Mediation Skills Midterm

Legitimize

- validates the value of each party's perspective and maintains their rights

HURIER

1. Hearing 2. Understanding 3. Remembering 4. Interpreting 5. Evaluating 6. responding

What is a waiver and consent form?

A commitment to take part in mediation and not subpoena the mediator

Reframing

A method of acknowledging the disputants message and change negative comments into something more neutral in order to get the negotiation back into focus.

What is a conflict of interest between a mediator and a disputant?

A prior relationship with one of the parties, a connection to some stake in the outcome, and fees to be charged

Power balancing

A process where the mediator identifies power imbalances and attempts to balance the power by identifying the issues that are important to each party.

Pure content paraphrasing

A summarization of the facts that the disputant relates to. Best applied when the disputant is calm or the mediator is checking for accuracy

Litigation

Also referred to as Adjudication. The process of resolving disputes through a formal court or justice system. Disputants are usually represented by attorneys. Litigation is public forum

ADR

Alternative Dispute Resolution. This can be anything other than rights based litigation process. A process where a third party helps others manage conflict

What types of disputes should beginning mediators mediate? Can they mediate almost any type of dispute, even when they are lacking specialized knowledge?

Beginning mediators would do best in disputes where there are lower stakes and specialized needs are far less. These disputes could be workplace disputes or small claims cases

What is beneficial about intake?

Benefits i. Preconceived ideas cannot get solidified in mediator ii. Shared workload iii. Fulfilling roles for individuals that are not talented mediators iv. Disputants may better understand expectations of mediation process

Define and explain BATNA

Best alternative to a negotiated agreement - This is the alternative that is believed to be the best a disputant can do if an agreement cannot be reached

What does reframing allow a mediator to do?

Can be used to make negative phrased and unproductive words into something more neutral and usable in a session. It can also be used to summarize a substantive issue. This allows the mediator to bring the issues back into focus and mitigate any harm that occurs when disputants engage in defensive communication.

How do mediators manage the mediation process?

Carefully

"Does your house have a basement?" or "How many people live in your home?" What kind of a question is this?

Close-ended question that is looking for a specific piece of information for the answer.

How many different listening skills must mediators be able to employ and describe what they accomplish

Comprehensive listening which means to understand what is said. Empathetic listening which means supporting and helping the speaker to talk through his or her problem and feelings. Critical Listening which is evaluating what was said

What is the most important component of your opening statement?

Confidentiality statement. Or Ground Rules

Facilitator

Coordinates communication between disputants

What is not beneficial about intake?

Disadvantages i. Additional level of complexity ii. Cost of services may increase iii. Trust and credibility functions are slowed iv. Some mediation contexts do not work well with a middle person

Neutral third party

Does not favor either disputant

Why are ground rules important and how are they established?

Established in opening statement as a method to manage the disputants so that communication can occur.

What is the difference between functional stages in mediation and chronological stages?

Functional stages are often returned to as the mediation takes place. This is because the process can be cyclical. Each functional stage serves a purpose and is often repeated as new information is brought forth. Chronological stages are the guide by which the functional stages are laid out. This sequence of phases is a guide that helps the mediator to move through the process of mediation.

Impartial third party

Has no stake in the outcome

Face manager

Helps the parties settle without undue embarrassment

Is the offer of nonviolence by a party in a mediation acceptable as part of a settlement offer in a dispute?

I would have to say NO because an offer of non-violence is a threat of violence in the event a settlement cannot be met.

Manager mediation

Is this the same as supervisor mediation on page 81? It is neither neutral nor impartial as there is a vested interest in the outcome

Power balancer

Levels the playing field if one party has more power

Are there limits to confidentiality? What are they?

Limits of confidentiality involve any child abuse or threats of violence to self or others

Appreciative listening

Listening for enjoyment

Validation

Listening with empathy so that the speaker feels heard and understood. This is effectively the result of empathetic listening

Should mediators avoid trying to control the mediation process? Why, why not?

