Mediation of Mediation of Construction Disputes Construction Disputes in the United Statesin the United States

Prof. John BarkaiProf. John BarkaiWilliam S. Richardson School of LawWilliam S. Richardson School of LawUniversity of HawaiiUniversity of Hawaiiwww2.hawaii.edu/~barkai

www2.hawaii.edu/~barkai

Handling of Problems

designed by Liu Young

Western - American Asian

Common Forms Common Forms of Dispute Resolutionsof Dispute Resolutions

•NegotiationNegotiation

•Mediation - ConciliationMediation - Conciliation

•ArbitrationArbitration

•Trial in CourtTrial in Court

CHINESE ARBITRATION

The great Chinese Emperor Kang-hsi (during the Manchu Dynasty) issued the following decree, in response to complaints about his courts:

"The Emperor, considering the immense population of the empire, the great division of territorial property and the notoriously litigious character of the Chinese, is of the opinion that lawsuits would tend to increase to a frightful extent if people were not afraid of the tribunals and if they felt confident of always finding in them ready and perfect justice. I desire, therefore, that those who have recourse to the courts should be treated without any pity and in such a manner that they shall be disgusted with the law and tremble to appear before a magistrate. In this manner ... the good citizens who may have difficulties among themselves will settle them like brothers by referring them to the arbitration of some old man."

- National Geographic Magazine, June 1927

OLD FRIEND SYSTEM (Lao peng you) – CHINESECommunity Mediation Model

 

Trusted old friendMeets separately with the partiesExplores facts & interestsExplores interests in context of mutual benefits & interdependencePreserves valuable relationshipsIdentifies optionsSuggests resolutionSave face & give faceConvenes parties to confirm agreementPours tea & talks Tawa Shay

Common Forms Common Forms of ADR in Constructionof ADR in Construction

•PartneringPartnering

•Dispute Review BoardsDispute Review Boards

•Mediation - ConciliationMediation - Conciliation

•ArbitrationArbitration

PerspectivePerspectiveViewView

"Then it's agreed. Watson, Smith, Teller, and Wilson go to Heaven; Jones, Paducci, and Horner go to Hell; and Fenton and Miller go to arbitration.

Mediation

is assisted negotiation

Tam Pan Tawa ShayNegotiation Mediation

Mediation is

Conciliation

NO POWER

The mediator has no power to decide

the dispute

Why use Why use mediation?mediation?

PartiesParties

Faster, cheaper, confidential, controlFaster, cheaper, confidential, control

LawyersLawyers

Help with other side & clientsHelp with other side & clients

MediatorsMediators

Psychology of mis-evaluation, perception, Psychology of mis-evaluation, perception, over confidence, biases, strategic & over confidence, biases, strategic & tactical barrierstactical barriers

当局者迷当局者迷，，旁观者清旁观者清

Dang Ju Zhe Mi, Pang Guan Zhe Dang Ju Zhe Mi, Pang Guan Zhe QingQing

Lookers-on see more than the Lookers-on see more than the playersplayers

36 Chinese Strategies

Applied to Negotiations

Strategy 1: Cross the Sea by Deceiving the Sky

瞒天过海

Act in the open, but hide your true intentions.

Hide secrets in the open to avoid detection

Strategy 2: Besiege Wei to Rescue Zhao

围魏救赵

Attack their Achilles heel(weakest point)

Strategy 6: Make a Feint to the East While Attacking the West

声东击西

Fake to the right; attack to the left(Confuse and mislead)

Plaintiff’s View of the Case Defendant’s View of the Case

Two Key Ideas about Negotiation

& ADR

1) Focus on Interests

not positions

2) Improve theCommunication(information & temperature)

Same bed, different dreams

Iceberg Theory“Below the line” issuesHuge & invisiblePurposely hiddenOut of awareness

“And notice, gentlemen, this year’s model has twenty per cent more trunk space.”

Litigation Arbitration

Past

Mediation

Future (interests)

The mediator’s

most powerful

2-letter word

is

IfFollowed by

Asking orTelling

““Do not find fault, Do not find fault,

find a remedy.”find a remedy.”

-- Henry Ford-- Henry Ford

Styles & Types of MediationStyles & Types of Mediation

Facilitative, evaluative, transformative, Facilitative, evaluative, transformative, narrative, etc.narrative, etc.

Community, commercial, construction, Community, commercial, construction, family, employment, probate, postal family, employment, probate, postal service, tort, peer mediation for school-service, tort, peer mediation for school-aged children, etc.aged children, etc. Narrow or broadNarrow or broad

Caucus or non-caucusCaucus or non-caucus

Mediation is a nounMediation is a noun名词名词

míng címíng cí

Focus on the adjectiveFocus on the adjective形容词形容词

xíng róng cí xíng róng cí

FACILITATIVE

EVALUATIVE

Styles of Mediation

FACILITATIVE do NOT suggest solutions

EVALUATIVE evaluate & suggest solutions

Facilitative mediators

ASK

Evaluative mediators

TELL

Evaluative Evaluative Narrow Broad

BroadNarrow

Facilitative Facilitative

Narrow Broad

Evaluative

Facilitative

The Riskin Grid

Mediation AdvocacyMediation Advocacy

How to “Borrow” a How to “Borrow” a Mediator’s PowersMediator’s Powers Dwight Golann

Problem-Solving Advocacy in Problem-Solving Advocacy in Mediations Mediations Harold AbramsonHarold Abramson (2005) (2005)

Tolanski Curve Illusion

Pre-Mediation ConferencesPre-Mediation Conferences

Mediator Selection

Pre-mediation Document Submissions

Select Mediator

Meet with mediator

Submit documents

Collect Information

Negotiate

Agreement

American Bar Association’sAmerican Bar Association’sSection of Dispute Resolution Section of Dispute Resolution

Task Force on Task Force on

Improving Mediation QualityImproving Mediation Quality

The 2008 ABA Report on Improving Mediation Quality

(civil disputes with lawyers)

Preparation

Customization

Evaluation Skills

Persistence

What do you see?

The Western View of the The Western View of the Business DealBusiness Deal

The DealParty A Party B

Asian View of the Asian View of the Business DealBusiness Deal

The DealParty A Party B

Trust-based Relationships

Business bonding Via

Entertainment

Contracts basedOn a

Handshake

Giftsand

Favors

Shichi Go San 7-5-3

JAPANESE KEIRETSU TRADING CIRCLE

Mutual business associate from an established trading circleMeets separately with the partiesExplores facts, perceptions, interestsIdentifies options for mutual benefitsExplores obligations to accommodate for the good of future relationshipSearches for consensusConvenes parties to confirm agreement