computer consulting firm in the late 1980’s.8 The dispute centered on a bill the consulting firm submitted to the bank for costs associated with attending seminars and meetings related to the installation of software for the bank. This occurred during the first year of a five-year contract worth millions of dollars. The case was referred to mediation. Instead of focusing on who would prevail at trial, the mediator focused the parties’ attention on understanding their relationship with each other. Ultimately, an agreement was reached by the bank and consulting firm creating a joint venture to market the computer services to financial institutions with seed money coming from the disputed amount and with an employee loaned by the bank to help enable the venture.

Now, "court connected mediation of non-family civil cases is developing an uncanny resemblance to the judicially hosted settlement conference."9 Mediators generally ask counsel about the strengths and weakness of their cases; how they expect to get a vital piece of information into evidence; and what they expect a jury to do. The expected legal outcome becomes the central focus of the mediation, rather than the parties’ relationship with each other.

Some of this is logical and to be expected with the presence of lawyers acting as advocates and serving as mediators.10 As attorneys are ordered to participate at mediation with their clients, they bring with them their standard philosophical map of dispute resolution, which focuses on rights, positions, and the likely court outcome. They limit their client participation in order to protect them from perceived unnecessary discovery. They use the skills and tactics that they have honed in prior experiences with traditional judicial settlement conferences.11 As more and more attorneys and retired judges are attracted to mediation as a remunerative activity, they bring to the role of mediator the skills and knowledge that served them well in their careers as advocates in a court setting, as well as certain assumptions about the role of a quasi-judicial host.12

Given this background, it is understandable that the view of attorney mediators is limited to monetary damages. "In litigation, money is the substitute, i.e., remedy [for every wrong]. Money is the only language trial lawyers have."13 The concept of mediation as just another judicial forum for settlement of civil cases fosters the view that the only remedy is monetary damages.

Is that all there is to mediation? Can mediation offer something more than what is found at a judicial settlement conference? This article explores these questions by looking at what parties want from mediation. To accomplish this, it will rely on procedural justice studies that that analyze how disputants view the different processes and then examine what parties want from a dispute resolution process. This analysis will explain why disputants want more than just money to resolve their cases.

Next, the article will address what non-monetary solutions might be available to satisfy parties’ interests and needs. It will examine the tension between "value claiming," the focus on the distribution of money, and "value creation," the search for non-monetary, creative solutions that meet the underlying interests and needs. "Some commentators have suggested that settlement options naturally become non-monetary and creative in more complex cases."14 Indeed, if disputants expand rather than restrict the issues under discussion, such expansion will often lead to a creative broadening of the resources available and the exchanges needed for settlement.15 Attorneys and mediators who introduce integrative solutions, i.e., "value creation," to what has been viewed as a distributive or zero-sum dispute will expand possible settlements beyond the exchange of money.

WHAT PARTIES WANT FROM MEDIATION

Two different mediations illustrate the importance of understanding what parties want from mediation. Leonard Riskin conducted both of these mediations on the same day.16 The first was a personal injury case. At the mediation, the plaintiff was represented by counsel and the defendant, who was not present, was represented by counsel and the insurance adjuster. The case involved a motor vehicle accident in which the plaintiff suffered serious injuries. In addition to being hurt, the plaintiff was angry and upset because she felt that the insurance adjuster had implied that her injuries were not serious. During the initial joint session, in a highly charged atmosphere, both the plaintiff and the insurance adjuster were able to communicate their perspectives to each other.

The second mediation arose out of a claim of police brutality in connection with an allegedly invalid arrest. In this mediation, only the attorneys were present. With the help of the mediator, counsel quickly defined the problem. The session dealt with a discussion of the legal issues, the facts, and how a judge or jury would rule on them. This mediation was extremely cordial, but the case did not settle.

During the first mediation, the mediator relinquished some control and let the parties determine where their conversations would lead. This made the mediator anxious and called into question his professional expertise.17 The second mediation provided a more comfortable setting for the mediator.18 Of these two cases only the first one settled. In assessing both mediations, the differences are readily apparent. At the first mediation, the plaintiff was present and was allowed to participate. In a post-mediation follow-up, the plaintiff made it clear that her opportunity to express her feelings was essential to settlement.19 At the second mediation, only counsel were present, which didn’t allow for the personal exchanges that had facilitated the settlement of the first case.

