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MEDIATION LEVEL ONE

Marie-France Chabot
Quebec City, Quebec, Canada
Marie-France Chabot Marie-France.Chabot@fd.ulaval.ca

&

Martha Hansen McManus


Calgary, Alberta, Canada
Martha McManus <mcmanusm@cadvision.com>

Martha Hansen McManus & Marie France Chabot July 2000 Institute 1
Introductions
 Course Outline, Format, and Objectives
 Definition of Mediation
 Hierarchy of Dispute Resolution Mechanisms
 History of Mediation
 Advantages and Disadvantages of Mediation
 Overview of the Process
 Stage One: Setting the Tone and Orientation
 Stage Two: Forming the Agenda
 Communication
 Stage Three: Exploring the Issues
 Role and Responsibility of the Parties to Mediation
 Stage Four: Negotiating a Resolution
 Special Issues: Power Imbalances and Maintaining Control
 Self/Instructor Evaluation

This seminar will include the following features:


- lecture and discussion based upon material supplied
- drafting and communication exercises
- practical application through the use of mediation simulation
- personal support, consultation, and feedback from the instructor

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COURSE OBJECTIVES

1. Understand the basic process known as mediation.

2. Appreciate how mediation fits within the structure of appropriate dispute resolution
mechanisms.

3. Identify the advantages and disadvantages of mediation.

4. Understand the four stage training model of mediation and identify the purposes of, and
techniques used in, each of the four stages.

5. Understand the importance of communication in mediation and identify some of the barriers
to effective communication.

6. Identify and utilize various techniques for enhancing the communication process.

7. Identify the role and responsibilities of the parties to mediate.

8. Appreciate that mediators must determine for themselves how they wish to maintain control
of the mediation process which includes finding the level of intervention they find most
comfortable.

9. Recognize that power imbalances exist in mediation and that the mediator must develop
strategies to effectively deal with them.

10. Demonstrate competent skill as a mediator through various mediation simulations.

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Overview of Conflict Resolution Processes

LEGISLATE

LITIGATE

ARBITRATE

MEDIATE

SHUTTLE MEDIATE

NEGOTIATE

COMMUNICATE

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DEFINITION OF MEDIATION

Mediation is an economical process of dispute resolution in which a trained, impartial,


neutral intervener assists parties in disagreement reach a voluntary settlement of their differences, by
promoting co-operation, communication, and facilitating negotiations that lead to an agreement
which defines their future behaviour and preserves the relationship between the parties.

DISPUTE RESOLUTION MECHANISMS

Mediation is just one of many possible dispute resolution mechanisms that exist to aid in the
settlement of the wide range of conflicts which may occur in families, communities, or commerce.

The following identifies the formally recognized methods of dispute resolution:

1. Self-help is a method which involves the resolution of the dispute by the parties to the
disagreement without the assistance of third parties. A mutually satisfying agreement may
be reached by positive means such as open communication and good negotiation skills or a
resolution may be achieved through negative means such as violence, intimidation, the
exploitation of existing power imbalances, or by mere avoidance.

2. Negotiation is the process whereby two parties reach a mutually agreeable settlement
through the culmination of interactive informational exchanges. A need is identified which
leads to communication and the adjustment of positions until agreement is reached.

3. Assisted Negotiation is a process whereby third parties, such as lawyers, negotiate on behalf
of the parties to a conflict to reach an agreement. This agreement may be imposed upon the
disputants if the third parties have the power to bind them or the agreement may be tentative
and subject to the approval of the parties to the conflict.

4. Mediation is a process whereby parties to a conflict agree to refer their dispute to a neutral,
impartial third party whom assists them in reaching a solution by creating an environment
which fosters co-operation and communication, leading the parties to satisfying negotiations.
If the disputants cannot reach an agreement they are free to pursue other action. Shuttle
mediation is a process that utilizes a mediator who goes between the parties with a single
text of words between the parties.

5. Arbitration is a process in which the parties agree to submit their dispute to a mutually
acceptable, independent, neutral third party (or sometimes a panel of three such neutrals).

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The arbitrator or panel of arbitrators will hear arguments, review evidence and render a
decision. The parties usually agree beforehand to be bound by this decision.

6. Litigation is the most commonly recognized form of dispute resolution. The parties take
their dispute before a judge in a court of law, who hears evidence in an adversarial setting
and makes a decision which is imposed on the parties. This is often thought of as a "win -
lose" situation in which neither party is completely satisfied in the long term.

Mediation is therefore one process in a series of possible conflict resolution mechanisms.


These processes increase in complexity and formality and it is mediation's placement within this
hierarchical structure that makes it most appealing. It is not burdened by the complexities and
formalities of arbitration and litigation and its utilization of structure and rules permits greater
effectiveness than mere negotiation and self-help mechanisms.

