week7.pdf

MSc Management of Projects Week 7

peter.fenn@manchester.ac.uk 1

peter.fenn@manchester.ac.uk 1

Remember, remember the fifth of

November• Remember, remember the fifth of November,

Gunpowder treason and plot.

We see no reason

Why gunpowder treason

Should ever be forgot!

Guy Fawkes, guy, t'was his intent

To blow up king and parliament.

Three score barrels were laid below

To prove old England's overthrow.

And what shall we do with him?

Burn him! Guy [Guido] Fawkes

Guy Fawkes and Salford

• Ordsall Hall and the daughter of Sir John Radclyffe and his wife Lady Anne Ashaw. Sir John was not keen

• Guy Fawkes went away and conspired with others to plant bombs and blow up the Houses of Parliament

• Failed Gunpowder Plot of 1605 – Fawkes was sentenced to be hanged, drawn and quartered.

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Mediation

Week 7

ADR

• Alternative Dispute Resolution

• Appropriate Dispute Resolution

• Another Damn Rip-off

• Mediation is the most common ADR

technique [I’ll say more about the others in

Week 11]

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Altruism

• Altruism refers to behaviour that benefits another individual at a cost to oneself. For example, giving your lunch away is altruistic because it helps someone who is hungry, but at a cost of being hungry yourself.

• Is altruism only found in humans?

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Altruism or Cooperation

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Mediation

• Mediation is a way of settling disputes in which a third party, known as a mediator, helps both sides to come to an agreement which each considers acceptable. Mediation can be ‘evaluative’, where the mediator gives an assessment of the legal strength of a case, or ‘facilitative’, where the mediator concentrates on assisting the parties to define the issues. When a mediation is successful and an agreement is reached, it is written down and forms a legally binding contract, unless the parties state otherwise.

I’m going to spend a whole

session on mediation

• Because its often thought to be

– The most common

– The most appropriate [ADR]

– An introduction to all the techniques

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Mediation

• An intro

• https://www.youtube.com/watch?v=t1vw01

U5YDs

• There are lots» Of videos

» Of mediators

» Of models

» Of charts

» Of everything

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Conflict

Dispute

Avoidance

Negotiation

ADR [Mediation]; ADJ; ARB;

Litigation; Beyond

Conflict Continuum

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Mediation Continuum

FacilitativeMediator offers no opinion

EvaluativeMediator Suggests/Recommends

Mediation

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Mediation

• Describe/How

• Party (ies) phone a mediator [or a mediation

provider e.g. CEDR/CIArb/There are lots]

• Mediator arranges a meeting

• Mediator assists the parties

• Parties settle or not

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Mediation

• Mediation the most widely used and accepted ADRtechnique; Contingency approach; No prescriptivemediation process

• Examples:

– UNhttps://www.youtube.com/watch?v=aofBEZM-jHE

inter intra

– https://ukmediation.net/latest/videos/

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The Multi door Courthouse

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The Multi-Door courthouse

• Frank Sander

– Multi-Door Courthouse

• http://www.pon.harvard.edu/daily/conflict-resolution/a-

discussion-with-frank-sander-about-the-multi-door-courthouse/

– Singapore

• http://www.singaporelaw.sg/sglaw/laws-of-

singapore/overview/chapter-3

– Nigeria

• http://www.lagosmultidoor.org/

– Washington DC

• http://www.dccourts.gov/internet/superior/org_multidoor/main.

jsf

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Mediation Principles

• Early theory – one type, Facilitative or Interest Based Mediation

• Some mediators recognised that parties’ rights would sometimes need to be considered –Evaluative or Rights Based Mediation

• Similar development of Settlement Based Mediation

• 1990’s Facilitators developed Transformative Mediation

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Facilitative Mediation (Interest

Based)

• Mediator structures a process to assist the

parties in reaching a mutually agreeable

resolution

• Mediator asks questions; validates and

normalizes parties' points of view; searches

for interests underneath the positions taken

by parties; assists the parties in finding and

analyzing options for resolution.

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Facilitative Mediation (Interest

Based)

• The facilitative mediator does not makerecommendations to the parties, give adviceor opinion as to the outcome of the case, orpredict what a tribunal would do in the case.