Mediator Control of the process is instrumental in order for the disputants to get resolution. When the mediator controls the process, it ensures that the mediation stays on the right path and does not venture down side roads.

Arbitration

Neutral party deciding the outcome of the dispute based on the information presented.

Neutral

Not favoring one solution over another

Interests

Our underlying needs that we assign value to

Non-binding Arbitration

Process where the decision rendered by the arbitrator is NOT contractual and parties have agreed in advance to accept arbitrator ruling as a suggestion rather than be bound by the decision of the arbitrator. Example - Crop duster inadvertently dusting the wrong the crop. A test of the strength of a case.

Binding Arbitration

Process where the decision rendered by the arbitrator is contractual and parties have agreed in advance to accept arbitrator ruling Example - Real estate commission on the sale of a home

What is the function of the mediator's opening statement? What are the components of that statement?

Serves to introduce the parties, set the tone, and establish the mediator as the process facilitator for the session

Adjudication

Submission of disputes by consensual agreement to a third party for an interim decision which will be binding unless the court refuses to enforce the decision or it is substituted by a final arbitral award or court judgement.

Define and explain a cold call.

The contact with a disputant that does not know mediation is being considered

"What is your house like?" or "How do you like your neighborhood?" What kind of question is this?

This is an open-ended question that does not have a predictable answer.

Positions

This is effectively where a person stands on an issue

Trusting the Process

Trusting the mediation process is imperative for mediators. Trusting that parties can eventually create their own agreement, without the mediator suggesting a solution or trying to problem solve too early, is easier to do when a mediator knows that the "process" works.

What is the purpose of paraphrasing feelings?

Used to moderate emotion or disrupt negative venting about the other party.

What information will your opening statement cover?

Welcome Introductions Credibility Establish stakeholders are present Overview of mediation (Scope and nature) Mediators role Private meetings (caucus) Define neutrality and impartiality Confidentiality and limitations within it Purpose of mediator notes Ground rules for communication Session length and other logistics Role of outside resources or experts Secure commitment to begin

Define dual role relationship and know whether they are ever appropriate.

When a mediator also represents one or both parties in another professional role

How does a conflict of interest affect neutrality and impartiality?

When a mediator has some emotional connection to one of the disputants from a current or past relationship, it makes it extremely difficult, if not impossible to remain neutral. • If the mediator has a stake in the outcome of the mediation, the mediator may influence the disputants to an agreement that is more suited to the mediator's needs rather than the disputant's interests. Having a personal stake in the outcome of the mediation would make it extremely difficult to be impartial.

When is pure content paraphrasing best applied?

When it is necessary to keep track of multiple details. Used to summarize, verify, and clarify important information

Define and explain WATNA

Worst Alternative to Negotiated agreement - If your worst alternative is something that you can not live with then it is best to try and cut a deal. For the risk avert

Med-Arb

a hybrid process where parties agree in advance to come together to mediate and if the mediation process breaks down, the mediator will move into an arbitrator role. The decision could be binding or non-binding. Example - community resolution program designed to improve relations between the community and police department

Paraphrasing feelings

a method used to identify a feeling while disrupting negative venting and identifying with the speakers message

mediation

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

Ombudsman

a person (such as a government official or an employee) who investigates complaints and tries to deal with problems fairly. Usually has a significant degree of independence and charged with representing the interests of the public by investigating and addressing complaints of maladministration or a violation of rights.

Empathic Listening

a strive to understand and reflect the perspective of the other person without evaluation

Communication Accommodation Theory (CAT)

a subconscious regulation of behavior to meet communication patterns of another person

Stakeholder

any person who holds a substantial and direct interest in the outcome of the mediation

Innovator

builds a structure for creative thinking

Caucus

communication between one disputant and the mediator

Role model

demonstrates constructive communication skills

Trainer

educates the parties about effective communication strategies

Psychological interests

emotions and feelings that are brought to the mediation

Resource developer

encourages the parties to consult outside expertise when necessary

Critical Listening

evaluating what was said

Agent of reality

helps parties recognize unrealistic goals or unobtainable settlement options

Emotional Contagion Theory

how one parties behavior influences the emotions of others.