Another perspective to bear in mind is that mediation builds upon the process of negotiation
that has already been studied in some depth. Mediation has even been called a "parasite on
negotiation". Mediation is a form of third party dispute resolution that builds, maintains, sustains, or
revives negotiation. The mediator facilitates or orchestrates negotiation. Indeed, the fourth stage of
the training model used in this course is called "Negotiating a Resolution" and involves the
mediator attempting to assist the parties in this regard.

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PREMEDIATION SCREENING
Speak with the parties separately.
Are all parties aware of process of mediation and willing to participate?

Before you can sit down with the people involved in a conflict, it is important to screen for safety.

First describe the mediation process, guidelines, and confidentiality.

Ask each party individually (before you seat them together) if they feel safe in meeting with the
other person/s.

If you sense a possibility of harm for any of the participants, seek another conflict resolution
process.

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OVERVIEW OF THE PROCESS
The following four stage training model will be used in this course. Bear in mind that this
model only serves as a road map. Actual meditations are usually adapted to the mediator's individual
style as well as to the particular circumstances of the dispute. However, despite minor variations,
these four stages should be readily identifiable in any mediation.

This particular model focuses on the exploration of the issues underlying the particular
conflict. It encourages the parties to develop an understanding of each other’s positions and interests
with the aim of generating a host of possible solutions to the problem. Each of these options will be
assessed given the standards of fairness that are mutually developed. In this way it is hoped that a
mutually satisfying course of action will present itself at the end of the negotiations and evaluations.
The following outlines the name and primary components of each stage.

Stage One: SETTING THE TONE AND ORIENTATION

a) Preparation
b) Create a tone for the mediation
c) Explain and clarify the mediation process
d) Define the roles and responsibilities of the parties
e) Set the rules or guidelines
f) Obtain a commitment to mediate from both parties

Stage Two: FORMING THE AGENDA

a) Present background statement to the dispute


b) Identify common ground to define issues
c) Prioritise issues and finalize agenda

Stage Three: EXPLORING THE ISSUES

a) Separate interests from positions


b) Understand the interests of the other party
c) Identify common interests to narrow the dispute

Stage Four: NEGOTIATING A RESOLUTION

a) Generate options
b) Determine criteria for fair agreement
c) Evaluate options and negotiate a resolution
d) Detail steps for implementation

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Stage One: SETTING THE TONE AND ORIENTATION
a) Preparation
b) Create a tone for the mediation
c) Explain and clarify the mediation process
d) Define the roles and responsibilities of the parties
e) Set the rules or guidelines
f) Obtain a commitment to mediate from both parties

a) Preparation

The key to successful mediation is preparation. The mediator's initial inquiries should
provide a general knowledge of the issues to the dispute. Through research, consultation, training,
and experience, the mediator should develop an understanding of the trends, patterns and
perceptions likely to be encountered given the issues involved. Then the mediator may wish to
consider some of the points he or she may want to raise in the session. The mediator will also need
to consider such things as: the balance of power; the primary sources of pressure exerted on the
parties; the pressures motivating them toward settlement or pressures blocking agreement; political
or personal conflicts within and between parties; and the extent of settlement authority of each party.
Although the task of preparation may appear difficult, the mediator will feel much more confident
when conducting the mediation if the homework has been done.

b) Create a Tone for Mediation

Parties involved mediation are usually in a state of emotional crisis, especially if it has been
a prolonged and highly confrontational dispute. This will be compounded when they appear for the
mediation session. They will be anxious and nervous as they suddenly find themselves in a strange
environment and about to partake in an unfamiliar process. Therefore, it is important to create a tone
for the mediation that is relaxed and comfortable. Use pleasant and comfortable office furniture
arranged in a non-confrontational manner. For example, have the disputant’s chairs facing the
mediator in a semi-circle. Consider whether a meeting table is desirable. Play the host by greeting
all parties warmly and ensure introductions are made.

c) Explain and Clarify the Mediation Process

Although the parties will likely have some concept of mediation given that they have
decided to take part in mediation, do not assume that they have a complete understanding of the
process. It will be necessary to explain the mediation process and the steps involved. Ensure that
you properly probe and answer any questions.

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d) Define the Roles and Responsibilities of the Parties

As mediation is a new and unfamiliar process, the parties are unlikely to truly understand
their roles and responsibilities and those of the mediator. This is the time to re-emphasize that the
mediator merely facilitates communication to assist the parties reach their solution. The mediator
makes no decisions with respect to the outcome of the dispute. The parties should be reminded that
through their commitment to the mediation process they have the responsibility to openly and
honestly communicate with each other to work towards and arrive at their own agreement.

e) Set the Rules and Guidelines

The mediation process will only proceed effectively if the mediator establishes the ground
rules in which he or she wishes to conduct the mediation and the parties agree to operate. Examples
include:

i) As the mediation session is private, all discussions are to be kept confidential and the
parties agree not to repeat anything that is said during the session.
ii) One person speaks at a time. Rather than interrupt, ideas or comments should be
written down to be raised when the other party is finished speaking.
iii) Everyone will keep a business-like tone. There will be no swearing, name-calling,
shouting or other aggressive behaviour.
iv) Everyone must remain seated throughout the mediation.
v) Everyone is entitled to physical comfort. Parties will agree on any breaks.
Respecting the need for continuity, breaks should be kept short.
f) If someone refuses to follow these ground rules the mediator has the right to end the
session.

