Dispute Resolution - YEAR 1, SEM 1
Conciliation outcomes?
- Withdrawn - Decision varied - Ahreement - Recommendation accepted - Genuine Dispute (unresolved - arguable case) - Direction (no arguable case) - Suspended - Progress certificate
Nature of arbitration disputes?
- Sale of goods - Sale of services - Investment disputes: both foreign direct and indirect disputes - Intellectual property disputes
Benefits of conciliation?
- Speedy - Low cost - Faster than courts - Enables early exchange of info and views - Gets parties together in neutral place - Opportunity to consider the decision with new information and seek resolution - Avoid future litigation costs, delays an uncertainty
What are positions?
- Tangible - They're what people want - Specific
What is the purpose of the codes of conduct for mediation?
- To serve as a guide for the conduct of mediators; - To inform the mediation parties of what they should expect; - And to promote public confidence in mediation ***Law Council of Australia Ethical Guidelines for Mediators (2006) p 2
What are the concerns about restorative justice?
- What is there to mediate? (total moral imbalance, on the one hand we have an offender on the other we have a victim. How can there be a meeting of the minds, a win/win, when one person is a victim and the other person is the offender) - Soft option? (RJ tools used in sentencing phase; is it a manipulation by offenders, rather than harsh realities of mainstream criminal justice) - Power - Maintaining the status quo (Scutt, Alexander) - Manipulation of sentence - Introduce guilty pleas - Re-victimisation - Unfamiliar principles - Programs focus on offender (Mason) - How does RJ impact on fundamental criminal substantive and procedural principles? - Net widening: extending social control mechanisms and will this have a community backlash? - Emphasis on individual - Community alienation
Why mediation?
It encourages cooperative problem solving and preserves relationships. Mediation works because it encourages parties to reach a solution. It is also less costly and much speedier than litigation, increasing party satisfaction.
What is conflation?
Lumping together issues that SHOULD BE separated
What are listing issues?
Major issues in mutual & neutral language; - logical grouping & sequence; - emphasis on interests & shared issues1.
What is mediation?
Mediation is a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to assist the participants to reach their decision.' (Australian National Mediator Practice Standards 2008)
What are mediator summaries?
Oral summaries to communicate & legitimise parties' points of view
What is Sourdin's model of mediation?
PRE-MEDIATION: THE PRELIMINARY CONFERENCE 1. Opening 2. Parties' opening statements 3. Reflection and summary 4. Topic setting 5. Exploration of topics 6. Private sessions 7. Joint negotiation session(s) 8. Private sessions 9. Agreement 10. Closure POST MEDIATION: ENFORCEMENT OF AGREEMENT
What does the Recognised Mediation Accreditation Body (RMAB) require a mediator to do?
PROVIDE: a) evidence of good character; and b) an undertaking to comply with ongoing practice standards and compliance with any legislative and approval requirements; and c) evidence of relevant insurance, statutory indemnity or employee status; and d) evidence of membership or a relationship with an appropriate association or organisation that has appropriate and relevant ethical requirements, complaints and disciplinary processes as well as ongoing professional support; and e) evidence of mediator competence by reference to education, training and experience
What is the objective of reintegrative shaming
Parties - Rehabilitation - Participation, compensating, venting and restoration - Reconciliation: negotiation parameters for future relationships - Restoration: restore victims to their prior situation Criminal Justice System - Recidivism - Values - Reconciliation - Humanisation
What are individual sessions?
Party feedback, emotional venting, understanding of other party, future focus (options, BATNA
What is disputant concerns?
Party-party contact; share background information & concerns, identify issues
Exceptions to FDR
People are not required to attend FDR in circumstances where it may not be appropriate, for example, where there has been family violence or child abuse.
Explain understanding others
Understanding key needs, desires, interests
Describe option 7 of the 7 fundamental elements of strategic negotiation
What processes are the parties prepared to commit to in order to advance the negotiation
Arbitral Institutions in Aust?
- Resolution Institute - ACICA - VADR - CIARB
What is confidentiality?
- A distinguishing feature of mediation and is used as a marking tool. It is referred in opening statements in mediation. - Relies on will of parties an d it has uncertain legal protection. - Can outside parties have access to this information in mediation? - Contractual basis: derived from the mediation agreement - A duty in equity to make matters confidential - Rules of evidence to admissibility - Legislation
What is group conferencing?
