Introduction to Mediation - UW School of Law



Name: Jeff Christensen

Lesson: Introduction to Mediation

Sources: Street Law, A Course in Practical Law 38–44 (6th ed. 1999); Washington Supplement to Street Law, 13 (2002), available at ; University of Washington School of Law Clinical Law Program, Mediation Clinic: Client Services, (last visited May 8, 2007).

Materials: Lesson plan; roleplay instructions; PowerPoint slideshow.

Time: 90 minutes

Date: May 9, 2007

I. Goals:

a. Studying mediation helps students understand that disputes can be resolved successfully without courts or lawyers.

II. Objectives:

a. Knowledge Objectives – As a result of this class, students will know:

i. Most disputes are resolved outside the court system.

ii. Mediation is a popular and effective form of dispute resolution.

iii. Mediation is voluntary and confidential.

iv. The steps of a typical mediation.

b. Skills Objectives – As a result of this class, students will be better able to:

i. Identify what kinds of cases are suitable for mediation.

ii. Listen effectively by restating another party’s perspective.

iii. Identify underlying interests in a dispute.

iv. Identify alternative solutions to a dispute.

v. Express an agreement in writing.

c. Attitude Objectives – As a result of this class, students will feel:

i. Disputes have multiple perspectives and potential solutions.

ii. Disputes can be resolved successfully without courts or lawyers.

III. Classroom Methods:

a. Open discussion (35 minutes)

i. Overview

1. Explain that today we will be exploring a popular method for resolving disputes outside of the formal court system—mediation.

2. Instruct class to take notes because each student will be performing a mediation roleplay at the end of class.

ii. Explain to the class that although trials are often reported in the news and portrayed on popular television shows like “Law and Order,” very few civil disputes ever make it to trial. Indeed, very few disputes ever enter the court system at all.

iii. Ask the class to give reasons why so few cases are resolved through the court system.

1. The court system takes time.

a. Ask for further explanation.

i. More civil cases are being filed.

ii. Courts have limited resources.

iii. Criminal cases take priority over civil cases due to the criminally accused right to a speedy trial under the Sixth Amendment to the U.S. Constitution.

2. The court system is expensive.

a. A trial and the preparation leading up to it can generate thousands of dollars in legal fees.

i. Quickly note the availability of contingency agreements and their advantages/disadvantages.

3. The court system can harm ongoing relationships.

a. Taking a dispute to court can cause anger and bitterness (e.g. divorce and child custody disputes).

iv. Direct the class’s attention to the PowerPoint slides.

1. Alternative Dispute Resolution

a. Ask the class to identify the three most common ways to resolve disputes out of court.

i. Negotiation

ii. Arbitration

iii. Mediation

2. Negotiation

a. Ask the class to define negotiation.

i. The disputing parties talk to each other about their problem and try to reach a solution that is acceptable to them.

b. Note that negotiation can be used to settle disagreements ranging from minor disputes between siblings to multi-billion dollar lawsuits between large corporations.

3. Arbitration

a. Ask the class to define arbitration.

i. The disputing parties agree to have another person—an arbitrator—listen to their arguments and make a decision for them.

b. Note that the arbitrator is like a judge, but the process is less formal than a trial.

i. Arbitrators have the authority to make the final decision and the parties must follow it if it is “binding arbitration.” If it is “nonbinding arbitration,” the parties are not “bound” and hence do not have to follow the final decision.

ii. Arbitration is common in contract and labor-management disputes.

1. Note that many sales and service agreements have an “arbitration clause” requiring “binding arbitration.”

4. Mediation

a. Ask the class to define mediation.

i. A person not involved in the dispute helps the disputing parties talk about their problem and settle their differences.

