Mediation 101 / How to mediate

Mediation takes place across a range of styles and it is inherently connected to the person who is mediating. As much as the various styles are being used to explain or expose a certain way on how to mediate issues, people, and disputes, the personality, individualism, idealism, and ethics of the mediator play an equal part in success or failure of a mediated process. A third dimension, apart from the styles and personality, is the contextual dimension of the mediated process. Some may feel that mediation principles adhere to all the contexts, be it labour disputes, a peace dialogue, or a cease-fire mediation, and that the only distinction is the style of mediation used, whether it is to contain the violence or to engage into resolving the deeper issues and root causes of a conflict. Others say that there is no blue print when it comes to negotiations skills and that it all depends on a sound understanding of the history and the context. And again other voices say that it may be wise if the mediator knows nothing at all when he or she engages with the party in order to really remain neutral and impartial at all times and throughout the process.

1. Principles of negotiation
When it comes to principles of negotiation, we are all reminded of the teachings and learnings derived out of the Camp David process, the principle of consensual negotiations as taught by eminent scholars at the Program on Negotiation at Harvard. And, in many cases, these principles do apply to a range of settings, contexts, and situations. However, it must be pointed out that mediation differs a lot from negotiation in every aspect of the word. Some schools and training centers do apply the same rationale when it comes to seeking interests instead of positions and focusing on the problem rather than the people. The underlying assumption is that there is an equality of power in terms access to information, equity in representation at the negotiation, and a common set of cultural values, ranging from language to basic human needs. Albeit striving for this theoretical approach is a valid point, mediation needs to take different dimensions and categories into account. In most cases I have been involved in, the first principle to focus on problems rather than people is a problem in itself. Often times, people are the problem. Hence – while the technique of negotiation is a very important skill, it needs to be sequenced differently and in a different settings when we talk about mediated process as mediation focuses on not only voluntarism of working towards a common solution, but most importantly in a change of attitudes. While negotiations focus on a predefined set of activities, e.g. disarmament, power-sharing, etc., mediation focuses on a process. A principle of mediation is therefore that the process of mediation focuses on both, the people and the problems and it is up to the knowledge (less so the skills) of the mediator to get this aligned, building trust and dialogue and a constructive atmosphere, in order for equal negotiations to take place.

2. The moment of ripeness
The teachings of learned scholars tell us that it is important for a conflict to be ripe to be amenable to solutions. This can take place either because the people are tired of war, or the warring parties are running out of military options, etc. This canon has been repeatedly taught in schools, universities and is the foundation for any conflict intervention. It has been complemented by the notion of readiness, where parties, and possibly interveners, need to be “ready” in order to engage in conflict transformation.
From personal experience, I would argue that while these are valid points and tenets, early response and early entry is crucial as it is linked to the right of the individual to be alive and mediation is there to cease, halt or delay the violence. Often times, people refer to success or failure of mediation. The question remains to what extent this can be of importance and to whom? Is it of importance to the mediator, so that he can have another mediated process under his belt or is it of importance to the agency that is sending the mediator? Or isn’t it rather a question of who will benefit from the mediation? Since there are many mediation contexts, I would limit my suggestions onto cease-fire and political mediation, and thus there can be no doubt that in line with the tenets of human rights for the right to live, that a thoughtful and timely early intervention is better than having the population bled out before intervening. It is assumed that not everyone nor every outfit is destined to do such an intervention, yet there are a number of agencies, intermediaries, individuals and insider mediators who, if and when properly equipped can enter the conflict realm and provide throughout mediation services, that can then complement other mediation activities.
More interesting and of importance to the mediator are the intrinsic conflict dynamics and the perception that exist between the parties that guide a mediator’s decision to intervene or not.