Following the explanation of these guidelines and answering any questions, the parties
should be made to verbally commit to abiding by these ground rules. If the parties' behavior violates
these guidelines, the mediator should not hesitate in reminding the parties of their original
commitment to these rules.

f) Commitment to Mediation

As discussed, mediation is a voluntary dispute resolution mechanism and for it to be


effective, both parties must be committed to pursuing this process. Therefore, before beginning the
remaining stages of the mediation process, the mediator should receive a verbal confirmation of the
parties' willingness to commit to mediation by directly asking each party if they are prepared to
commit to the process and proceed with mediation.

If one or both parties to the dispute are being represented at the mediation, it is advisable to
ensure that the representative has the full authority to settle the disagreement for the disputant.

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Finally, fees and method of payment are often discussed and confirmed at this stage.

In some circumstances, it might be advisable to have the parties execute an "Agreement to


Mediate". This agreement outlines the mediator's professional relationship with the parties. In
addition to the items included in the attached precedent, the Agreement to Mediate could include the
following:

a) The issues to be mediated, if predetermined;


b) The limits of the mediator's role. For example, a lawyer - mediator may wish to state that
they are not giving any legal advice; and
c) The fees and their method of payment.

It is best to avoid including references to items that the mediator may not be able to deliver.
For example, an agreement will be reached.

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Stage Two: FORMING THE AGENDA

a) Present background statement to the dispute


b) Identify common ground to define issues
c) Prioritise issues and finalize agenda

a) Presenting Background Statement to the Dispute

Once the mediation process has been explained, the parties are aware of the ground rules,
and have expressed their commitment to pursue the mediation process; each party should be given
an opportunity to present their statement regarding the dispute. It is often helpful to have them
decide who will give their opening statement first. To provide the parties with a structure in which
to make their statement regarding the dispute, use questions such as:

a) "What brings you to mediation?"


b) "What issues would you like to see resolved by mediation?"

b) Identify Common Ground to Define the Issues

As the parties deliver their opening statements the mediator must pay close attention and
identify and separate out broad concerns from the many assumptions, facts or
positions likely to be given by the party at this time. Once a common concern is
identified, the mediator describes it in neutral, non-threatening language and suggests
to the parties that this could be a potential issue in the dispute.

As the parties deliver their separate accounts of the dispute, the mediator should allow the
parties to speak freely and only interrupt when further clarification is required in order to isolate the
concern involved.

c) Prioritise Objectives and Confirm Agenda

Once each side has presented their opening statement regarding their view of the dispute, the
underlying concerns should become apparent to the mediator. Common ground should be
specifically identified by the mediator, labelled in neutral, non-threatening language and presented to
the parties as a potential issue. Before proceeding, the mediator should ask both parties if they could
think of any more issues. Finally, have the parties verbally confirm the list of issues they have
generated. It is helpful to have the parties prioritise the issues in the order they wish to discuss them.
This results in the agenda for the mediation sessions.

COMMUNICATION
Communication can be defined as the interactive process of sending and receiving messages.
However, this fundamental skill is a difficult process due in large part to the many barriers that exist

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between the sender and the receiver of the message. This can be compounded by poor
communication skills on the part of the sender or receiver. It is the lack of communication that is
often at the heart of many disputes. As the conflict grows, frustration, anger and other barriers to
communication develop resulting in diminished communication. Consequently, effective
communication is an important ingredient in dealing with conflict and resolving it successfully.
Good communication does not just happen; it is a skill that must be studied and practised. It is the
responsibility of the mediator to become familiar with their own communication patterns and those
of the parties to the mediation. The mediator should correct destructive or unproductive patterns of
communication and assist the parties improve their communication skills generally.

The study of communication is a field unto itself and far beyond the scope of this particular
course; however, the following communication techniques should prove helpful to a mediator at this
stage in their training.

Open-ended Questioning

By asking open-ended questions, the mediator gets the parties talking, which will elicit the
information that can be used in future discussions. Open-ended or probing questions are those that
cannot be answered with a simple "yes" or "no", but rather require an explanation. The mediator
uses this type of question to:

a) Provide the context in which the party can make their opening statement;
b) Obtain more information on a specific issue;
c) Gather general information, which may be explored, further with more focused questions;
d) Determine the speaker's meaning of a term or phrase;
e) Encourage interaction from an uninvolved party;
f) Guide a party along the steps of reasoning; and
g) Gain a full understanding of a party's position, interests, and needs.

