November 2006 #2. Finding Out What Really Happens in a Mediation.

Authorby Chuck Hurd and Leo Hura

Hawaii Bar Journal

2006.

November 2006 #2.

Finding Out What Really Happens in a Mediation

Hawaii State Bar JournalNovember 2006Finding Out What Really Happens in a Mediationby Chuck Hurd and Leo HuraTalk with the parties, lawyers or mediator after a mediation and you probably get more versions of what happened during the process than from watching Kurosawa's noted movie, "Rashomon".1 Indeed, talk with them about a failed mediation and you get more versions of the process. If you think that is an exaggeration, look at recent news articles about the mediation ordered by the United States District Judge in the pending lawsuit over repatriation/loan/"theft" of Bishop Museum's Hawaiian cultural objects from the Big Island's Forbes Cave complex. One of the participants publicly dismissed the four-month mediation as a "farce" and called for another participant to be jailed.2

In an effort to explore participants' real world experiences in mediation, three local mediation groups put on a forum in September to hear from the "consumers" of mediation services, the participants themselves, to provide a chance for mediators to discuss what they got from the "`consumers' forum".3 This article summarizes the consumers' attitudes and opinions on four key subjects, along with some of the mediators' responses.4

Mediator Selection

Not surprisingly, the consumers' panel agreed that mediator characteristics were critical to successful mediation results. Highlighted were a mediator's ability to understand facts, interests and issues in the case. Other highlighted skills included helping the parties advance their negotiation by being a "good" (empathic) listener; making the parties feel that s/he had been understood at both the informational and emotional level; persistence; and creativity at generating alternative solutions reflecting the parties interests. The panel added that the mediator needs to be proactive in shaping the parties' expectations by/through input of the parties. The panel was just about unanimous: subject matter content knowledge and experience is required. In the mediator response session, mediators generally agreed with the panel. However there were differing views about the importance of mediator-content knowledge and experience. Some mediators were surprised about the emphasis on content-knowledge and experience and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT