Welcome to

Negotiation Skills
Ricardo Coutin
Economist, Master in Project Management, PMP
Course’ Instructor – Business
[email protected]
Week #12
To provide a comprehensive
understanding of
Arbitration and Mediation
as effective alternative
dispute resolution
mechanisms, highlight their
differences, similarities,
processes
Arbitratio
n
• Definition of Arbitration: a
consensual process where
parties agree to resolve their
disputes outside of the
traditional court system by
submitting them to an
impartial third party for a
binding decision.
• William W. Park
Mediation

• Mediation: mediation is a voluntary and confidential

process in which a neutral third party, known as a
mediator, facilitates communication and negotiation
between disputing parties to help them reach a mutually
acceptable resolution.
• Unlike arbitration, the mediator does not render a
decision but instead assists the parties in exploring
their interests and generating options for
settlement. Mediation is known for its informality,
flexibility, and focus on preserving relationships
between parties.
Mediation

.
• Mediation is defined as a process
where a third-party neutral helps
disputing parties communicate,
understand each other's perspectives,
and reach a mutually acceptable
agreement without imposing a decision
upon them.
• Carrie Menkel-Meadow
https://www.youtube.com/watch?v=K_2NrlhwTfQ
Arbitration
Procedure
1. Selection of Arbitrator
2. Pre-Hearing Procedures
3. Hearing Process

Park, W. (2017). "Arbitration Law and Practice."

 Types of
Arbitration
1. Ad Hoc vs. Institutional : Ad hoc
arbitration is arranged by parties without a
recognized institution, while institutional
arbitration follows rules set by established
arbitral bodies.

2. Domestic vs. International Arbitration:

Domestic arbitration involves parties within
a single country, whereas international
arbitration addresses cross-border disputes
between parties from different nations.

3. Mandatory vs. Voluntary Arbitration:

Mandatory arbitration is compelled by law
or contract, while voluntary arbitration is
chosen by mutual agreement of the parties
involved.
Park, W. (2017). "Arbitration Law and Practice."
Mediation: An Overview

• Process Description: Mediation involves a neutral mediator facilitating

communication and negotiation between parties to help them reach a
mutually acceptable resolution.

• Role of Mediator: The mediator acts as a facilitator, guiding parties

through discussions, assisting in clarifying issues, and fostering
constructive dialogue without imposing decisions.

• Benefits of Mediation: Mediation offers parties confidentiality,

informality, and control over outcomes, promoting quicker resolutions, cost-
effectiveness, and preservation of relationships.

Menkel-Meadow, C. (2016). "Mediation: Practice, Policy, and

Ethics."
 Mediation Process

1. Initial Meetings
2. Identifying Issues
3. Negotiation and Settlement

Menkel-Meadow, C. (2016). "Mediation: Practice, Policy, and

Ethics."
Mediation Techniques

Facilitative Mediation: A mediator assists parties in communicating and

generating their own solutions without offering opinions or evaluations.

Evaluative Mediation: The mediator provides opinions or evaluations

on the strengths and weaknesses of each party's case to guide
settlement negotiations.

Transformative Mediation: Focuses on empowering parties to understand

each other's perspectives, enhancing communication, and fostering shifts
in their relationship dynamics to reach mutually beneficial resolutions.
Key Differences Between Arbitration
and Mediation
Decision-Making Authority: In arbitration, the arbitrator(s) render a binding
decision based on evidence and arguments presented, whereas in mediation,
the parties retain control over the outcome and make the final decision
themselves.

Role of Third-Party Neutral: In arbitration, the arbitrator serves as a decision-

maker, imposing a resolution on the parties, while in mediation, the mediator
acts as a facilitator, assisting parties in reaching a mutually acceptable
agreement without imposing decisions.

Finality of Outcomes: Arbitration typically results in a final and binding

decision that is enforceable by law, whereas mediation outcomes are not
binding unless parties choose to formalize their agreement into a legally binding
contract or agreement.

Riskin, L. L. (2018). "Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the
Perplexed."
Ethics in Arbitration and Mediation
Duty of Neutrality: Arbitrators and mediators are ethically
obligated to remain neutral, ensuring they do not favor any party
involved in the dispute and maintain impartiality throughout the
resolution process.

