Chapter 2 Key Mediation Terms

Intervention

-"to enter into an ongoing system of relationships, to come between or among persons, groups or objects for the purpose of helping them. There is an important implicit assumption in the definition that should be made explicit: the system exists independently of the intervenor."

No authority to make binding decisions

-only the involved parties are decision makers on issues in question. Intermediaries generally do not have the power, authority, or permission of disputants to make decisions for them. Can't force them to resolve differences, or enforce a judgment that they make.

Transformative mediation

1. 3rd party works with parties in conflict to help them change the quality of their conflict interaction from negative and destructive to positive and constructive as they explore and discuss their issues and possibilities for resolution. 2. Mediator's role is to help the parties make positive interactional shifts (empowerment and recognition shifts) by supporting the exercise of their capacity for strength and responsiveness through their deliberation, decision making, communication, perspective taking and other party activities3. Mediator's primary goals a. Support empowerment shifts, by supporting-but never supplanting-each party's deliberation and decision making at every point in the session where choices arise (regarding either process or outcome) and b. Support recognition shifts by encouraging and supporting-but never forcing-each party's freely chosen efforts to achieve new understandings of each other's perspective. 4. Least directive of all practitioners, intermediaries being far on the elicitive end of the elicitive-directiveness/prescriptive continuum. 5. Don't set the agenda and direct the conversation for parties.

Substantively focused schools

1. Advisory mediation- 2. Evaluative mediation 3. Customary are religiously based mediation and dispute resolution

3 potential areas for assistance

1. Improving parties' communication 2. Addressing, redefining, understanding, or resolving parties' psychological or relationship issues 3. Finding or developing acceptable solutions to substantive issues in dispute

Schools of mediation

1. Process focused schools (procedural) 2. Relationship focus schools • 3. Transformative mediation

Addressing, redefining, understanding, or resolving parties' psychological or relationship issues

A focus on relationships or psychological issues is grounded in the assumption that one or more aspects of an individual disputant's or the parties' relationships-views, perceptions (or misperceptions), assumptions, attitudes, emotions, self esteem, behavior, actions or interactions-are problematic, and are either a source of conflict or a major contributing factor.

Finding or developing acceptable solutions to substantive issues in dispute

Focus on substance is grounded on the assumption that a major barrier to resolving a conflict is a lack, adequacy, or acceptability of substantive information necessary to fin or develop options for mutually acceptable understandings or agreements.

Three types of authoritative mediators

Reputation/ status/ position-based Administrative/ managerial Vested-interest intermediaries

Disputes and conflict

They involve the mental and emotional states and interactions of two or more people who disagree, compete or struggle over perceived or actual differences in beliefs or values or to attain status, power, or scarce resources

What is mediation?

a conflict resolution process in which a mutually acceptable third party, who has no authority to make binding decisions for disputants, intervenes in a conflict or dispute to assist the parties to improve their relationships, enhance communications, and use effective problem-solving and negotiation procedures to reach voluntary and mutually acceptable understandings or agreements on contested issues.

Partial Intermediary

a mediator with connections to one or more of the parties. May have the ability to open talks, communicate views, and influence a counterpart perceived to be difficult than the party requesting assistance may have him or herself

Restorative Justice

a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have been afflicted the harm must be central to the process

Third Party

an individual or group of people that works between or among parties in a dispute

Manifest Disputes

are those in which parties are engaged in an active and ongoing struggle with each other. They may have participated in adversarial interactions, litigation, nonviolent action, or violence to try to persuade or force their perceived opponent to change, or may have started to negotiate and reached an impasse

Voluntary

both freely chosen participation and freely made agreements. Doesn't mean that there may not be pressured to try mediation. Attempting mediation does not, however, mean that the participants are forced to reach agreements

Latent Disputes

characterized by underlying tension between individuals or groups that have not yet developed and become fully manifest. They have not escalated to the point that they have become highly polarized conflicts. One party may not even be aware that a dispute or conflict or potential for one exists.

Deal Maker

commonly see the conflicts as intractable due to length of time strong beliefs our values, perceived or actual limited resources and have a history of failed efforts at resolution

Orchestrator

commonly sees conflict and issues in dispute as mutual problems that disputants recognize and can only be addressed and resolved by the parties themselves.

Neutrality

derived from the Latin neuter, meaning "neither of them," a condition in which attitude and action reflect a refusal to take sides in a dispute, or a lack of bias or favoritism

Acceptability

disputing parties' willingness to welcome, accept, tolerate or at a minimum, no oppose the involvement of a third party who assists them in settling contested issues.

