The Education and Training of Mediators

THE FIFTH INTERNATIONAL CONFERENCE ON MULTI－NATIONAL JOINT VENTURES FOR CONSTRUCTION WORKS KUALA－LUMPUR, MALAYSIA October 21-22, 2009

The Education And Training Of Mediators: Questions and Answers about Mediator Training

John Barkai

Professor of Law William S. Richardson School of Law, University of Hawaii at Manoa 2515 Dole Street, Honolulu, Hawaii, 96822 USA [email protected]

ABSTRACT

Because mediation has become one of the major ways to resolves disputes, there is a great interest in the training of mediators. This paper first describes mediation and then discusses mediation training by answering questions such as: What kinds of conflicts can be mediated? Who can and should become a mediator? Do you need to be a lawyer to be a mediator? Can non-lawyers be good mediators? Where can people learn more about mediation? Is mediation training necessary? What would be included in mediation training? Where to go to take mediation training? What does it mean to be a “certified” as a mediator? How do you get hired as a mediator?

Keywords: Mediation, alternative dispute resolution (ADR), education, training, certification.

What is mediation? Mediation is usually defined as the use of an impartial third party – the mediator – to help parties resolve a conflict. Mediation is sometimes called “conciliation.” Unlike an arbitrator or judge, the mediator does not have the power to make a binding decision that resolves a conflict. However, by facilitating the communication between the negotiators and using a variety of mediation techniques (including private meetings with each party), the mediator can assist the parties to settle their dispute. Almost all mediations take place after a negotiation has failed and the parties are at an impasse. In other words, the parties to a dispute have already tried to resolve their differences through negotiations, but they were not able to negotiate an agreement by themselves. Mediation can be thought of as the next level of negotiation. In this level of negotiation, a mediator assists with the negotiation. The mediator's assistance can dramatically change the negotiation. Mediation usually results in a negotiated agreement.

There are many advantages to mediation. Mediation is faster, less expensive, and more informal than either litigation or arbitration. The parties to the mediation are able to select the mediator rather than having a judge assigned to them. The parties have an opportunity to express emotions and say things that would be considered irrelevant in a courtroom or arbitration. The dispute remains private and confidential. No one but the parties knows about the dispute. Parties can use lawyers as much as, or as little as, they like. The parties decide who participates. Creative solutions are possible, not just the limited remedies available in court or at arbitration. And for business people, perhaps the most important advantage is that the parties remain in control of their own conflict. They determined the outcome, not a judge

1 or arbitrator. If the parties can come to a mutually agreeable solution with the mediator's assistance, then they have an agreement. If the parties do not reach an agreement, they can pursue other remedies.

Mediation is one of several ADR methods for resolving disputes. ADR stands for Alternative Dispute Resolution. The main two types of ADR are mediation and arbitration. With litigation in court, the government has given the power to the judge or the jury to make a binding decision about who should win the dispute and on what terms. In arbitration, the parties in conflict have made a contract to give the arbitrator the power to make a binding decision. In mediation, there is no decision made by a third party (the mediator), but the mediator can provide considerable assistance in resolving the conflict.

Arbitration is like a private, and yet informal court. The parties to the arbitration can jointly select the arbitrator. After listening to evidence presented by both sides, the arbitrator makes a final decision which is binding on the parties. In traditional arbitration, there is no appeal from the arbitrator’s decision, which is called an arbitration award. There are many more ADR processes than just arbitration and mediation, such as non-binding arbitration, mini-trial, summary jury trial, neutral fact-finding and early neutral evaluation (ENE), to mention just a few. But ADR usually means arbitration or mediation.

There are many styles of mediation. Although there are no universally defined procedures for mediation, most mediations follow a rather predictable pattern of opening statements by the mediator and parties, followed by the collecting of information, assisted negotiation, and, hopefully reaching a mediated agreement. In some styles of mediation, the mediator only facilitates and does not evaluate. The mediator helps the parties analyze their conflict and the consequences of not reaching agreement (what negotiation theorists call the “BATNA” - the Best Alternative To a Negotiated Agreement).

