Please enable JavaScript.

Coggle requires JavaScript to display documents.

ALTERNATIVE DISPUTE RESOLUTION AND THE LAWYER (NEGOTIATION (2 different…

- - - - win–lose approach pitches the parties against each other as adversaries
    - - Carrie Menkel-Meadow explains:
        This problem-solving model seeks to demonstrate how negotiators, on behalf of litigators or planners, can more effectively accomplish their goals by focusing on the parties’ actual objectives and creatively attempting to satisfy the needs of both parties, rather than by focusing exclusively on the assumed objectives of maximizing individual gain.
        
        But could be time consuming and lead one party to get more than another.
  - - - Competitive negotiators more often find that negotiations simply break down: they push so hard for the best deal that the other party walks away. Competitive negotiators may not mind that result: they want a deal only if it is a bargain. That works well for the client only if it is not important for him or her to get a contrac
  - - - Cooley argues that negotiation and mediation nearly always involve deception. also everyday white lies
- - - - Minimal intervention This model requires the mediator to ensure that there is effective communication between the parties, but asserts that it is not the job of the mediator to influence the content of the agreement
      - Directive intervention Under this model, the mediator might provide additional information and seek to influence the content of the agreement if the proposed agreement is clearly unfair to one side or the other
      - Therapeutic intervention This model sees the mediator focusing on the relationship between the parties. It promotes the belief that the dispute is merely a symptom of a broken relationship
      - Bureaucratic mediation This is a highly formalised style of mediation, with strict rules about the kind of information that can be used and the style of discussion
      - Activist mediation In this model, the mediator comes to the case with a clear agenda and a degree of expertise. The parties expect the mediator to find the solution with them, with the agenda in mind.
      - Community mediation Community-controlled mediation typically involves quite a number of community members
      - Pragmatic mediation This type of mediation tends to be ‘on-the-spot peacemaking’, and occurs when someone steps in to help parties to resolve an immediate situation and to find a resolution.
  - - - there is no ‘right answer’ to a particular dispute
        
        Carrie Menkel-Meadow argues:
        If late-twentieth century learning has taught us anything, it is that truth is illusive, partial, interpretable, dependent on the characteristics of the knowers as well as the known, and, most importantly, complex. In short, there may be more than just two sides to every story
      - Solutions agreed by the parties are more effective than court orders in the long term
      - enables the parties to communicate more effectively
      - Mediation gives time for all issues that are important to the parties to be discussed. It has been a complaint of the legal process that it ‘transforms’ the parties’ disputes: their arguments are put into legal terminology and some issues that might be of concern to them are ignored. This argument can include a claim that mediation can tackle the emotional issues involved in divorce
      - Cost Saving
    - - impossible for a mediator to be purely impartiaL
        
        Scott Jacobs found three ways in which a mediator, often unintentionally, can influence the course of the discussion: by asking questions (for example asking a party ‘Do you think that’s fair?’); in summarising the discussions that the parties have (inevitably, highlighting some points and glossing over others); and in the provision of information. He accepts that mediators may be unaware that subtly, but significantly, these can influence the course of the discussions.
      - mediation can work against the interests of the weaker party. Weakness in the bargaining position may stem from three sources, the first among which is a lack of information, coupled with the inability to verify presented information
        
        Women, it is argued by some, are generally naturally conflict-averse.
      - Perhaps most fundamentally, there is an issue about whether, if you believe that people have legal rights
      - Concerns over whether mediation affects the interests of third parties. Mediation allows the couple to find a solution that works for them; in a court, however, the judge can consider the interests of other people involved and even the interests of the wider community.
      - There are doubts whether mediators have the expertise to consider the complex tax and financial issues that may have to be dealt with in some cases