Judge

examines the past and evaluates "agreements that the parties have entered into, violations which one has inflicted on the other" and the "norms concerning acquisition of rights, responsibilities, etc. which are connected with these events.

Christopher Moore

falls toward the middle of orchestrator/deal maker continuum, and generally a process oriented facilitative mediator. Elicitive of information and process suggestions form disputing parties. Can be procedurally directive. Bias toward helping parties talk and work together in joint meetings. Attitude based on parties need to be directly involved in solving their problems and not have it done if disputants are likely to have any kind of relationship with each other in the future, they need to be able to work together on their own without his help, as he will only be involved in brief period of their lives. Not adverse to occasional private meetings or shuttle between parties to develop the conditions that will enable them to come back together and resolve their disputes in joint sessions. Involvement and input on content and substantive issues disputes is usually limited-believes parties commonly more know about their issues, needs, and interests than he will. In most cases, with some process assistance, can develop acceptable and high quality information on their own or get it from people other than him to guide deliberations and decision making. When mediating cases involving substantive issues about which he has some knowledge-on occasion has provided two or more ideas for options for parties to consider.

Evaluative Mediation

focus on an assessment of legal issues and legal rights of parties. Intermediators may either be independent or social status mediatorso Proponents believe that without this input or information, disputants will not know their potential BATNAs cannot be truly informed decision makers may later suffer "buyer's remorse" from reaching an agreement that is found to be less than could have been attained form judicial or arbitrated decision

Therapeutic mediation

focuses on addressing and changing for the better dysfunctional relationships, behaviors or emotional difficulties. Advocate that a focus on relational and communication issues is more effective in achieving both settlement of contested issues and desired behavioral change

Restorative justice and victim offender mediation-

focuses on addressing and improving relationships between victims offenders, and their communitie and resolving conflicts related to antisocial behavior.

Narrative Mediation

focuses on parties relationships, but in the context of their individual and collective construction of social reality. Mediator's task is to assist people to overcome the divisiveness of a conflict by working with the stories in which the conflict is embedded rather than pursing an objective reality

Relationship Focused

focuses on procedures to improve and enhance mutual understanding, address psychological and relational issues, manage and work through emotions, improve interactions, and promote the establishment of positive and respectful relationships between or among disputing parties.

Directive Mediators or prescriptive

generally highly active and make a significant number of unilateral decisions on interventions on their own, based on what they think the parties need or want

Elicitive Mediators

guided by the parties' desires and inputs regarding how active the intermediary should be and the kinds of interventions they provide

Administrative/managerial

have some influence and authority over the parties by virtue of occupying a superior position in a community or organization and having either organizational or legal authority to establish the bargaining parameters in which an acceptable can be made

Customary or religiously based mediation and dispute resolution

in countries where religious authorities, laws, and common practices are used to regulate relationships and resolve disputes among members of specific communities o Procedures-both informally (in communities with little social stratification) or formally with institutionalized routine and ritualized procedures

Impartiality

independence, or lack of personal connections of a third party to one or more parties.

Reputation/ status/ position-based

individuals or groups of people outside of disputants' social networks and who have either reputational or moral authority. This type of authoritative mediator generally has the capacity to influence and, in some cases, possibly decide an issue in dispute, but generally values agreement making by party over his or her own role as a decision maker

Authoritative Mediators

individuals or groups serving in this role have authoritative relationships with the disputing parties. They are in a superior and more powerful position and have potential or actual capacity to put pressure on the parties, strongly influence the dispute resolution process, and shape the outcomes of a conflict

Social Network Mediators

individuals who assistance is sought by disputants because of shared connections or relationships. Both intermediaries and parties are generally part of the continuing income and social network.

Advisory Mediation

involves an acceptable intermediary with perceived to be credible information or other forms of knowledge or wisdom relevant to the resolution of a dispute, providing disputants with some form of advice on effective negotiation procedures and substantive issues in dispute

Use of effective problem-solving and negotiation procedures

involves the mediator playing a variety of roles in providing a range of types of assistance to help parties resolve disputes. ]

Enhancing Communication

it Involves improving the ways that parties communicate information about substantive issues and their needs and interests, preferred procedures for resolving their differences, and their feelings, and relationships. Mediation changes the dynamics and communications between or among negotiators through the involvement of a third party

Independent Mediators

neutral and impartial are critical defining characteristics. Commonly found in cultures that have developed traditions of independent and professional advice or assistance.