In some styles of mediation, when the parties do not seem to be able to negotiate a settlement, later in the mediation session the mediator becomes more evaluative about the parties positions and chances of winning if they would need to proceed on to arbitration and or a trial. Depending upon the style of mediation and the type of case being mediated, the mediator might then make specific recommendations to the parties about suggested terms for settlement. However, the recommended terms of settlement are not binding on the parties. The parties either can agree to accept that recommendation, or they can reject the proposed terms and continue to meditate or even end the mediation.

Harold Abramson (2005) has suggested that to better understand mediation in a particular case, we should focus on one of the many adjectives that could modify the word "mediation." The word modifying the noun “mediation” can describe the style of mediation (facilitative or evaluative, transformative (Bush & Folger, 1994), narrative, understanding (Friedman & Himmelstein, 2008), etc.), the type of case being mediated (community, commercial, construction, family, employment, probate, tort, peer mediation for school-aged children, etc.), as well as the breath of issues considered in the mediation (narrow or broad). In small cases, especially about neighborhood and family disputes, the parties might go to a community mediation center and appear before a volunteer mediator who was provided by the mediation center. The mediator will not meet the parties before the mediation, and the mediator will have little if any information about the dispute before the mediation begins. The mediation will be free, or only cost a minimal charge. On the other hand, in big case mediation, such as a construction dispute or some other type of complex civil case, the mediator usually charges a substantial hourly fee uses a pre-mediation agreement to clarify the process of the arbitration, engages in a number of pre-mediation activities such as meeting with the parties and lawyers before the mediation, requires the exchange of important documents prior to the mediation, and may ask for submission of a pre-mediation statement explaining the factual and legal basis for each side's position.

The History of Mediation Ever since there have been three people in the world, people have probably been performing ADR activities by helping the others resolve their conflicts. For centuries, third parties have

2 performed the functions of being arbitrators and mediators, sometimes blending the two processes. In the past 20 to 30 years, in many countries of the world, mediation has become both an acceptable and a preferred method of resolving major disputes that otherwise would have gone to court or arbitration. Construction disputes, with many parties in conflict and a lot of money, time, and other resources at stake, are particularly good cases for mediation.

For thousands of years, people became mediators after substantial life experiences, and they usually had some power or position in their community. There is now a belief that the skills of a mediator can be identified and taught to new, potential mediators. People can learn to be mediators by taking a mediation course or training. People no longer have to wait until they are old enough to have gray hair before they can do mediation.

What kinds of conflicts can be mediated? Any dispute can be mediated. The mediation process may have similar components no matter if the dispute is about a big international construction dispute, a commercial dispute, a conflict between workers and owners, a salary dispute between a professional athlete and the team’s owner, an automobile accident, a dispute about fruit falling into a neighbor’s property, or children fighting on a school playground. Mediation is an excellent process to resolve any dispute that has not yet been able to be resolve through negotiation.

Who can and should become a mediator? In theory, anyone can become a mediator. In the United States and in most, if not all, countries of the world, there are no minimum qualifications for becoming a mediator. Anyone can claim to be a mediator for hire even if they have had no mediation training or experience whatsoever. Even my 10 year-old daughters could put a sign on our house and advertise their services as construction mediators. Of course, they would never be hired, but the point is that there are no minimum qualifications to becoming a mediator. Mediation is an unlicensed profession.

Some NGOs and courts maintain lists, or what are called “panels,” of potential mediators. To receive mediation referrals from these courts or to be on a mediation panel of the NGO usually requires that the mediator have a certain amount of mediation training or experience. Parties with the dispute can examine these lists to find a mediator for their dispute, or the organization may provide the names of several people on their panel to parties who have a dispute and are seeking a mediator.

These organizations may have their own qualification requirements. So for example, if you wanted to be on the list of mediators for the Chartered Institute of Arbitrators, the Kuala Lumpur Regional Centre for Arbitration (KLRCA), the Malaysian Mediation Centre, the Japan Commercial Arbitration Association, the American Arbitration Association, some other NGO, or a list of mediators maintained by a court, you would need to meet the qualification requirements of that organization. Typically those requirements include some minimal amount of mediation training, and/or some prior mediation experience.

