Syllabus

LBS 5465 – Mediation Techniques

Assignment: Case Study

Overview and Instruction Page: This Assignment has three parts: (1) Opening Statement and Storytelling, (2) Agenda Setting and Negotiation, and (3) Settlement and Closure. Groups/ Students will select ONE of the following cases below to: (1) identify and analyze each party’s issues, interests, rights, positions, etc., (2) set an agenda for mediation, (3) negotiate a resolution, and (4) write an agreement that both parties can agree with.

Auto Insurance Personal Injury The plaintiffs John (husband) and Mary (wife) were in their 2010 Toyota Corolla, on their way to church, when they were hit from behind by the Defendant who was driving a 2020 Cadillac Escalade. The Corolla was totaled. The husband (the driver) suffered injuries to his back and neck. The wife suffered an injury to her shoulder. The husband and wife’s insurance had lapsed the week before the accident. They have filed a lawsuit against the Defendant and his/her insurance company. They are seeking $30,000 including their unpaid medical expenses, compensatory, and punitive damages. The Defendant's policy has a limit of $300,000 and a $1000 deductible. S/he shows up at mediation with the lawyer and an adjuster for the insurance company. The adjuster has the authority to settle up to the last demand, but of course, s/he doesn’t want to.

Real Estate: Non-disclosure Mold Mr. and Mrs. Buyer bought a three-acre lot and a trailer in Hawthorne, FL for $100,000. The Seller disclosed that the septic tank did not work properly, and they negotiated to ensure a working septic tank. Mr. and Mrs. Buyer were living in the trailer for two months when they noticed a soft spot in the kitchen wall, under the wallpaper. When the paper was removed it was discovered that mold was growing as a result of a leak in the outer wall. According to the inspector, there was evidence that this leak was present for many years as the mold was in an advanced stage. In order to repair the situation Mr. and Mrs. Buyer had to move out. Currently, the Buyers are awaiting an OK from the EPA to move back in. The Buyers have filed a lawsuit against the Seller and their Realtor to recover $6,000 for their temporary alternative housing, $4,000 to repair the structural damage in all of the rooms affected by the mold, $800 to re-wallpaper the kitchen, $3,000 in attorney's fees and costs, and $1,200 for medical tests and treatment necessary as a result of their exposure to the mold.

Separation of Brad’s Parents Husband and Wife have been married for 13 years. They have no children together, but Husband is the only father Wife’s sons Brad (14) and Matt (15) have ever known. Husband is the coach of the boys’ soccer team, leader of the boys’ scout troop, and parent advisor to the school band. Wife does not want to shut Husband out, but he is so clingy and needy that he is driving her crazy. (She believes that Husband uses his activities with the boys to be near her.) Husband and Wife both understand that Husband has no legal rights to the children, but Wife also knows that the boys want/need Husband in their lives. In addition to finding a time-sharing arrangement that will work for everyone Wife and Husband are stuck on the division of their assets. Husband is a “saver”, and he is afraid that if Wife, a “spender,” takes half of their savings ($184,000 in an investment account) she will spend it all in no time. They both have 401ks of almost equal value. The house they live in was Husband’s prior to the marriage. At the time of the marriage the house had a $20,000 mortgage balance and a value of about 230,000. Today, the house is worth $330,000 and the mortgage is paid off

Overview and Instruction Page: All parts of this assignment will be graded based on your comprehensive analysis of the case study. Check the following before uploading your assignment.

Checklist:

· All three parts are completed.

· Document is organized, formatted, and presentable. To limit distortion of table or graphics, PDF document and upload.

· Document includes page numbers, cover page, and reference page.

· Cover page has required information and is the first page.

· Case analysis contains support and evidence from textbook. Students will be graded based on the comprehensive analysis of the case study and how they integrated the textbook and other sources to support their work. Students are expected to use APA citations, from the book and/or other sources, to support their analysis. Adding reference list at the end of the document without in-text citations is not supporting your work. Provide evidence from the textbook to support your rationales and analysis.

Definition of Mediation and What it Includes “Mediation” means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process to help the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem-solving, and exploring settlement alternatives. “Mediation” includes: (a) “Appellate court mediation,” which means mediation that occurs during the pendency of an appeal of a civil case. (b) “Circuit court mediation,” which means mediation of civil cases, other than family matters, in circuit court. If a party is represented by counsel, the counsel of record must appear unless stipulated to by the parties or otherwise ordered by the court. (c) “County court mediation,” which means mediation of civil cases within the jurisdiction of county courts, including small claims. Negotiations in county court mediation are primarily conducted by the parties. Counsel for each party may participate. However, presence of counsel is not required. (d) “Family mediation” which means mediation of family matters, including married and unmarried persons, before and after judgments involving dissolution of marriage; property division; shared or sole parental responsibility; or child support, custody, and visitation involving emotional or financial considerations not usually present in other circuit civil cases. Negotiations in family mediation are primarily conducted by the parties. Counsel for each party may attend the mediation conference and privately communicate with their clients. However, presence of counsel is not required, and, in the discretion of the mediator, and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court. (e) “Dependency or in need of services mediation,” which means mediation of dependency, child in need of services, or family in need of services matters. Negotiations in dependency or in need of services mediation are primarily conducted by the parties. Counsel for each party may attend the mediation conference and privately communicate with their clients. However, presence of counsel is not required and, in the discretion of the mediator and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court. Source: http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL=0000-0099/0044/0044.html

[When submitting your work, this cover page should be the first page of your assignment do not include previous pages]

Assignment

Case Study

[ Insert Case Study Name]

Group Number:

[ insert Group Number]

Name of Group Members:

[ Insert First and Last names]

PART 1: OPENING STATEMENT & STORYTELLING PHASE

OPENING STATEMENT

Read Chapter 6 The Mediator’s Opening Statement before completing this section.