- A meeting that brings together a group of people who have an issue in common and then will deal with it - Once a group reaches a shared understanding, they can work together to improve the situation - Mood shifts from conflict to cooperation
What is arbitration?
- A more formal method for the settlement of disputes that is based on the arbitration agreement.
Conciliaton Officer's code and protocols?
- Achieve agreement wherever possible - Be even handed and fair - Exchange information - Confidentiality - Manage processes promptly and informally
What to expect from conciliation?
- Achieve agreement wherever possible: negotiation of positions - Even handed and fair - Treated respectfully and professionally - Overall understanding of dispute - Exchange information and encourage an open-minded approach - Manage processes safely, promptly, informally
Aim of comprehensive law movement?
- Address the 'tripartite crisis' o Low public opinion of lawyers o Lawyer distress, anxiety, depression o Deprofessionalism - Improving the legal system o Making it more inspiring o More human o More hospitable for clients, lawyer sad society
What are the paradigms of traditional justice?
- Adversarial: contest, competition, a sporting theory of justice, one side against another, (CRIMINAL: state v person; CIVIL: person v person) - Rule of law: all cases are treated alike under rules of E and P - Rules of E and P: procedural fairness and natural justice - Impartial judge: umpire who administers the justice - Administration of 'justice'
What are the exemptions to confidentiality?
- Agreement or consent of parties - Evidence of final agreements - Allegations of fraud and criminality - Public safety - Legislative exceptions
Measuring success of FDR?
- Agreements or no agreements; and types of agreements (moral/oral; parenting plans; parenting orders) - Attendance - Participation - Certificates issues - Return rates - review or... - Reconciliation - Stronger parental alliance
What is Family Dispute resolution?
- An interest-based, facilitated negotiation process that enables couples who are separating/separated to make future focused decisions around Parenting, Property and/or Financial Matters
Arguments in favour of regulation of ADR?
- Better standards o Prescribed standards o Practitioners need to adhere to these standards - Safeguards for consumers o Against rogue practitioners o If standards are prescribed - Enhanced professional status o If you say that you are a nationally accredited mediation, your status is enriched - Improved legitimacy o Legitimacy as an accredited practitioner - Protection o If you are regulated and accredited, you are committed to principles and a regime of a body
Between who?
- Between individuals/companies - Between different states - Between State and nationals of other States - Between nationals of different states
Issues with mediation?
- Can anyone call themselves a mediator? - How can a party ensure that the mediator they choose is a 'good' (qualified) one? - How should a mediator behave? - What can you do if you have a complaint about a mediator? - What are some common ethical issues that arise in mediation practice?
Advantages of arbitration?
- Cheaper than litigation - Faster than litigation - Private - Flexible rules of E and P - Binding decision
What are the problem solving courts?
- Children's Court of Victoria - Koori Court - Neighbourhood Justice Centre - Drug Courts
Sources of National Arbitration Law
- Commercial Arbitration Acts of the States (CAA) CAA 2011 (Vic) = uniform state legislation based on UNCITRAL Model Law - International Arbitration Act 1974 (Cth) - Also incorporates UNCITRAL M.L and the New York Convention
Characteristics of FDR
- Confidential - balancing power and empowerment (participation, ownership) - capacity to negotiate/willingness of full disclosure of issues - Structured facilitated process with a future-focus - Reality checking - duty of care and maintenance of relationship - Decisions not legally binding
Key features of therapeutic jurisprudence
- Contrast - Looking holistically at making the world a better place - Law itself can function as a therapist - Legal rules and procedures, and lawyers and judges, can be forces which provide therapeutic jurisprudence - Set out by principles of justice, law designed to serve more effectively as a therapeutic agent - Proposing law reform directed where appropriate at minimising negative effect and promoting positive effects - The law's role in wellneing - A new idea
Key features of comprehensive law?
- Converging vectors of CL movement o Collaborative law o Holistic justice o Problem-solving courts o Preventative justice o Transformative mediation - Humanistic, interdisciplinary - Working together as restorative agents
COntent of cmediator codes of conduct?
- Duty to avoid conflicts of interest - Duty to maintain impartiality in conducting the process - Duty to maintain confidentiality - Duty to be competent / qualified - Duty to avoid coercion and undue influence - Must not give advice - Must be fair - Give details of cost - Termination of mediation process
What is conciliation?