Do you need to be a lawyer to be a mediator? Absolutely not. You do not have to be a lawyer to be a mediator. The reason so many mediators are lawyers is because lawyers have significant experience with disputes, conflict resolution, negotiations, and more recently with mediation. Many of the lawyers who mediate construction disputes have had substantial experience litigating those types of cases. Many of the most successful mediators in the United States are former trial lawyers. In fact, most of the construction mediators are still trial lawyers with a part-time mediation practice. It seems natural that many lawyers would be interested in doing mediation, and their numbers are growing. However, there are only a few people who mediate as a full-time occupation. And do not forget, there are about 1.1 million lawyers in the United States today. I leave it to you to determine if there are too many lawyers in the United States but at least we have a large supply of possible mediators with experience in disputing and negotiations.

Can non-lawyers be good mediators?

3 Of course non-lawyers can be good mediators. I would expect that because Asia has far fewer lawyers than the United States, that a large number of mediators in Asia are non- lawyers. Perhaps the majority of Asian mediators are, or will be, non-lawyers.

The mediators sometimes talk about “process” and “content.” Content is the subject matter of the dispute (construction, personal injury, employment, family, medical malpractice, etc.). Process refers to how the dispute is being resolved. Hopefully the process for resolving most disputes is the process of negotiation. But if negotiation does not produce an agreement, it is possible to try the process of mediation. If mediation does not result in an agreement then the parties are likely to turn to the process of arbitration, a trial in court, or leave the dispute unresolved.

When we talk about using the mediation process to resolve disputes, the mediator may have expertise about the general content of the dispute or the process for resolving the dispute. Usually, you would prefer a mediator who is both a content expert and a process expert. Contractors, architects, engineers, and other people involved in the construction field are content experts in the field of construction. They know more than lawyers about construction. They have expertise and experience that would help them resolve construction disputes, but most of them do not have process expertise in mediation. They might be good at negotiation but they have not had training at resolving disputes through mediation. The mediation training can provide process expertise in mediation to the people with content expertise in the construction field.

What takes more time to develop - content expertise or process expertise? The obvious answer is that you can learn the process much much faster then you can learn the content. Although it may have taken many years of work experience and 4 or more years of college to develop content expertise in the construction field, it is possible to develop some process expertise in mediation in a one-day mediation training. However I would certainly recommend a mediation training program of at least 2 to 3 days, if not a full 40 hour program. If I were developing a mediation training program for people who already have content expertise in the construction field, I would like to have two or three days to conduct the training and a full week would be best. And even a full week of training will not make you an expert mediator. Like most things in life, mediators get better with practice and experience.

Knowing the law is not the most important part of mediation. Recent studies about why mediators are successful indicate that success in mediation lies in developing rapport with the disputing parties. (Goldberg, 2006). The mediator’s ability to gain the parties’ confidence, to demonstrate a high degree of integrity, and to appear to be smart and well-prepared, are as important, or more important, than knowing about contract law (Goldberg & Shaw, 2008). Therefore it makes sense that non-lawyers can become excellent mediators.

Probably the most frequently used mediator in Hawaii is Keith Hunter. Mr. Hunter is not a lawyer, but he has extensive experience in dispute resolution, including arbitration and mediation. He was the regional director of the American Arbitration Association’s office in Hawaii for many years and now runs a for-profit business working exclusively in the area of dispute resolution. Keith Hunter’s ADR business is called Dispute Prevention and Resolution (DPR) http://www.dprhawaii.com/. DPR is just one of many for-profit dispute resolution businesses in the United States that specialize in mediation and arbitration. Mr. Hunter mediates almost every work day. He has administered over 10,000 ADR proceedings and has personally mediated over 6,000 disputes. He is one of a number of people in the United States who have mediated between 3,000 and 6,000 disputes. With experience comes expertise.