Lawyers evaluate litigation options differently than their clients. Their evaluations are more likely to be consistent with the expected value of the case based on jury verdicts and past settlements.20 Research has demonstrated that both lawyers and claims adjusters tend to share and apply a rational, economically grounded analysis to determine whether to settle or not. This analytical orientation facilitates distributive negotiations and rational decision-making, which explains why mediation is viewed as only assisted negotiation.21

Litigants, on the other hand, are not looking for a process that provides bargaining assistance or efficiency.22 Instead, they want a process that they consider fair, a process where they can obtain vindication and express their feelings, and a process that satisfies a sense of entitlement regarding their access to the use of the courts.23 Disputants are more likely to be influenced by cognitive and social/physiological phenomena that can distract from rational, expected case-value analysis.24

To understand why clients place more value on how a process is administered rather than on efficiency in reaching a resolution requires a look at "Procedural Justice Theory." Research in this field indicates that parties pay a great deal of attention to how things are done.25 From their perspective, the process must satisfy their sense of fairness. A process is considered fair if it provides the parties with the opportunity for "voice": the opportunity to tell their stories and to know their stories are considered by the other side and the third-party neutral. A sense of fairness also requires that the third-party neutral treat them in an evenhanded and dignified manner.26 Disputants who believe they have been treated fairly are more likely to accept the resulting outcome as fair and even to accept outcomes where they do not achieve their initial objective.27

Parties value the opportunity to influence the decision maker, whether he or she is the judge or the opposing party, and thereby indirectly influence the outcome.28 Disputants assess the extent to which the other party hears and considers their presentations. Parties seek assurances from both the decision maker and the opposing party that adequate consideration has been given to their presentation. They want to know they have been heard and understood before they will move from their stated positions.29 They value this opportunity to express themselves because it provides them with an opportunity to be included in the outcome.30

To the parties, procedure is extremely important because it serves their goal of achieving what they feel is a fair outcome. For mediators, this means the process must permit the disputants the opportunity for voice. This is particularly important in court-connected mediation because the third-party neutral is likely to be perceived as a representative of the courts and as an authority figure.31 This perception of the mediator as an authority figure, and of mediation as a socially sanctioned decision-making process, is likely to be even stronger when the use of mediation is court-mandated.32

THE VALUE OF "VOICE"

The "group value theory" of procedural justice explains the inherent value of voice.33 The theory finds that parties view procedures as something more than a means to achieve outcomes. Instead, parties look for a feeling of inclusion and a belief that the institution using the procedure holds them in high regard.34 "Under these circumstances the group value theories suggest that disputants will care very much about the mediator’s behavior and will interpret this behavior as a sign of the judiciary’s attitude toward them in their dispute."35 The mediator’s role is to ensure that these expectations are met by the careful use of language that validates the party’s self-identity, self-esteem, and self-respect.36

The importance of voice accounts for why disputants prefer mediation over judicial settlement conferences.37 Settlement conferences are conducted between attorneys and the court, which provides no opportunity for the parties to express themselves or influence the outcome. This is important when looking at how mediation is conducted. Mediators and attorneys who conduct mediation like a settlement conference without providing the opportunity for the parties to fully participate and express themselves will not satisfy the disputants’ sense of procedural justice and will be less likely to resolve the dispute. Instead, as in the first example, when mediators encourage the parties to explore their concerns, the process will comport with their perceptions of fairness and allow them to move forward and to settle their dispute.