- First level of dispute resolution - Mandatory - Informal facilitative process (non-judicial, non-adversarial) - Approx. 65% of disputes resolved - ADR principles - Independent of: worker, agent/self insurer, employer, Worksafe
Conciliation process?
- Gets all parties together - Provides a neutral meeting place - Enables early exchange of information - Encourages an exchange of views - Provides an opportunity to see 'other' side - Enables parties to explore opportunities to resolve dispute
Impact since FDR reforms were introduced
- Increase in participation in FDR - Decrease in court applications - More 'high conflict' clients (less voluntariness) - More 'inappropriate' clients - Increased complexity in work - assessments, Family Violence, obligations - Lower agreement rates
Arguments against regulation of ADR?
- Interference o Interfers with voices of consumer Favours existing practitioners - Creates closed shop o Monopolistic o Costs money - Leads to institutionalised ADR practice o Takes ADR practice away from its theoretical landscape being community-based; neighbourhood mediation - Formalisation and rigidity of practice - Diversity of ADR practices - Don't fix what's not broken
What is the role of an arbitrator?
- Issue award - Not bound by the formal rules of E and P - Rules of natural justice (procedural fairness) - Impartial, unbiased - No conflict of interest
Role of arbitration outside commercial disputes
- Labour disputes - Sports law - Family law - Administrative law
List 3 reocnfised mediation accreditation bodies in Victoria
- Law Institute of Victoria - Australian Mediation Association - Victorian Civil and Administrative Tribunal
What are interests?
- Lie behind positions - Why they want/feel something - Needs/desires/values
Arguments against confidentiality?
- Limits availability of support - Can mask systemic problems and particularly emphasises in the family law context - Limiting accountability affect and public scrutiny effect
Legislative changes for FDR
- Matrimonial Causes Act 1959 - Family Law Act 1975 - Family Law Reform Act 1995 - Family Law Amendment (Shared Parental Responsibility) Act 2006 - Family Law Amendment (De Facto Financial and Other Measures) Act 2008 & - Family Law (Family Dispute Resolution Practitioner) Regulation 2008 - Plus amendments to Rules and Regulations
Forms of mediation accreditation?
- Mediators Standards Board - Australian National Mediator Standards: Approval Standards and Practice Standards
What is the eligiblity for mediator accreditation?
- Membership of the Law Institute of Victoria - A current practicing certificate - At least five years' experience in practice - Substantial involvement in this area of practice over the past three years - Participation in at least 15 mediations as a mediator - Formal mediation training - Three references in support of the application - Successful completion of the prescribed assessment program
What happens if no agreement?
- More information - Medical Panels - Directions - Recommendations - Genuine Dispute - Cooling off
Dangers of mediation?
- Neglect of rights: rights, entitlements. - Privatisation of justice: not based on the D/O/P, behind closed doors - Lack of uniformity: how do we know what process is actually going on in a mediation room when compared to others - Absence of appeal: made a decision and signed terms of agreement, no method of appeal - Emphasis on agreement: emphasis on resolution rather than on justice and truth
What are the key aspects of a mediators role?
- Neutrality - Facilitation - Privacy - Issue identification - Allowing emotional expression - Creating positive expectations - Mediator controls the process, parties control the content
Areas of ethical implications within mediation?
- Promotion of mediation services - Effective participation by the patties - Eliciting information - Terminating the mediation when appropriate - Lack of bias - Impartiality - Confidentiality - Appropriate outcomes
CO's preparation?
- Read available information - Identify gaps - Contact parties where appropriate - May attempt ro resolve prior to rconference - Attempt to identify key points, common ground and differences - Plans conference procedure - noting any special needs or variation - May signal concerns; no direction without conference - Discretion to cancel conference
Role for lawyers in FDR?
- Realistic advice: best case/worst case scenario and reasons why, what would other lawyers advise - Some participation in FDR process - referrals, VLA FDR program, trial participationin FDR in some centres - When appropriate, encourage parties to agree - explain real costs of litigation - Continually develop understanding of Family Violence and the effect of conflict on children - Roles: advocates, buffer, gladiators, collaborative law - Lawyers Panel: liaison, cross fertilisation, sharing expertise, understanding our process enabling better advice - Training as FDRP's
This will lead to...