Perhaps one of the major reasons why Asia has been slower than the United States to develop the practice of mediation is that Asia does not have many lawyers compared to the United States. It is not that lawyers necessarily make better mediators than people in the construction field, it is simply that lawyers seem to be more interested in and willing to take the time to be trained as mediators and to develop expertise in mediation. Many lawyers already spend a great deal of their time with conflicts. People in the construction world would

4 rather spend as much time as possible building construction projects and as little time as possible in conflict and disputes. Many lawyers spend most of their time in conflicts and very little time building anything. Lawyers seem more willing to take time away from their normal work to attend a mediation training than non-lawyers. They see mediation as another form of their current work.

About a decade ago Professor Toshihiko Omoto from Kyoto University and I were part of an APEC (Asia Pacific Economic Cooperation) committee with a mission to increase the use of mediation in Asia. As we compared Asian and American business practices, we realized that it was easier to gather together and educate people about mediation if the target audience was lawyers, not business people. Asian business people want to do business. They do not want to start a new career mediating disputes. In the United States, lawyers see mediation as an extension of, as well as a challenging, attractive alternative to the work they have been doing for many years. Many cases they litigate end up in mediation. When American business people have a dispute, they bring that dispute to their lawyer who may suggest mediation or may be required to try mediation by the courts. So American lawyers and the courts are funneling disputes towards mediation. Because Asian business people do not use lawyers nearly as much as American business people and they do not bring lawsuits as frequently as Americans, mediation is suggested for fewer disputes. Furthermore, American law students are also learning about mediation during their law school education. They are taught to expect mediation to be part of their law practice.

Where can people learn more about mediation? There are many opportunities to learn about mediation and develop mediation skills. You could learn is a lot about mediation without ever even leaving your office. There are many books available about mediation, and reading any one of them would be helpful in understanding more about mediation. You can learn much about mediation on your personal computer. Google the word "mediation" and you will get over 26 million “hits.” There are many excellent negotiation, mediation, and ADR websites such as http://mediate.com. There are a variety of internet blogs focusing on ADR topics. There is a blog that lists a worldwide directory of ADR blogs, http://adrblogs.com/category/mediation-blogs/. There is even a mediation blogger in Malaysia http://malaysianmediation.blogspot.com/.

There is a distinction between learning about mediation and learning how to mediate. You can learn about mediation by reading books, using internet sources, taking a class, or attending a presentation on mediation. But if you want to learn how to “do” mediation, you probably need a mediation training.

There are many groups that train people how to become mediators. Mediation training is becoming a big business. Google the phrase "mediation training," and you will receive almost 9 million "hits." The most important part of a mediation training is having a substantial amount of role-play and simulation time during which participants actually practice how to mediate. Many mediation trainings spend 40 to 50% of their class time with the participants doing exercises and various role-plays.

Many mediation trainings are general trainings dealing with a wide variety of disputes. Participants learn about the basic mediation process and how to apply mediation to a wide variety of disputes. Anyone can attend such a training - you do not have to be an engineer, an architect, a lawyer, or from any other profession noted for its disputes and conflicts. Often a general mediation training is the first mediation training that a potential mediator takes. Usually such training programs range from two days to a 40 hour training.

Some advanced mediation trainings are focused on mediation of particular types of litigated cases, such as divorce and other family law, construction, workplace, and healthcare. Although these specific programs can be “advanced” trainings designed for people who have completed a basic mediation course, most such trainings also include basic mediation topics. What is most common for these kinds of advanced trainings is that the participants will come with particular subject matter expertise.

5 There is no particular right way to do mediation although there is much discussion about “best practices” for mediation. Because mediation can be done in a variety of styles, mediation trainings vary greatly. In fact, each training organization may have its own model for teaching mediation. For example, the two most common mediation models used in Hawaii include the Hawaii model for mediation created in the first community mediation center in Hawaii as well as a mediation model commonly taught in California. In Hawaii, we are well known for what is sometimes called the “Diamond Model” of mediation (Barkai, 1992). California's Pepperdine Law School, whose dispute resolution program has been consistently ranked as the number one program for many years, structures many mediation trainings around its STAR model of mediation. STAR is a mnemonic for the words Stage, Task, Action, and Result (Krivis, 1997). These are just two of many models of mediation.

