Help Us with Our Mediation Project! Forum

[Calvin Murphy]

My classmate and I are starting this thread to explore the process of mediation as a method of alternative dispute resolution. Our class has been tasked with reaching out to the legal community to discuss the topic. In that regard, for those of you who know little about mediation, what would you like to know? For those who have experienced it in practice, what has your experience entailed and how do you utilize mediation in practice??

In our next post, we will present a fact patten and ask questions about it. Feel free to comment on either post--and please feel free to comment in any capacity with regard to your interest or experience in mediation or ask us any questions that you have about mediation.

[JRT061016]

Here's the fact pattern:

Harry’s invisibility cloak went missing from his dorm room, which he shares with Ron, Seamus, Dean, and Neville. Ron and Harry have been arguing a lot lately, and Harry accused Ron of stealing his invisibility cloak. Harry has threatened to take this matter to the High Court of Hogwarts, but he knows he has a high burden of proof. If Harry is able to prove that Ron took his cloak, Ron will be expelled from Hogwarts for stealing a priceless possession.

While Harry might not necessarily want Ron expelled (they are friends, after all)...he would not be happy if Ron got off the hook entirely. As such, he is happy to take the matter to the High Court of Hogwarts. If this were to happen, Seamus would testify to seeing Ron enter the dorm room and leave with a full bag shortly before the cloak went missing. Dean told Harry that he saw Ron with the cloak, but Dean is not available to testify.

Ron did, in fact, take the cloak...but only after Neville mentioned that Harry would not be upset if any of them borrowed it temporarily (and Ron certainly intended to return the cloak). Neville would be willing to testify to this fact at the High Court of Hogwarts.

All decisions from the High Court of Hogwarts are based on the magical standard of whatever the professors filling the Court believe to be just. At this point Harry has the choice whether to take the matter to the High Court or not, and he has agreed to mediate the matter with Ron, with Hermione acting as the third-party mediator. Hermione is a long-time friend of both Harry and Ron.

A FEW QUESTIONS TO GET THE CONVERSATION STARTED

• Do you think it was a good idea for this case to go into mediation before it went to trial? Would you have taken it to the High Court, if you were in Harry’s shoes?
  What do you think about selecting Hermione to be the mediator?
  What are some creative solutions for this issue?
  If you were Harry’s advocate, what would be your opening demand?
  If you were Ron’s advocate, what would be your counteroffer?

[QuidProKidney]

I'm into the idea of having Hermione being the mediator, since she's friends with both guys. Not knowing a whole lot about mediation, it seems to me that people generally love the idea of a totally neutral mediator who has no connection to either party and will therefore have an objective view of fairness. I think a far better alternative is to have a mediator who is an equally good friend to both parties--that way, the mediator has an idea of each party's best interests, and has at least a small personal stake in helping come to a solution that serves both people well and fairly.

[bjsesq]

I'm into the idea of having Hermione being the mediator, since she's friends with both guys. Not knowing a whole lot about mediation, it seems to me that people generally love the idea of a totally neutral mediator who has no connection to either party and will therefore have an objective view of fairness. I think a far better alternative is to have a mediator who is an equally good friend to both parties--that way, the mediator has an idea of each party's best interests, and has at least a small personal stake in helping come to a solution that serves both people well and fairly.

....dp joke?

[Calvin Murphy]

I'm into the idea of having Hermione being the mediator, since she's friends with both guys. Not knowing a whole lot about mediation, it seems to me that people generally love the idea of a totally neutral mediator who has no connection to either party and will therefore have an objective view of fairness. I think a far better alternative is to have a mediator who is an equally good friend to both parties--that way, the mediator has an idea of each party's best interests, and has at least a small personal stake in helping come to a solution that serves both people well and fairly.

I think you picked up on a really interesting point here, as it is common for mediators to ask each party whether they have any prior experience with one another, or if they know each other in any way.

I would agree that the mutual friendship brings an interesting angle to the mediation with regard to interests, but I would also argue that the lack of relationship to the neutral third party is beneficial. Part of what makes mediation a better option than negotiation in certain instances is the fact that the mediator can be enlisted by either side to uncover interests that may be hard to explore in a traditional two-party negotiation. The mediator can facilitate the discussion in a way where they are hard on the issues but soft on the people--potentially making it easier to discuss touchy subjects. In a mediation where the third party is friends with both sides, they might have an interest in not offending one side or the other, making it difficult to discuss these touchy subjects.

[sublime]

..

[bananasplit19]

Mediation is good, especially when emotions run high (between friends, for example, as in this case). It creates a more flexible environment that attempts to facilitate compromise as opposed to a potential winner-takes-all based on the capricious whims of the court. This is particularly true because it appears that there is no malice here, just an oversight or misunderstanding between friends. So a mediated solution might be more possible here than in a situation between enemies trying to mess each other up. I don't think Hermione is ideal, though. Sure, she could perhaps better empathize and reason with the two parties since she's good friends with both of them, but that might also cause inefficiency in getting to a solution because she might have added bias or motivation to not step on a particular person's toes.

