 Refresher
Guide Mediators and Mediation
By:
Erwin I. Katz
This section of the manual
is intended to be a refresher guide for those mediators who have
successfully completed a course of training as a mediator. Both the novice
and experienced mediator will find it to be a source of the highlights of
principles of mediation, its opportunities, skills and focuses. It is not
intended to be a substitute for mediation trainings with its in-depth
analysis and exercises. It is intended solely to assist mediation
experience as a supplement, to be used together with the “check list”,
prior to, and during, a mediation.
A good mediator exhibits
many different characteristics. Below is a list of some of the more
important ones. Each of you possess these characteristics to some degree,
some may come very natural to you and others you may need to work on.
Effective Listener
A mediator must focus on the
communication of the parties and listen to interests and issues presented,
both verbally and non-verbally. A mediator that continually talks or
questions will not have an opportunity to learn the dynamics of the
dispute as perceived by the parties.
Empathetic
While always maintaining impartiality, a
mediator should strive to appreciate the thoughts, fears, history and
perceptions of each party.
Flexible
The mediator should model for the
parties' flexibility in order to enhance their negotiations.
Honest
A mediator is entrusted with confidential
information and must prove to be trustworthy. If parties do not sense that
you are a person of your word, they will resist sharing information which
may be helpful to the resolution of the dispute.
Imaginative / Resourceful
A mediator will often bring the parties
to a fresh approach or a new perspective on an old problem.
Impartial
A mediator must assist each party equally
and remain free from favoritism or bias in word, action or appearance.
Intelligent
Parties often look to a mediator to guide
them through the process. While a mediator need not be educated in every
topic discussed, a mediator must be quick on his/her feet in order to
instill confidence in the process.
Non-defensive
A mediator should not become personally
upset by comments with which they do not agree. Mediators often bear the
brunt of tense emotions and should develop a thick skin.
Non-judgmental
A mediator should help parties reach an
agreement whose terms are acceptable to them, even if the mediator
disagrees with the wisdom or fairness of their resolution.
Objective
A mediator assists the parties and does
not add fuel to the fire of an existing dispute. You must not become
entangled in the emotional aspects of the dispute or judge the parties.
Optimistic
A mediator often is able to help the
parties find a win-win resolution to their dispute. Staying optimistic and
focusing on the future will help the parties do the same.
Patient and Persevering
Mediation is hard work and parties may
move slowly toward agreement. A mediator must be willing to listen to and
assist the parties at their own pace.
Respected
Your character must be an example to
others in order to represent the court mediation program and instill
confidence in the mediation process.
Respectful
You should treat each party with respect
and dignity. Remember, this is their day to discuss an issue that is
important to them.
Sense of Humor
Humor can often ease tensions and move
discussions forward. A mediator must be willing to and able to laugh at
him/herself or with the group. Keep in mind that humor must never be at
the expense of one of the parties.
The duties of a mediator
begin before the commencement of the actual mediation conference. Your
role as mediator will include all of the items below and more.
Setting the Stage
It is the mediator's responsibility to
arrive before the mediation to set the room in a conducive manner and make
sure all necessary forms, paper, pencils and chairs are available.
Opening Statement
At the commencement of mediation, a
mediator has an ethical duty to describe the mediation process and the
role of the mediator. The mediator should specifically state that
mediation is a consensual process, that the mediator is an impartial
facilitator without authority to impose a resolution, and that
communications made during the process are confidential, except where
disclosure is required by law. Often a mediator will additionally outline
the mechanics of the process and ground rules for discussions.
Establishing Trust and Building Rapport
Parties will not confide in the mediator
and share the details of their lives unless trust has been established.
Mediators accomplish this by word and action.
Questioning
A mediator asks questions to gather
information needed to identify issues and interests to move the discussion
forward. Questioning is also used to brainstorm possible outcomes and help
the parties assess the practical implications of any given course of
action.
Listening
A good mediator listens to the parties
and acknowledges that they have heard the information shared by clarifying
and summarizing. However, a mediator who is always talking is not giving
the parties an opportunity to share their thoughts and feelings.
Identifying Issues
During each parties' "opening statement,"
the mediator identifies the matters that each party would like to discuss.
By identifying issues, the mediator is able to assist the parties in
creating an agenda for discussions.
Translating
Discussions in mediation between the
parties can sometimes become heated. A mediator, through the use of
neutral language, translates terms used by the parties into words that do
not cause the emotional level of the parties to escalate.
Remaining Impartial
It is an ethical responsibility that a
mediator remain impartial and be willing to assist all parties in an equal
manner. If a mediator is unable to remain impartial, the mediator should
withdraw from the mediation.
Empowering Parties
The right to decide on any proposed
outcome or participation within mediation rests with the parties. An
effective mediator should convey to the parties that they are in control
of all decision-making throughout the mediation.
Reality Testing
A mediator will help the parties to
determine whether alternative courses of action are attainable and if they
realistically meet their interests.
Writing the Agreement
If an agreement is reached, an agreement
is written at the end of the mediation. The agreement needs to be clear
and concise. If one or more parties do not live up to the terms of the
agreement, the court will need to enforce the terms without the benefit of
having been at the mediation. This is the one part of the mediation which
is not confidential.
THE STEPS IN THE MEDIATION PROCESS
There are many different theories and
definitions on the steps of the mediation process. It is helpful to
consider the following parts of a mediation.
The Beginning
Includes the pre-mediation set-up, any
review the mediator makes of the court file and the mediator's opening
statement.
Accumulating Information
Includes the parties recounting what
happened to bring them to mediation. Note that this part of the mediation
may continue throughout the process.
Developing an Initial Agenda
Based on the initial identification by
the parties of their needs, interests and concerns, the mediator will
assist the parties in organizing their conversation. Providing structure
will often assist the parties to keep focused. The agenda is always
subject to revision as the mediation proceeds.