Paraphrasing

This technique involves restating in one's own words what you understand the other party
to have said. It is a method of disclosing your understanding of the other person's comment and
discovering whether their comment means the same to you as it does to them. After paraphrasing
the other party knows that you understood them. No attempt is made to reshape the meaning
behind the statement

Reframing

This is a technique that goes beyond paraphrasing because the mediator restates the needs,
hopes, fears and concerns that underlie a statement. The intention of reframing is to move a person
from a position to an interest or need. When reframing, you can emphasize the positive, focus on
mutual interests, highlight Co-operation or use neutral language so as to delete accusations and
blame.

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Summarizing

This is to restate in an abbreviated form the conversation that has taken place. This
technique can be used to close a discussion, achieve clarification or emphasize that there is
movement towards a solution. For example the mediator might say, "So these are the issues you
want to resolve today."

Silence

Silence is a powerful communication technique. It allows the party time to process what has
been said and to formulate a response. Do not be afraid of silence. The mediator must not think that
they should fill all moments of silence. Silence can be used as a way to have a party re-enter the
conversation. For example, "You've been quiet Valerie. Can you share your thoughts with us?"

Questioning Techniques

Most novice mediators make the mistake of asking only open-ended questions. However,
there is a wide range of other question types that can be used to enhance the communication process
and determine the underlying needs and interests of the parties. Some of these question types
include:
a) Exploring: Finding out more details about a statement or fact.
For example, "And then what happened ...?"

b) Clarifying: These questions help make abstract ideas more specific.


For example, "What do you mean by `every time'?"

c) Focusing: This type of question brings the speaker back on topic when they
have digressed. Although it is possible that the issues raised in the digression will
have to be noted and re-examined at some point, it is more effective in the overall
communication process to address the issue currently being discussed.
For example, "Although we may need to discuss that aspect of custody at
some point, why do you feel upset with John at this moment?".

Active Listening

This is a method by which the listener openly and objectively listens to what the speaker is
trying to say without judgement.

Confrontation

It might become necessary to challenge ideas or contradictions revealed in a party's attitude,


behaviour or feelings. The intention should be to eliminate such confusion, generate insight, or alter
the behaviour. For example, if the mediator notices an inconsistent statement made by one of the
parties, the mediator should confront them over this inconsistent treatment of a particular issue.

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Feelings

It can be valuable at times for a mediator to recognize the emotional response of a party
and\or have that person focus on the emotion behind the statement. For example, "What is it about
John's statement that makes you so uncomfortable and angry?".

Non-Verbal Communication
Not all communication exchanges are verbal. Indeed, it has been said that up to 65% of a
message is conveyed by non-verbal means. Therefore, it is vital that the mediator be aware of not
only their own non-verbal messages but also those that are being sent by the parties to the mediation.

Mediators should convey to the parties that they are paying attention to what is being said by
nodding the head and maintaining eye contact with the speaker. They may also verbally
acknowledge the non-verbal messages being sent by the disputants. For example, "You look upset
Margaret. Is there something else you wish to add?".

Other non-verbal controls that the mediator can employ include:

a) A raised hand which can quiet a person much like a traffic policeman;
b) Sitting squarely and leaning slightly forward to show interest;
c) Prolonged eye contact to encourage the speaker;
d) Maintaining eye contact with those not speaking to keep them involved; and
e) Refusal to make eye contact with an interrupting party to discourage the interruption.

It is important to realize that non-verbal communication is heavily dependent upon cultural


influences. For example, not all cultures are comfortable with maintaining eye contact.
Consequently, non-verbal communication is an important element of the mediation process, and the
mediator has a responsibility to be aware of it.

Communication Barriers
Many environmental, societal, cultural and personal barriers to communication affect the
communication process. These include:

a) Technical Barriers - including personal challenges such as speech impediments and


deafness or environmental influences such as noise or language.

b) Anticipation by the Listener - the listener becomes convinced of the statement or position
about to be made by the speaker and consequently they do not listen to the speaker.

c) Ambiguity - the words chosen by the speaker may be ambiguous or there may be an
inconsistency between the thoughts and feelings conveyed and the behaviour that is
expressed. The listener may often fail to seek clarification, thus compounding the problem.

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d) Stereotypes - speakers often hide behind the guise of a stereotype to convey meaning.
However, this can mask one's true thoughts and feelings. The second difficulty is that not
each person holds the same connotation to a particular stereotype.

e) Gender\Culture Differences - it has been well documented that men and women
communicate differently and show varying degrees of sensitivity to alternate forms of
communication. Communication patterns are also related to one's culture. For example,
some cultures are not comfortable with expressive conduct.

f) Inattentiveness - the listener may be distracted during an exchange by their physical


surroundings or their own private thoughts.

g) Unresolved Emotion - unresolved feelings such as anger and frustration can interfere with
the communication process.

h) Bashfulness - the parties to a communication exchange may simply be afraid to let the other
party know their true thoughts and feelings on a particular topic.

i) Ignorance - it is possible that parties to the communication are actually unaware of their
own thoughts and feelings on a particular topic. They may require counselling on the subject
to assist them identify their true feelings so that they can better address their needs in the
course of the negotiations.