Each mediation trainer or training program might have its own model of mediation. All of the models will be much more similar than different. No matter what mediation model is followed, all trainings will usually include a substantial amount of role-play and simulation, an explanation of the mediation process, communication skills for mediators, how to deliver an opening statement, how to discover and develop the facts, how to help parties negotiate during the mediation, how to break impasses, how to draft agreements, and ethical issues for mediators. Of course if it was anticipated that the mediators will be working with people from different cultures, the training should include some work on cultural differences, cross-cultural communication, and perhaps a review of the work of Edward t. Hall and Geert Hofstede, who are two of the leading cross-cultural experts. (Barkai, 2008a & 2008b)

Initial mediation trainings are just the beginning of mediator training for serious mediators. Experienced mediators who mediate as part of their professional work will continue to attend and even conduct mediation trainings. They will belong to professional associations of mediators and will regularly attend presentations and conferences about mediation. Just as you attend a number of meetings and conferences about your profession, experienced mediators will continue to educate themselves and others about mediation. There are many local and national mediation associations which sponsor programs about mediation. The largest ADR event in the United States is the annual meeting of the American Bar Association’s (ABA) Section of Dispute Resolution. For the past 10 years over 1000 people per year have attended this meeting which lasts for 3 to 4 days.

Is mediation training necessary? Are some people "born" or natural mediators who do not need any training? Certainly some people seem to have a natural talent for mediation. They seem to have a special ability for bringing people to agreement and working through complex conflicts. Parties who are in a conflict can select you to mediate their dispute whether or not you have had any mediation training.

Although you can practice mediation without being formally trained, most mediators voluntarily undergo at least an introductory training course. Even the performance of "natural" mediators can be improved with training. Mediation training will significantly increase the probability that a mediator will be able to help people resolve their conflicts.

Mediation training can also provide a model which can be a roadmap for the mediator and a source of comfort for the disputants. The integrity and credibility of mediation is promoted by having trained mediators. Trainees learn about the sources of conflict, a process for mediation, how to communicate to best resolve conflicts, how to break impasses that occur during negotiations and mediations, how to help people draft an agreement that is reached during mediation, how to handle ethical issues in mediation, and a number of other best practices about mediation.

Even if you never do an actual mediation, there are major benefits from taking a mediation training. People who take mediation training become better negotiators. By going through mediation training and learning to help people negotiate in mediation, you invariably become a better negotiator yourself. You learn to communicate better, to present your ideas in a way more likely to be accepted by the other party, and most importantly, how to resolve impasses

6 in negotiation. In addition, mediation training will be very valuable to you if you ever have to be a party in a mediation. Furthermore, mediation training will also help you prevent conflicts.

What would be included in a mediation training? If you are planning to teach people who have never been mediators to be mediators, I believe you need a substantial amount of time for role-play and simulation. If you want simply a lecture course, you could simply buy a book about mediation and read the book. What separates books and lectures about mediation from real mediation training is the ability to engage in and learn from role-play, to have discussion among the audience members about the various topics covered, to watch video clips of mediations, and to discuss various mediation issues with the other participants. Among American mediation trainers there are several horror stories about people who have come to Asia to conduct a mediation training only to be told that the participants did not want to engage in role-play. They simply want to be lectured to. I have not personally had that experience, but it has happened to one of my friends. There can be a number of explanations, including cultural explanations for this unwillingness to role-play. The concepts of status and hierarchy, which can be very important in Asia and other cultures, may suggest that people in high status positions would be reluctant to perform any role-playing activities in the presence of lower status colleagues. However, if you want to learn to mediate, you simply must engage in role-playing – lots of role-playing.

Assume you wanted to learn how to play golf and have never played golf before. Further assume that I could arrange to have Tiger Woods give you a 40 hour lecture course about how to play golf. As soon as the course was over and you went to play a round of golf, how do you think you would play? I do not think you would have a very good score. You might have learned a lot in the lecture but you still cannot play golf. You need practice and experience.