3. More knowledge, less doing
Although skills are important, the emphasis is more on knowing than doing. Communication skills and even administrative skills, especially documenting, recording, storing, sharing and reporting, are vital components and corner points of any mediation endeavor. Yet, if there is a toolbox the mediator can use to gain trust and credibility to get his or her job done, then it happens less so by him or her doing something, but rather with him or her knowing about the conflict, knowing about the cultural sensitives, knowing on how to communicate the things that can be said and to explore the things that are left unsaid, knowing on how to use the power to create alliances in order to support mediated processes, and knowing about languages. This, of course, may change, depending on the context and the setting of the mediated process. For instance, if a process requires security arrangements to be agreed upon, then the skills and the knowledge of a technical experts with facilitation skills would be quite useful to use. Furthermore, different conflict environments or topics may necessitate a different range of styles, actors, and complimentarity of efforts and actions in order to succeed. A key competence, which cannot be taught in schools, trainings, or other laboratory experiments, is timing. Knowing not only about the relevance of time in a specific cultural setting, but also knowing when to do what and what time and for what purposes,is a key competence, and, if I may use the term deliberately, a critical skill for any mediator. Again, this may be different for other dispute resolution mechanisms, but it holds definitely true for any mediation effort. Kofi Annans’ intervention in Syria is a case in point. Timing should not be confused with ripeness, since ripeness discusses the issue of intervention or not, while timing suggests that a process is already underway and that the mediator needs to work on changing attitudes, behaviors and motivations of all involved parties at the negotiation table. Knowledge is the essence of any mediation process.

4. Final thoughts
I would like to conclude by emphasizing on the issue of knowledge. Universities, training institutions, and international organisations need to review the way future generations of mediators will be trained, taught, and peer shadowed in order to be effective, not successful or failed, mediators.

Congo, beyond the conflict: Six reasons why it matters – CNN.com

Conflict zones are not just zones of despair, crises, and suffering. There are many shades of grey. And, in order to look beyond the pain and brainstorm creative ideas, it pays off to look at all sides of a story. This article provided by CNN may not be the most sophisticated and in-depth piece of journalism, but we can be thankful to the author to have made the effort of exploring a different side of the story of the D.R. Congo. Enjoy – all copyrights by CNN.

Congo, beyond the conflict: Six reasons why it matters – CNN.com.

Africas deadliest war enters new phase in Congo

Below is a good summary from USA Today about the situation in the Easter part of the DRC with linkages to the Kampala Talks being held in Uganda between the Government of the DRC and the M23 rebels, with Uganda as Chair of the International Conference of the Great Lakes Region (ICGLR) and mediating the dialogue.

Africas deadliest war enters new phase in Congo.

Mediation 101 / ADR Systems

Mediation, Arbitration, Litigation, Differences, Ethics

Mediation is part of a wider field of alternative dispute resolution systems. All dispute resolution systems respond to a specific conflict style or dispute that needs to be resolved. Among many other variations, let’s focus on a the most important alternative dispute resolution systems in the field and let’s explore their strengths and limitations. Furthermore, the attempt will be to present the following in a cross-cultural context and within other frameworks.

1. Mediation vs Arbitration

Mediation is oftentimes confused with arbitration. The difference is that in arbitration the neutral arbitrator is empowered to render a decision for the parties. The power and authority to make the decision is in the hands of the arbitrator. In mediation, the neutral (depending on context and content as we will elaborate later) mediator has no power to render a decision; the power to make decisions is in the hands of the parties and it remains there until they reach a final agreement.

An arbitrator is comparable to the role of a judge – however without the structural enforcement by a judicial and governmental procedure. An arbitrator’s decision is binding, final and enforceable through the collection process. This decision is like a court judgement. Mediation, however, is a voluntary process. The parties can decide at any time to leave the mediation process. A mediator is more of a negotiator. Mediation is closer to negotiation. In the understanding of this framework, mediation is considered to be a negotiation process assisted (others say: facilitated) by the guidance and intervention of the neutral and impartial mediator. While negotiation is usually a one-on-one with the parties themselves, mediation introduces the dynamic of a neutral party dialogue leader.

Hence, arbitration is closer to litigation. In fact, arbitration is considered by some authors in the field of ADR an “adjudication”. The judging is done by an arbitrator instead of a judge or jury. Rules of procedure and evidence may or may not be in effect in arbitration. Arbitration differs from litigation in that there are no open courtrooms, public records, waiting periods, or rights to appeal. Nevertheless, a decision of the disputed case is deferred to a higher authority. Someone else is thus imposing the decision on the parties. In mediation, the parties are working out a solution for themselves with, through and under the assistance of a mediator. Mediation is an assisted problem-solving process. Arbitration and litigation, the parties surrender control of the outcome.