5. The Benefits of Mediation

a. Voluntary

i. The parties decide whether they want to come to the mediation.

ii. The parties decide how they want to resolve the dispute.

iii. Mediators do not impose a decision on the parties.

iv. Mediators instead listen carefully to both parties, try to help them understand each other’s position, and find ways to resolve the dispute.

v. The parties are free to leave at any time (but note that the students are not free to leave the mediation roleplay they will be conducting later this class).

b. Confidential

i. Washington law makes mediation sessions confidential.

ii. Parties can talk without worrying about hearing it later in court.

iii. Mediator cannot be called to testify in court as a witness for a party’s case.

c. Effective

i. Allows disputing parties to vent their frustrations.

ii. Avoids placing blame and concentrates on the future relationship between the parties.

iii. Allows parties to come up with creative solutions that are not available through the court system (e.g. periodic payments).

iv. Because the solution is created by the parties, the parties are more interested in making it work and more willing to live up to it.

d. Enforceable

i. If a settlement is reached, it can be written as legally binding contract.

1. Note that written agreements are almost always more effective than oral agreements.

ii. Explain that if it is not written down, the agreement is not legally binding.

e. Free

i. Many community mediation programs offer free mediation (e.g. the University of Washington Law School Mediation Clinic).

ii. Mediation is a common way to resolve disputes between husbands and wives, landlords and tenants, and consumers and businesses.

iii. Note that some schools train students to mediate disputes between students that occur at school.

6. The Steps of Mediation

a. Introduction

i. Mediator will explain the ground rules (e.g. no name calling, no interruptions).

ii. Mediator will inform parties that he or she cannot provide legal advice.

iii. Mediator will verify that the parties agree to mediate in good faith, meaning that each party is there to listen with an open mind and is not held to a fixed position.

iv. Mediator will confirm that all relevant parties with the power to make decisions are present.

b. Telling the story

i. Mediator will ask each person to tell what happened.

ii. After each disputing party speaks, mediator will summarize what the disputing party said.

1. Ask the class why the mediator might do this.

a. To check for understanding

b. To let the party know that he or she has been heard—the power of empathy.

c. Identifying positions and underlying interests

i. Mediator will try to accomplish as he or she summarizes each party’s perspective of what happened.

d. Identifying alternative solutions

i. Disputing parties will think of possible solutions to the problem.

ii. Mediator will make a list and ask each disputing party to explain his or her feelings about each possible solution.

e. Revising and discussing solutions

i. In response to the feelings shared by the disputing parties, the mediator may help the parties change some of the possible solutions and identify a better solution to which the parties can agree.

f. Reaching an agreement

i. Mediator helps the disputing parties reach an agreement that both can accept.

ii. The agreement is written down.

iii. The agreement addresses what will happen if one of the parties does not follow through on its promises in the agreement.

v. Transition

1. Now that the class has a basic understanding of mediation, inform the class that they will next perform a mediation roleplay in groups of three.

a. One person will be a mediator, and the other two will be the disputing parties—Sam and Chris.

b. Each person will receive confidential instructions.

i. Explain that it is completely up to the disputing parties to reveal whatever confidential information is contained in their instructions during the mediation.

c. Explain that the mediator will help the disputing parties write an agreement.

d. Finally, tell the class that each mediator will be asked to read their group’s written agreement at the end of class.

2. Distribute an equal amount of mediator, “Sam,” and “Chris” instructions.

3. Direct the students to form groups of three.

a. Ask them to find two students who have different roles than they do, and whom they have not worked with yet.

4. After everyone has assembled into groups of three, direct the students to take 10 minutes to read their instructions and prepare for the mediation.

b. Break (5 minutes)

c. Mediation Roleplay (30 minutes)

i. As the students are performing the mediation roleplay, circulate throughout the classroom to observe and answer questions.

d. Debriefing (20 minutes)

i. Ask each group’s mediator to briefly summarize the mediation and read the agreement they reached, if any.

ii. Ask the disputing parties to describe their experiences.

iii. Ask the class to share its overall impression of the roleplay and mediation generally.

iv. Inform the class that the University of Washington School of Law offers free mediation to the general public, and that you will be leaving an informational pamphlet with the teacher in case they know of a family member or family friend who might like more information.

IV. Evaluation:

a. Student responses to questions posed during open discussion.

b. Student performance of mediation roleplay.

c. Student responses to questions posed during debriefing.

