ADR in Oregon - eBook on Mediation Overview and Mechanics (2019)

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Chapter 3
MEDIATION OVERVIEW AND MECHANICS

Authors: Lisanne Butterfield; Sally LaJoie; Emil Ali

§ 3.1 MEDIATION OVERVIEW

§ 3.1-1 What Is Mediation?
§ 3.1-2 Types of Mediation
§ 3.1-3 Approaches Used in Mediation
§ 3.1-4 Common Elements of Mediation
§ 3.1-5 Facilitation and Conciliation Compared
§ 3.1-6 ADR with Public Agencies
§ 3.1-7 Adversarial Process Distinguished
§ 3.1-8 Other ADR Processes
§ 3.1-9 When Is Mediation Appropriate?

§ 3.2 HOW MEDIATION WORKS

§ 3.2-1 Structure and Models in Mediations
§ 3.2-2 Legal Considerations for Settlements in Mediations

§ 3.3 KEYS TO SUCCESSFUL MEDIATION

§ 3.3-1 Effective Preparation, Decision Makers, and Resources
§ 3.3-2 Clear Communication
§ 3.3-3 Reframing the Issue
§ 3.3-4 Use of Jointly Retained Impartial Experts
§ 3.3-5 Using Outside Counsel
§ 3.3-6 Using Principle-Based Negotiation Methods
§ 3.3-7 Using Objective Criteria

§ 3.4 OBTAINING AN AGREEMENT TO MEDIATE

§ 3.4-1 Introduction
§ 3.4-2 Consider Mediation to Resolve the Dispute
§ 3.4-3 How, Why, and When to Educate the Client
§ 3.4-4 When and How to Propose Mediation with Opposing Counsel
§ 3.4-5 Potential Benefits of Mediation

§ 3.5 PREPARING THE PARTIES FOR MEDIATION

§ 3.5-1 Advice to Clients Regarding the Mechanics of the Process and Bridging Communication Gaps
§ 3.5-2 Risk Assessment
§ 3.5-3 Convincing Opposing Counsel of the Benefits of Mediation
§ 3.5-4 Steps for Effective Mediator Selection
§ 3.5-5 Considerations at the Outset of Mediation
§ 3.5-6 Setting the Logistics for Mediation
§ 3.5-7 Who Should Attend Mediation
§ 3.5-8 Provide Agreed Discovery or Relevant Information before the Mediation

§ 3.6 THE AGREEMENT TO MEDIATE

§ 3.6-1 Drafting the Mediation Agreement
§ 3.6-2 Confidentiality

§ 3.7 THE LAWYER AS MEDIATOR

§ 3.8 MEDIATOR LIABILITY

§ 3.8-1 In General
§ 3.8-2 Contract
§ 3.8-3 Tort
§ 3.8-4 Breach of Fiduciary Duty

§ 3.9 THE MEDIATION PROCESS

§ 3.9-1 In General
§ 3.9-2 Team Mediation
§ 3.9-3 Med-Arb

§ 3.10 MEDIATOR EDUCATION AND QUALIFICATIONS

§ 3.11 COURT-REFERRED MEDIATION

§ 3.11-1 OJD’s Role in Mediation Panels in Oregon Circuit Courts
§ 3.11-2 Determining Authority and Establishing Mediator Panels
§ 3.11-3 Special Disclosures for Court-Referred Mediation
§ 3.11-4 Education and Training Requirements for Court-Referred Mediators
§ 3.11-5 Qualifications for Court-Connected Mediators by Case Type

§ 3.12 COURT-REFERRED MEDIATION PROCEDURES

§ 3.12-1 Mediation without Court Referral
§ 3.12-2 How a Case Is Referred to Mediation in the Absence of Stipulation or Agreement
§ 3.12-3 Selection of the Mediator

Form 3-1 Mediation Agreement
Appendix 3A Court-Connected Mediation Programs
Appendix 3B Abbreviations