Write a Mediator Opening statement:

Write a version of the mediator’s introductory monologue that covers the required elements, incorporating the field vocabulary into your vocabulary. Be sure to clearly label each component of the open statement. Review “Mediator Opening Statement ”.Please note other tools and outlines are available in the textbook (p. 95- 97) and online. Remember mediation is a confidential ( Florida Rule 10.360) and balanced process, see. You may use an open statement you already created in this class this term.

STORYTELLING

Read Chapter 7 Storytelling and Issue Identification before completing this section.

After providing the parties with your mediator opening statement, you are now ready to hear the parties’ stories, assess and identify the issues in your case. Keep in mind that notetaking is more than just taking notes, but the mediator’s ability to use his/her listening skills to link, sort, and analyze elements that the parties disclosed. For this assignment, you will be reading and critically analyzing the written cases. Be sure to critically read the “notetaking for mediator” section in your textbook. Remember your role and responsibility as mediator, see Florida Rules: 10.220, 10.230, 10.300, 10.310 Mediator's Role and Responsibility to the Parties.

Answer Questions:

1. Using your selected case, identify the substantive, procedural, and psychological issues that may need to be addressed? Which of these would your address first? Explain

2. Using your selected case study, identify how each party sees the other as the “problem.” (1) What would be each party’s solution? (2) How would you move the problem to the other side of the table? (3) How would you frame the problem to include both parties. (address all three sub-questions)

3. Discuss at least five of the techniques in Chapter 7 that could be applied to your case?

4. Using the notetaking form below, identify the parties’ possible interests, rights, power, and commonalities. (Before completing the notetaking form, please revisit Notetaking for Mediators – chapter 6, p.106 and review Figure 6.2 Sample Notetaking Form).

Notetaking Form

Analysis	Party A: [insert Name]	Party B: [insert Name]
Interests: The needs that underlie issues Identify at least two possible interests for each party.
Rights: The resolution criteria based on legal or other institutional rights Identify at least two possible rights for each party.
Power: The ability to influence another Identify at least two possible power positions held by party.
Commonalities: An issue, circumstance, or goal shared among the disputants Identify any commonalities you see between the disputants

PART 2: AGENDA SETTING & NEGOTIATION PHASE

AGENDA SETTING

Read Chapter 8 Setting the Agenda for Negotiation completing this section.

Now that you have completed the issue identification phase for your case study and have a general understanding of each party’s needs, the next step is to begin the agenda phase. Please revisit, Components of the Agenda and Sequencing the Agenda List. Based on the issues identified during storytelling, the mediator sets the agenda using a three – step process. You may also revisit to the module videos to recall these steps and to see them in action.

Step 1 Transitional Statement: Consider what you will say as mediator to move the parties or disputants from storytelling and issue identification phase to agenda phase. Write one transitional sentence to tell disputants that you are moving to the next step. In other words, what would you say to signal that you are going to the agenda phase?

Step 2 Commonality Statement: Based on the issue identified in this case: What two-way commonality statement can you make as the mediator? Note: A commonality statement is your summary of the parties’ characteristics, attitudes, or shared context. Be sure to use the two-way commonality formula to format your statement. See textbook.

Step 3 Agenda: Create an agenda with 5 – 8 agenda items for your case study. Again, you may also revisit to the module videos to recall this step of the mediation session. When creating the agenda, think about the following:

· All items on the agenda list should be negotiable issues.

· Consider how issues can be grouped together on the agenda? What would you name the issues? The phrasing of agenda items matters; therefore, write agenda items carefully.

· Items should be sequenced using one of the methods listed on page 139. You will need to explain your sequencing method or rationale below. What issue from your agenda list would you select to negotiate first? Sequence matters!

Agenda Items: Write 5-8 agenda items

Sequencing Method: Write 1-2 paragraphs to explain/justify the sequencing method you used from the textbook.

NEGOTIATION PHASE

Read Chapter 9 Problem Solving and Negotiation before completing this section.

Questions to Start Negotiation: Asking questions during the negotiation phases serves several purposes: (1) getting the parties or disputants started, (2) drawing out ideas, and (3) checking ideas for agreement. To recall, watch the negotiation phase of any module video to see this phase in action or refer to textbook. List at least four general early negotiation questions you would ask each party or disputant.

Self-determination: As the mediator, how would you start the negotiation process to confirm parties that they are treated with respect for their self-determination? Watch the negotiation phase of any module video to see this phase in action or refer to textbook.

Going into Caucus: You have come to a place in the negotiation you have decided to call a caucus. It will have the purpose to move the process ahead. Remember that whatever is said in caucus is confidential, see Florida Rule 10.360 Confidentiality ). Create a checklist of items to accomplish related to caucus session. For example, the checklist might include the following:

· How to tell the parties you are going into caucus: What might you say to the disputants?

· A review of confidentiality as it applies to a caucus: What might you say to the disputants?

· Giving positive homework: What homework might you give to the disputant who is waiting while you are talking to the other party?

Impartially: In which way would you tell the parties what is the right decision to solve the conflict and at the same time make both sides feel that they were treated impartially? (For more information, see Florida Rule 10.330 Impartiality )

Decision Acceptance: What would you do, as the mediator, if the disputants agree to outcomes that are legal, but you believe are unfair? Does the code of conduct for mediators, in your state or Florida, say about how to handle decisions the mediators find questionable? (For more information, see Florida Rule 10.310 Self-Determination and Florida Rule 10.370 Advice, Opinions, or Information

PART 3: SETTLEMENT AND CLOSURE

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