Mediation

memorandum of agreement

A document written by the mediator that memorializes an agreement worked out in mediation -enforceable

mediation

A facilitated negotiation. Also, a conversation about making decisions.

role modeling

A mediator tool used to illustrate acceptable behavior in a mediation.

mediator

A neutral third party who assists the disputing parties to reach their own agreement. Mediators are not empowered to make a decision nor press for a particular outcome.

coercive power

A type of power characterized by a threat to cause harm. -most damaging to relationship

facilitative meditation appropriate when

An on-going relationship is involved When parties need help communicating effectively When the problem is more of a dispute than a conflict

attribution error

Angelic motives of yourself, demonic motives of opponent.

neutrality

Refers to the relationship the mediator has with the parties or the issue where nothing in the mediator's background will bias the mediator.

Nailing down the agreement

The stage where the agreement is consummated

facilitation

Third party neutral who provides procedural assistance to group participants to enhance information exchange, improve communication, and/or promote effective problem-solving and decision making. Third party neutral who designs and organizes a dispute resolution process for conflicts involving large numbers of people or groups, and numerous or complex issues.

selective perception

I see only what I want to see.

mediation successful

"I did my best to put the parties in the best position possible to resolve their differences if they want to."

Exaggerated Feedback

(eg. "This is probably the worst thing that's ever happened to you.") -allows party to be heard -creates opportunity to earn trust -now recognized, can move on

disadvantages of grievance mediation

- cannot guarantee a resolution; extra step - grievances are rights-based disputes; wrong process - parties rather "win" than compromise

interest-based mediation

- focus is on reconciling the parties' underlying interests - mediator does not offer any opinion on merits of case - caucuses used sparingly if at all - facilitative and transformative styles

Advantages of Grievance Mediation

- high settlement rates; high participant satisfaction - faster and cheaper than arbitration - non-adversarial, preserves relationship

Letting Impasse Occur

- this move creates power for the mediator - if you let the parties create their own impasse, they will look to the mediator for guidance on how to resolve it

rights based mediation

-Focus is on the parties' legal entitlements -Result is a non-binding opinion about merits of case -Caucus is used almost exclusively -Evaluative style

transformative mediation

-The mediator focuses on healing the relationship between the parties rather than simply settling their dispute. -Mediator supports the parties in their efforts to reach understanding; the parties are in control of the process. -parties want to resolve root cause of conflict and improve relationship

Impediments to Convening

1. Lack of knowledge 2. Fear of showing weakness 3. Avoidance 4. Fear of Losing - Face issue 5. Not going to work 6. Logistics 7. Fees 8. Need a declaration - A judgment or order

stages of mediation process

1. convening 2. opening statement/setting the stage 3. communication and negotiation 4. framing issues 5. negotiating options/considering alternatives 6. nailing down the agreement

causes of conflict

1. data 2. interest incompatible 3. structural-neither party can control 4. value-incompatible morals 5. relationship-distrust

opening statements should address

1.Introductions 2.Thanks & acknowledgement 3.Confidentiality 4.Roles - parties & mediator 5.Educate on the mediation process 6.Expectations 7.Informality 8.Comfort

saving face

A common barrier to resolution involves a party's ability to save this.

disadvantage of mediation over adjudication

Cannot guarantee a settlement Enforceability concerns Viewed as private contract Cannot create a legal precedent Legal precedent needed for legal reform May not protect the disempowered 2nd class justice argument; "lesser forum" Cannot provide public vindication or reprimand Danger of hiding issues that should be public

advantages of mediation over adjunction

Faster and cheaper (efficiency) Flexible and informal Greater participant satisfaction (psychological ownership) Higher compliance rates of agreements (durability) Preserve the parties' relationship (empowering process) Helps prevent and/or resolve future disputes (conflict management and prevention)

reactive devaluation

Immediately discounting another party's idea simply because it comes from the other party

caucus

Individual meetings held between the mediator and a disputant during a mediation

mediation process

One of the ways to circumvent impediments to convening is to build trust in the mediator and this.

Negotiating options

Productive stage -encourage parties to brainstorm several possible solutions to judge later -discuss pros and cons of each -help fine-tune options and gain clarity -discuss BATNA of each party

framing the issue

Putting the issues into a resolvable question based on the parties' common interests.

impartiality

Refers to the mediator's freedom from bias DURING the mediation.

endowment effect

The decision making error which posits that "My X, which is the same as yours, is worth more because it's mine."

Riskin's Grid

The grid which illustrates when each mediation model is appropriate.

Confidentiality

This issue, addressed in the opening assures the parties that what happens in mediation, stays in mediation.

Tasks of Mediator

Understand why the conflict is occurring Identify barriers to settlement Identify procedures to resolve it

reality check

Used to bring parties back to reality. (to the party asking for $1M, "Federal agencies just don't pay out that much in mediation")

normalizing

Used to create confidence in parties ("it's not uncommon to feel this way", "disputes like this happen all the time")

sunk cost

a cost that has already been committed and cannot be recovered. too much already invested

evaluative mediation

a subject-matter expert mediator describes the issue, offers an opinion on the strengths and weaknesses of each party's side, and suggests options to resolve the matter. -neutral evaluation of the merits of the case -quick resolution -used in litigated cases -rights-based mediation

expert power

availability to knowledge -least damaging

referent power

characterized by charisma and attractiveness.

distributive justice

concern with whether the substantive outcome is fair

main goal of transformative mediation

empowerment of the parties along with their recognition of each other's perspective. not settlement

Plan A confidentiality

everything can be shared unless you say not to -better for mediator's protection

Agreement to mediate

explains the roles of the mediator and the parties, confidentiality, caucuses parties sign

convening

getting the parties to the table

normative power

high moral standards

non-contingent intervention

interventions a mediator initiates in all disputes

opening statement

introductory stage plant seeds of resolution and trust

contingent intervention

made in response to unique problem in disputes

Grievance Mediation

mediation used to resolve union grievances in an organized labor setting

Plan B confidentiality

mediator won't share anything unless party says its okay -better for the parties

main goal of facilitative mediation

meeting each party's legitimate interests through collaborative problem-solving

procedural justice

perceived fairness of the process used to determine the distribution of outcome

opening statement hopes to create

safety and hope

mediation consists of:

substance and process

power

the ability of one person to get another person to act in accordance with the first person's intentions

Facilitative Mediation

the mediator focuses on facilitating effective negotiation between the disputants with the goal of helping them reach their own agreement -mediator is process expert

reward power

to reward or withdraw threats

double-blind

tool to break barriers. Given to mediator only in private - mediator gives to parties only if they're close

symmetry

what you do to one side you must do to the other

communication and negotiation

where issues are clarified Allow both parties uninterrupted time to tell their perception of the issue(s) in dispute Use active listening skills to restate and summarize their story in joint session Use open-ended questions to identify issues and clarify positions Obtain mutual agreement of the issues in dispute Determine parties' common interests