Chapter 4
MEDIATION CONFIDENTIALITY

Authors: Thomas W. Brown; Daniel Keppler

§ 4.1 CONFIDENTIALITY

§ 4.1-1 The Statutory Scheme
§ 4.1-2 Private-Party Mediations
§ 4.1-3 Mediations Involving a Public Body or State Agency

Chapter 5
MEDIATOR TECHNIQUES

Authors: Rudy Lachenmeier; Lauren MacNeill

§ 5.1 INTRODUCTION

§ 5.2 PREMEDIATION TECHNIQUES

§ 5.2-1 Initial Contact and Assessment
§ 5.2-2 Disclosures
§ 5.2-3 Case Development
§ 5.2-4 Opening Letter
§ 5.2-5 Agreement to Mediate
§ 5.2-6 Request for Information and Discovery
§ 5.2-7 Follow-Up Phone Call

§ 5.3 TECHNIQUES AT THE BEGINNING OF MEDIATION

§ 5.3-1 Physical Set-Up
§ 5.3-2 Opening Statement by the Mediator
§ 5.3-3 Confidentiality
§ 5.3-4 Opening Statements by Counsel or Parties

§ 5.4 TECHNIQUES FOR MEDIATION ONCE UNDERWAY

§ 5.4-1 Mediator Body Language and Nonverbal Techniques
§ 5.4-2 Education on Process and Subject-Matter Expertise
§ 5.4-3 Rapport Building and Communication Techniques
§ 5.4-4 Eliciting Goals
§ 5.4-5 Structuring the Agenda
§ 5.4-6 Information Gathering
§ 5.4-7 Reflection
§ 5.4-8 Summarizing
§ 5.4-9 Validating
§ 5.4-10 Empathizing
§ 5.4-11 Caucus
§ 5.4-12 Umbrella Questions
§ 5.4-13 Reframing
§ 5.4-14 Eliciting Disputants’ Suggestions or Proposals
§ 5.4-15 Perspective Taking.
§ 5.4-16 Transition Question
§ 5.4-17 Encouraging or Directing the Parties to Talk to Each Other
§ 5.4-18 Mutualizing
§ 5.4-19 Noting Points of Common Interest or Solutions
§ 5.4-20 Attending to Psychological Traps
§ 5.4-21 Facilitative and Evaluative Comments
§ 5.4-22 Pauses and Silence
§ 5.4-23 The Role of Apology and Forgiveness
§ 5.4-24 Brainstorming Options
§ 5.4-25 Disclosures from Caucus
§ 5.4-26 Homework
§ 5.4-27 Engaging Additional Professionals
§ 5.4-28 Verbal and Written Summaries

§ 5.5 TECHNIQUES FOR WHEN PARTIES REACH IMPASSE

§ 5.5-1 “It Is the Principle”
§ 5.5-2 “They Are Lying”
§ 5.5-3 Offering Recommendations, Suggestions, Evaluations, or Opinions
§ 5.5-4 Confidential Settlement Proposals
§ 5.5-5 Mediator’s Proposal

§ 5.6 OTHER TECHNIQUE CONSIDERATIONS

§ 5.6-1 Conditional Offers
§ 5.6-2 Trial Settlement
§ 5.6-3 Bifurcation
§ 5.6-4 Hybrid Roles

§ 5.7 CONCLUDING AND POSTMEDIATION TECHNIQUES

§ 5.7-1 Crafting the Settlement Agreement
§ 5.7-2 If No Agreement Is Reached
§ 5.7-3 Minimizing Settlement Remorse
§ 5.7-4 Closing Letter

