Mediation Theory, Law and Policy
PART II: Mediation Theory, Law and Policy (60 points)
ANSWER EACH QUESTION BELOW.
A. Confidentiality in Mediation. Olam (p. 212) was a significant court ruling addressing the question of the extent of mediator confidentiality.
a. Summarize the primary factual issue that was in dispute.
b. Summarize the central holding of the case.
c. Do you agree with the outcome of the case? Why or why not?
d. Is the ruling in Olam consistent with NLRB v. Macaluso (p. 182)? Why or why not?
e. Would the outcome in Olam have been the same if the relevant provisions of the UMA had been the law governing confidentiality in mediation? Why or why not? Be certain to cite the specific provisions in the UMA that support your answer.
B. Justice in Mediation
1. Delgado (p. 291) warns that ADR (mediation in particular) presents dangers because there are not significant protections that curb potentially prejudicial behavior by the party participants or the mediator.
Describe and explain the central elements of Delgado’s analysis.
2. Press and Deason (305) discuss the impact of embedded assumptions of whiteness in mediator practice.
a. Identify and briefly explain two mediator practices that Press/Deason believe reflect embedded assumptions of whiteness.
b. For each practice discussed in (a), would the Press/Deason analysis be consistent with Delgado’s recommended practices for curbing the impact of racial prejudice in the conduct of a mediation session? Explain your response.
3. Tafoya (p. 280) and Batts (p. 282) share autobiographical perspectives that reflect how their feelings of exclusion from engagement with the dominant culture has shaped their thinking and practice of mediation. Based on their insights, (i) identify and (ii) explain two (2) mediator practices in conducting a mediation session that you believe would minimize, if not eliminate, a party’s feeling of exclusion from the conversation.
C. In his article, Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation (p. 390), Professor Bush envisions a judge who has been empowered by a state statute to refer cases from their civil docket to mediation. The statute says that the judge, in their discretion, can refer any and all cases: they can send all cases to mediation on a blanket basis, only certain categories of cases, or individual cases on a case-by-case basis, whichever they decide. The judge is uncertain how to exercise this new power and asks four individuals for their advice about how to proceed.
1. Summarize the advice – that is, the policy and mediation conceptions – provided to the judge by: a) the law professor and (b) the mediator.
2. What advice would you give the judge? Support your answer with appropriate reference to the analyses of the four “advisors” as well as materials and resources examined during the course.
D. Mediator Orientations.
a. Describe and explain the central elements of the original Riskin Grid (136-40).
b. In the debate between Susskind and Stulberg regarding mediator accountability (122-32):
i. Is Susskind’s approach to mediation captured anywhere on the Riskin grid? If yes, describe what label from Riskin you would ascribe to him and why. If not, explain why.
ii. Is Stulberg’s approach to mediation captured anywhere on the Riskin grid? If yes, describe what label from Riskin you would ascribe to him and why. If not, explain why.
Maximum word length for Part II is 1,200 words (see Guideline 1 above).
PART III: Ethical Issues for the Mediator (15 points)
USING THE MODEL STANDARDS OF PRACTICE FOR MEDIATORS (THE MIDDLE VOICE, PAGES 187-94), ANSWER THE QUESTION THAT APPEARS AT THE END OF THE NARRATIVE. YOUR ANSWER SHOULD DEMONSTRATE THAT YOU UNDERSTAND THE RELEVANT MEDIATOR STANDARDS AND THE VALUES OF MEDIATION AT PLAY.
Company A, a Spanish company, sued Company B, a U.S. company, for breach of contract, demanding that Company B pay it $10 million dollars in damages. The lawyer representing Company A is Lela Love; the lawyer representing Company B is Josh Stulberg. The lawyers and their clients selected Mr. James Veil, a New York lawyer, as their mediator. The mediation sessions were conducted in New York City on January 3-4, 2024.
On December 18, 2023, Mr. Veil sent a document to Love and Stulberg that stated: “I propose that the compensation for my services be dependent on the outcome of our mediation. If all of the parties reach an agreement that involves the payment of money, then my fee will be 5% of that settlement amount. If the parties do not reach agreement, I will not charge you any money for my services.” Both Ms. Love and Mr. Stulberg consulted with their clients and everyone quickly agreed to the mediator’s proposal for the payment of his services.
Late during the second day of mediation, Mr. Stulberg, on behalf of Company B, indicated to Mr. Veil in a caucus that his client was now willing to pay $4 million dollars to Company A to settle the matter, despite his client’s public position that it would only pay $2 million. He indicated that Mr. Veil had permission to share that information with Ms. Love and her client only if it was necessary to reach an agreement.
Mr. Veil then met in caucus with Ms. Love and her client. He asked Ms. Love whether her client had any new proposal to make to resolve the case. Ms. Love said: “Yes, we do. As you know, we have been demanding $6 million dollars to settle this case and Mr. Stulberg and his client have proposed to pay us only $2 million dollars. We have been in this mediation session now for two full days, with each session lasting more than 12 hours. We are tired. We want to resolve this. Therefore, we are willing to accept $3 million dollars as a final solution, unless, of course, you can tell me that Mr. Stulberg and his client are now willing to pay more than that.” Mr. Veil replied: “You heard the last public offer communicated by Mr. Stulberg on behalf of his client, and that proposal was $2 million dollars. Let’s convene in joint session and I will ask you to share your new offer with Mr. Stulberg and his client.” Ms. Love agreed to the proposed procedure.
In joint session, Ms. Love proposed a settlement in the amount of $3 million dollars; Mr. Stulberg’s client immediately accepted the proposal and the case was settled.
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