Mediation

Key Parts of DRPA law

1. DRPA was justified because of costly, time-consuming, and complex formal court proceedings 2. The law encouraged the development of court, community, and campus ADR/Mediation programs 3. Any mediation service must provide a written statement identifying the nature of the dispute between parties and the rights parties have in mediation. 4. Mediated dispute resolution agreements are not enforceable in a court, and they cannot be used as evidence without the consent of all conflict parties

Stages of (Balanced Model of ) Mediation

1. Opening 2. Storytelling and Issues Identification 3. Building the Agenda. 4. Negotiating and Problem-Solving 5. Writing and Testing the Agreement

Four Principled Negotiation Characteristics

1. Separate the people from the problem ("What would it take to put your flower bed back into good shape?"; "I can see that you're upset. What would you like to see your neighbor do to resolve this problem?") 2. Focus on interests, not positions ("What were you most hoping for"; "Let's see where you both agree and take it from there") 3. Invent options for mutual gain ("Can you think of any other possible solutions"; "Let's take each issue separately and see how each might be solved") 4. Insist on objective criteria ("What do you mean by 'fairness?'"; "Do you know the market value for that car?")

Supervisor mediation

A specialization where Bosses refer employees who cannot work well together to the human resources department for mediation or, if trained, conduct a mediation intervention themselves

Storytelling and Issue Identification Stage (2)

Actions 1. Initially, have disputants talk to mediator only. Decide/agree on who will speak first 2. Have each party explain what happened and how each feels about it 3. Ask questions or use paraphrases to clarify 4. Find out how parties have been communicating about their problem 5. Identify similarities, areas of agreement, and shared interests 6. Ask parties to restate or paraphrase what the other said 7. If necessary, remind parties of ground rules, sequence of mediation, and use caucuses or time-outs 8. Transform charged language into neutral language 9. Ask each party if they have anything more to add before moving to the next stage Goals Gather information by listening to each party's story (uninterrupted) Validate and manage concerns and feelings of each party Identify all relevant issues (goals, issues, and interests) Help parties talk to each other and understand each other's experiences in the conflict Keep discussion focused on facts and information Verify agreement of parties before moving to Stage 3

Building the Agenda Stage (3)

Actions 1. Mediator should summarize problem and goals to begin this stage 2. Ask parties to verify or clarify your interpretation of the problem and goals; write these goals down 3. Collaborate with disputants to list all issues in the conflict; list should be written Goals: Provide a succinct summary of the problem/conflict Identify and seek clarification of the goals of each party List all issues to be negotiated Verify agreement before moving to Stage 4

Opening Stage (1)

Actions/Behaviors 1. Welcome and Introductions 2. Explain role of the mediator 3. Explain the process of mediation and its goals 4. Assure confidentiality, privacy, and neutrality or impartiality 5. Establish and explain ground rules 6. Ask parties if they have questions or concerns Goals: Establish safe environment Build rapport and trust Establish ground rules for conduct Seek commitment from both parties before moving to Stage 2

Writing and Testing the Agreement stage (5)

Actions: 1. Get agreement from both parties for each solution 2. Insure that solutions are precise, positive, clearly defined, and balanced between both parties 3. Use "we" language in written draft 4. Ask parties how they will manage the problem if it recurs 5. Summarize all points of agreement 6. Specify method of "follow-up" to verify that terms of settlement have been followed Goals: Put agreement in writing List each issue or solution agreed upon, and test it for specificity and workability Have each party read and sign the written agreement Thank and compliment parties on their cooperative efforts and accomplishments

Negotiation and Problem Solving stage (4)

Actions: 1. Order the issues, and determine whether issues should be treated separately or in some combination 2. Ask each party what would be a fair solution 3. Take each issue one by one, generate options, and assess them according to each party's goals/interests 4. Return to Stage 2 or 3 if other issues surface or no agreement is in sight Goals: Identify the order in which issues will be addressed Help parties identify options for settlement that meet each party's goals Help parties find a fair and realistic solution Verify that all solutions are acceptable to both

3 Interpersonal Needs

Affection: the need to give and receive love, affection, liking, friendliness, warmth, closeness and their opposites) . 2. Control: the need to control, have power, the ability to influence, dominate, make a difference (and their opposites) 3. Inclusion: the need to socialize, be with others, identify with others, include others, feel a sense of belonging (and their opposites)

Certification

Certify or certification refers to a process of verifying that an individual has met specific professional standards Certificate is used by educational institutions to indicate a broad range or programs and study, which generally include more than one course and are counted in credit hour units Certification of completion usually indicates the date and the length of a workshop course (not the depth of level of success) **Having a certification of completion is not the same as being "certified"