Confidentiality and Impartiality: Both arbitration and mediation

uphold the principles of confidentiality, safeguarding sensitive
information shared during proceedings, and ensuring that
arbitrators and mediators maintain impartiality by refraining from
disclosing confidential information and avoiding conflicts of interest.

Riskin, L. L. (2018). "Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the
Perplexed."
Ethics in Arbitration and Mediation
Duty of Neutrality: Arbitrators and mediators are ethically
obligated to remain neutral, ensuring they do not favor any party
involved in the dispute and maintain impartiality throughout the
resolution process.

Confidentiality and Impartiality: Both arbitration and mediation

uphold the principles of confidentiality, safeguarding sensitive
information shared during proceedings, and ensuring that
arbitrators and mediators maintain impartiality by refraining from
disclosing confidential information and avoiding conflicts of interest.

Riskin, L. L. (2018). "Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the
Perplexed."
Role of Technology in
Alternative Dispute
Resolution
•Online Dispute Resolution Platforms:
Utilizing advanced technology, online dispute
resolution (ODR) platforms facilitate the
resolution of disputes through digital channels,
offering convenience, accessibility, and
efficiency.
•Virtual Hearings: With the rise of virtual
communication tools, such as video
conferencing and online meeting platforms,
ADR processes increasingly incorporate virtual
hearings, allowing parties to participate
remotely while maintaining the benefits of face-
to-face interactions, thereby enhancing
accessibility and reducing logistical barriers.
 Future Trends in ADR
•Integration of ADR into Legal Systems: There
is a growing recognition of the value of alternative
dispute resolution (ADR) methods within legal
systems worldwide, leading to increased efforts to
integrate ADR mechanisms into formal legal
frameworks, promoting efficiency and access to
justice.
•Expansion of ADR Methods: The future of ADR
involves the continued expansion and
diversification of dispute resolution methods
beyond traditional arbitration and mediation, with
emerging approaches such as collaborative law,
conciliation, and hybrid processes catering to
diverse needs and preferences of parties involved.
•.
Mediation Case: McDonald's
Coffee Case (Stella Liebeck
v. McDonald's Restaurants):

•This famous case involves Stella

Liebeck, who sued McDonald's after
suffering severe burns from spilled hot
coffee. The case is often cited as an
example of the effectiveness of
mediation in resolving disputes. The
parties ultimately settled through
mediation.
Apple and The legal battle between the two technology giants

Samsung’
spanned several years and involved allegations of
patent infringement and intellectual property theft
related to smartphones and tablets.

s Dispute
Resolutio
Instead of opting for protracted litigation, Apple and
Samsung engaged in negotiation attempts to resolve
their disputes. Over the course of numerous

n Case
negotiation sessions, both parties explored various
settlement options and legal strategies to reach a
mutually acceptable agreement.

Study Despite several rounds of negotiations, Apple and

Samsung could not reach a comprehensive settlement
on all issues. However, they did manage to settle
some disputes through agreements such as
cross-licensing patents in certain jurisdictions
and dropping certain legal claims against each
other.
Cooperative
Power
• Responding to
resistance from others
• Ask open questions
to reframe
resistance
• Find options
• Redirect
• Move to the positive
• Go back to legitimate
needs and concerns
 You are required to create a 15 to 20 slides for the
presentation. You will have 20 – 25 minutes to cover the topic

Quick
Your group should pick one topic of the course and present it.

Guidelines Each slide should contain concise and relevant information

supported by visuals, diagrams, or examples.

for the Use citations to support your points and ensure accuracy of
information.

Presentation This will count as the last assignment which is a group

presentation:
(weeks 13 • Six groups will present on class 13.
• Five groups will present on class 14.

and 14): The group presentation is worth 15% of your final grade.

Following the group presentations, a final exam will cover the

topics discussed in class, including Arbitration and Mediation.
Quick Guidelines for the
Presentation (weeks 13
and 14) – 15%:
• Use clear and concise language.
• Include relevant visuals to enhance understanding.
• Ensure consistency in formatting and design.
• Practice the presentation to maintain a smooth flow.
• Encourage audience interaction through Q&A sessions.
• Respect time limits and allocate sufficient time for each section.
• Provide proper citations for all information presented.
• Engage the audience with real-life examples and case studies.
Presentations for Week
13
Presentations for Week
14
Next
 ANY
QUESTIONS?
Thank you!

FlemingCollegeToronto.ca