The initial joint session offers the parties an ideal opportunity for voice. "When mediators abandon the joint session or the disputants’ attorney presents only cursory summaries of their clients’ cases in joint session, they are likely to sacrifice procedural justice..."38 It is at the story-telling stage in a joint session that the parties are best able to assess whether the mediator permits them to fully express themselves, considers what all disputants have to say, and generally manages the process in an even-handed fairway.39 The joint session also provides the disputants with their best opportunity to assess the respect and dignity offered by the mediation process. They can observe whether the mediator personally interacts with all the disputants in a respectful and dignified manner, and also controls the session to insure that all disputants receive respectful consideration from each other.40 Disputants are concerned with how they are perceived and do not want to be perceived as demonic or ill-intentioned, nor do they want to relate to each other on the basis of perceived negative characterizations.41

Some mediators review the court file and then begin the mediation by quickly moving the parties to separate caucuses without allowing a necessary exchange between the parties. Mediators may believe that the joint session is unnecessary because they already understand the nature of the case. Interestingly, it is the attorney mediators, attorney participants, and claims adjusters who find it most difficult to comprehend the value of the joint session to both parties’ perceptions of procedural justice. This should not be surprising since lawyers often fail to appreciate and accommodate their clients’ need to tell their stories.42 "Based on relatively little information, attorney [and attorney mediators] may quickly conclude that they possess sufficient understanding of their clients’ situation to understand where it fits in ‘the world of the legally possible.’"43 To them, it appears inefficient and unnecessary to devote the time to a full retelling of the disputants’ stories in joint session.

Instead, they promote a quick transformation of parties’ stories into financial terms before the parties have the opportunity to lay out their perceptions, emotions, and desires. This prompt transformation is likely to run directly counter to disputants’ desire for dispute resolution procedures that provide reassurances that the outcome will be based on full information or opportunity for voice. Such a transformation also ignores the individuality of disputants, whose unique perspectives and troubles should be treated with dignity and respect.44 In these situations the parties will be less likely to move from their present positions 45 and they will not accept what the mediator has to offer.46

Other mediators indicate that they abandon the joint session because they fear the parties may make emotional or inflammatory remarks.47 These types of outbursts create the potential to limit further constructive conversation. To avoid this, mediators believe the best place for these comments is during the private caucus. In the caucus, the mediator can control how information is exchanged in order to strip away insults, threats, or other comments that could impede efforts to reach an understanding.48 If mediation is concerned only with increased bargaining efficiency, this may make sense, but if the process is viewed as offering a greater potential for case resolution, then parties’ expectations about the process must be addressed. Mediators must not only learn to understand disputants’ feelings, but must also develop the skills to handle these emotional exchanges.

The need for voice does not imply that mediators who adopt an evaluative approach need change their style but it does affect the timing of any evaluative input.49 What has been learned is that if the mediator elects to provide an evaluative input, it must comport with the requirements of procedural justice. The parties must first have the opportunity to express their views, which must be acknowledged and considered by the mediator and opposing party. Thus, the timing of the evaluative input has a significant impact upon the parties’ perceptions of whether they were treated with dignity and respect.50 "The procedural justice literature suggests, however, that the greatest threat to the disputants’ experience of justice arises when mediators’ evaluative intervention and orientations become so aggressive that they actually manifest disrespect for disputants and constitute attacks upon the disputants’ dignity."51

This conflict between how parties, attorneys, and insurance adjusters view the process creates a dilemma for the mediator. If the mediator chooses to view mediation as a process for increased bargaining efficiency, ignoring the parties’ desires, then mediation is only about money. On the other hand, when mediators recognize the importance of the parties’ desire for procedural justice, the process expands to create opportunities for resolution which were previously not possible. This requires a conscious effort on the part of the mediator but is well worth it. It also requires a change in how some attorneys and insurance adjusters view mediation.

NON-MONETARY RESOLUTIONS

During civil mediations there is a tendency by mediators and attorneys to focus on the distribution of dollars or who pays whom how much. Given the attorneys’ philosophical orientation, this outcome is predictable. But is this the only way to resolve civil disputes? Are there other possibilities to create value that might be distributed to resolve these disputes?

The following mediation illustrates these divergent principles of value claiming and value creation.52 The mediation involved a personal injury suit where the plaintiff slipped and fell on a spill caused by a jar of pickles that had fallen off a shelf. A "caution wet floor" sign was placed approximately six feet ahead of where the plaintiff fell. The plaintiff demanded $250,000 for the injuries. Of this amount, $11,000 was for lost wages, $1000 for current medical treatment, and $3,300 for household assistance. Future medical expenses, based on a claim for knee surgery related to the fall, were estimated at $8,360.00, with associated lost wages of $11, 860. The causality of these claims was contested.