Mediation is most of the times referred to as a means of solving disputes through assisted negotiations or facilitated negotiation. There are mediators who incorporate directive, evaluative or transformative elements – and the literature abounds with debates over these elements as it will be demonstrated at a later stage of this chapter. However, facilitating negotiation is considered a core competence.

Arbitration manifests itself in a variety of forms, however they all involve private adjudication and referral of the case’s decision to a higher, selected authority.

Litigation is a combination of negotiation and litigation. Cases are filed to court, they are punctuated by trips to the courthouse for motion hearings or depositions for pre-trial discovery and then back to the bargaining procedure. Most of the times, a judge will render a decision.

Collaborative Practice means a process of negotiation in which at a minimum degree the parties and their counsel sign a participation agreement where all agree that the lawyers’ involvement in the case will be limited to advice and negotiation, and that if the negotiation fails and the case must go to court, the lawyers will withdraw and the parties will hire new counsel. Additional elements, such as information sharing, respectful communication, confidentiality, client participation in the process, interest-based negotiation, and the joint retention of experts are part of the participation agreement. Collaborative practice usually involves a series of four-way meetings in which both parties and both attorneys participate.

Cooperative Process Agreements are a new development in the ADR field. Unlike collaborative practice, there is no consensus at this point among practitioners regarding the essential elements of this process. However, it can be referred to as a process in which the parties and counsel sign a participation agreement that contains provisions similar to those of a Collaborative Practice agreement except for the withdrawal/disqualification provision (see sample agreement at http://www.bostonlawcollaborative.com/documents/2006-02-cooperative-process-agreement.pdf). Both Collaborative and Cooperative models create a similar container for negotiations and thus, like mediation, seek to create a safe and confidential place for conversations and agreements.

Many other terms and forms of hybridization between the legal field and other dispute resolution systems have occurred. However, the all the research to these models are still lacking the complexity of multi-lateral negotiation. Furthermore, mediation is the only conflict resolution method that creates a truly dialogical container for all the parties to be able to settle a conflict. Hence, this research work will be based on the elements of mediation in order to assess settlement procedures and decision-making processes in group-related conflicts.

Negotiation systems create a structure to encourage and facilitate direct negotiation between parties, groups or states without the actual intervention of a third party. Mediation and conciliation systems are very similar in that they intervene through a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Arbitration systems authorize a third party to decide how a dispute should be resolved. It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation and conciliation are non-binding and depend on the willingness of the parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow, even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject. Furthermore, the distinction also goes to differ between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate or arbitrate prior to court action. ADR processes may also be required as past of a prior contractual agreement between the parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties. These forms of ADR, and a variety of hybrids (see …. ) are described in the Taxonomy and the Glossary.

Although ADR is an important means in many conflict resolution activities, it might be ineffective in certain contexts, such as international crisis intervention and conflicts over resources. In particular, ADR is not an effective means to:

– Define, refine, establish and promote a legal framework;

– Redress pervasive injustice, discrimination, or human rights problems;

– Resolve disputes between parties who possess greatly different levels of power or authority;

– Resolve cases that require public sanctions;

– Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process.

Especially for the contextual focus of this research work, ADR is inappropriate to resolve multi-party cases in which some of the parties or stakeholders do not participate or have nothing to say (such as minorities, womens, nomadic tribes, etc.).