Stage Three: EXPLORING THE ISSUES


a) Separate interests from positions
b) Understand the interests of the other party
c) Identify common interests to narrow the dispute

a) Separating Interests from Positions

In order for the parties to move in the direction of settlement, it is necessary that they begin
to verbalize and understand the interests that underlie their own position as well as the interests of
the other party. It is by understanding these interests that a party recognizes what is really important
to themselves and the other party. Once this is achieved, it will be easier to generate options, which
can adequately address both parties' true interests and needs. Therefore, it is important that the
mediator question the parties to discover why something is important to them.
You can use the following question types to help reveal true interests:

a) Clarifying questions help make abstract ideas more specific.


For example: "What do you mean by everything?"
b) Justifying questions help elicit reasons why a party holds a position.
For example: "Why do you think you will never see her again?"

b) Understand the Interests of the Other Party

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In order for the parties to generate viable options that will satisfy both of their interests and
needs, the parties must first understand the interests and needs of the other. To ascertain whether this
has been accomplished, you may wish to use the technique of paraphrasing. Ask the one party to
repeat or paraphrase the concerns or interests stated by the other party. Ensure that the paraphrasing
party does not omit anything. This procedure is often more successful if the mediator assures the
paraphrasing party that by expressing the first party's concerns, they are not necessarily agreeing
with them but only demonstrating their understanding. Through the use of this process the mediator
can create an atmosphere of understanding between the parties, which will permit them to advance
to the next stage of the mediation process.

At this stage there is often a tendency to leap ahead and begin to generate options for
settlement. Be patient, if someone offers a solution, acknowledge it and explain that it will be
discussed further once all interests have been properly identified.

c) Identify Common Interests to Narrow the Dispute

As the parties begin to express and understand the other's underlying interests, the mediator
can identify common ground where the parties agree. This will not only lend a positive air to the
discussion, as the parties realize that they can agree on some points, but it will narrow the dispute
and the interests that will become the subject of the negotiations.

Role and Responsibility of the Parties to Mediation

Role of the Mediator


As the assistance of a neutral third party is the vital component to the mediation process it is
important that mediators fully understand their role. The role of the mediator can be briefly
described as follows:

a) Educate the parties about the mediation process and their role and responsibilities, as
well as those of the mediator;
b) Create an atmosphere conducive to open communication, Co-operation and
negotiation;
c) Establish the ground rules or guidelines that must be in place in order to foster
effective communication;
d) Model effective communication to assist the parties in their present and future
patterns of communications;
e) Maintain the integrity of the mediation process and carefully monitor the pace and
content of the discussion, such that dysfunctional communication patterns, outbursts,
and other violations of the guidelines are not tolerated;
f) Ensure the climate and environment remain positive and safe for the parties and the
mediator;

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g) Foster a feeling of ownership within the parties so that they are motivated to actively
participate in their process and search for and develop their own solutions to their
dispute;
h) Assist the parties in identifying common concerns which create the agenda;
i) Assist the parties in understanding their interests and needs;
j) Aid parties in generating options that will form the basis of negotiations;
k) Assist parties in evaluating their chosen options and negotiating their final solutions;
l) Assess and deal with power imbalances as they arise throughout the mediation
process; and
m) Assist the parties in drafting a memorandum of understanding.

Responsibility of the Mediator


The mediator is responsible for:

a) the process of mediation;


b) permitting the parties to have the responsibility for the resolution of their dispute;
c) respecting the standard of fairness developed by the parties unless it is grossly
inadequate, illegal, unreasonable or impossible to enforce or carry out;
d) maintaining the confidentiality of the parties, the discussion, and the process;
e) understanding the limitations of their role, and the use of other resource personnel
such as lawyers, accountants and counsellors when and if appropriate;
f) acting in a professional manner which includes obtaining further training in mediation and
related fields;
g) becoming affiliated with a professional organization and adopting their code of ethics;
and
h) recognizing that mediation cannot solve all disputes and therefore the mediator may have
to refer certain disputes to other dispute resolution processes.

Responsibility of the Parties


The parties to a mediation may feel that they do not have any particular responsibilities to
the mediator or the process. However, they have committed to the process and consequently do
acquire responsibilities. The parties have the responsibility to:

a) be open, honest, and to communicate with each other;


b) allow others to speak without interruption;
c) try to understand the other's point of view even if they don't agree with it;
d) respect each other;
e) speak up if they feel that the mediator is not being impartial or is attempting to
impose a solution upon them; and
f) work towards, and arrive at, a resolution of the issues.