The defendant store did not contest that the plaintiff’s injuries were the result of the fall, but it did contest the need for a future knee operation. The defendant was self-insured and believed that, given the circumstances, it did everything right. There was a spill, which was cleaned up immediately, and a caution sign was placed where the spill occurred. The store offered $16,500 to settle this matter but was concerned about becoming a target for con artists who would try to extort money for fraudulent claims.

On the surface, this case looks like a straightforward tort action where the disputants argue over the allocation of money. But upon further questioning, the mediator learned that the plaintiff was extremely upset at the defendant. The plaintiff had heard stories from her co-workers that the defendant’s employees had been spreading rumors that she was not seriously injured and was only out to get as much money as possible. The mediator also learned that the plaintiff was having trouble shopping and lugging groceries to the third-floor walkup where she resided, and that she was too embarrassed to ask for help. The plaintiff was willing to be flexible to resolve this case but must receive at least $65,000. The mediator learned from the defendant that while the store is a local family-owned store, it planned to expand. The planned expansion was only possible because of the good reputation the store enjoyed in the community. The maximum that the defendant was willing to pay in this case was $45,000.

This dispute can be likened to an onion with many different layers. The outer layer involves the distribution of money between plaintiff and defendant. The next layer concerns the plaintiff’s feelings regarding her reputation in the community. Another layer concerns the defendant’s business reputation and desire to expand its business, and the impact this litigation may have on those plans. The inner layer deals with plaintiff’s needs for assistance in her daily life because of her injuries.

At the mediation, focusing only on the distribution of money between the disputants may quickly result in an impasse. In this instance, the plaintiff’s bottom line is $65,000 and the most the defendant is willing to pay is $45,000. If each side is unwilling to move beyond those positions, the mediation will soon end without resolution. The dilemma for the mediator is how to bring more value to the table that can then be distributed.

To create value, the mediator can address how the parties perceive each other and their respective reputations in the community. For many attorney mediators this may be difficult. Lawyers, for all their analytical skills, sometimes fail to understand the importance of dealing with emotional and interpersonal relationships.53 This is unfortunate because dealing with these issues provides opportunities to create value and expand the issues being negotiated.

One of the opportunities often missed is the positive role of an apology.54 The benefits of an apology are more than merely symbolic. Apologies can generate tangible practical benefits. They serve as a type of "social lubricant," helping reduce the anger involved in these types of cases.55 Surveys suggest that 20 to 30 percent of patients who file suit against their physicians would not have done so had the doctor only apologized for the mistake.56 Other studies indicate that while an apology would not have led the injured party to forego suit, it greatly eased the settlement process.57

Mediators report that apologies have often helped to resolve disputes that otherwise appeared deadlocked. "Mediators attentive to the psychological dimension of disputes have shared that, upon occasion, an apology can shift the tone of a dispute and charter a course toward resolution."58 In these instances, parties who receive apologies are often willing to put closure to the dispute and accept a settlement.59 Even when an apology alone cannot settle a dispute entirely, the apology serves to reduce tension and facilitate negotiations.60 "Conversely, failure to apologize can exacerbate tensions, add indignation, and magnify the injury."61

Becoming attuned to an apology is a tricky endeavor. It requires a heightened sensitivity to the emotional and moral dimensions of a dispute. It also requires attention to a variety of factors that contribute to the possibility or impracticality of a meaningful apology.62 The dynamics of an apology are complex because the power relationships between the parties are in flux at mediation. As one commentator observed, "apologies operate as ‘an exchange of shame and power between the offender and the offended.’"63 The apology allows the wrongdoer to rehabilitate his reputation and reinstate his self worth.64 "An apology is like a magic spell: its power to heal is contingent upon the right ingredients mixed the right way at the right time by the right people."65