- a better articulation of common goals and interests, - a quicker discovery of where they disagree, and - a smoother, more creative solution that is mutually beneficial
What is natural justice?
- a fairness principle - a rule that promtes each party to be able to be heard in a forum
Disadvantages?
- costs can escalate - confidentiality not guaranteed - appeal to court can be used as a delay tactic - Limited grounds of appeal - can become too much like litigation
Ethical issues for mediators?
- fairness of settlements - recommendation - assisting weaker party - unconscionable settlements - interests of others
What are the 3 types of strategic negotiation?
- interest based - principled - integrative
What are the facilitative mediation skills and interventions?
- listening - questions - reflection - reframing - summary - minimal encouragers - body language
What are the ADR spectrum methods?
- negotiation - conciliation - mediation - med-arb - arbitration - adjudication
What are unproductive negotiation techniques?
- position bargaining - not distinguishing between a content expert and a pair of hands - exclusion - interrogation - fixatin - conflation
What are the theories of conflict?
- power - rights - needs and interests
How can we fix these unproductive techniques?
- productive techniques - narrative explanation - understanding others
Conciliation Conference process?
1-2 hours 1. Arrival 2. Introduction by CO 3. Statements by parties 4. Discussion, options (joint and private meetings) 5. Offers and negotiations (joint and private meetings) 6. Agreement 7. Follow up
What is debriefing?
1. Co-mediator, supervisor, colleague, personal journal
What are the 7 fundamental elements of strategic negotiation?
1. Interests 2. Options 3. Standards 4. Alternatives 5. Relationship 6. Communication 7. Committment
Basic arbitration process
1. Notice of dispute 2. Preliminary hearings 3. Statements of claim 4. Statements of defence 5. Counterclaims 6. Discovery process 7. Hearings 8. Expert witnesses 9. Award
Go through a staged mediation process
1. Preparation 2. Process introduction 3. Disputant concerns 4. Mediator summaries 5. Listing issues 6. Exploring issues 7. Individual sessions 8. Creating options 9. Evaluation options 10. Negotiating outcome 11. Monitoring and revisiting 12. Closing/termination 13. Debriefing
What is preparation?
1. Preparation of self (& co-mediator) and physical setting
What are the core principles of the restorative justice theory ?
1. Role: elevates the victim's and the community's role in a criminal response 2. Accountability: holds offender's accountable to victims 3. Restoration: seeks to restore losses 4. Dialogue: restoration of loss 5. Responsibility: encourages offenders' to take responsibility 6. Amends: encourages offenders' to make amends 7. Reintegration: promotes upskilling
How many objectives of ADR are there?
5
What is the role of a conciliation officer?
A Conciliation Officer must make all reasonable efforts to bring the parties to agreement, having regard to the need to be fair, economical, informal and quick (S293). If unresolved be agreement, the Conciliation Officer must be satisfied about the Agent's "arguable case" (S297) - Review decisions - content and process - Distribute information to all parties - Facilitate discussions - Suggest solutions - Make recommendations - Refer to Medical Panel - Directions - 'Genuine Dispute'
What kind of space does group conferencing exist in?
A controlled space: - the facilitator provides the right amount of structure to keep the group on track but still allow to the individuals in the group to speak
What is an arbitrator?
A person to whom a dispute or difference is referred to be resolved by arbitration.
What is strategic negotiation?
A pre-determined plan of action to achieve a specific goal to potentially make an agreement in a negotiation with another party or parties. It is about acting with objectives in mind.
What are the ADR spectrum methods used for?
Achieving objectives of ADR
What is closing and termination?
Acknowledgement of effort, appropriate closure
What is adjudication?
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved.
Define listening
An active listener can't be partisan, or show that you're connecting with one party over another.
What is the mediator?
An impartial outsider who provides a safe environment, assisting disputants to design and tailor their own solutions, allowing disputants to tell and understand their own and other views. They clarify issues, exchange relevant information, develop options, and consider alternatives in order to come to a mutually beneficial resolution.
What are the characteristics of this model?
An impartial third party reconciles underlying interests so that negotiation can go forward. It is party-centred, focusing on problem-solving and transformation. It is usually voluntary, and may or may not be legally binding depending on what the parties want
Who created collaborative law theory?
Ardagh and Cumes
What are creating options?