Using the lecture method I can teach you how to do a handstand in about 15 seconds. Put your right foot in front of your left and your hands up by your ears. Lean towards the floor and do a strong push on the floor with your hands as you lift your legs above your head. Keep your legs together, but move them a little to keep your balance. Can now do a handstand now? Do not worry. I cannot do a handstand either. To do a handstand requires more than just knowledge. It requires a substantial amount of physical practice to develop your abilities.

Similarly, learning how to mediate requires some practice in the form of simulation and role- play. Most courses about mediation that are designed to teach people to mediate spend up to half of their training time practicing mediations in simulations.

What goes in to the design of a good mediation program? A quick Google search of the web can produce many topics that are included in typical mediation trainings. Although some mediation trainings are focused specifically on a certain subject matter such as construction mediation or divorce mediation, most mediation trainings are general training that focus on the general process of mediation. Even the specialized construction or divorce mediation trainings will cover the general skills and mediation process used in many mediation. There is no single, best way to mediate. There are variety of styles of mediation, with the facilitative and evaluative styles being the most common, as well as a number of lesser used styles such as transformative mediation (Bush & Folger, 1994). My recommendation is that for your first mediation training, you should take a course that has a focus on a facilitative, interest-based mediation style and includes a great amount of role-play. Once a person develops mediation experience from doing role-plays and real cases, then it is much easier to have short lecture and discussion seminars about developing topics and new skills in mediation.

Where to go to take a mediation training? You can find mediation training all around the world, including in a city where you live. The Construction Law and Economics Circle in Asia and Pacific Rim (CLECAP), a co-sponsor of this conference, may be providing mediation training in the future in various places in Asia. You should be able to find some mediation training offered by the major dispute resolution

7 organizations in your country. You may be able to find someone locally to conduct basic mediation training in your home city or in a city near you. A basic, community mediation training could be a good start for a mediation practice. Joining a community mediation group could also provide an opportunity to practice mediation on smaller cases.

Of course, it is also easy to bring an experienced mediation trainer to your city to conduct the training. There are many experienced trainers available. For example, I could download materials from my website, print files from my laptop, and begin a basic mediation training for you this afternoon in the next room.

In addition, if I lived in Asia and wanted to travel, I would go to a country that already does a lot of mediation and a lot of training. Although I hope that I do not offend any country or dispute resolution organization, if I had to select a place to go for mediation training in the Asia-Pacific region, I would seriously consider Hong Kong, Singapore, and Australia as countries that have long traditions in commercial and construction mediation, and where you could find an excellent mediation training program.

What does it mean to be a “certified” as a mediator? Certification generally means that you have completed a course in mediation, and the group who “certified” you is simply saying that you have attended one of their trainings. However, certification does not measure your skills as a mediator. You usually do not take a final examination at the end of a mediation training. However, some professional associations for mediators have established certification for certain classes of its members, requiring them to meet certain qualifications specified by the association. The qualifications may include training, experience, and educational requirements. In such a case, certification is private and is not connected with any state authority or provided under state oversight.

How do you get hired as a mediator? It is easy to get trained as a mediator but hard to get hired as a mediator. It is easy to find a good mediation training program, but much harder to find cases to mediate even as a volunteer. The hardest task of all is getting hired as a mediator. Many more people want to be mediators then there are disputes to be mediated. Some of the most well attended sessions at national mediation conferences are about creating a mediation practice as a way of earning income. There are many people who would like to do more mediation. There are few people who can do mediation as their full-time profession. (Mosten 2001).

Conclusion Mediation training will be good for you. I boldly tell my negotiation and mediation students, that even if you never conduct a formal mediation, a good negotiation and mediation course will change your life. It will improve your personal relationships and your business. You will be a better spouse, parent, child, family member, friend, business colleague, and community member. It will improve your communication and listening skills and increase your value as a team member.