Generating Movement
Often parties in dispute are stuck in the
way they are thinking about their dispute. One of the benefits a mediator
brings to the process is the ability to help the parties see the dispute
in a new way, focus on the future, and consider creative alternatives. In
addition, the parties may find it useful during the mediation to meet with
the mediator individually in a separate session (caucus). This too can
happen at varying times during the mediation and may occur more than once.
Ending the Mediation
This includes any of the following
possible endings (or some combination): a full resolution with a written
agreement signed by all of the parties; a full resolution of the dispute
with a dismissal of any underlying case; a partial resolution which is
written and signed by the parties and a return court date scheduled with
the clerk; a cessation of the mediation session with an agreement to
return to mediation and continue the discussion at a scheduled future
date; or no agreement and the assignment of a future court date if the
matter is pending in court.
As a new mediator...
it probably would be most
comfortable to think about the steps of mediation in a linear format,
e.g., you start at the beginning, gather information, develop the
agenda, generate movement and finally reach a conclusion. In actuality,
the middle stages of mediation are often cyclical rather than linear.
The mediation will always have a beginning and an ending, but in the
middle it may loop back and forth between the various stages.
For purposes of learning the process, we
will discuss each phase as a separate and distinct part of the mediation.
Keep in mind; however, that when mediating a "real" case, the phases will
often blend together and loop back upon each other.
Explain the Procedures Which Will Govern
the Process
The following procedural guidelines
should be covered in mediation:
Who will speak first
Generally, the party who filed the claim
will be asked to speak first. This prevents any controversy over who will
be the first to speak. In addition, the person who filed the claim has the
obligation to let the other person know why he/she has a claim.
Separate sessions
Sometimes it will be useful for you to
meet with the parties separately during the mediation. You should alert
the parties to this possibility during your opening statement so that they
are not alarmed if you decide to do so. Do not spend a lot of time on the
mechanics of how it will work since you may decide not to meet separately.
Mediators often refer to this session as a caucus. Since most people do
not regularly use that term, it is better to refer to it as a separate
session instead.
Note-taking
Let the parties know that you will be
taking notes to help keep things straight in your mind. You should provide
pen and paper for the parties and encourage them to listen for new
information and to take notes if necessary while the other is talking.
This gives parties the ability to remember issues they wish to discuss so
that they do not have to interrupt each other.
Explaining the confidentiality of the
process
Explain, at the outset, that the Rules,
and all oral or written communications in a mediation proceeding, other
than a final settlement agreement, are confidential and inadmissible as
evidence in any subsequent legal proceeding, unless all parties agree
otherwise.
In other words, the parties may not tell
the judge what a party said in mediation in the event that the case does
not resolve in mediation and the parties go to trial, and each party has
the ability to prevent any person present at mediation, including the
mediator, from disclosing written or oral statements made during
mediation. But, a written, signed agreement is not subject to the
confidentiality provisions. The parties may waive their privilege and the
confidentiality of the proceeding if they so choose, thereby allowing any
information disclosed in mediation to be revealed.
Thus, for instance, the Mediator may begin by stating:
Let me explain how this process will
work today. When I finish speaking and have answered any questions you
may have, I will ask Khun ____________, who brought this case to the
attention of the court, to begin by describing his concerns. Khun
______________ will then have an opportunity to share your concerns. At
some point, I find it useful to meet with each of you individually. If
such a situation arises, I will explain the process in greater detail.
I have found it best if each of you
treat the other with courtesy and respect during this mediation so that
when one of you is speaking, I would ask that the other listen
carefully. You may note down any information you may hear, as well as
any issues you wish to discuss and are afraid you may forget. I too may
be taking some notes. This is merely to help me keep information
straight.
At the end of this mediation, I will
discard my notes and encourage you to do the same because the
discussions we have here are confidential in that you are not permitted
to share them with the judge in the event that your situation is not
resolved during mediation. Each of you have what is called a "privilege"
to prevent any person, including me, from disclosing any of the
communications which take place. The intent of this Rule is for you to
feel comfortable sharing information with each other without fear that
the information will then be told to others, including the judge, in the
event that you are unable to work it out here. There are some exceptions
to confidentiality, for example if there are disclosures of future
criminal activity or child abuse, I may be required to inform the
appropriate authorities.
Asking the Parties if They Have Any Questions
You have just given the parties a lot of
information to think about so it is important to pause and let them ask
you any questions about the information you provided.
Do either of you have any questions
before we get started about mediation in general or the specific way we
will be proceeding today?
After you have answered any questions or
determined that the parties have none, you are ready to hear from them.
Begin by turning to the party who brought
the ~aim and ask him/her to describe the events that brought them to the
mediation today.
In order to assist parties in mediation,
you Will need to learn what are the issues which brought the parties to
mediation, whether voluntarily, via ADRO, or by order of the court in
which they filed their dispute. In addition to the actual circumstances
surrounding the parties' dispute, it is beneficial to observe the behavior
of the parties toward one another before, during and after a mediation as
a means of accumulating useful information. Keep in mind that
communication is translated through more than just the spoken word.
Nonverbal cues, posture, and tone of voice all convey a wealth of
information.
Parties begin with their positions, it is
up to you to help them identify their issues and interests.
The Parties' Opening Statements
The mediator's opening statement
concludes by asking one of the parties to share why they are at mediation.
Which party do you start with? Most mediators will begin with the person
who has filed the claim with the court, the "complainant." This is a
logical selection since the person who files in court typically wants
something from the other party that they have been unable to obtain or
resolve privately. The person who begins does have an advantage in framing
the dispute; therefore, you should be mindful of that dynamic and allow
who ever speaks second to have latitude to share not only a response to
the first party, but also to describe any other concerns which the party
has.
The complainant will articulate his/her
concerns. Listen carefully. What the complainant has decided to
share with you, the manner in how the information is shared, and the order
of presentation are all important pieces of information. Let the
complainant take as much time as may be reasonable.
When the complainant is finished, do not
ask the respondent if they would like to respond, instead, ask him/her to
explain his understanding of the issues and concerns. The second person to
speak often feels defensive, it is your job to put the parties at ease
enough to share what is important to them.