Premediation

Contact with disputants prior to the session is called mediation casework or intake. Intake coordinator and caseworker are synonymous names for the individual who conducts the premediation activities. It can also be the mediator but there are some cons to be considered

Intake Coordination

EDUCATE about mediation (Process, roles, expectations, boundaries) GATHER INFORMATION (stakeholders, issues, demographics, types of disputants, time/schedules, ability to pay) And ASSESS (issues, needs, resources, disputants, history)

Negotiated Rulemaking

Government officials negotiate the creation and enforcement of rules in a process called negotiated rule-making (neg-reg), a common method for involving stakeholders in decision making. In some cases, federal regulations require the states to oversee mediation processes, as is the case with special education law where states must provide mediation to aid parents and school districts in resolving disputes

Is Mediation appropriate for the conflict?

Intake coordinators have the job of educating parties about the mediation process and gathering information from disputants to aid in structuring the session. They assess the issues, disputants, context, needs, power dynamics, and decision-making abilities of the parties to determine whether mediation is appropriate. The Standards of Ethics and Professional Responsibility for Certified Mediators (Judicial Council of Virginia, 2011) articulates three criteria in assessing whether to take a case: Mediation is appropriate for all parties. Each party can participate effectively within the context of the mediation process. Each party is willing to enter and participate in the process in good faith.

"Mediator Licensing and Certification in California."

Licensing of mediators in CA does not exist (special case is Family Court mediators) There is no state or professional agency or department in Ca that certifies mediations

Importance of Credibility in Opening Statement

Mediator strives to build rapport and credibility with each disputant and a perception of personal competence to have TRUST so that both parties will comply with the mediator's requests and will participate openly while seeing the mediator as competent. The mediator's demeanor during the opening statement cues the disputants that the mediator is trustworthy and competent.

In depth definition of Mediaiton

Mutually acceptable: The mediator must be someone whom both parties agree is appropriate for the mediator role. Neutral: The mediator must be someone who is respectful of the interests of both parties but who does not have a preference or affinity for one party over the other. Impartial: The mediator has no stake in the outcome of the mediation and will not be affected by the decision. The mediator is free from preference toward any possible outcome. Interest based: The mediator assists disputants in identifying concerns that affect them and in exploring the specific needs that must be addressed in any outcome. Communicative process: The mediator facilitates the discussion so parties may understand one another, explore ideas in a safe environment, and approach their problem solving as empowered participants. The mediator strategically applies skills to keep the communication process balanced, fair, and productive. Parties create the outcome: The mediator does not suggest, lead, or persuade parties to select specific outcomes. Ideas for possible solutions arise from the disputants. The mediator helps them examine the workability and appropriateness of their suggestions.

Alternative dispute resolution (ADR)

Non-courtroom based forms of conflict resolitions Include: Litigation Arbitration Negotiation Conciliation Mediation Med-Arb

conflict management could be viewed from three perspectives:

POWER: is the ability to influence another person RIGHTS: In this approach, the rights of individuals (as laid forth in the law) are the keys to fair and just resolution to conflict INTERESTS: An interest-based approach encompasses any process that focuses on the underlying needs of the parties and permits their feelings, concerns, and needs to gain a foothold in the negotiations

Principled Negotiation

Principled Negotiation comes from Fisher and Ury PN is a cooperative form of negotiation and interest-based method of conflict management IT converts traditional competitive bargaining into need-based cooperation

Types of interests

Substantive interests relate to tangible or measurable things, such as time, specific goods, behaviors, money, or other resources. Procedural interests arise from stylistic differences about how to communicate with each other, organize tasks, complete work, or structure rules and settlements. Psychological interests underlie all of the emotions and feelings that disputants bring to a session.

Nonbinding arbitration

The parties may decide in advance to use the ruling as a suggestion rather than be bound by the arbitrator's decision.

DRPA Requirements and Regulation

Training: minimums of 25 hours, including 10 lecture/discussion, and 10 hours of role plays and/or observations of actual mediations Topics: the history of dispute resolution and its relationship to the traditional justice system; the DRPA law; the structure of the California justice system (civil and criminal cases) Commitments: An understanding of "neutrality," "binding/nonbinding" agreements; privacy and confidentiality Communication Skills: stages of mediation, listening and clarification skills; problem identification and gathering facts; overcoming threats to the mediation process; creating positive climates; negotiation techniques for achieving agreement Paperwork: Intake, settlement, follow-up, and reporting of mediation

Training Programs (CA):

University Degree Programs, University Certificate Programs, Training Workshops ad Certificates of Completion, Certification by Organizations (mediate.com, Association for conflict Resolution (ACR), and California Courts)

Mediation

a process in which a mutually acceptable third party, who is neutral and impartial, facilitates an interest-based communicative process, enabling disputing parties to explore concerns and to create outcomes.