V. Assignment:

a. Describe one aspect of the mediation roleplay you performed in class that surprised you.

b. Answer the questions contained in (a), (b), and (c) of Problem 4.3 on page 44 of the Street Law textbook (Street Law,, A Course in Practical Law (6th ed. 1999)).

i. The Case of the Barking Dog

1. What are the three options available to Nathan and his mother?

2. What are the three options available to Mark and Carla?

3. What will happen if Nathan and Hilda call the police and report the barking dog? How will this affect their relationship with Mark and Carla?

Confidential Instructions – Mediator

The Case of “Yeah, I’ll Watch It”

Background: You are an eleventh-grade student at Washington High School. You also are a volunteer mediator through the school’s mediation program. Over the past year, you have successfully mediated twelve disputes between students.

You recently received a new case involving a stolen bike. The disputing parties are two eleventh-grade students that you do not know. This is important because it prevents either student from thinking you are favoring a friend during the mediation. The two students are Sam and Chris. Sam believes that Chris should replace Sam’s stolen bike. Sam says that Chris agreed to watch Sam’s bike and it was stolen.

You know nothing else about this case.

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Introduction:

o Introduce yourself and thank them for coming to mediation.

o Explain ground rules—no name calling; each person remains seated during the mediation; no interruptions when another person is speaking.

o Get each party to agree to mediate in good faith. Explain that good faith means that the parties are there to listen to each other with an open mind, and are willing to resolve the dispute in more than one way.

Telling the Story:

o Ask each party to take five minutes to explain their side of the story.

o Begin with Sam, as she is the person who requested the mediation.

o As Sam is speaking, listen very carefully to what Sam is saying, and try to identify what Sam wants to have happen as a result of this mediation. Also note any underlying interests that Sam might convey (for example, Sam may want to restore her friendship with Chris, or some sort of apology from Chris).

o Restate a summary of what Sam just told you back to Sam to ensure you heard Sam correctly.

o Thank Chris for waiting patiently, then ask Chris to explain her side of the story.

o Again, as Chris is speaking, listen very carefully to what Chris is saying, and try to identify what Chris wants to have happen as a result of this mediation. Also note any underlying interests that Chris might convey (for example, Chris may want to restore her friendship with Sam, or avoid any sort of disciplinary action).

o Restate a summary of what Chris just told you back to Chris to ensure you heard Chris correctly.

Identifying Alternative Solutions:

o Ask each party to come up with possible solutions to the problem.

o You may want to go back and forth, asking one party for a potential solution, then the next party for a potential solution.

o Make a list of the solutions they suggest.

o Remind them that these are just ideas, and that they will get a chance to evaluate each solution after they have finished brainstorming.

Evaluating Alternative Solutions:

o Ask the parties to share their feelings about each suggested solution.

o Listen carefully to their responses, and see if you can identify a better solution to accommodate their interests.

Reaching an Agreement:

o Help the parties identify an agreement that both are willing to accept.

o Write the agreement in the space below (feel free to use additional space if necessary).

o As you write the agreement, alternate between what Sam and Chris will do (for example, “Chris agrees to . . .,” then “Same agrees to . . .”).

o Include in the agreement what the parties agree should happen if one of the parties does not follow through with their part of the agreement.

Agreement

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Confidential Instructions – Sam

The Case of “Yeah, I’ll Watch It”

You are an eleventh-grade student at Washington High School. Three weeks ago, your bike was stolen near the school’s basketball courts. On the morning your bike was stolen, your biology teacher had told you that she would be willing to briefly discuss a project you had been working on after school. You completely forgot about this appointment after your last class.

Just as you began to head home on your bike after school, you decided to take a quick detour and check out the basketball game on the court just outside the school. Your best friend Chris was tearing it up, and you decided to stick around to watch. As you were watching, you suddenly realized that you had forgotten about your appointment to meet with your biology teacher. So, you quickly yelled to Chris to see if she would watch your bike. Chris said, “Yeah, I’ll watch it,” so you immediately began running back to the biology classroom, which was only one hundred yards away but on the opposite side of school.