Try to hold off asking any questions
until you have heard from all the parties. While it may be tempting to ask
'just a quick question" before the defendant responds, you never know how
long the answer may be to even a quick question. Further, if the
complainant's opening statement was long, it may be 20-3 0 minutes into
the mediation before the defendant says a word. By the time the second
party gets to speak, they may have given up any hope on this being a fair
process. It is also possible that the defendant may clarify the issues,
thereby answering questions before the mediator asks them.
After each party has spoken, the parties
will look to the mediator to identify the next step in the process. As
mediator, you will identify and summarize the issues as the parties have
put them forth and your notes will assist you with that task.
Notes
A mediator's notes serve three important
purposes:
- identification of the issues which the
parties wish to address
- clarification of statements/issues for
the mediator
- record of the parties' "movement" in
regard to offers and solutions
The mediator's notes should not be
a transcript of the mediation conference. Notes, by definition, are
selective.
Your notes are an organizational tool and
should permit you, at a brief glance, to recall a particular issue or
propose a certain solution.
A common technique is to split a piece of
paper, one side for the respondent and one for the complainant. The
parties names appear at the top of the page. In addition to using notes as
an organizational tool, notes can help mediators assure the parties that
they have heard what the party has said.
It is also important in taking notes that
you record information in neutral, simple terms. It is probable that the
parties will be able to see your notes during the mediation. In general,
your notes should include as few modifiers as possible.
Accumulating information from the parties
and effective note-taking depends heavily upon your ability to listen to
the parties. Practice the mediator slogan: "When I listen, people talk."
Listening
Earlier in the manual, listening was
listed as one of the many important functions of a mediator. If the
parties are talking, you should be listening. If you are not listening,
you are not mediating.
Communication studies have offered five
levels of listening that people engage in:
the opposite of listening. It is an
active choice not to pay attention to someone or something
tuning someone out
paying attention to bits and pieces of
information, a mixture of hearing and listening
paying attention to words and focusing
energy on messages
done with the intent to understand.
Empathic listening is done with ears, eyes and the heart.
As a mediator, your level of listening
should be in the attentive to empathic stage. Paying attention to what is
said and what is not said is key to your role as mediator. The parties
will know whether you are listening to them. The following are signs that
confirm that you are listening:
Effective and appropriate eye contact
Appropriate facial gestures
Appropriate affirmative head nods
(remember that the nod of the head can be interpreted as agreement or
acknowledgment - try to be consistent with your nods to both parties)
Avoidance of actions or gestures that
suggest boredom
(such as yawning or leaning on your hand)
Asking clarifying questions
Paraphrasing using your own (neutral)
words
Not interrupting the speaker
Not talking too much
Acknowledging and validating feelings and
thoughts
(having empathy)
Questioning
Part of accumulating information from the
parties takes place through the mediator's use of questions. The following
are examples of types of questions and description of when (if ever) they
may be appropriate for use by the mediator:
Clarifying
Commonly used to gather a clearer
understanding or to confirm a piece of information. Clarifying questions
are typically used at the beginning of mediation when the mediator is
gathering information to understand the issues for discussion.
Khun
_____________, can you explain in greater detail the defect in the air
conditioner that caused the fire?
Khun
_____________, how would you like for that payment to be made and where?
Open
This question is designed to get or keep
the parties talking and should be used predominantly in the early stages
of the mediation when the mediator is gathering information. Asking open
questions gives the parties the opportunity to share their experiences
with you. Invite them into dialogue by asking them these broad questions
which require explanations. As the session progresses, you should ask
questions narrower in focus.
Can you please elaborate on that
statement?
How do you see the situation being
resolved?
Closed
These are questions which can be answered
with merely a "yes" or "no" response. While this technique may extract
some information, it should be used with discretion because it does not
elicit a complete response. The best use of such questions are with
parties who volunteer a lot of information and you are trying to limit
their domination of the mediation.
I have noted that you are concerned
about the rent and the dog. Are there other concerns you would like to
raise now?
Does this written agreement
completely satisfy your original claim?
Justification
This type of question usually begins with
"Why" and calls on someone to justify their position (e.g., past behavior,
actions, feelings). This type of question tends to make people feel
defensive and is often judgmental in nature, mediators should try to avoid
using it.
Why did you break the lamp?
Compound
This is typified by multiple questions
being asked as one question. The problem with using a compound question is
that it is confusing to the person who has been asked the question and
thus leads to a confusing answer. As a result, mediators should try to
avoid using these questions.
Did you go out that night and was
the door locked when you left?
Use of good questioning techniques can
help the mediator learn and clarify information. More importantly it can
help the parties understand more about the dispute from each other's
perspective. A good exchange of information and joint problem solving can
be fostered by the mediator's approach with the parties. Use your
questions to clarify, explore possibilities and to confirm movement or
agreement not to satisfy your curiosity or judge the situation.
Non-Verbal Communication
Non-verbal communication is vital in
evaluating the information we receive from other people. Communication
experts estimate that 55% of the information we gather is from nonverbal
behavior; 38% from the tone and sound of the speaker's voice and only 7%
from the actual words that the speaker uses. AH of you have seen and
responded to non-verbal cues many times in your life. Paying attention to
the silent cues you receive from the parties and observing the
communication between the parties will assist you in mediating their case.
These cues may help you identify hot spots, priorities, closely held
values, areas that are negotiable, etc.
Non-verbal cues will serve as guide posts
and indicators, but be careful not to make assumptions based on a single
non-verbal action. For example, traditionally, body language experts
identified standing with one's arms crossed in front of him/herself as a
"closed" posture indicating an unwillingness to participate or hostility
to the person or issue being discussed. Today, we understand that there
might be many different reasons for assuming such a posture, e.g., one is
cold one is comfortable like that, one is missing a button and trying to
cover it up, and so on. Experts now say that we should look at the total
package of behaviors that an individual exhibits and more importantly,
changes in behaviors. For example, if during a mediation, two
businesswomen are discussing their contract and are making offers of
settlement back and forth to each other. All of a sudden, one of the women
turns her chair completely around so her back is to the other woman.