Essential Communication Skills for an Effective Mediation

a. listening to/identifying TRIP levels of conflict and questions (topic/content, relationship, identity, process) b. emotions versus content c. paraphrasing d. open vs closed questions e. neutral questions and phrases f. re-framing positions to interests g. perspective-taking h. I messages.

Arbitration

an expert third party knowledgeable about the context of the dispute is empowered to make a decision for the disputing parties. Final, binding decision made by the arbitrator Decisions are often sealed and confidential Conflict parties represent themselves or are represented by a lawyer or other interested party and can determine in advance of entering into arbitration which issues will be resolved, the type of outcome, and other procedural aspects.

Forced binding arbitration

has become common in commercial contracts. An individual who wants to receive a mortgage, rent a car, lease an apartment, or engage in other business transactions frequently must sign a contract that forces binding arbitration as the only recourse in disputes. In other words, the contract does not allow litigation or mediation, only binding arbitration.

Victim-offender mediation (also called victim-offender dialogue and restorative justice)

holds offenders accountable for their actions and offers a means of bringing closure to victims. Judges may refer juveniles or adults to victim-offender mediation so the affected individuals can tell their stories and negotiate a restitution plan rather than a judge deciding the sentence for the offender—a procedure that leaves victims out of the process

Med-arb (mediation-arbitration)

is a hybrid process wherein parties come together to mediate their dispute. However, they agree in advance that if they do not reach an agreement, the third party will move into an arbitrator's role and render a decision (either binding or nonbinding). Med-arb is defined as a process in which disputants initially have control of the decision, but they consent to an arbitrated settlement if an agreement is not reached by a preset deadline.

Binding arbitration

is a process in which the decision rendered by the arbitrator is contractual—the parties agree in advance to accept the arbitrator's ruling. If you read the small print on consumer or loan contracts, you may discover that you have agreed to binding arbitration and occasionally the waiver of the right to use other processes.

An arbitrator

is neutral and yet informed enough about the specific issues to conduct investigations and to make an informed decision. Arbitrators typically are experts in their area of practice (such as real estate, labor, contracts, or wages).

Litigation/Adjudication

is the process of resolving disputes through a formal court or justice system Decisions made by judge and/or jury Conflict parties represented by legal experts/attorneys

Strategies during the storytelling stage

one storyteller at a time, co-constructing stories, general inquiry questions, whole picture questions, the naïve detective, specific inquiry questions, establishing agreed-upon "facts", weighing the importance of disagreements, Perspective taking (controlled dialogue and role reversal), humor, and recognizing turning points

The Dispute Resolution Programs Act (DRPA) of 1986

provides for the local establishment and funding of informal dispute resolution programs. The goal of DRPA is the creation of a state-wide system of locally-funded programs which will provide dispute resolution services (primarily conciliation and mediation) to country residents. These services assist in resolving problems informally and function as alternatives to more formal court proceedings

5 Styles of Conflict

• Competition: assertive and uncooperative; power-oriented, trying to win, to pursue your own concerns at the expense of the other; "might makes right"; concern for self; win-lose approach • Collaboration: assertive and cooperative; attempting to find a mutually satisfying solution for both parties; creative; "two heads are better than one"; high concern for self and other; win-win or no-lose approach • Compromise: intermediate assertiveness and cooperativeness; middleground, mutually acceptable and expedient solution; "split the difference"; partial concern for self and other; win-win and lose-lose approach simultaneously • Accommodation: unassertive and cooperative; neglecting your own concerns to satisfy the other person; self-sacrifice; "kill your enemies with kindness" or "I'd do anything for you"; concern for other; lose-win approach • Avoidance: unassertive and uncooperative; unwillingness to address the conflict; "leave well enough alone," "leave bad enough alone," or "It's unimportant"; little concern for self or other; lose-lose approach

Elements of the Opening Statement

• Welcome • Introduction of Parties • Statement of Credibility (optional) • Verify Stakeholders and their Decision-Making Ability • Explain Nature and Scope of Mediation • Explain Mediator's Role • Explain the "Caucus" • Define Impartiality and Neutrality • Insure Confidentiality • Disclose Note-Taking • Establish the Ground Rules • Address Time Constraints and Likely Time Frame • (if relevant) Discuss the Possibility of Outside Experts • Secure Commitment to Begin the Session • Transition to Storytelling Stage

Common Pitfalls during Storytelling

•Unchecked power differences •Allowing blaming and attacking •Acting on overstatements or generalizations •Taking sides •Permitting interrupting and bickering •Mismanaging emotional outbursts •Letting one party monopolize time or control the process •Being overwhelmed with evidence