Another ADR system oftentimes used on the socio-political and international level is Consensus-based negotiation. Consensus decision-making requires that everyone agrees to a decision, and not just a
majority, as occurs in majority-rule processes. In consensus-based processes, people work together to develop an agreement that is good enough (but not necessarily perfect) for everyone at the table to be willing to accept (Conflict Research Consortium, 1998).
We will come back to other forms of ADR systems brought forth by the legal field of conflict resolution, but let’s go back to what mediation is certainly not.
2. Mediation is not …
Mediation is not an attempt to attribute or allocate a faultive behavior. Assessment of fault may or may not be done by judges (or arbitrators), but it will not be done by mediators or it will not be found in a final agreement co-drafted by a mediator. Mediation is not a means to declare winner or loser. Mediation does not produce a one-sided victory or constant separation. It produces dialogue and permanent cease-fire.
Mediation is not designed to establish another picture of truth – whatever that might be. Fact-finding is a procedure within the litigation process in court or in arbitration. Mediation takes a look at the present, while invoking the past and preparing the future.
Mediation is not a process to find out what a mediator thinks or not. The mediator’s role is to guide the conflicting parties towards a truce. If a truce is not achieved and mediation is halted, sometimes the mediation may be asked to give an opinion on what could or should be done. Although this is rare in certain instances, other contexts or settings might require a mediator to render an opinion thus testing the critical incidents for a potential agreement. In international mediation, the mediator is usually more partial and active than in traditional, domestic-based mediation.
Although a mediation team might be established to run a multi-party negotiation process and hence be constituted out of experts and advisors, there are usually no witnesses or experts in mediation. This is in respect to one principle of mediation, where the parties are participating on a voluntary and self-determined basis.
Another principle relates to the fact that no recording is made of the proceedings. Mediation is confidential and private. What happens in the mediation room stays in the mediation room. Mediation is not to review or appeal. Either it produces a settlement or it does not. There are current cases in civil law investigating into a mediator’s refusal to appear as a witness. We will get back to those legal cases at a later stage.
In most instances, mediation is referred to as a means of settling a dispute outside of the court system. Yet, the question still remains: What can be done better through the use of mediation than continuing the dispute?
We will explore the answers to this question in the postings to come.

Mediation 101

Welcome to the first entry of a mediation guide, quick “What-How-When-Why”-guide and essential kick for the mediation starter and those who would like to re-visit what mediation is all about.

If you have any questions, comments or additional topics to add, please do not hesitate to do or to send an Email to rocha.international@me.com

Remember: Dialogue is the Key!

Profiler: The mediator

Arbitrators, Mediators, and Conciliators: Facilitate negotiation and conflict resolution through dialogue. Resolve conflicts outside of the court system by mutual consent of parties involved.

Sample of reported job titles: Mediator, Arbitrator, Commissioner, Labor Arbitrator, Alternative Dispute Resolution Coordinator (ADR Coordinator), Federal Mediator, Public Employment Mediator, Alternative Dispute Resolution Mediator (ADR Mediator), Arbiter, Community Relations Representative.

Tasks

•Confer with disputants to clarify issues, identify underlying concerns, and develop an understanding of their respective needs and interests.

•Use mediation techniques to facilitate communication between disputants, to further parties’ understanding of different perspectives, and to guide parties toward mutual agreement.

•Set up appointments for parties to meet for mediation.

•Prepare settlement agreements for disputants to sign.

•Organize and deliver public presentations about mediation to organizations such as community agencies and schools.

•Analyze evidence and apply relevant laws, regulations, policies, and precedents in order to reach conclusions.

•Prepare written opinions and decisions regarding cases.

•Arrange and conduct hearings to obtain information and evidence relative to disposition of claims.

•Rule on exceptions, motions, and admissibility of evidence.

•Determine existence and amount of liability, according to evidence, laws, and administrative and judicial precedents.

Knowledge

English Language — Knowledge of the structure and content of the English language including the meaning and spelling of words, rules of composition, and grammar.

Law and Government — Knowledge of laws, legal codes, court procedures, precedents, government regulations, executive orders, agency rules, and the democratic political process.

Customer and Personal Service — Knowledge of principles and processes for providing customer and personal services. This includes customer needs assessment, meeting quality standards for services, and evaluation of customer satisfaction.

Personnel and Human Resources — Knowledge of principles and procedures for personnel recruitment, selection, training, compensation and benefits, labor relations and negotiation, and personnel information systems.

Sociology and Anthropology — Knowledge of group behavior and dynamics, societal trends and influences, human migrations, ethnicity, cultures and their history and origins.

Psychology — Knowledge of human behavior and performance; individual differences in ability, personality, and interests; learning and motivation; psychological research methods; and the assessment and treatment of behavioral and affective disorders.

Administration and Management — Knowledge of business and management principles involved in strategic planning, resource allocation, human resources modeling, leadership technique, production methods, and coordination of people and resources.