Something obviously occurred in their conversation that made the woman
react in the manner she did. In this situation, the mediator would
probably react to the cue and try to draw the woman back into the
discussions by exploring the reasons for the rapid change in tone of the
discussions.
Most non-verbal communication will not be
quite as obvious as the example used above. As in all aspects of the
mediation, the mediator must be careful not to assume. If you think you
are getting some signals or cuts from one of the parties or their demeanor
does not match what they are verbalizing, you should explore these issues
with the party or parties. It may be appropriate to meet separately with
the party to validate the feedback you are receiving in some cases. in
addition, as mediator you need to be careful with the non-verbals cues
that you are exhibiting. The parties may not know that you are just
comfortable with your hands folded, they may think that you are not
interested in what they have to say.
Summary
Through your efforts you have established
an atmosphere in which the possibility of constructive dialogue is
enhanced. This is no small achievement, for frequently the parties have
let their concerns simmer, exchanged heated words, and then avoided each
other until court. Assisting the parties in communicating with one another
constitutes an important first step toward building a solution.
The mediator's role in the information
gathering process is one of structure and patience. You will help the
parties reorient their perspectives from an adversarial posture to one of
collaboration.
Your role is not passive. You are
listening for the concerns the parties express and the practical ways in
which they can be met. You are trying to help the parties reestablish
trust so that practical solutions do not evade them. You can accomplish
this by making certain that, by your own example, you do not belittle the
intentions or needs of the parties. Your role is not to endorse each
person's perception as "right or wrong, but to acknowledge their concerns
as ones which in fact they possess and which constitute the benchmarks of
settlement possibilities. Since all parties are different and bring varied
perceptions to a situation, the mediator should not assume all parties fit
in the same box. The mediator must listen carefully and appreciate the
unique strands which individuals will highlight - if given the appropriate
forum for doing so.
Your task is to engage the parties in a
joint effort to resolve the problem. An effective mediator will immerse
themselves in the dispute long enough to appreciate its facts and dynamics
- while staying impartial - so they can lend a fresh perspective.
Part of accumulating information from the
parties takes place through the mediator's use of questions. The following
are examples of types of questions and description of when (if ever) they
may be appropriate for use by the mediator:
Characterizing the Issues
At issue is some matter, practice, or
action that enhances, frustrates, alters or in some way adversely affects
another person's interests, goals or needs.
Mediation focuses on negotiating issues
that people are capable of, and have the resources for, resolving. By
definition, not all issues can be negotiated because the parties do not
have all the resources necessary to resolve every problem for every
person.
An example which is not a negotiating
issue is prejudice or bigotry. If one party has a prejudice or hatred
against a particular group of people, mediation will not alter that
party's deeply held attitudes and beliefs - no matter how long the
mediation session lasts or how skilled the mediator is. In contrast, the
parties may be able to discuss and reach agreements on the coexistence or
avoidance of particular behaviors that may be causing difficulties between
them. The specific incidents are negotiating issues while prejudice and
bigotry are not.
The parties to a dispute will speak in
plain language and not in the language commonly referred to as "legalese."
They will relate a series of events, and it will be up to you to cull
through the information to succinctly state what you hear as the issues.
It is important to realize the range of flexibility that the mediator
possesses when characterizing the dispute.
By characterizing the issues in more
neutral, future oriented terms the mediator has made a difference in
inviting communication and assisting the parties to think creatively.
A mediator shapes both the way in which
the parties talk with each other and the range of discussion. Resist the
temptation to limit the mediation discussion to the four corners of a
legal complaint, to only discuss the issues which are defined by law.
Very often when people are embroiled in
conflict, they get stuck. They keep talking about the same issues and
ignoring the fact that previous difficulties may have an impact on the
current dispute. The way to assist the parties is to help them expand
their discussion. The common misconception about negotiation and mediation
is that the most difficult disputes to resolve are those that involve a
lot money and many issues. In fact, it is more difficult to resolve
conflicts in which there is only a single issue in dispute and very little
money at stake because there is little room for the parties to maneuver
and few concessions they can offer.
Priorities
The parties will talk about many things.
Some are more important than others. Assisting the parties in identifying
what matters most and what matters least to them establishes an
environment that invites negotiation.
Parties will often discuss what is most
important to them first and they will often repeat it several times in
different ways. Listening to the parties carefully may reveal the
attachment a party has to an issue and tactful questioning can confirm the
level of interest on a particular topic.
Structuring the Discussion
As human beings, each of us are limited
by the fact that we can only talk about one thing at a time. Hence, the
order in which issues are discussed can become an important element in
helping parties reach agreement. Generally, the guiding principle when
setting an agenda is that you want to order the discussion in a way that
will assist parties to move toward resolution. There are two schools of
practice on which issue(s) to select first when setting an agenda.
Some mediators want to discuss the "easy"
issues first. Once the parties have explained their concerns, you can
probably make a quick assessment regarding which of those will be resolved
most easily. While this judgment is tentative and open to refinement if
the parties so indicate, you must start somewhere. By gaining agreement on
several of these "small" less important matters, you can begin to develop
a habit of agreement among the parties. The momentum of agreement may make
the discussion of the difficult issues more productive.
Some mediators will begin with the issue
that they view as central to the dispute or the "tough nut to crack." By
beginning with the hardest issue, once agreement is made on that issue,
small and easier issues will fall into place. Finding a good place to
start will come with practice and you may develop your own preferences.
Here are some guides to help you find a
starting place and structure discussions.
Categories
One can divide the issues according to
various subject matters or principles. Often issues fall into categories
such as economic matters (paying for the broken window) and non-economic
matters (an agreement as to where the children will play soccer) or
financial and behavioral. Appropriate categories will vary according to
the nature of the dispute. By dividing the issues, the mediator assists
the parties in breaking down the dispute into manageable parts. Notice how
closely correlated this process is to that of characterizing the issues.