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Mediation Skills
By this point the novice mediator may become overwhelmed by the many factors that he or
she must be aware of when conducting a mediation. It has been said that a mediator should be
patient, kind, understanding, neutral, non-judgmental, easy going, a good listener, impartial,
persistent, tolerant, unhurried, helpful, sympathetic, intelligent, insightful, perceptive, intuitive, ...
[the list could go on almost indefinitely!] However, it is generally assumed that the following skill
sets are important for a mediator to master:

a) Knowledge

Mediators must be very knowledgeable about all aspects of the mediation process, its
purposes and the techniques utilized. If mediators are to truly manage the process, they must be
completely familiar with all its elements, intricacies, subtleties and complexities. There are many
issues within the context of the mediation process which a mediator must confront in the course of
their professional career and it is their responsibility to form a philosophical foundation with respect
to these issues so they are better able to handle them as they arise.

b) Communication

Mediators must be well versed in communication skills. The mediator must be aware of
both verbal and non-verbal communication. They must not only be aware of their own
communication patterns so they can model effective communication for the parties but they must be
aware of the communication patterns of the parties so they are able to assist them in their
negotiation. The mediator must create an atmosphere that enhances communication between the
parties.

c) Understanding

In order to properly facilitate communication and negotiations between the parties with
respect to the issues that arise in the dispute, the mediator must be able to understand both sides of
the disagreement, the underlying motives, desires, interests, and needs. Such an understanding only
comes from carefully listening to the parties and properly questioning them with respect to the facts
and assumptions upon which a party bases his or her conclusions.

d) Balance

Mediators must ensure that their focus on the parties is evenly balanced throughout the
mediation. The mediator must not provide one party with more attention or opportunity to be heard
than the other. Such balance must be maintained in the length of time the individual is to speak, the
number of questions posed to one party, the eye contact, and the homework which may be assigned
to the parties.

e) Timing

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The key to the resolution of a dispute is often the timing of an offer and counteroffer. A
party is not usually willing to bend on their position unless they sense that movement is possible
from the other side. It is the mediator who is in the best position to evaluate the receptivity of the
parties to compromise. A good sense of this timing comes from careful listening, experience and
knowledge. This will enable the mediator to develop a sense of when to ask a question, intervene, or
present their views. If there is one suggestion to help you develop this skill, it is be patient. Be
patient and listen to the parties. Ask the question, move back, listen to the parties, and then intervene
again. The parties will then guide you to possible solutions.

f) Impartiality

The cornerstone to mediation is the fact that the third party intervener is an impartial
facilitator. The mediator must never act or appear to act in favour of one side. Questions should not
show any bias or preference, they should simply seek information or clarification. The mediator is
there to aid all participants. If the mediator has concerns about being able to maintain this
impartiality, they should consider ceasing to act as the mediator. Some people feel that there is no
such thing as impartiality, you can act FOR each of the parties equally. You have both parties best
interests at heart.

g) Neutrality

The mediator must also be neutral, which is not the same as impartial. Neutrality involves
being personally removed from the situation. If a mediator believes that their background or
personal interests might influence their performance, they should consider withdrawing from the
mediation.

h) Trust

In order to properly facilitate negotiations and assist the parties in reaching their agreement
the mediator must develop a trustworthy relationship with each of the parties to gain their
confidence. The confidence in the mediator creates confidence in the mediation process itself which
will lead to a better, longer lasting solution. This trust and confidence must be established before the
parties can truly enter into the final stage of the mediation and move beyond their position to
generating and evaluating options and alternatives.

i) Knowledge of Negotiation

As the mediator will help facilitate negotiations between the parties, he or she must fully
understand all elements of the negotiation process. As it has been said, mediation is a form of
third party intervention which revives, sustains, or maintains negotiations. Mediators are
facilitators of that negotiation process.

Stage Four: NEGOTIATING A RESOLUTION

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a) Generate options
b) Determine criteria for fair agreement
c) Evaluate options and negotiate a resolution
c) Detail steps for implementation

a) Generating Options

By this stage the parties should be comfortable with the mediation process, understand the
issues involved, their underlying interests and those of the other party. It is time to begin moving
towards a mutually satisfying agreement to the dispute. This will involve generating a large number
of possible solutions to meet the parties' interests and needs. Encourage the parties to be creative
and not to prematurely evaluate any of the options. The mediator can utilize techniques such as;

a) Brainstorming;
b) Hypothetical questions, "Pretend that you could have it anyway you liked, how would
you like it?";
c) Stimulating questions, "Are there any other ways you can see to solve this
problem?";
d) Participation questions, "What do you think about this Nancy?"; and
e) Leading questions, "Is it not possible to alternate weekends?".

