Mediation

Multi-Party Considerations Cross-Cultural Disputing

Professor John Barkai William S. Richardson School of Law University of Hawaii at Manoa 2515 Dole Street, Honolulu, Hawaii 96822 Phone (808) 956-6546; Fax (808) 956-5569 E-mail: barkai@hawaii.edu Web Page: www2.hawaii.edu/~barkai

The Hawaii Mediation Model

"Applying the Hawaiian Mediation Model to Disputes and Conflicts" 11 Interspectives 40 (1992) Professor John Barkai Introduction In its simplest form, mediation is a conflict resolution method in which a mediator helps two people negotiate a voluntary solution to their dispute. What makes mediation different from other third-party dispute resolution processes is that the mediator does not have the power to decide who "wins" the dispute or what the solution should be. The mediator is neutral and provides nonjudgmental management of the negotiation process. Even though the mediator has no power to decide, mediation is a powerful and successful dispute resolution process. The majority of mediated conflicts result in negotiated solutions that are satisfactory to all the disputants. Statistics from mediation centers indicate that approximately 85 percent of the mediations end in agreements. Even if there is no mediated solution, the disputants are no worse off than before the mediation. A Basic Model of Mediation The basic mediation process can be most clearly identified in its purest form by looking at the mediation of minor disputes. Mediators of minor disputes devote their attention to managing the mediation process and using techniques which allow the disputants to 1) identify, clarify, and communicate the issues and interests in dispute, 2) effectively negotiate with each other, and 3) structure a settlement that is fair and workable from their perspectives. Especially in minor disputes, the mediator has no way of knowing what a fair and workable settlement would be from the disputants' perspectives. In addition, there is no legal standard by which to judge, for example, how much noise to too much for the neighborhood or how the children of the neighbors should relate to each other. Because the disputants have to live with any negotiated agreement, the disputants (not the mediator) are the people in the best position to decide what is the best, most workable solution. The following model of mediation was developed over more than 30 years and thousands of mediations at the Mediation Center of the Pacific in Honolulu (which was formerly called the Neighborhood Justice Center), and it has been revised and refined as a result of the experiences of many mediators and almost countless mediator trainings.

Professor John Barkai --- University of Hawaii Law School

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The Core Process The core process of mediation is designed around two central tasks: 1) defining the problem the Forum Phase, and 2) negotiating solutions the Negotiation Phase. Each phase is divided into three stages. The Forum includes: 1) the mediator's opening statement, 2) the disputants' statements, and 3) private meetings called "caucuses" with each disputant to discover all the issues and interests important to a fair, workable solution. The Negotiation includes: 1) a second round of private caucuses with each disputant to define options and begin the bargaining, 2) a joint session with all disputants to negotiate the general terms of the agreement, and 3) a drafting session that results in a specific, written agreement. Such a mediation process can be diagramed as two triangles, each with three layers, as seen below. The Mediation Process Phases Conceptual Model Stages Mediator's Opening Forum Disputants' Statements First Caucuses

Second Caucuses Negotiation Joint Session Draft Agreement

A. The Forum Phase The Forum phase, represented by the top triangle, starts with the mediator's opening statement, then allows each disputant to tell their view of the conflict, and finally moves to caucuses with each disputant. In the mediator's opening statement, the mediator first convenes the meeting by discussing the voluntary, confidential, and impartial nature of the process. In addition, the mediation process is described generally (especially the confidential caucuses), and it is stressed that the mediator will not issue a decision as a judge would in court. Next, in the disputants' statement stage,
Professor John Barkai --- University of Hawaii Law School -Mediation, Page 2 -