Nature of Remedies
Some concerns brought up by the parties
will invite remedies which are mutual, e.g., that they both agree to do
something for the other. Other concerns require one party to do something
and the other party merely to accept it, e.g., one party pays the other
party a sum of money. Often, mutual remedy issues are easier for the
parties to discuss and agree to than are those which one party has the
burden of compliance.
Time
Sometimes the issues will break into
categories according to time. For example, the mediator may ask the
parties to discuss the issues in chronological order (what happened first)
or reverse chronological order (what happened last). In addition,
sometimes an issue has a time constraint attached to it. Issues which are
constrained by time are often easier for the parties to discuss because
they have an outside interest pushing them towards resolution.
Relationship of the Party to the Issues
Some issues will be particularly
difficult to resolve if the party or parties have a strong philosophical
or personal attachment to the issue. It is best to defer discussion of
these matters until other issues are resolved and the parties have built
some momentum towards resolution.
Logic
In some instances, issues will come up
which are logically related to each other. In using this matter of
organization, be careful not to focus unduly on past events instead of
future possibilities.
While there are many ways to structure
the agenda of discussion, the mediator must be prepared to take
responsibility for setting an agenda based on what the parties have said.
Generally, the parties will not be prepared to or capable of structuring
the discussion. After all, if they were able to do so, they probably would
not have needed a mediation in the first place. One of the greatest assets
you bring to the mediation is your ability to create structure and develop
a process to assist the parties' communication.
If the mediator neglects to create an
agenda, the possibility increases that the discussion will degenerate into
impasse, not because the parties necessarily disagree on all matters but
rather because no one assisted them in focusing on and separating those
items on which they agree from those about which they remain in
substantial disagreement.
Generating Movement
After the mediator has developed the
agenda for discussion and selected the first issue to discuss, the parties
may still be stuck. At this point, the mediator's job is to assist the
parties in thinking about their dispute in other ways to help them move
forward. It is important to keep in mind that the parties are entitled to
maintain a belief that they do not want to resolve their dispute in
mediation and would rather pursue the traditional legal process. Your job
as mediator is not to make sure that every case is resolved in mediation.
Keep in mind that some parties may legitimately want a court resolution.
It is your job to help the parties consider their options and make an
informed decision as to how to resolve their dispute. In this section, we
will discuss the ways in which a mediator may be helpful to the parties in
reconsidering their "positions."
The basic definition of mediation is that
it is negotiation in the presence of a neutral third person who is not
involved in the dispute and who can assist the parties in discussing their
concerns. Since mediation is based on negotiation, it is best to start
with a brief discussion of the basic principles of negotiation.
Separate the People from the Problem
We all know people who we just don't
like, that no matter what they say we will find something to disagree with
them about. When we are in dispute with these people, we tend to lose
sight of what is really important and instead focus on reasons the other
person is wrong. When we are negotiating to keep the focus on the problem
- not the people. When we are mediating, our job will be to help the
parties separate the "people from the problem."
Focus on Interests not Positions
Generally, when stating a need, we tend
to focus on our position, what we want. Often, the position we take will
be at odds with someone else's position. Move beyond positions and move
towards stating what our interests are and why we want it. An example used
to illustrate this point is a negotiation over an orange. Two people want
the orange (that's their positions). If one stays at the level of
positions, there is no way to resolve the dispute without one (or both) of
the parties "giving in." If one gets to the interests, however, more
options open up. For example, if one party wanted to bake with the orange
peel and the other party wanted to eat the orange, both parties could, by
separating the peel, achieve 100% of their interests. If they bad focused
strictly on their positions, they probably would have agreed to cut the
orange in half, thereby obtaining only 50% of their interests. It will not
always work out so smoothly and there may be times that the parties'
interests are not able to mesh together, but more often than you think,
helping parties to identify and discuss their interests will reveal useful
information and assist the parties in working towards a resolution.
Generate a Variety of Possibilities
Before Deciding What to Do
When we are in dispute or negotiation
with another person, we will often identify quickly the way we think it
can be resolved and then get stuck there. Encourage the parties to
continue to brainstorm a range of ways the dispute may be resolved before
choosing what to do. Even the simplest dispute can be resolved in a
variety of ways. As a mediator, you should help the parties to think
creatively of options, particularly if each one has identified a single
option and the options are not the same!
Utilize Objective Criteria
Press the parties for a result based on
objective criteria. Basically, this principle calls upon the parties to a
negotiation to ground their offers and counter-offers in objective
criteria, such as a book value for a used car. The premise is that it is
more effective for parties to discuss a situation when it based on
objective criteria rather than their own subjective notions. Again, this
is a way to make things less personal, and thus, easier to discuss.
Know Your Best (and Worst) Alternative
to a Negotiated Agreement (BATNA) and (WATNA)
All too often we will conclude a
negotiation or a mediation and leave more money or better result at the
negotiating (mediation) table than we could ever achieve in another forum.
We do this because we have not taken the time to think through what is the
best we can hope to do outside of the negotiation/mediation and what is
the worst that may happen. Your job as mediator is to help the parties to
contemplate the alternatives so that they can make an informed decision
about what they want to do Beyond these negotiation tips, there are some
other ways a mediator may be helpful to the parties in generating
movement. The following are some options for you to consider to keep the
mediation discussions moving:
At the same time the best and worst
should be balanced with the most likely alternative to a negotiated
agreement (MLATNA).
Alternate discussion of issues
This is useful so that one party does not
perceive him/herself as "winning" everything. A sure way for someone to
become recalcitrant and dig in his/her heels is if they believe that the
other person is the only one who needs to make concessions.
Focus on the Future
It is helpful to remind parties that they
cannot change what happened in the past, but they can decide how they want
things to be in the future. Court resolutions focus on the past and
determining what happened, a nice aspect of mediation is that what
happened in the past is only relevant in helping parties determine how
they want to behave in the future.