• The mediator is in charge of the process,while the parties are in charge of theoutcome.

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Facilitative Mediation (Interest

Based)• Facilitative mediators want to ensure that parties

come to agreements based on information andunderstanding. They hold joint sessions with allparties present so that the parties can hear eachother's points of view, but hold private meeting(caucuses) regularly with the parties where theyexplore options and test the parties’ positions.Facilitative mediators seek for the parties to havethe major influence on decisions made, rather thanthe parties’ advisors; legal or otherwise.

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Evaluative Mediation (Rights

Based)

• Mediator assists the parties in reaching resolution

by pointing out the weaknesses of their cases, and

predicting what a tribunal would be likely to do.

• Based on the parties’ rights an evaluative mediator

makes formal or informal recommendations to the

parties as to the outcome of the issues.

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Settlement Mediation

• Settlement mediation (compromise mediation) takes as its

main objective encouragement of incremental bargaining,

towards a compromise a central point between the parties

positional demands.

• Settlement Mediators control both the parties and the

process

• Mediator seeks to determine the parties’ bottom line. Then

through persuasive interventions the mediator moves the

parties off their initial positions to a compromise point

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Transformative Mediation

• The ‘newest’ concept based on the values of

"empowerment" of each of the parties as much as possible,

and "recognition" by each of the parties of the other

parties' needs, interests, values and points of view.

• The potential for transformative mediation is that any or all

parties or their relationships may be transformed during the

mediation.

• Transformative mediators meet with parties together, since

only they can give each other "recognition".

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Transformative Mediation

• Transformative mediation continues and expandsthe facilitative model, in its interest inempowering parties and transformation.

• Modern transformative mediators want to continuethat process by allowing and supporting the partiesin mediation to determine the direction of theirown process.

• In transformative mediation, the parties structureboth the process and the outcome of mediation,and the mediator follows their lead.

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Arguments for and against the

mediation models• Facilitative and transformative mediation:

– empower parties

– help the parties take responsibility for their own disputes and the resolution of the disputes.

• Critics say that facilitative and transformative mediation:

– takes too long

– too often ends without agreement.

• There are legitimate worries that outcomes can be contrary to standards of fairness and that mediators in these approaches cannot protect the weaker party

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Arguments for and against the

mediation models

• Proponents of transformative mediation say

that facilitative and evaluative mediators put

too much pressure on clients to reach a

resolution.

• Transformative mediators believe that the

clients should decide whether they really

want a resolution, not the mediator

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Arguments for and against the

mediation models• Proponents of evaluative mediation say that clients want an

answer when they are unable to reach agreement, and they

want to know that their answer is fair.

• Critics of evaluative mediation say that its popularity is

due to the lawyers and advisors who choose evaluative

mediation because they are familiar with the process.

• Critics believe that the clients would not choose evaluative

mediation if given enough information to make a choice.

• Critics worry that the evaluative mediator may not be

correct in the evaluation of the case.

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Other mediation models

• Narrative Mediation

• The Peter Fenn Juggling model

• Many Many Models

• Remember Commercial Disputes

– Is the juggling/narrative/transformative model

appropriate?

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The Benefits of Mediation

• Consensual

• Control

• Cost savings

• Continuing business relations

• Confidentiality

• Creative

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Mediation Around the World

• China [the east generally] – traditional

• UK – strong support from Government

• USA – similar

• Europe

– 2002 European Commission published a discussion

paper on alternative dispute resolution

– 2011 The Cross-Border Mediation (EU Directive)

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Mediation the next move

• Mediation for all disputes?

• Even crime?

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Mediation the next move

• Dubai Chamber launches online mediation

service

– http://www.khaleejtimes.com/article/20121016/

ARTICLE/310169805/1037

• On line Dispute Resolution– The United Nations Commission on International Trade Law

(UNCITRAL) working group III has been working on issues

connected with the preparation of legal standards on ODR since

2010

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Google it: Mediation in project

management

• Be careful!

• Try refereed journal papers, there’s lots– Mediation in the construction industry: an international

review

– Investments in information systems and technology in

the healthcare: Project management mediation

– Organisational Maturity and Project Success in

Healthcare-The Mediation of Project Management.

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Mediation

Week 7

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