each disputant is asked to make a short statement about their view of the conflict and the other disputant is asked to not interrupt. Finally, the mediation moves into a series of confidential caucuses with just the mediator and one of the disputants present. As the mediator process moves to the caucus stage, the upper triangle has its widest part, signifying the increasing amount of information that becomes available to the mediator and the disputants as issues, positions, interest, feelings, and hidden agendas are discussed and clarified in the caucuses. The full development of facts and feelings in the Forum phase offers the greatest opportunity to create in the Negotiation phase a cooperative, integrative solution - what some people refer to as a "win-win" solution. As the mediator uses this Forum phase to learn the history of the conflict, the disputants often focus on just the facts which support their view of the conflict. In both joint meetings and especially in the caucuses, the mediator probes beyond the apparent facts to learn the disputants' underlying interests and feelings about the conflict. During the Forum, the time focus is on the past and the present. B. The Negotiation Phase In the Negotiation phase, represented by the second, inverted triangle, the mediator shifts the focus to the future and assists the disputants to negotiate solutions based upon their interests. The Negotiation usually begins with another series of caucuses. The caucuses are used to move the disputants off their current negotiating positions by asking them to brainstorm possible solutions to the problem. Mediators can use a number of techniques to narrow the differences between the disputants and allow them to save face. Common mediator tactics are to review the good parts of the prior relationship, create doubts, stress the consequences of no agreement, provide reality testing about proposed solutions, and emphasize the progress that has been made. Several caucuses may be necessary. When the disputants appear ready to bargain effectively face-to-face, the mediator brings the disputants together for a joint meeting. Although the mediator may still manage the bargaining as mutual concessions are proposed and accepted, the disputants are encouraged to negotiate directly with one another. Finally, as the disputants work out the solution, the mediator assists them by drafting a written agreement that is balanced, specific, complete, workable and in the disputants' own words.

Professor John Barkai --- University of Hawaii Law School

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C. A Communication Focus Throughout the entire mediation process, Hawaiian mediators use facilitative communication techniques. During the Forum, the mediators try to get the disputants to reveal and clarify their interests and express their feelings by using various communication techniques such as open-ended questions, clarifying questions, and active listening. Mediators often summarize to acknowledge what the disputants have said, to prevent repetitive accounts, and to check their understanding of what the disputants mean. They use active listening to acknowledge the disputants' feelings because feelings can be as important to a solution as the facts. Mediators also "reframe" the disputants' language to eliminate blame and the attribution of motives. A fundamental hypothesis of Hawaii community mediation model is that the disputants are in charge of their own dispute. Hence, during the Negotiation phase the disputants are expected and encouraged to create their own solutions to the conflict. Acting under the assumption that disputants are more likely to move from their entrenched negotiation positions towards mutually acceptable solutions if the basis of the solutions comes from a disputant's own mouth rather than if suggested by someone else, mediators are taught to refrain from giving advice. Hence, rather that make direct suggestions to the disputants, mediators ask well crafted questions that are intended to stimulate the creative thinking of the disputants. The Neighborhood Justice Center The basic mediation model described in this article is used in many different types of disputes in Hawaii, including complex, multi-party construction cases in court, bitterly contested divorce proceedings, minor neighbor-neighbor disputes, and for playground conflicts mediated by grade school children. When the mediation is done at the Neighborhood Justice Center, the mediators are community volunteers from a wide variety of backgrounds and professions, who mediate without compensation. All such mediators have gone through at least 40 hours of training using role plays and debriefing sessions as the primary teaching techniques. Finally, at the NJC all mediations are done with two mediators in a process called "co-mediation." Conclusion The process of mediation has been used for thousands of years to resolve conflicts. In some parts of the world, mediation is considered to be the same as, or similar to, conciliation. Whatever its name, at its core is a voluntary process used to help two or more disputants negotiate and settle their differences. The article has described a basic model of mediation taught to community mediators in Hawaii and adapted to a wide variety of disputes.