Be positive
Make the parties feel good about the
progress they have made. People like to feel good about themselves. When
parties come to a mediation, they are often frustrated with the other
party, nervous about being in mediation, and stressed about having a
dispute which has not been resolved. As mediator, you may be the only one
who remembers that conflict can be positive - that it can offer an
opportunity for the parties to learn from each other. By maintaining a
positive atmosphere in the mediation and rewarding the parties for their
successes, even small ones, the mediator can help the parties view their
dispute as a learning endeavor.
Use of Silence
Most people are not comfortable with
silence. Silence can be very powerful in helping parties reflect on the
effect of a particular proposal or statement. As mediator, do not be
afraid to "let silence ring" during your mediation. In particular, use
silence when one party has made an offer or counteroffer. The mediator
should not be the person who breaks the silence - give the other party
time to respond.
Use of Humor
People become more flexible when they are
laughter often reveals some comfort with oneself and the situation. But
remember, humor should never be used at the expense of one of the parties.
Use of Doubts
A great question for the mediator to pose
to the parties is: "Is it possible...?" If the parties acknowledge that
something is possible, even if they say it is unlikely, they already are
less rigid in their position and may then be able to consider other
options. A corollary to this technique is to challenge assumptions that
the parties make. Often we will assume the worst of people with whom we
are in conflict. A mediator can be very helpful to the parties, by asking
them to consider whether those assumptions may not be accurate.
Integrative Solutions
If you help the parties to identify their
interests (not just their positions) and think creatively, they may be
able to identify issues in which they both can achieve the "win-win"
solution that they want. Think of the orange example.
Use the facts
Often the parties will share information
with each other that was not previously known to the other. Encourage the
parties to consider this new information as a possible rationale for
considering a different "position."
Priorities and Trade-Offs
Not everything which the parties discuss
will be of equal importance to them. Helping the parties identify which
items are most important will help them see that other items are less
important. This may yield greater flexibility and ideas regarding items to
"trade-off." We often think that we have disputes when we disagree about
what is most important. Interestingly, if one puts high value on an issue
(e.g., full payment) and the other puts a high value on a different issue
(e.g., payment over time), these parties will likely be able to reach an
agreement which results in full payment over time and addresses both of
their "high priority" issues.
Role Reversal
Help parties to see the situation from
the other party's perspective. This technique sometimes is most useful
when meeting separately with the parties and they are able to react with
greater honesty.
Point Out Possible Inconsistencies
A mediator should never embarrass or
berate a party, but sometimes a mediator can note gently that there may be
inconsistencies within what the party has stated. One way to do so is for
the mediator to take the confusion on him/herself. For example, "I think
I'm confused about what happened. I thought you said that you were not at
the building that night and now you say you saw her break the window. Can
you help me to understand what I am missing?" This is usually best
accomplished in caucus, out of the presence of the other party, to avoid
embarrassment and defensiveness.
Constraints on Others
Everyone has constraints on them - be
they resource, psychological or political. Proposed solutions must fail
within these constraints or they will not be accepted by the other party.
Pointing out the constraints on others may be useful in helping the
parties understand the dynamics at work in arriving at an agreement.
Be the Agent of Reality
The mediator should never force the
parties to settle their issues in mediation. The mediator may, however,
help the parties to think through what are the consequences of not
resolving the dispute in mediation. The parties may want to consider
monetary costs, time lost, relationship issues, and the uncertainty of a
court outcome when deciding how to resolve their issues.
Appeal to Past Practices
Sometimes the parties will have had a
prior good relationship. In such cases, it may be useful for the mediator
to explore with the parties how they have resolved similar issues in the
past. If the parties have never gotten along or have no prior
relationship, this will probably not be a useful technique to utilize.
Appeal to Commonly Held Standards and
Principles
Sometimes parties will both express a
common theme, for example, to be treated respectfully. While
acknowledgment of this notion will not "solve" their issues, it is often a
helpful way for the mediator to demonstrate to the parties that they can
agree on some matters, and thus, can be a good place for the mediator to
begin. A corollary to this technique is to utilize "peer pressure" (what
would the general public do in a situation) as a way of helping parties to
identify commonly held standards. For example, it is generally accepted
that if we attempt to pick up our dry cleaning and it is not ready, we do
not assault the clerk.
The mediator plays a vital role during
mediation in helping parties to reevaluate positions they have taken.
Providing a structure for the mediation is a wonderful beginning, but will
often not be enough. The parties need the mediator to do more than be a
"potted plant" who merely sits in the room. The list above contains some
useful techniques for you to try. Some techniques will be very comfortable
for you to use, others will be less so. While learning the skills and art
of being a mediator, try a variety of approaches.
We discussed earlier in the manual the
mediator's identification of the agenda and the issues which the parties
need to discuss. Use of these techniques may be helpful in guiding the
mediator through those discussions. Once you choose an issue to start with
(e.g., one you think is easy) try several different approaches before
moving on to a different issue. Three different attempts is generally good
-- more than that and the parties may feel inappropriately pressured. If
after several different approaches are tried, the parties are still
unwilling to reconsider, you may have chosen a difficult place to start.
Move on to another issue and try again.
Sometimes the mediator will want to meet
with the parties separately. This can be another effective way of
generating movement. Because there are so many more issues to consider in
doing so, we will discuss this technique next.
ESCAPE TO CAUCUS: THE SEPARATE
SESSION
At some point during the mediation
session, you may decide that you would like to meet separately with each
of the parties.
A separate session should only be called
when you have a reason to do so. Some mediators do not declare an impasse
unless they have had an opportunity to meet with the parties separately.
Some mediators prefer not to disrupt the flow of the joint session between
the parties and seldom call a caucus. You will find your preference and
style for determining when and if to call a caucus as you become more
comfortable with your role as mediator. Remember, regardless of your
mediation style, caucus has a reason and a purpose. If you do not have a
reason and a purpose for calling a caucus, then do not call one.
Why Meet Separately
The following are some reasons why you
might decide to meet privately with each party.