§ 5.8 CONCLUSION

§ 5.9 BIBLIOGRAPHY

Appendix 5A Abbreviations


Chapter 6
ADVOCACY AND ETHICS

Authors: Halah Ilias; Sonia Montalbano

§ 6.1 INTRODUCTION

§ 6.2 LITIGATION VERSUS MEDIATION AND THE PLACE OF ZEALOUS ADVOCACY

§ 6.3 PREMEDIATION CONSIDERATIONS

§ 6.3-1 Competency and Preparedness
§ 6.3-2 Multiple Clients
§ 6.3-3 Being a Communicative Advisor in Lieu of a Decision Maker
§ 6.3-4 Preparing Premediation Memoranda
§ 6.3-5 Approaches to Format
§ 6.3-6 Mediation Communications Not Subject to Disclosure

§ 6.4 DURING MEDIATION

§ 6.4-1 Opening Statements
§ 6.4-2 Communications with Mediator
§ 6.4-3 Additional Aspects of Format
§ 6.4-4 Withdrawing
§ 6.4-5 Mediator’s Duties; Confidentiality of Mediation Communications

§ 6.5 POSTMEDIATION

§ 6.5-1 To Settle or Not to Settle
§ 6.5-2 Confidentiality Reigns
§ 6.5-3 Confidentiality and Malpractice Claims

Appendix 6A Abbreviations

Chapter 7
MEDIATOR APPROACHES AND ETHICS

Authors: Marcia Buckley; Devin Howington

§ 7.1 SCOPE

§ 7.2 ETHICS

§ 7.3 ORS HIGHLIGHTS

§ 7.4 THE OREGON RPCS ON MEDIATION

§ 7.5 NON-OSB MEMBER MEDIATORS

§ 7.6 REPORTING PROFESSIONAL MISCONDUCT

§ 7.7 OSB FORMAL ETHICS OPINIONS ON LAWYERS SERVING AS MEDIATORS

§ 7.7-1 Lawyer as Mediator—Attempted Fraud by One Party (Opinion No 2005-167)
§ 7.7-2 Unauthorized Practice of Law: Lawyer as Mediator, Trade Names, Division of Fees with Nonlawyer (Opinion No 2005-101)
§ 7.7-3 Information about Legal Services: Dual Professions, Yellow Pages Advertising (Opinion No 2005-108)
§ 7.7-4 Trust Accounts: Depositing Fees of Arbitrator or Mediator (Opinion No 2005-135)
§ 7.7-5 Lawyer as Escrow Agent (Opinion No 2005-55)
§ 7.7-6 Information about Legal Services: Firm Names—Retired Partner Mediator (Opinion No 2005-169)
§ 7.7-7 Lawyer-Owned Lawyer-Referral Service (Opinion No 2005-168)

§ 7.8 OREGON RPCS AND THE OMA CORE STANDARDS OF PRACTICE

§ 7.9 RESOURCES FOR ETHICS TOPICS

§ 7.10 ETHICS AND CONFIDENTIALITY

§ 7.10-1 Court-Connected Mediation
§ 7.10-2 Crimes
§ 7.10-3 Other Considerations

§ 7.11 MEDIATOR APPROACHES: OVERVIEW

§ 7.12 DEFINING APPROACH

§ 7.12-1 Transformative
§ 7.12-2 Facilitative
§ 7.12-3 Evaluative
§ 7.12-4 Hybrid and Mixed Approaches

§ 7.13 RESEARCH ON EFFECT OF MEDIATION STYLE ON OUTCOMES

§ 7.14 MEDIATOR ADVOCATE SURVEY ON APPROACHES

§ 7.15 ETHICS AND MEDIATOR APPROACH

§ 7.16 ACCESS TO JUSTICE (PROCEDURAL DUE PROCESS)

§ 7.17 SOCIAL JUSTICE (SUBSTANTIVE DUE PROCESS)

§ 7.18 CERTIFICATION/COMPETENCY

§ 7.19 MEDIATION THEORY: PSYCHOLOGY, ECONOMICS, POLITICAL SCIENCE, AND PHILOSOPHY

§ 7.20 CONCLUSION

Appendix 7A Annotated Agreement to Mediate (“Agreement”)
Appendix 7B Abbreviations