Assessment Role

i. Determine issue appropriateness ii. Assess history of and threat of violence iii. Ascertain the decision makers and affected parties iv. Determine the appropriateness of mediation over the other resolution processes v. Explore advocacy needs vi. Review legal issues (restraining orders, parental rights, illegal activities) vii. Compare power resources and ability levels (cognitive, communicative) viii. Assess disputants ability to self-determine ix. Assess levels of distress

Information-Gathering Role

i. Determine who need to come to the table ii. Initial issue identification iii. Demographics of disputants 1. Culture 2. Language 3. Gender 4. Age iv. Types of disputants 1. Voluntary versus mandated participation 2. Conflict styles 3. Communication ability v. Contact information vi. Session Schedules vii. Time constraints and deadlines viii. Referral agencies ix. Determine ability to pay

Education Role

i. Educate about mediation ii. Explain mediators expertise and credibility iii. Communicate mediator expectation (role and process) iv. Communicate disputant expectation (behavior and outcome) v. Establish boundaries vi. Explore other resource (if necessary) vii. Explain the fee structure and payment procedures

What skill is most valuable to mediation practitioners?

listening

Process controller

manages the ebb and flow of the discussion within the mediation structure

Neg-reg

negotiated rule-making. A process where businesses, individuals, or other entities who violate regulations meet and create a plan for future compliance.

impartial

not favoring one side or the other

Informed choice

part of the mediators code of ethics where the mediator tries to ensure the disputants have enough information so that their choices are well founded.

Principle of self-determination

parties have control of the decision making as it pertains to the outcome

substantive interests

relate to tangible or measurable things

procedural interests

relates to how things are done

Coach

spurs parties to talk directly and productively to each other

Catalyst

spurs the parties to perceive the problem differently and move forward

Empathetic listening

supporting and helping the speaker to talk through his or her problem and feelings

Comprehensive listening

to understand what is said

Rights approach benefits

• Clear rules for engagement • Specific requirements for evidence • The law is the same for everyone • People can be represented by attorneys • Process may be open to public scrutiny • Precedents are set

Power Approach Benefits

• Clear winner and loser • Often expedient • Power resources usually easy to identify

Rights approach disadvantages

• Emotional issues and interests are not allowed. • Usually expensive • Usually very time consuming • Quality of legal representation may affect outcome • Decisions are made by judges or juries • Laws may prohibit creative solutions

Interests approach disadvantages

• May have little or no public scrutiny • Private justice instead of public; therefore open to bias and malpractice by mediators • Some may not be able to negotiate effectively and may be better served by representation • May deter the establishment of important precedents

What standards are met in interest-based Mediation?

• Mutually acceptable • Neutral • Impartial • Interest-based • Communicative process • Parties create outcomes

Power approach disadvantages

• Negative peace/retaliation • Lack of satisfaction by one party • May lead to violence • Little room for positive expression of concerns • Power is tenuous and may be lost • People with low resources use what power resources they do have to be heard.

Interests approach advantages

• Open to exploring feelings • Solutions can be unique to parties • Not limited to precedence or conventional approaches • Structurally flexible as decision making stays with the parties • May be more expedient than litigation • May be less costly than litigation

What are the phases in the Balanced Mediation Model and in what order are they followed

• POSANTCP (First letter in each phase) • Pre-Mediation • Opening Statement • Story Telling (Issue Identification, Establishing commonalities) • Agenda Building • Negotiation and Problem solving • Testing and writing the agreement • Closure • Post-Mediation

components of opening statement

• Welcoming • Introductions • Build credibility • Establish stake holders • Explain nature and scope of mediation • Explain mediators role • Explain the caucus • Explain impartial and neutral • Confidentiality • Explain note taking purposes • Establish ground rules • Discover constraints • Explain role of outside experts • Secure commitment to begin • Transition to story telling