Explore settlement options
Sometimes you will sense that the parties
may be more open to discussing potential options if they could do so
without the other party being present. You may want to begin with the
party that appears to be willing to negotiate, but there is no strong
preference for who you meet with first if this is your reason for meeting
separately.
Signal warning signs
During the session, one party may be
exhibiting certain behaviors which threaten any possibility of agreement.
If this occurs, the mediator should meet first with the party who is
exhibiting the behavior.
Confirm movement
At the start of the session, one party
may have indicated that the only acceptable resolution is for the other
party to move. As the discussion progresses, the party appears to signal a
change in that position, but the mediator is not sure and does not want to
risk having the party lock themselves into not reconsidering the previous
position. The mediator would meet first with the party who is indicating
movement.
Address recalcitrant party
Every so often, one party will take a
position early on in the session and not move from it. It may become
apparent to the mediator that the session will quickly conclude unless the
other party is willing to meet the demand or the recalcitrant party is
willing to consider movement. In such instances, the mediator should meet
first with the "recalcitrant" party.
Pause
At times emotions can run hot and you may
sense that the parties need a break to control outbursts, to collect
themselves, stop crying or calm down. Separate meetings can provide this
opportunity. Use your judgment whether to meet first with the person who
is upset or to meet first with the other party to give the upset
individual an opportunity to collect themselves privately.
Evaluate
Finally, a caucus may be deemed necessary
to evaluate the proposals that are currently on the table. A private
session affords the parties the opportunity to take a few moments to
assess the impact of accepting or rejecting a potential resolution without
the pressure of having the other party in the room. It also provides
reflection time completely on one's own when the mediator meets with the
other party. If there are multiple parties with shared interests or a
party is represented, they may request separate sessions so they can
consult. The mediator can meet with either party first in this situation.
Why Not Meet Separately
Your mediation session should not
automatically include a separate session. The following are some reasons
why you might decide not to meet separately with the parties:
It is unnecessary
If the parties are making progress and
working together, there may be no need to stop them and meet separately.
In fact, doing so might disrupt the momentum which has developed and have
the effective of interrupting rather than assisting the process.
Low level of trust between the parties
Sometimes the parties have developed a
very low level of trust between them. The dispute will not be over unless
they see and hear from the other exactly why the other party is willing to
concede. Breakthroughs that happen while one party is out of the room will
be viewed with suspicion and not accepted. In such circumstances, it might
be best to keep the parties together.
The goal of every separate session is to
discuss matters that are relevant to developing a settlement.
Non-agreement between the parties and "not knowing what else to do" are
not reasons to meet separately. It seems overly simple to point out that
the parties will not be in agreement from the outset of mediation.
However, one of the most common misuses of caucus occurs when the parties
state in their opening statements that they do not agree, so the mediator
immediately (or very soon after the mediation begins) calls for separate
sessions. Because the caucus is called so early in the process, it becomes
a summary of what the parties said in joint session rather than being of
any real use. By doing so, the mediator has not provided the parties with
the opportunity to negotiate for themselves, and thereby has not fostered
joint problem solving.
The amount of time a mediator spends with
each party in caucus need not be identical. The mediator should promise
equal opportunity to meet separately, not equal time. Although you must
provide the opportunity for each party to meet separately with you, the
duration times need not be identical. In fact, it will rarely be
identical. If the reason for calling a caucus is to address the
recalcitrant party, you will probably spend more time with that party than
the other. If you find that you have met with one party and do not have a
reason for meeting with the other party, remember that the party may have
a reason for wanting to meet with you. You can begin the second meeting by
letting the party know that you do not have anything you need to ask or
share but are available to devote time as needed, and ask whether the
party has anything s/he wants to share before joining back together. Thus,
the second meeting might last only a minute or so. Nonetheless, you have
provided the party an opportunity to meet with you and since it was the
party's decision to end the meeting, the mediator preserves the appearance
of impartiality and the party will be less likely to be suspicious as to
why the other person met with the mediator for so much longer.
The Mechanics of the Separate Session
When the time comes to meet separately,
you will:
- declare your intention (trying to
avoid using the term caucus which is not a common word for most people)
- indicate the order of the meetings
- indicate approximately how long the
meetings will last, then
- excuse one party.
The party that will be waiting outside
should be given some direction as to where the waiting area is and asked
to remain close at hand. This may be a great time to offer use of a
restroom or water break. Often times mediators will give the party a task
to complete while waiting, such as to think of ways to resolve the
dispute. While time may go quickly for the mediator and the party inside
the room, it can seem like a lifetime to the party who is waiting outside.
If you are going to be a few minutes longer than expected, it is a good
idea to let the party waiting outside know. You do not want to go outside
after a 20 minute caucus to find that the other party got frustrated and
left because you took longer than expected.
When you have one party in the room, you
are ready to proceed. There are a few things that you need to remember as
you begin:
Record the time that the caucus began.
You may think you will remember how long you have been meeting with each
party, but time moves very quickly and you don't want to lose track of it
- the party waiting won't!
Separate your caucus notes from your
regular notes. You should either
have a separate piece of paper with you or use the back of your joint
information sheet.
Review the rules of confidentiality of
the separate meeting and the purpose for meeting with the party.
Remind the parties at the b ginning and at the end of the each separate
session that they must identify what is confidential and, otherwise you
have permission to share information.
The language used by the mediator in
caucus, as in full session, must remain neutral.
Since you are alone with one party, it is easy to get caught up in the
language used by that party. Even though the other party is not in the
room, you must maintain your neutrality and your language is the most
obvious way to demonstrate it.
Your reason for calling the caucus
will shape your agenda. For
example, if you declared a caucus to evaluate settlement options, you
should start your discussion with the issue that is most important in
evaluating those options. Before you begin talking in caucus, you must
have thought through why you called it, where you will begin it and how
you will end it. Remember, you need not talk about every issue in each
separate session. Use your individual time strategically.