In conclusion, Ron's counsel should insist that Harry stay the hell away from his client's sister. Cheeky bastard thanks he can enter her Chamber of Secrets because he's got dead parents. He's not Batman.

[Calvin Murphy]

Mediation is good, especially when emotions run high (between friends, for example, as in this case). It creates a more flexible environment that attempts to facilitate compromise as opposed to a potential winner-takes-all based on the capricious whims of the court. This is particularly true because it appears that there is no malice here, just an oversight or misunderstanding between friends. So a mediated solution might be more possible here than in a situation between enemies trying to mess each other up. I don't think Hermione is ideal, though. Sure, she could perhaps better empathize and reason with the two parties since she's good friends with both of them, but that might also cause inefficiency in getting to a solution because she might have added bias or motivation to not step on a particular person's toes.

In conclusion, Ron's counsel should insist that Harry stay the hell away from his client's sister. Cheeky bastard thanks he can enter her Chamber of Secrets because he's got dead parents. He's not Batman.

Does your answer change depending on the setup of the mediation?

For example, some mediators prefer to operate entirely within caucus--the mediator shuffles between rooms, with the two disputing parties never meeting face-to-face, other mediators wish to conduct the majority of the mediation in joint session (everyone in the same room), and many mediators looks to strike a balance between the two.

Also...if Hermione were to take an evaluative approach vs. a facilitative approach, how does your answer differ?? To clarify, some mediators tend to attempt to move the conversation forward without ever giving an opinion on either party's case...whereas other mediators will attempt to discuss the merits of either side's case in order to move one party or the other (or both) closer to settlement.

[JRT061016]

Any thoughts about how the use of mediation might differ based on if the fact pattern was about a commercial dispute, or a landlord/tenant dispute? Is mediation more effective or less effective in certain contexts?

[yolo420blazeit]

So, I think mediation is good in this fact pattern since neither party wants ron expelled. As banana said, there's no real ultimatum in mediating and probably would come to a result that's favorable to both parties (harry's form of punishing ron and ron not getting expelled). One problem, though, is that I don't think Hermione would be a good mediator, since she's too personally connected with both parties and could have a hard time overcoming bias. Also, because of the personal connection, it may be hard for her to mediate at all, while trying not to hurt either person's feelings. But she seems smart. not a make or break imo.
Also, can't magic just make two invisibility cloaks? What's up with theft prevention and security at hogwarts? Can they sue Hogwarts? They have a shitty track record of campus security. What are they doign with all their endowment? I would check up on whether dumbledore is laundering money.

[bananasplit19]

Also, can't magic just make two invisibility cloaks?

You think making one of the Deathly Hallows is easy? Filthy casual.

Does your answer change depending on the setup of the mediation?

For example, some mediators prefer to operate entirely within caucus--the mediator shuffles between rooms, with the two disputing parties never meeting face-to-face, other mediators wish to conduct the majority of the mediation in joint session (everyone in the same room), and many mediators looks to strike a balance between the two.

Also...if Hermione were to take an evaluative approach vs. a facilitative approach, how does your answer differ?? To clarify, some mediators tend to attempt to move the conversation forward without ever giving an opinion on either party's case...whereas other mediators will attempt to discuss the merits of either side's case in order to move one party or the other (or both) closer to settlement.

I don't think the setup of the mediation matters because the concerning factor for me is Hermione's objectivity, not the face-to-face interactions between the parties.

[yolo420blazeit]

Also, can't magic just make two invisibility cloaks?

You think making one of the Deathly Hallows is easy? Filthy casual.

Does your answer change depending on the setup of the mediation?

For example, some mediators prefer to operate entirely within caucus--the mediator shuffles between rooms, with the two disputing parties never meeting face-to-face, other mediators wish to conduct the majority of the mediation in joint session (everyone in the same room), and many mediators looks to strike a balance between the two.

Also...if Hermione were to take an evaluative approach vs. a facilitative approach, how does your answer differ?? To clarify, some mediators tend to attempt to move the conversation forward without ever giving an opinion on either party's case...whereas other mediators will attempt to discuss the merits of either side's case in order to move one party or the other (or both) closer to settlement.

I don't think the setup of the mediation matters because the concerning factor for me is Hermione's objectivity, not the face-to-face interactions between the parties.

according to disney, with magic, and by believing in yourself, anything is possible

[JRT061016]

Thanks to everyone who helped us out! If you're interested in learning more about mediation, check out JAMS (http://www.jamsadr.com/) or the ABA Mediation Committee (http://apps.americanbar.org/dch/committ ... m=DR020500). If you're especially interested in becoming a litigator, it's a good idea to consider mediation as a method of dispute resolution, since the vast majority of cases are ultimately settled out of court. Thanks again!