Once a number of options have been generated, encourage the parties to develop the most
promising ones.

b) Determining Criteria for Fair Agreement

Hopefully the parties will develop mutually agreeable options, the details of which meet
their individual interests and needs. However, if consensus is not possible, it will be necessary to
determine criteria for a fair agreement and then measure the various options against these criteria in
the effort to obtain an acceptable solution. For example, if one party desires custody of the car and
the option that is being explored is that this party will pay the other a reasonable amount to buy out
the other, then the parties will have to decide on an acceptable criteria to determine the amount that
should be paid. It may be the value of the used car as determined in the "black book".

c) Evaluate Options and Negotiate a Resolution

Once criteria for fair agreement have been established, it is necessary to measure various
options against the criteria in an effort to obtain an acceptable solution. For example, the parties to
the mediation may have as a homework assignment to obtain the "black book" value for the
automobile that the one party wishes to keep. This information is brought to the next mediation
session and becomes a part of the negotiation to reach the terms of settlement. Poor options are
eliminated and the remaining viable options form the core of the negotiation to reach a settlement.

d) Detailing Steps for Implementation

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Once the parties have reached agreement on the issues raised in mediation, it is important
that these terms of settlement be recorded in writing to avoid misunderstandings or disagreements in
the future. The record of the agreement is called a "Memorandum of Understanding", "Draft
Memorandum" or "Terms of Settlement". There are several advantages to written terms of
settlement. Not only can it become a binding document, but it can lead to further agreement
between the parties when they see their progress in written form. It also encourages ownership and
commitment to the resolution. The mediator must review the draft memorandum with the parties to
ensure accuracy prior to their signature.

Consider the following points when developing terms of resolution:

- be specific, don't leave anything indefinite;


- use neutral language that is balanced and non-judgmental;
- write legibly;
- use point form if desirable;
- deal with both "Do's and Don'ts";
- read the Memorandum to the parties and obtain verbal confirmation that the
agreement is complete and that they are satisfied with the stated terms; and
- give each party a copy of the Memorandum.

Remember it is not always possible to have complete resolution of all issues. Therefore accept
partial resolution and identify the areas of continuing disagreement.

Special Issues

Having had the opportunity to act as a mediator, one should now begin to see the structure of
the mediation process, and identify the various techniques that are employed. However, you will no
doubt have run into problems and begun to appreciate that the job of a mediator is not as easy as you
might have first thought. The following two areas are likely to be the greatest cause of concern for a
novice mediator. At this point the issues are raised to merely acknowledge them. These particular
issues are by no means trivial, and indeed their treatment constitutes a large portion of the Mediation
Skills - Level II course which follows.

a) Maintaining Control of the Process

The mediator may have concerns over how to effectively manage the mediation process.
When should they intervene? How strongly should they enforce the rules? What do I do when a
person begins to cry? How long should a mediation session run? Answers to these and other
questions of control are complex and in many cases depend upon the mediator's level of comfort
with the mediation process and their ability to handle emotional situations. It is hoped that this
course has at least helped answer these types of questions by providing the student with a solid
understanding of the process of mediation.

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With regard to such questions as the level of intervention a mediator should exercise and the
manner of this intervention; personal style and one's philosophical foundation with respect to the
role of the mediator will be strong influences. You may have noticed that it seems impossible for
this third party intervener not to influence the resolution of the dispute. Consequently, mediators
must determine for themselves just how far to extend this influence. This will have a direct impact
on how a mediator chooses to manage the mediation process. They could choose to be passive and
merely act as a facilitator of the communication process; or they could choose to be active, by
readily suggesting, generating and evaluating the options being discussed between the parties.

With respect to controlling the mediation process when a party exhibits dysfunctional
behaviours, such as anger, resistance and defensiveness, an individual's capacity to deal with people
and emotion will be a major factor.

b) Power Imbalances

After one or two mediation simulations, a mediator quickly grasps that power imbalances
always seem to exist between the parties. One party may have actual or perceived power over the
other individual. It becomes the mediator's responsibility to assess this imbalance, and take
measures to address it to ensure that the parties are better able to understand their own underlying
interests and needs, and to enter into negotiations that will prove mutually satisfying. If the power
imbalance is not addressed it is likely that no agreement will be reached at all or it will be unfair.

In assessing power imbalance, the mediator must determine the source of power, and
whether it is an actual source of power or merely a perceived base of power. Many people do not
realize their own power bases and the mediator can help a party become aware of all of their
potential power bases. Most sources of power can be dealt with in mediation, including power from
wealth, political connections, physical strength, friends, status, and knowledge. To accomplish this
the mediator must focus the discussions on the problem being resolved rather than on the people and
personalities. For example, if the dispute centres around the activities of a barking dog, it should not
matter whether one party is the CEO of a major corporation and the other is a labourer. The
mediator must have the parties focus on the problem and avoid discussing what one can do to the
other outside the context of the problem. If the power imbalances arise as a result of differences in
knowledge or access to information, the mediator can attempt to achieve balance by ensuring that all
information pertinent to the problem is obtained and placed before both parties for their discussion.

However, not all power imbalances can be addressed in the mediation. For example, power
imbalances due to physical abuse, a major behavioural problem or the inability to communicate may
make the situation unsuitable for the mediation process. In such cases the mediator should refer the
party to outside help.

SIMULATION GUIDELINES

Simulations provide an opportunity for practice with skills of communication and conflict
resolution. When a class all work with the same conflict, the opportunity for expanding possibilities
and creating options increases. In order to maximise simulation experience, prepare.

Martha Hansen McManus & Marie France Chabot July 2000 Institute 23
Step 1. What are your personal goals in this simulation?