When you have accomplished your reason
for meeting separately, you will conclude the meeting. Before you do so,
you may want to check with the party and see if there is anything else
they would like to share with you privately. In any case, at the end of
your caucus, ask the parties to review anything that they do not permit
you to share with the other side. They may give you blanket authority to
share everything discussed, permission to share some amount of
information, or ask that nothing they shared be discussed. If the party is
unwilling to reveal to the other party something which you believe may be
beneficial to a settlement, you may ask the party if they would be willing
to reconsider. Alternatively, you may ask for specific permission and tell
the party your reasoning for asking. In the end, whether you agree with
the party or not regarding disclosure, you must respect the party's
decision.
Second Caucus
To begin the mediator should go get the
other party. Do not send the party with whom you have just finished
meeting to find the other party. Once settled back in the room, the
mediator begins the second meeting in the same fashion as the first
(separate your notes, record the time, and invite the party's confidence).
The difference is that the party knows that the mediator has just spent
time alone with the "other side" and presumably has gained some additional
information or insight. The first words out of the second party's mouth
may be "So what did he say?" or "What is she willing to do?" The mediator
should fight the temptation to immediately reveal information which was
learned in caucus - even if the mediator has permission to do so. Your
role as mediator has not changed. After the first separate meeting, you do
not switch roles and become an advocate for settlement options proposed by
one side or "sell the first party down the river" by immediately revealing
his/her concerns.
A good technique to use in caucus is to
ask questions as hypotheticals. This allows the mediator to assume the
scapegoat role if a suggestion is unacceptable. The party can reject the
"hypothetical" without getting angry at the other side for proposing the
idea. It also protects offers of movement made by one side. You have not
revealed exactly what the other side has tentatively agreed to do or not
do.
The end of the second caucus is just like
the end of the first. The mediator will determine what information may be
shared and then bring the other party back into the room. Sometimes as a
result of the information shared in separate sessions, the parties will be
in substantial agreement. Other times, the parties are still very far
apart.
Regardless of where the parties are on
that continuum, the mediator should begin the joint session with some
encouraging words. Specifically, the mediator should thank the parties for
the opportunity to meet with them separately. If the parties are still far
apart, indicate that is the case. Do not immediately end the session, but
you may want to share with the parties your assessment and see if either
has anything else to add.
If the parties are close together or even
in substantial agreement, remember that there is no agreement until the
parties are together. Thus, the mediator might continue (after thanking
them) with a statement along the lines of, "As a result of my individual
conversations with each of you, I believe that you are very close to
reaching an agreement, but I am not quite certain as to the terms."
Even if you are certain the parties are
at the same point, because you are the only one who knows this, you must
determine how to reveal this potential consensus to the parties.
Basically, you have three options after bringing the parties back together
and thanking them:
- the mediator announces the terms of
the agreement
- the parties reveal the agreement to
each other
- some combination of the two options
above.
It is preferable to allow the parties to
reveal the agreement to each other since it is their agreement. This
allows the parties to assume greater ownership over the agreement.
However, if the parties are highly emotional or extremely angry at one
another, or the agreement is so complicated, the mediator may choose to
reveal some or all of the terms. If the agreement is revealed by the
mediator, the mediator should be sure to check in with each party after
each term is revealed to ensure that there is agreement. At a minimum, the
parties should at least be nodding their agreement as the mediator speaks.
In the end, whether the parties have
chosen to settle their dispute or not, it is the mediator's responsibility
to end the session. There are four ways in which a mediation session might
end:
The parties do not reach any
agreement.
The parties request a continuance of
their case and an opportunity to return to mediation after a specific
period of time. This is usually
requested when one or both oft the parties want to resolve their dispute,
but need additional time to gather Information that has bearing on their
decisions and actions. A time to meet again is usually scheduled before
the parties depart. Generally, the mediator who began the mediation will
complete the mediation, if available.
The parties have a partial agreement
on some issues and request a trial on those which they were unable to
resolve. The parties may wish to
include in their partial agreement a list of those issues which they would
like a court or arbitrator to resolve. Any item included in the signed
mediation agreement is not confidential.
The parties reach agreement on all the
issues. An agreement is generally written at the end of the mediation.
It is the mediator's moral responsibility to ensure that the terms of
agreement are memorialized (written and signed).
No Agreement
While it is natural to hope that you can
assist all parties in reaching a mutually agreeable resolution to their
situation, it is the parties who decide whether an agreement will be
reached. Some parties will decide not to settle, but that is not a
reflection on you as mediator. In fact, if you find that 100% of your
mediations result in an agreement (and you have done more than a few) you
might be too heavy-handed with the parties.
If the mediation does not result in an
agreement, there are a number of things that the mediator can do to end
the session in an upbeat manner and increase the likelihood that the
parties will reach agreement prior to a court proceeding (and/or be
willing to utilize mediation in the future).
Review with the parties any issues that
may have been resolved and explore the possibility of a partial agreement
outlining what issues have been resolved and which issues the parties are
requesting a later ruling.
Encourage communication after mediation
(and before a trial date) by asking the parties if they wish to exchange
business cards or telephone numbers. Often parties lack the ability to
contact one another even if they wanted to reach out after the mediation.
Ask them if they are willing to contact
the mediation office to request another session if they think at a later
point it will be helpful.
Most of all, end on a positive note. Do
not chastise them for not being able to resolve their problem. You might
even accept some responsibility by saying, "I regret that I was not able
to assist you in resolving your dispute today."
Agreement
In most mediations when the parties reach
a full agreement, the mediator or a party will write the terms of the
agreement, or a list of the items agreed to, by hand, at the end of the
session to be signed or initialed before the parties leave the mediation.
This function is extremely important. The agreement may be a legally
binding and enforceable document or may serve as a guide for a legal
document to be later drafted by lawyers. The parties need to understand it
and be able to refer back to it. A judge may have to review and enforce
it.
There are five basic elements of a
written agreement:
Who - Who are the parties
What - What have the parties agreed to do
Where - the place or location that an exchange will take place
When - date of exchange; time limitations, be specific
How - what form will the exchange take
|