A Community Mediation Model

FACILITATIVE & EVALUATIVE MEDIATION STYLES

Two very different mediation styles are the facilitative and evaluative styles. The following article explains more about the two mediation styles. Community mediators tend to use the facilitative style; commercial mediators tend to use the evaluative style MEDIATOR ORIENTATIONS, STRATEGIES AND TECHNIQUES 12 Alternatives to High Cost Litig. 111 (Sept. 1994) Leonard L. Riskin THE MEDIATOR'S ROLE The evaluative mediator assumes that the participants want and need the mediator to provide some direction as to the appropriate grounds for settlement--based on law, industry practice or technology. She also assumes that the mediator is qualified to give such direction by virtue of her experience, training and objectivity. The facilitative mediator assumes the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than either their lawyers or the mediator. So the parties may develop better solutions than any that the mediator might create. For these reasons, the facilitative mediator assumes that his principal mission is to enhance and clarify communications between the parties in order to help them decide what to do. The facilitative mediator believes it is inappropriate for the mediator to give his opinion, for at least two reasons. First, such opinions might impair the appearance of impartiality and thereby interfere with the mediator's ability to function. Second, the mediator might not know enough--about the details of the case or the relevant law, practices or technology--to give an informed opinion. SUBJECT-MATTER EXPERTISE In selecting a mediator, what is the relevance of "subject-matter expertise?" The term could mean substantial understanding of either the law, customary practices, or technology associated with the dispute. In a patent infringement lawsuit, for instance, a mediator with subject-matter expertise could be familiar with the patent law or litigation, practices in the industry, or the relevant technology--or with all three of these areas. The need for subject-matter expertise typically increases to the extent that the parties seek evaluations--assessments, predictions or proposals--from the mediator. The kind of subject-matter expertise needed depends on the kind of evaluation or direction the parties seek. If they want a prediction about what would happen in court, they need a mediator with a strong background in related litigation. If they want suggestions about how to structure future business relations, perhaps the mediator should understand the relevant industries. If they want to propose new government

regulations (as in a regulatory negotiation), they might wish to retain a mediator who understands administrative law and procedure. In contrast, to the extent that the parties feel capable of understanding their circumstances and developing potential solutions--singly, jointly or with assistance from outside experts--they might prefer a mediator with great skill in the mediation process, even if she lacks subject-matter expertise. In such circumstances, the mediator need only have a rough understanding of the relevant law, customs and technology. In fact, too much subject-matter expertise could incline some mediators toward a more evaluative role, and could thereby interfere with developing creative solutions.

Mediation of International Crises

Like many disputes, international crises may be marked by profound disagreements as well as mutual mistrust and resentment. International crises mediation also has its own vocabulary, classifying mediation as: 1. Facilitation or communication (essentially the Facilitive style) 2. Formulation, (essentially the Evaluative style) and 3. Manipulation. (the mediator with clout political power or influence) A facilitative mediator may simply provide the physical space for negotiation (called good offices), organize the logistics, collect information, set the agenda, help understand the messages between the parties, and serve as a conduit when face-to-face communication is not possible or desired. Although the facilitator may try to get the parties to see the problem in a new light and to view each other more empathetically, this type of mediator clearly make no specific suggestions regarding potential solutions. They make no substantive contribution to the negotiation. The facilitative mediator in the international crises is quite similar to the facilitative mediator in community or commercial mediation. The formulative mediator may suggest potential solutions to the disputants. In this sense, a formulative mediator sounds similar to an evaluative commercial mediator with the limited distinction that because there is no potential court case, the formulative mediator does not offer a prediction of the courtroom verdict, but simply proposes a solution. Manipulative mediators (the mediators with clout) also provide a substantive contribution to the negotiation, including suggesting potential solutions, and in addition they may offer incentives (carrots) to the parties to persuade them to adopt specific solutions or can threaten or actually impose penalties or sanctions programs sticks) on those parties if they do not accept a proposed agreement. Manipulative mediators are not found in commercial or community mediation.

Styles in the Context of Mechanisms and Tactics May contact with parties Facilitative

Formulation Evaluative

Manipulation Clout

Gain the trust and confidence of the parties Arrange for interactions between the parties Identify underlying issues and interests Clarify the situation Supply missing information Transmit messages between parties Fact finding Offer positive evaluations Allow the interests of all parties to be discussed Control the pace informality of the meetings Ensure the privacy of mediation Highlight common interests Control timing Help devise a framework for typical outcome Help parties save face Make substantive suggestions and proposals Suggest concessions parties could make Keep parties at the table Change parties' expectations Take responsibility for concessions Make parties aware of the costs of non- agreement Supply and filter information Help negotiators to undo a commitment Reward concessions made by parties Press the parties to show flexibility Promise resources Threaten withdrawal of resources Offer to verify compliance with the agreement Add incentives Threatened punishments Threatened to withdraw mediation

Adapted from Mediation Style and Crisis Outcomes, Kyle C. Beardsley, David M. Quinn, Bidisha Biswas and Jonathan Wilkenfeld, The Journal of Conflict Resolution, Vol. 50, No. 1 (Feb., 2006), p 66