Not all parties find apologies soothing, and apologies do not respond to all wrongs.66 This is especially true if the person receiving the apology feels that it is not sincere. To be effective, an apology must accept responsibility and be sincere. For it to be successful, it must also be made in person since written apologies are less effective.67

Understanding the importance of an apology may be effective in the case mentioned previously if the store has made disparaging comments about the plaintiff’s injuries and motivation. In this instance, if the defendant can convey a sense of regret for what has been said, it may be enough to generate movement by the plaintiff. The apology would validate the plaintiff’s feelings because it allows the plaintiff to feel that something positive has occurred from the process and that her concerns have been acknowledged. Likewise, the mediator may determine that the plaintiff has disparaged the defendant’s reputation or that the defendant may want to keep any settlement confidential to prevent con artists from scamming money. If these are issues, the mediator can address them to help create additional value for the parties.

While an apology may enable the parties to move closer to a dollar amount they can agree upon, it may not by itself lead to a resolution of this dispute. To bridge these differences, counsel and their clients, with the help of the mediator, must create additional value. The transition from value claiming (negotiating over the distribution of money) to value creation is not always easy. To accomplish this, the mediator must look beyond the parties’ positions and understand their underlying interests.

Interests define the problem from the parties’ perspective. Interests are not the same as legal positions.68 Many factors affect the parties’ perspectives of the dispute, including how they were treated, the need for recognition, economic well-being, security and control over one’s life.69 Attorneys attempt to meet these interests by translating them to legal positions. This translation many not reflect accurately everything the party wants resolved from the dispute. Legal positions and interests are like an iceberg, the legal positions being above the water and the parties’ interests unseen beneath the surface. The problem facing the mediator and counsel is learning to assess what is beneath the surface.

FINDING MUTUAL INTERESTS

Upon closer examination of the situation by the mediator, the basic problem may not be the conflicting legal positions, but how to meet each side’s needs, desires, concerns, and fears.70 In mediation, reconciling interests rather than reaching a compromise may work because behind opposed positions there may exist shared and compatible interests.71

A breach of contract illustrates these principles. While the legal positions may relate to the causes for the alleged breach, looking beyond the legal positions, it becomes clear that both parties share an interest in making money and preserving their reputations. These shared interests increase the possibilities to restructure the deal to create value gains for both parties. In cases where interests are not compatible, it is possible the parties may place a different value on their interests, and this facilitates the possibilities for an exchange as exists in the previous example of the pickle brine spill. These possibilities for trade-offs between interests can transform the dispute from a zero-sum, distributive situation to one where both sides can benefit.

Unless the mediator understands the parties’ interests, resources, capabilities, and priorities, it will be nearly impossible to create value.72 Mediators who fail to probe for this information limit the range of possible outcomes. During most mediations there are four major obstacles that inhibit value creation:

  1. Premature judgments over possible outcomes;
  2. Belief that there is only one right answer;
  3. Assumption that the dispute is zero-sum;
  4. Failure to think about creative solutions.73

The challenge for mediators and counsel is to created value by exploiting opportunities for a broader range of trades. This requires that the mediator explore what can be distributed by expanding what has value to the parties other than money. An example would be an airline using frequent-flier miles to expand what is available to the plaintiff that wanted money to travel. Examining when something can be distributed can also create value. An example is offering an annuity to a party who is saving for a child’s education. These ways to create value are based on the parties’ interests, resources, and priorities. These trades may have little if anything to do with the parties’ formal legal dispute and the settlement may be of a sort that a court would never consider imposing.74

Understandably, it is easier to create value where the parties have a past and/or future relationship. The absence of a prior relationship by itself does not eliminate possibilities for option creation. Examples from recent mediations include a case of food poisoning at a fast-food restaurant involving a plaintiff who wanted assurances that what happened to her would not happen to somebody else; a plaintiff in a civil rights complaint against a police department who was interested in changing police policies for the future; or a slip and fall plaintiff, who wanted out of the lease to the apartment where he fell. Creative solutions are possible.

