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Archive for the ‘Training, Skills & Techniques’ Category

Considering the Role of Ongoing Relationships in Mediation

Susan M. Yates, November 18th, 2016

“Mediation is especially good for parties with an ongoing relationship.” This is axiomatic when it comes to mediation, right?

This weekend, I had an experience that shed new light on this old idea. I was at a sale of building materials. Although it was advertised as an auction, there were few attendees and so potential buyers simply haggled with the seller’s agent over the price of anything they wanted to purchase. While digging through boxes of tile, I had a front-row seat to the negotiations between the agent and a potential buyer over some marble.

The feints and parries were familiar to anyone who has mediated many cases.

“Well, I don’t know what these would cost,” said the buyer, trying to downplay her expertise and develop sympathy in the agent. But the agent responded, “Don’t try that dumb girl thing on me! I’ve dealt with you before. You are smart and you know what these would cost.”

“Look, I have other buyers who will give me what I am asking,” said the agent, trying to assert a BATNA. But the buyer responded, “Where? I don’t see any other buyers here!”

The agent also tried to make herself seem sympathetic, even powerless, with the plea, “The seller would have my head if I sold them for so little.” But the buyer replied, “You can do whatever you want!”

The potential buyer tried to make a small move look more attractive by changing the format of the offer to a total price, rather than a per piece price. But the agent turned the math back into price per piece.

They went back and forth on numbers with plenty of dramatic gestures and raised voices. Their eventual prices were $240 and $260.

And they both walked away from the deal over a $20 difference!

Why did these two experienced negotiators walk away from the deal? (more…)

Foreclosure Mediation Training in Kane County a Success

Shawn Davis, December 8th, 2014

Kane training pic 2On December 3rd, the Kane County Residential Mortgage Foreclosure Mediation Program held a training seminar for program mediators and members of the bar. The event was sponsored by Northern Illinois University College of Law and the Illinois Sixteenth Judicial Circuit Court. Judge Downs opened the training by welcoming attendees and providing her perspective on how the foreclosure crisis has affected the community and the court. She then shared the impact the Foreclosure Mediation Program has had since it launched almost a year ago. Housing counselors, legal aid and lender attorneys also spoke, describing their roles in the program and the experience of the clients they serve.  Professor Alan Boudreau from NIU College of Law was the final speaker and provided the perspective of the Mediation Program. Professor Boudreau explained how the program’s service providers interact and how the role of the mediator fits into the larger foreclosure picture. All of the presenters remained on-hand for a panel discussion. (more…)

Be Mindful of the Sunk-Cost Bias Trap

Shawn Davis, June 18th, 2014

Just the other day, I learned the term “sunk-cost bias” and immediately thought of the mortgage foreclosure work that I do. The term was new to me, but the concept was not: sunk-cost bias describes why it’s so hard for us to walk away from something and cut our losses (and explains why I spent 3 hours waiting in line for the Indiana Jones ride at Disneyland). With sunk-cost bias, our minds go through a process of telling us that we should hold on because otherwise the time, money and energy already invested would be a waste, even when such a decision is irrational and just sinks us further in the hole. The concept can have very real implications for more serious life choices, like whether or not to remain in a home once in foreclosure. (more…)

Mediation “Theology”

Susan M. Yates, May 8th, 2014

A mediation colleague in Chicago, Bob Berliner, recently used the term “theology” to describe the various schools of thought regarding mediation, such as evaluative, facilitative and transformative. He was using the term somewhat tongue-in-cheek and as shorthand for the idea of belief systems that individual mediators hold, as well as the debates among those mediators.

It got me thinking. Is there some similarity between how we develop our religious beliefs and how we develop our mediation styles? I’m not suggesting that our religious beliefs are linked to our mediation styles, but rather that similar forces are at work in developing these two sets of belief systems.

The thing that really struck me about this way of looking at our beliefs in our mediator styles is that none of them is based on proof any more than religious beliefs are based on proof. (more…)

“Hot-Tubbing” and ADR?

Susan M. Yates, April 7th, 2014

Did you know there is an ADR process called “hot-tubbing?” This was news to me when I heard it mentioned last week at the Court ADR Symposium (which occurs every year on the day before the ABA Dispute Resolution Section Conference). As I understand it, the process is used sometimes in arbitration when there are conflicting expert opinions. Basically, the idea is that rather than simply hear expert testimony from each side sequentially, the arbitrator questions the experts concurrently. Hot-tubbing has been used in court settings in Australia, England and Wales, as well as in arbitration. (more…)