Suggestions for Mediators

The following suggestions for mediators are from, Mediating International Crisis, Jonathan Wilkenfeld, Kathleen J. Young, David M. Quinn, and Victor Asal (2005) pp. 90-91. These suggestions were offered to mediators involved in a simulated crisis negotiation, and they would probably serve you well in a real-life situation. The suggestions are listed here as they move from facilitative to manipulative mediation. Ask the parties to brainstorm. Assist parties in understanding messages that are passed back and forth and the details of the conflict. Ask each party what their fears and interests are, and promise not to share these with the other party unless such action is requested or was approved by the providing party. Point out that these fears and concerns are legitimate. "Feel the pain" of each side. In messages sent to the individual parties in private or both parties in public, point out that each side has legitimate concerns. Ask which issues they want to discuss and let them determine the agenda in order in which issues are discussed. Reiterate how the negotiations have gone and what has been agreed upon, especially when the parties are at an impasse or when discussion has been completed on a specific topic. Praise positive actions. Constantly reiterate that compromise is the key, that each side will not be able to get all of what they want. Be prepared to act as the sole channel of communication between the parties if requested. If one party asks your opinion (i.e., "Should I take this offer?" or "Should I offer this?"), respond with questions to them, not your answers to their questions. For example, "Does that offer satisfy you? If not what else do you want or need?" Redefine the issues. Set a specific agenda and/or determine the order of issues to be discussed. Propose new options for agreements. Formulate possible resolutions. Make them aware of political and economic costs or international repercussions of nonagreement. Use carrot and stick measures, manipulate the world state parameters, or threaten to manipulate global sentiment or other aspects of the international environment.

Raise costs of disagreement or offer rewards for agreement. Push for preliminary agreement on side issues. Ask each side what their bottom lines is, and tell them that you will not share this information with the other side. Find out what the agreement range includes based on the information they provide you. Use flattery. Appeal to their egos. Do not let them escalate the conflict. Give them credit when they engage in confidence-building measures. Provide carrots (additional resources if possible and useful).

Herding Cats: Multiparty Mediation in a Complex World (1999)

Chester Crocker, Fen Osler Hampson, and Pamela Aall, eds. This book talks about "multiparty mediation" in a completely different way. "Multi-party" in this book really means "more than one mediator." These mediators can enter a conflict in sequential, simultaneous or "composite" ways. This book is a series of case studies about third-party interventions in violent conflicts in the 1990s. It examines conflicts in Asia, Africa, Europe, Latin and South America,

WESTERN MEDIATION COMPARED TO

DISPUTE RESOLUTION IN OTHER CULTURES
CLASSIC WESTERN MEDIATION Neutral Face-to-face Facilitate communication Explore interests Determine facts & perceptions Identify options Assist in evaluation of options Document the agreement OLD FRIEND SYSTEM (Lao peng you) - CHINESE Trusted old friend Meets separately with the parties Explores facts & interests Explores interests in context of mutual benefits & interdependence Preserves valuable relationships Identifies options Suggests resolution Save face & give face Convenes parties to confirm agreement Pours tea & talks COUNCIL OF ELDERS (VILLAGE MODEL) Circle of Elders Joint meeting of parties with Circle of Elders Sharing of cultural customs; - prayer to divine spirits Explores facts & perceptions Encourages full expression of views & options Evaluates options in context of group needs Makes suggestions for resolution Acceptance and ceremony

KEIRETSU TRADING CIRCLE JAPANESE Mutual business associate from an established trading circle Meets separately with the parties Explores facts, perceptions, interests Identifies options for mutual benefits Explores obligations to accommodate for the good of future relationship Searches for consensus Convenes parties to confirm agreement

HO'OPONOPONO HAWAIIAN High status elder (haku) gathers disputing parties Opening prayer to gods and family guardians (aumakua) Identifies the problem Elder questions the parties Parties acknowledge their actions to gods and each other Talk about solutions, actions to disentangle and to make right (pono) Mutual forgiveness Closing prayer Sharing of meal

Created by Louis Chang, Honolulu, Hawaii, 1995

MEDIATORS FIND SOLUTIONS by HELPING PARTIES NEGOTIATE

Uncover Interests Prioritize Interests Brainstorm Options "What could they do...?" "What could you do...?" Establish criteria Create Doubts Review the Relationship Engage in contingent bargaining "If they were to "For you to , what could you do?"