The challenge for the mediator is to convert the dispute into a "deal."75 For example, in the pickle spill case, the mediator needed to find out more about the parties interests and needs. With further questioning, the mediator would have discovered that the supermarket employed many high school students part-time. These students regularly carried customers’ groceries to patrons’ cars. The mediator would also have learned that the plaintiff worried about how she would take care of herself following another operation. This situation provided an opportunity to create ways to increase value. The students working for the defendant’s store could easily deliver groceries to the plaintiff, thereby eliminating some of the concerns the plaintiff had regarding her day-to-day existence. The use of the students costs the store little, but provides great value to the plaintiff. Coupled with an apology and a confidentiality agreement, this proved enough to bridge the difference between the competing positions. This mediation was about more than money.

In practice, is civil mediation about more than money? A recent study conducted by Dwight Golann attempted to answer this question.76 The goals of the study were to answer the following questions:

  1. "In the context of legal disputes between parties that had a significant pre-existing relationship, how frequently are disputants able to repair their relationship in some form?
  2. How frequently, in such cases, does mediation result in a settlement with significant integrative terms that do not involve a future relationship?
  3. What factors influence the likelihood that mediation will facilitate the repair of a ruptured relationship?"77

The study defined "a repaired relationship" as one were the disputants agreed to renew a troubled relationship "in the sense that they regained enough good feelings and trust in each other that they are willing to associate voluntarily in the future."78

An "integrated settlement" was one where the agreement contained at least one term that:

  1. Went beyond a monetary payment, release of liability or a confidentiality agreement;
  2. Appeared likely, in the mediator’s judgment, to have significant value to one or more of the parties; and
  3. Did not involve a relationship of repair.79

The most significant finding was that almost two-thirds of all settlements in this survey where integrative in nature, indicating that mediators where able to create value and move beyond the typical distributive discussion found in many civil mediations.80 The results examining relationship repair were less dramatic. With the exception of mediators from Maine, who were able to repair relationships in approximately half of their cases, other mediators fared less well. Surprisingly, court mediators reported no repairs at all reducing the overall percentage to 17% of the cases submitted.

These findings answer some questions addressed by this article but raise others. Clearly, civil mediation is about more than the distribution of money. Integrative solutions were found in most civil mediations involving parties with a prior relationship. Relationship repair was also accomplished by many mediators, but not by court mediators. The question is what is the cause for this low percentage for court mediators? The second question is why mediators in Maine are capable of restoring relationships over half of their cases. The third question is why we are getting so few integrative solutions in NH where this appeared to be the norm in the survey?

CONCLUSION

If a mediator resorts to saying that this case is only about money, the mediator and counsel are not doing their job. The mediator and counsel must recognize the importance of the parties’ perceptions of their opportunities to present their views and have control over the presentations; the parties must feel that their views and concerns were considered; and that they were treated in a respectful and dignified way. In addition, the mediator and counsel must recognize the importance of parties’ interests and needs and the possibilities they present for value creation. When these are made part of the process, mediation becomes more than the mere distribution of money.