When you returned to the basketball court about twenty minutes later, you were terrified to find that your bike was nowhere in sight. In a panic, you scanned the school grounds, but saw nothing. You loved this bike. Your grandparents recently bought you this bike for your birthday with their limited funds. You frantically asked Chris what had happened to your bike, but she was distracted by the game, and half-attentively responded that she had no idea. You were furious. You knew that the school had experienced many bike thefts recently, and had specifically asked Chris to watch your bike. After the game, Chris defensively replied that she was playing a game, so it was difficult to keep her eye on it the entire time.

You asked Chris to replace the bike, and she refused, explaining that she was not responsible for the theft, and that she did not have the $50 it would cost to replace it. You have threatened to report Chris to the school principal and the police for conspiring to steal the bike with some of her less than reputable friends. You secretly do not believe Chris would conspire to steal the bike and have no intention of actually reporting her to the school or police. However, you believe this tactic may somehow persuade Chris to replace the bike. Frustrated with the way things have gone so far, you decided to try out the school’s mediation program. Chris reluctantly agreed to come to the mediation.

Needless to say, you are no longer friends with Chris, and you are sad about the entire situation. You really just want a sincere apology from Chris. You also sell newspaper subscriptions door-to-door on the weekends, and your boss has said that if you can find a friend who would be willing to commit to doing the same job for the next six weeks, she would give you $50. This, you believe, would help replace bike and perhaps restore your friendship with Chris. Chris does not know about the job, nor the $50 fee you would collect for recruiting her. You would rather have Chris pay for the bike, but realize this may not be possible.

In preparation for the mediation, answer the following questions:

1. What are your concerns? How would you state the issue in the dispute?

2. What is your starting position (demand)? What are your underlying interests (what do you really want)?

3. What is the best conceivable outcome from your perspective?

4. What do you think Chris’s starting position and underlying interests will be?

5. Identify two workable solutions that would solve the conflict.

Notes:

Confidential Instructions – Chris

The Case of “Yeah, I’ll Watch It”

Three weeks ago, your former best friend, Sam, came by the basketball court and asked you to watch her bike. You weren’t really paying attention to Sam, as you were in the middle of an intense basketball game. Eventually, however, you realized what she had said, and casually replied, without even looking at her or her bike, “yeah, I’ll watch it.”

About twenty minutes later, Sam returned and began yelling that she can’t find her bike and that she thinks it was stolen. She began yelling at you that this was all your fault, and that you should pay to replace the bike. You couldn’t believe her response. You angrily pointed out that you were playing a basketball game and that she knew this when she asked you to watch the bike. If she wanted someone to watch it more carefully, she should have asked someone else. You told her flat out there was no way you were going to pay for the bike.

A week later, Sam stopped you in the hall at school and said that if you didn’t pay for the bike, she would report you to the school principal, and possibly to the police. Angry and confused, you asked why. She replied that she thinks you let your friends steal the bike. Sam had always disapproved of your “other” friends, who were notorious for getting into trouble. Secretly you believe that it very well could have been one of your friends who stole the bike. Of course, you would never let your other friends do this. You told Sam this was ridiculous, and then secretly asked your friends about it. They replied that they had no idea what you were talking about. After this response, you suspect they might be responsible. Nevertheless, you can’t believe that Sam would threaten to report you. You are hoping to receive a college basketball scholarship, and you believe this kind of report, whether true or not, would hurt your chances considerably. Most of all, you are hurt that a once close and trusted friend would threaten to destroy your future over a stupid bike.

You reluctantly agreed to Sam’s request to mediate the dispute in the hope that the whole thing could be resolved without her filing a report with the school or the police. You might even consider helping her replace the bike, but have no cash savings to do so. You asked your parents for help, but they said it was up to you to resolve this. You thought about getting a part-time job, but with basketball practice in full swing, it would be challenging to do both.

In preparation for the mediation, answer the following questions:

1. What are your concerns? How would you state the issue in the dispute?

2. What is your starting position (demand)? What are your underlying interests (what do you really want)?

3. What is the best conceivable outcome from your perspective?

4. What do you think Sam’s starting position and underlying interests will be?

5. Identify two workable solutions that would solve the conflict.

Notes:

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