I will always remember the comments of a very old man who was a participant in a mediation training that I taught almost 20 years ago on the small Pacific island state of Kosrae in the Federated States of Micronesia. He spoke no English and I spoke no Kosraean. At the closing ceremony, after he spoke, his words were translated to me as, “I thank you for this course. It was a gift from God.” Although mediation is certainly no religion, that Micronesian man can help remind all of us to appreciate the importance of the skill of mediation. Mediation, like negotiation which is at its core, is both a professional skill and a personal skill. Learning to be a mediator provides you with a special skill set that can improve your professional life, your personal life, and the lives of the people around you.

REFERENCES

Abramson, H., 2005. Problem-Solving Advocacy in Mediations: A Model of Client Representation, 10 Harvard Negotiation Law Review 103

8 American Bar Association, 2008. ABA Section of Dispute Resolution, Task Force on Improving Mediation Quality http://www.abanet.org/dispute/documents/Final_Report_TaskForce_Mediation_Quality.pdf [Accessed: 2009, Aug. 22]

Barkai, J., 1991. American Alternative Dispute Resolution: Mediation - An Overview and Mini- Training (in the Japanese Language), Hiroshima Law Journal, Vol. 15, p. 157, 1991 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1435081 [Accessed: 2009, Aug. 26]

Barkai, J., 1992. Applying the Hawaiian Mediation Model to Disputes and Conflicts, Interspectives, Vol. 11, No. 40, 1992 http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1435077].

Barkai, J., 1996. Teaching Negotiation and ADR: The Savvy Samurai Meets the Devil," 75 Nebraska Law Review 704 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1434176 [Accessed: 2009, Aug. 31]

Barkai, J., 2003. "Using Alternative Dispute Resolution Techniques In Construction Disputes," Proceedings of the 3rd International Symposium on Infrastructure Management and Financing, Kyoto University, Kyoto Japan. http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1435381 [Accessed: 2009, Aug. 31]

Barkai, J., 2008c. Mediation of Construction Disputes in the United States, is Papers from the The 4th International Conference On Multi-National Joint Ventures For Construction Works p. 31. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1435380 [Accessed: 2009, Aug. 31]

Barkai, J., 2008a. What's a Cross-Cultural Mediator to Do? A Low-Context Solution for a High-Context Problem, Cardozo Journal of Conflict Resolution, Vol. 10, pp. 43-89, 2008 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1434165 [Accessed: 2009, Aug. 26]

Barkai, J., 2008b. Cultural Dimension Interests, the Dance of Negotiation, and Weather Forecasting: A Perspective on Cross-Cultural Negotiation and Dispute Resolution Pepperdine Dispute Resolution Law Journal, Vol. 8, No. 3, 2008 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433479 [Accessed: 2009, Aug. 26]

Bush, R. & Folger, J., 1994. The Promise of Mediation, San Francisco: Jossey-Bass.

Friedman, G. & Himmelstein, J., 2008, Challenging Conflict: Mediation Through Understanding, American Bar Association.

Goldberg, S., 2006, Mediators Reveal Their Essential Techniques For Successful Settlements, Alternatives to the High Cost of Litigation, May, 2006.

Goldberg, S. & Shaw, M., 2008. Further Investigation Into The Secrets Of Successful And Unsuccessful Mediators, 26 Alternatives to High Cost Litigation 149.

Krivis, J., 1997. The Five Stages Of Mediation, September 1997, Alternatives to the High Cost of Litigation. http://www2.hawaii.edu/~barkai/HO/PEPmedMODEL.doc [Accessed: 2009, Aug. 26]

Golann, D., 2000. Representing Clients in Mediation: How Advocates Can Share a Mediator’s Powers, American Bar Association Section of Litigation and the Center for Continuing Legal Education.

Golann, D., 2009. Mediating Legal Disputes, American Bar Association.

Golann, D., & Folberg, J., 2006. Mediation: The Roles of Advocate and Neutral. Aspen Publisher.

9 Mosten, F., 2001. Mediation Career Guide: A Strategic Approach To Building A Successful Practice, San Francisco: Jossey-Bass.