Brainstorming, future focus, personal responsibility
Who created reintegrative shaming?
Braithwaite and Mugford (1994)
What is negotiating outcome?
Check agenda, packaging, monitoring & re-visiting, recording
Sources of Government support?
Civil Dispute Resolution Act 2011 (VIC)
What is the end result of negotiation?
Comes to a mutual agreement through a linear negotiation.
Who created preventative law theory?
Daicoff
Who created Comprehnsive law theory
Daicoff 2006
Who created therapeutic jurisprudence theory
David Wexler 1993
What are exploring issues?
Direct communication between parties, exchange of relevant information
What is process introduction?
Discuss session guidelines - safe - friendly - open - positive - confidential
What is exclusion?
Excluding key parties and losing the benefit of their key skills
Name on model of mediation
Faciliative model
What do FDR practitioners do?
Facilitate negotiations as a neutral third party, and advocate on behalf of the child's best interests. This includes managing the power imbalances between couple to ensure both are able to effectively use the process and negotiate
What is collaborative law theory?
Framework where lawyers meet with their clients around a table without a neutral third party and they commit to bypass litigation and to pursue settlement negotiations. Often they bring in experts such as financial advisors and psychologists to assist in resolution.
What are evaluation options?
Future focus; explore alternatives; objective criteria; reality-test; BATNAs
Explain productive techniques
Implement an appropriate structure or process FOR EG: PROVIDE TWO ii. Separation of interests, options, standards iii. Work against temptation to work as a content expert or a pair of hands iv. Professional should emphasise relationship, communication, commitment
What is mediation-arbitration?
Mediation-arbitration combines mediation and arbitration. First, a mediator tries to bring the parties closer together and help them reach their own agreement. If the parties cannot compromise, they proceed to arbitration for a final and binding decision.
What is prevantative law theory and what does it do?
Prevent litigation. - Anticipate legal action, and prevent it. - Aim - Proactive - Anticipation - Planning
Who created Third-Party Intervention theory
Pruitt and Rubin, 1986
Traditional justice sentencing
R v Williscroft [1975] VR 292, 300 'Every sentence imposed represents judge's synthesis of all the various aspects involved in the punitive process'
What is interrogation?
Seeking information by gradually undermining trust and respect of other parties. Questions that begin with 'why' sound like an interrogation
Difference between arbitration and litigation?
The difference is that in arbitration, the disputants generally agreed to the procedure before the dispute arose; the disputants mutually decide who will hear their case; and the proceedings are typically less formal than in a court of law. -->One extremely important difference is that, unlike court decisions, arbitration offers almost no effective appeal process. Thus, when an arbitration decision is issued, the case is ended.
Definition of arbitration
The hearing or determination of a dispute between parties by a person or persons chosen, agreed between them, a=or appointed by virtue of a statutory obligation.
Explain therapeutic jurisprudence theory
The study of the role of law as a therapeutic agent... the law ought to be designed to serve more effectively as a therapeutic agent.
Describe option 5 of the 7 fundamental elements of strategic negotiation
The willingness of the parties to work with each other, and the capacity for overt trust and respect. b. Early signs of friction need to be managed.
What are the objectives of conciliation?
To provide a process that is: - Informal - Fair - Economical - Quick Having regard to the provisions and objectives of the Act, in an attempt to bring the parties to an agreement.
Describe option 3 of the 7 fundamental elements of strategic negotiation
Works towards agreed common interests that are considered fair and legitimate, to achieve a mutually beneficial agreement that is considered fair and equal.
Common mistakes of lawyers in mediation?
a. A lawyer's role in mediation is to assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed. b. A lawyer's role will vary greatly depending on the nature of the dispute and the mediation process. It may range from merely advising the client before the mediation, to representing the client during the mediation and undertaking all communications on behalf of the client
Describe option 6 of the 7 fundamental elements of strategic negotiation
a. Concerns the information that needs to be exchanged to proceed efficiently.
What is the difference between a content expert and a pair of hands?
a. Content expert: superior technical knowledge, does things to people. b. Pair of hands: hired simply to do things for people and does not bring appropriate authority to discussions
Explain narrative explanation
a. Find out why without sounding like an interrogation b. Ask a series of open ended questions
What is position bargaining?
a. unwavering advocacy for one option
Define reflection and reframing
checking in and showing parties that you understand and that you've listened, but you may have neutralised the language and/or said it back to them that makes it more open and positive.