Step 2. Read simulation and identify feelings and perceptions.


What are the needs and interests of the two parties?

Step 3. Meet with simulation partner and discuss degree of difficulty and your personal goals in the
conflict.

Step 4. Resolve conflict simulation.


Be aware of time, process and balance of talk.

Step 5. Upon completion of simulation, thank participant for resolving the conflict with you.
Provide positive feedback to other about what they did well.
Ask for feedback about your goals.

Record observations in your journal about your own goals and your experience in the
simulation.

ETHICAL ISSUES IN CONFLICT RESOLUTION

When we are involved in communicating and negotiating our own conflicts, what even
relationships we build or lessen effect us directly. The substantive agreements we reach are ours
to make and live with. When representatives negotiate for another, or in the role of mediator,
ethical issues are raised.

SPIDR'S ETHICAL STANDARDS OF PROFESSIONAL RESPONSIBILITY


Society of Professionals In Dispute Resolution
General responsibilities:

Neutrals have a duty to the parties, to the profession, and to themselves. They should be honest
and unbiased, act in good faith, be diligent, and not seek to advance their own interests at the
expense of their parties.

Neutrals must act fairly in dealing with the parties, have no personal interest in the terms of the
settlement, show no bias toward individuals and institutions involved in the dispute, be
reasonably available as requested by the parties, and be certain that the parties are informed of the
process in which they are involved.

Responsibilities to the Parties:

1.Impartiality.
The neutral must maintain impartiality toward all parties. Impartiality means freedom from
favouritism or bias either by word or action, and a commitment to serve all parties as opposed to
a single party.

Martha Hansen McManus & Marie France Chabot July 2000 Institute 24
2.Informed consent.
The neutral has an obligation to insure to all parties understand the nature of the process, the
procedures, the particular role of the neutral, and the parties' relationship to the neutral.

3. Confidentiality
Maintaining confidentiality is critical to the dispute resolution process. Confidentiality
encourages candour, a full exploration of the issues, and a neutral acceptability. There may be
some types of cases, however, in which confidentiality is not protected. In such cases the neutral
must advise the parties, when appropriate in the dispute resolution process, that the
confidentiality of the proceedings cannot necessarily be maintained. Except in such instances, the
neutral must resist all attempts to cause him or her to reveal any information outside the process.
A commitment by the neutral to hold information in confidence within the process also must be
honoured.

4.Conflict of Interest
The neutral must refrain from entering or continuing in any dispute if he or she believes or
perceives that participation as a neutral would be a clear conflict of interest and in any
circumstances that may reasonably raise a question as to the neutral impartiality.
The duty to disclose is a continuing obligation throughout the process.

5. Promptness
The neutral shall exert every reasonable effort to expedite the process.

6.The settlement and its consequences


The dispute resolution process belongs to the parties. The neutral has no vested interest in the
terms of a settlement but must be satisfied that in which he or she has participated will not
impugn the integrity of the process. The neutral has a responsibility to see that the parties
consider the terms of a settlement. If the neutral is concerned about the possible consequences of
a proposed agreement, and the needs of the partied dictate, the neutral must inform the parties of
that concern. In adhering to this standard, the neutral may find it advisable to educate the parties,
to refer one or more parties for specialized advice, or to withdraw from the case. In no case,
however, shall the neutral violate Section 3, Confidentiality, of these standards.

SPIDR
815 15th Street NW Suite 530
Washington, DC 20005
202-783-7277

GUIDELINES

Be honest,

No name calling or put downs,

No threatening language,

Martha Hansen McManus & Marie France Chabot July 2000 Institute 25
One person speaks at a time, (no interrupting)

Everyone remains seated,

What is said here stays here.

This Process is Confidential

Attack the problem not the person

(No personal attacks)

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BIBLIOGRAPHY

CONFLICT RESOLUTION RESOURCES

Everyone Can Win How to Resolve Conflict, Helena Cornelius and Shoshana Faire, Simon &
Schuster Australia, 1989.

Getting Disputes Resolved: Designing Systems To Cut The Costs of Conflict, William Ury, Jeanne
Brett, and Stephen Goldberg, Jossey-Bass Publishers, 1988.

Getting Past No: Negotiating With Difficult People, William Ury, Bantam Books, 1991.

Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher and William Ury, Penguin
Books, 1981.

Getting Together: Building Relationships as We Negotiate, Roger Fisher and Scott Brown, Penguin
Books, 1988.

Conflict, Power, Persuasion: Negotiating Effectively, Ben Hoffman, Cactus Press, 1990.

Fighting Fair For Families, Schmidt and Friedman, Peace Works, 3550 Biscayne Blvd. Suite 400,
Miami, Florida, 33137, 1989.

Mediation, A Comprehensive Guide to Resolving Conflicts without Litigation. Folberg, J., and
Taylor, A., San Francisco: Jossey-Bass Inc., 1984.

The Network: Interaction for Conflict Resolution


298 Fredrick St.
Kitchener, Ontario
N2H 2N5

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