, what would you expect them to do?"

Narrow the differences Save Face Emphasize Progress Engage in Reality Testing: BATNA Stress the Consequences of No Agreement Find External Standards & Sources Cheerleader for settlement And, as a last resort: Mediator suggests MULTIPLE options

PRACTICE MEDIATOR LINES FORUM PHASE - DEALING WITH THE PAST AND THE PRESENT Can we agree that as a ground rule, we will ... Remember, you both agreed not interrupt. You will get your uninterrupted time too. Tell me more about that. When did this happen? So what you are saying is ... Wait. Let me be sure I understand correctly. You're saying ... So, as far as you are concerned ... What else is important? Could you say more about that? How do you feel about what happened? What do you mean by that? Is there anything else you want to add? Let's move to the issue of ... Can you tell me more about ...? What additional information do you have on that? Of all that you have talked about, what is most important to you now? NEGOTIATION PHASE - DEALING WITH THE FUTURE What could X do to help you solve this problem?" What can you do to help solve this problem? Do you have any other ideas for solving this problem? What do you think will happen if you can't negotiate a solution? How do you want things to be between the two of you? Is what you are talking about now helpful in reaching a solution? Put yourself in Mr./Ms. X's shoes. How do you think they feel right now. What do you have in mind on that topic? If X were to do A, what would you be willing to do? What I hear you saying is that you might be willing to ... You both seem to agree that ... Do you agree with the solution that we are talking about? What you are talking about sounds like it might work. What will happen if ... MUCH LATER - MEDIATOR SUGGESTIONS: How would you feel about ... What would happen if you tried ...

Using Cultural Dimension Interests in Negotiation Prof. John Barkai

High Context Communication Read between the lines Ask them to be more direct Pay close attention to context & non-verbals Don't take them literally; gather "clues" Draw out their full ideas with questions Face is very important Don't challenge them; they may lose face Explain that you do not fully understand; ask for further clarification Take time to build a good relationship Low Context Communication Communicate clearly and explicitly. Be "upfront" Ask direct questions; share frank observations Say "no" if you mean "no" Take their words at face value No need to read between the lines What you hear, is what you get Avoid ambiguous expressions Reframe their directness as helpful information (not rudeness) Listen & active listen Be ready to negotiate at the first meeting Handle some business over the phone or internet

NEGOTIATING WITH THEM

High Power Distance NEGOTIATING WITH THEM Understand & defer to their hierarchy Use titles (don't be informal) & respect authority Prepare by learning about the position of each person on their team Match eagles with eagles Exchange business cards early (Japanese meishi) Treat them with respect Don't be intimidated by their status Demonstrate your rank Privileges are expected by superiors Blame subordinates Remember that everyone has their place Better to be too respectful than to lack it Don't insist on everyone's input Expect highly centralized decision making Authority may be limited

Low Power Distance "Just call me John;" be less formal Address questions to the whole group Treat them all as equals Use teamwork Acknowledge experience & expertise, not status Respect individuality Respect subordinates Ask for opinions from their subordinates

Individualism NEGOTIATING WITH THEM Expect low context communication and extroverted behavior They will have personal goals distinct from group goals Stress personal gains & individual goals Use a "What's in it for me" approach Recognize their individuality; they value individual rights They will want some personal time and privacy Expect them to think and act individually Seek their personal opinions Talk of "Me" and "I" Individualists are the minority of the world

Collectivism Expect your proposals to be received by a larger group Expect high context communication and introverted behavior Expect a team Dont expect immediate action; they must consult others Everything will take longer Consider the collective goals and interests Individual rights are less important Insiders are treated differently than outsiders Expect them to think and act collectively Give them face Harmony may be more important than honesty Talk of "We" They are the majority of the world

Using Cultural Dimension Interests in Negotiation

Long Term Orientation Short Term Orientation

NEGOTIATING WITH THEM

Expect "slow going Expect strong perseverance Have a future focus Expect future negotiation opportunities Build long-term relationships Demonstrate your long-term focus Expect a strong work ethic Have great respect for tradition Work with their extensive personal networks - "guanxi" Help them understand the current situation

Focus on today & the short term Incorporate their immediate needs Make it happen "right now" Expect quick changes Help them examine the "long run" and the consequences of a "quick win"