Special Issues in Mediation

1
Special Issues in Mediation

• Facilitating conflict-resolution

2
The Tasks of the Mediator

• Remain neutral
• Contain emotional conflicts
• Ensure a balance of power
• Define issues of disagreement
• Organize priorities
• Develop alternative options
• Make mutually-acceptable agreements

3
Neutrality of the Mediator

• How can mediator ensure neutrality?
• In appearance and in fact
• When should mediator NOT be neutral?
• Law violations
• Ethical violations
• Domestic violence threat of abuse
• When 3rd party interests need protection
• When mediation rules are broken

4
Separating out Emotional Conflicts, Hurt
Feelings, Loss of Face

• Acknowledge them explicitly
• so that person feels heard understood
• Label them as separate issues
• deal with them at a separate time or separate
  place
• Remember Mediation is not therapy!

5
Kinds of Power Imbalances

• Assertive, articulate authoritative
  personality style
• Emotionally controlling style (angry, weepy,
  guilt-inducing etc.)
• Physically intimidating and threatening
• Information or expertise imbalance

6
Balancing assertive dominating party

• Control flow of communication between parties
• Propose rules for equal time
• Play traffic cop to enforce them
• Re-state inarticulate partys concerns
• Use caucasing (separate parties)

7
Dealing with Emotional Blackmail

• Comment on the emotional intimidation, blackmail,
  or guilt that is driving the mediation process
• Separate the emotional issue out from the factual
  issue under dispute

8
Dealing with Physical Threats

• Declare them illegitimate grounds for
  suspending the mediation!

9
Information Imbalances

• Insist on full disclosure of all information
  relevant to the issues
• Provide information, expertise and advocacy for
  the disadvantaged party

10
Dealing with Multiple Issues Allegations

• Separate out and prioritize issues of each party
• List goals of each person (not complaints or
  solutions)
• Cross-reference goals common concerns of both
  parties
• Develop an agenda for the mediation session

11
How to deal with excessive blaming

• Turn complaints into positive goals
• what does each party want different?
• Look forward, future oriented
• not backward who did what to whom
• Find ways to acknowledge strengths save face
• excessive blame often signals party is trying to
  ward off humiliation and shame.

12
How to Invent Options for Mutual Gain

• Discuss interests, not positions
• Explore beyond conflicting issues find
  compatible ones
• Recognize parties multiple interests
• Identify build agreements on shared interests

13
Basic Human Interests include

• Security
• Economic well-being
• Sense of belonging
• Recognition respect
• Control over ones life

14
Ensuring Parties Own the Solution

• Avoid giving advice or proposing solutions
• Brainstorm alternative solutions
• Record their ideas on a flip-chart
• Star the most promising ideas
• Combine improve good ideas
• Check solutions against objective criteria

15
Dirty Tricks

• Facts are phony
• What to do?
• No intention to honor agreements made
• What to do?
• Make an agreement without authority to do so
• What to do?

16
Breaking Deadlocks Stalemates

• Fact-gathering
• when facts are disputed, when disputants are
  vague, when technical expertise is needed
• Obtain partial or progressive, temporary
  settlements
• Undertake shuttle diplomacy draft a series of
  one-text agreement
• Negotiate on how to proceed
• (explore BATNAS)

17
BATNAS help break deadlocks

• Best Alternative to a Negotiated Agreement
• Explore alternative strategies for conflict
  resolution (eg litigation, do nothing, etc.)
• What are the relative costs involved for each?
• What are the likelihood of achieving another
  outcome?
• How long will it take ?

18
GENERAL TYPES OF BATNAS

• Appeal to higher authority
• Examples
• Do nothing
• Examples
• Take unilateral action
• Examples

19
Communicating in Mediation

• Avoid criticism of each parties positions
• ask why they want that particular solution
• ask what would induce the other party to agree
• How mediator can propose solutions without
  imposing or giving advice
• suggest idea invite criticism
• would you like to hear about what other folks
  have done in your situation?
• Remember the mediator is not a judge!

20
Communicating (continued)

• Avoiding parties resistance
• ask questions, dont make statements
• Reframe the problem restate each sides position
• slightly changing emphasis
• using less inflammatory language
• positively connotating their intentions
  interests
• Please correct me if I am wrong..

21
Communicating (continued)

• Turn personal attacks into attacks upon the
  problem
• Comment on the positive aspects of each partys
  behavior, intentions
• Separate out the emotional issues
• e.g. distrust, wish for punishment, revenge

22
Communicating (continued)

• Clarify whether
• Issues are not legitimate ones
• Facts are unknowable
• Solutions are not feasible
• Litigation outcomes cannot be predicted
• Do not give legal advice! A mediator is not a
  legal advocate!

23
Communicating (continued)

• Critiquing someones solution
• Let me show you where I have trouble following
  your reasoning..
• Presenting the proposed joint-solution
• list reasons before offering proposal
• Present the BATNA to settle the deal

24
Writing up the Agreement

• Use language that fits how parties wish to view
  themselves
• Write in consequences for failure to follow
  agreement
• Write in how disagreements will be resolved in
  future
• Have agreement signed witnessed