Neutrality

refers to the relationship or behavior between the intermediary and disputants. Often, no prior relationship with the disputing parties, or at least they have not had a relationship from which they could directly and significantly benefit. Not tied to parties ongoing social network. The mediator does not expect to obtain benefits or special payments from one of the parties as compensation for favors in conducting the mediation

Mediator's authority

resides in his or her personality, personal credibility and trustworthiness, expertise in enhancing the negotiation process, experience in handling similar issues, ability to bring parties together on the basis of their own interests, past performance or reputation as a resource person, and (in some cultures) his or her relationship with the parties. Authority-or recognition of the right to influence the outcome of a dispute, is granted themselves rather than by an external law, contract, or agency.

Emerging Disputes

situations in which parties are identifiable and identified, the dispute is acknowledged, and many issues about which there is disagreement are clear. Have a potential for escalation if an effective resolution procedure is not developed and implemented. Parties recognize that there is a dispute, and there may have been harsh verbal exchanges, but none of those involved knows how to handle the problem. Mediator helps establish a negotiation process and assists parties to communicate and engage in problem solving.

Impartiality

the absence of bias or preference in favor of one or more negotiators, their interests, or the specific solutions that they are advocating. Does not necessarily mean that the mediator is totally separate from the people or the conflict systems and issues in which they engage (Bowling and Hoffman, 2000). In many ways, a more accurate definition of impartial is "multipartial" or "omnipartial" in that mediators are involved with and concerned about how to help achieve satisfaction of all parties' issues and interests

Level of intervention

the depth the mediator, with the consent of the parties, decides to work---a more general focus on assisting as negotiators move through the broader stages of mediation, a more precise focus to help resolve one or more specific problems that are causing an impasse, or a much deeper focus oriented

Vested-interest intermediaries

the intermediary has procedural, substantive, and potentially relationship interests in the outcome of the dispute, advocates his or her own interests and the level of power and influence the intermediary is willing to exercise to satisfy them.

Working Relationships

the minimal relationship required for parties too effectively engage in negotiation mediation and begin to address issues of concern.

Focus of intervention

the particular problems between the parties or critical situations toward which the mediator directs his or her assistance, activities and moves. May focus his or her energies on changing the psychological barriers to reaching understandings or agreements, or the interactions and relationships shared by multiple disputants, the negotiation process or procedure being used by one or more people to resolve the dispute, or substantive barriers to settlement (lack of information, different interpretations of data, limited acceptable options, and so forth)

Target of the intervention

the person or people for whom the mediator providers his or her assistance. The target may be an individual, all disputants, a constellation of people within a group such as a subgroup or team, or parties superiors or constituents.

reality testing

uncover gaps in understanding, clarify weaknesses in arguments, identify where the law or past legal cases do no support a party's views, remind them of their underlying and long term interests, and determine the potential benefits and costs of settling or not

Amount of Action and direction

whether the intermediary is more active or passive, and elicitive or directive and prescriptive.

Improving communication

with each other and the negotiation/mediation process; Focus on process, less on creating understanding or improving relationships or securing mediator input on substantive issues is grounded on the assumption that what holds disputants back from reaching mutually acceptable understandings or agreements is problems with their communications and the negotiation process.

Mediator

works to reconcile the competing needs of the involved parties. Mediator's tasks are to: • Assist disputants to identify, understand, and articulate their needs and interests to each other; • Identify mutually acceptable ways to address and meet them; • Negotiate an exchange of promises or tangible benefits that meet their standards of fairness; and • Redefine their relationship in a manner that is mutually acceptable.

Process focused schools (procedural)

• Facilitative Mediation-focuses on mediators providing primarily process assistance. o Practitioners generally lean toward the orchestrator end or middle of the mediation action or direction continuum, and advocate that mediators should focus principally on improving the process of negotiation. Focus principally on improving disputants' negotiation process and ability to resolve disputes. Don't exclude focus on improving or relationships or providing substantive ideas or suggesting several options but rarely a specific solution for parties to consider

How mediators differ

• parties' expectations for the kind of assistance they want to expect their intermediary to provide, • The third party's relationship to the parties, • The mediator's perception of what parties want and need from them, • The third party's areas of expertise and training an • The intermediary's judgments about how much they should focus on process, substance, or relationships.