ENDNOTES

  1. Nancy A. Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization, 6 Harv. Negot. L. Rev. 1, 25 (2001).
  2. Id. at 25.
  3. Jack M. Sabatino, ADR as ‘Litigation Lite’: Procedural and Evidentiary Norms Embedded Within Alternative Dispute Resolution, 47 Emory Law Journal 1290, 1292 (1998).
  4. Id. at 1292.
  5. Welsh, supra note 1, at 4.
  6. Id. at 4.
  7. Kimberlee K. Kovach and Lela P. Love, Mapping Mediation: The Risks of Riskin’s Grid, 3 Harv. Negot. L. Rev. 71, 92 (1998).
  8. Leonard L. Riskin, Understanding Mediator’s Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negot. L. Rev. 7, 17 (1996).
  9. Welsh, supra note 1, at 26.
  10. Leonard L. Riskin, Mediation and Lawyers, 43 Ohio St. L.J. 29, 36 (1982).
  11. Leonard Riskin, The Represented Client In A Settlement Conference: The Lessons of G. Heileman Brewing Co. v. Joseph Oat Corp., 69 Wash. U. L.Q. 1059, 1099 (1991).
  12. Id. at 1077-1089.
  13. Nancy A. Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got To Do With It, 79 Wash. U. L.Q. 787, 814 (2001).
  14. Id. at 815.
  15. Robert H. Mnookin, Et. Al., Beyond Winning, Ch. 7 (2000).
  16. See Riskin,supra note 11, at 1099.
  17. Id. at 1102.
  18. Id. at 1103.
  19. Id. at 1061.
  20. Russell Korobkin & Chris Guthrie, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer, 76 Tex. L. Rev. 77, 137 (1997).
  21. See Welsh, supra note 13, at 804.
  22. Robert A. Baruch Bush, What Do We Need Mediators For?: Mediation’s Value Added For Mediators, 12 Ohio St. J. On Disp. Resol. 1, 19 (1996).
  23. Id. at 20.
  24. See Korobkin, supra note 20, at 129-141.
  25. See Bush, supra note 21, at 19.
  26. See Welsh, supra note 13, at 819.
  27. See Bush, supra note 22,at 19.
  28. See Welsh, supra note 22, at 827.
  29. Id. at 823-829.
  30. Id. at 825.
  31. Id. at 833.
  32. Id. at 827.
  33. Id. at 827.
  34. Id. at 834.
  35. Allen E. Lind & Tom R. Tyler, The Social Psychology Of Procedural Justice
    242 (1988).
  36. See Welsh, supra note 12, at 824.
  37. Id. at 824.
  38. Id. at 852.
  39. Id. at 852.
  40. Id. at 852.
  41. See Bush, supra note 21, at 29.
  42. See Welsh, supra note 13, at 854.
  43. Id. at 854.
  44. Id. at 856.
  45. Id. at 849.
  46. Id. at 847.
  47. Id. at 810.
  48. Id. at 811.
  49. Dwight Golann and Marjorie Corman Aaron, Using Evaluations In Mediation, Dispute Resolution Journal, Spring 1997, at 29-30.
  50. Welsh,supra note 13, at 849.
  51. Id. at 850.
  52. Scenario provided by Erica Gray, at Rule 170 Training, JUNE 19-20, 1997.
  53. Chris Guthrie, Facilitative Mediation and Lawyering, Harv. Negot. L. Rev., 158.
  54. Daniel W. Shuman, The Role of Apology in Tort Law, 83 Judicature 4, 180 (2000).
  55. Aviva Orenstein, Apology expected: Incorporating A Feminist Analysis Into Evidence Policy Where You Should Least Expect It, 28 Sw. U. L. Rev. 221, 240 (1999).
  56. Jonathan R. Cohen, Encouraging An Apology Improves Layering and Dispute Resolution, Vol. 18 Alternatives No. 9, 180 (2002).
  57. Id. at 180.
  58. Id. at 163.
  59. See Shuman, supra note 54, at 183.
  60. See Orenstein, supra note 55, at 221.61 Id. at 221.
  61. Id. at 163.
  62. Id. at 221.
  63. Id. at 221.
  64. Deborah Levi, Why Not Just Apologize? How To Say You Are Sorry in ADR, Vol. 18 Alternatives No. 8, 163 (2002).
  65. See Shuman, supra note 54, at 184.
  66. See Orenstein, supra note 55, at 240.
  67. Roger Fischer & William Ury, Getting To Yes 41 (2d Ed. 1991).
  68. Id. at 48.
  69. Id. at 40
  70. Id. at 42
  71. See Mnookin,supra note 15, at 179.
  72. See Fisher & Ury,supra note 68, at 57.
  73. See Mnookin, supra note 15, at 226.
  74. Id. at 120.
  75. Dwight Golann, Is Legal Mediation A Process of Repair – Or Separation? An Empirical Study, and Its Implications, 7 Harv. Negot. L. Rev. 301, 301 (2002).
  76. Id. at 303.
  77. Id. at 308.
  78. Id. at 308.
  79. Id. at 334.

The Author

Peter Y. Wolfe, Clerk of Sullivan County Superior Court, is coordinator of the Rule 170 Alternative Dispute Resolution program.

 

 

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