What is conflict?
conflict is perceived as a problem with seemingly no available alternative that will satisfy both parties (Pruitt and Rubin)
What is integrative negotiation?
creating new value rather than claim existing value
What is fixation?
fixation on one option/goal and neglecting others
Elements of negotiation will be...
identified and disentangled
Arguments for confidentiality?
imparitiality
What is comprehensive law?
law as a healing profession
Define summary
letting people know in the room that you understand what they've said by restating it.
Define minimal encouragers and body language
nodding, facial expressions, leaning forward, using your hands, attentive
Explain limited grounds for appeal to court
o Appeal to court is limited to issues such as on the grounds of a question of law, or an error of law, or bias of arbitrator.
What is the role of lawyers in mediation?
o Assist and advise o Engage in discussion o Non-adversarial o Terms of settlement/heads of agreement
What does/can FDR do?
o Assist parties to identify common views or point of differences o Provide a safe forum for discussion in order to resolve all issues
Key features of Children's COurt of Victoria?
o Est 1906 o 1958: whipping of children abolished o 1970s: most reformatories closed and probation a key practice o 1986: hearings open to public o 2000: independent court o 2001: Children's Court Clinic Drug
Key features of Koori Court?
o Est 2002 o Shepparton o 150 people go through VIC Koori Court a year o voluntary option o ultimate decision maker o oval table o communicatin o case management o referral o ownership & participation
Key features of NJC?
o Est 2007 o Collingwood o Established pursuant to Courts Legislation (Neighbourhood) Act (Vic) 2006 o Challenge to criminal lawyers o Specialist court o Access to support services o Deals with most cases coming before Magistrates ♣ EVALUATION • Reduced reoffending • Cost effective • Increased offendor compliance an dcommunity work • Crime reduction
Explain: costs can escalate
o If the arbitration is a complex dispute and say 3 arbitrators are required, the costs can easily exceed that of litigation. o Experienced arbitrators usually charge a high fee for their services. Add to that the venue hire fee, transcription costs etc. and you can end up with a huge bill.
Explain: confidentiality is not guaranteed
o It is a general principle of Australian judicial proceedings that legal proceedings take place in open court. The resulting publicity may not be desirable for disputing parties and hence the privacy offered by arbitration may present an attractive option as opposed to litigation. However, parties to international commercial arbitration may be surprised to learn that confidentiality in arbitration cannot be assumed. Despite arbitration being essentially a private process, this does not necessarily mean that it will be confidential.
Key feature of Drug Courts?
o Problem solving/therapeutic justice principles used o Non-adversarial o Reduce recidivism o Mental health issues o Economical o Dialogue o Relies on sympathetic judiciary
What are the objectives of ADR?
o Resolution of disputes o Fair processes o Achieving acceptable outcomes o Providing lasting outcomes o Using resources efficiently
Explain ethical issue of: assisting weaker party
o Should a mediator assist a weaker party?
Explain ethical issue of: fairness of settlements
o To what extent are mediators responsible to ensure the substantive fairness and reasonableness of mediated settlements? o Procedurally fair o A resolve reached by the parties that the mediator believes is unfair? o To what exent should the mediator be held responsible for an outcome?
Explain ethical issue of: recommendations
o To what extent can a mediator provide recommendations or advice to parties to appear to require this assistance? o What if a party asks for advice? o What if there is a party who is unrepresented, and the other is represented?
Explain ethical issue of: unconscionable settlements
o What are the responsibilities of mediators when the settlement is unconscionable in nature?
When is it most commonly used?
o undisputed harm conflicts, ♣ poorly resolved incidents, ♣ common concern in families or neighbourhoods
Define questions
open-ended questions; don't rush
Explain the theory of rights
parties need help in argumentation and advocacy, competing claims or entitlements
Explain the theory of power
parties need help in organising and mobilising, struggle for domination
Explain the theory of needs and interests
parties need help in problem solving
Explain ethical issue of: interests of others
parties who are not present
Explain can become too much like litigation
where lawyers are representing the parties and they turn it into a court process, with endless discovery etc. which also can blow out costs and cause huge delays in time.
What is interest-based negotiation?
works towards agreed common interests/goals
What is principled negotiation?
works towards working with transparent principles