Education and Training — Knowledge of principles and methods for curriculum and training design, teaching and instruction for individuals and groups, and the measurement of training effects.

Clerical — Knowledge of administrative and clerical procedures and systems such as word processing, managing files and records, stenography and transcription, designing forms, and other office procedures and terminology.

Mathematics — Knowledge of arithmetic, algebra, geometry, calculus, statistics, and their applications.

Skills

Active Listening — Giving full attention to what other people are saying, taking time to understand the points being made, asking questions as appropriate, and not interrupting at inappropriate times.

Critical Thinking — Using logic and reasoning to identify the strengths and weaknesses of alternative solutions, conclusions or approaches to problems.

Reading Comprehension — Understanding written sentences and paragraphs in work related documents.

Speaking — Talking to others to convey information effectively.

Judgment and Decision Making — Considering the relative costs and benefits of potential actions to choose the most appropriate one.

Negotiation — Bringing others together and trying to reconcile differences.

Social Perceptiveness — Being aware of others’ reactions and understanding why they react as they do.

Complex Problem Solving — Identifying complex problems and reviewing related information to develop and evaluate options and implement solutions.

Active Learning — Understanding the implications of new information for both current and future problem-solving and decision-making.

Persuasion — Persuading others to change their minds or behavior.

Abilities

Oral Expression — The ability to communicate information and ideas in speaking so others will understand.

Written Comprehension — The ability to read and understand information and ideas presented in writing.

Written Expression — The ability to communicate information and ideas in writing so others will understand.

Inductive Reasoning — The ability to combine pieces of information to form general rules or conclusions (includes finding a relationship among seemingly unrelated events).

Oral Comprehension — The ability to listen to and understand information and ideas presented through spoken words and sentences.

Speech Clarity — The ability to speak clearly so others can understand you.

Deductive Reasoning — The ability to apply general rules to specific problems to produce answers that make sense.

Problem Sensitivity — The ability to tell when something is wrong or is likely to go wrong. It does not involve solving the problem, only recognizing there is a problem.

Near Vision — The ability to see details at close range (within a few feet of the observer).

Speech Recognition — The ability to identify and understand the speech of another person.

Work Activities

Resolving Conflicts and Negotiating with Others — Handling complaints, settling disputes, and resolving grievances and conflicts, or otherwise negotiating with others.

Communicating with Persons Outside Organization — Communicating with people outside the organization, representing the organization to customers, the public, government, and other external sources. This information can be exchanged in person, in writing, or by telephone or e-mail.

Getting Information — Observing, receiving, and otherwise obtaining information from all relevant sources

Establishing and Maintaining Interpersonal Relationships — Developing constructive and cooperative working relationships with others, and maintaining them over time.

Making Decisions and Solving Problems — Analyzing information and evaluating results to choose the best solution and solve problems.

Communicating with Supervisors, Peers, or Subordinates — Providing information to supervisors, co-workers, and subordinates by telephone, in written form, e-mail, or in person.

Documenting/Recording Information — Entering, transcribing, recording, storing, or maintaining information in written or electronic/magnetic form.

Interpreting the Meaning of Information for Others — Translating or explaining what information means and how it can be used.

Thinking Creatively — Developing, designing, or creating new applications, ideas, relationships, systems, or products, including artistic contributions.

Judging the Qualities of Things, Services, or People — Assessing the value, importance, or quality of things or people.

Work Context

Telephone — How often do you have telephone conversations in this job?

Freedom to Make Decisions — How much decision making freedom, without supervision, does the job offer?

Spend Time Sitting — How much does this job require sitting?

Contact With Others — How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?

Electronic Mail — How often do you use electronic mail in this job?

Structured versus Unstructured Work — To what extent is this job structured for the worker, rather than allowing the worker to determine tasks, priorities, and goals?

Face-to-Face Discussions — How often do you have to have face-to-face discussions with individuals or teams in this job?

Frequency of Conflict Situations — How often are there conflict situations the employee has to face in this job?

Impact of Decisions on Co-workers or Company Results — How do the decisions an employee makes impact the results of co-workers, clients or the company?

Indoors, Environmentally Controlled — How often does this job require working indoors in environmentally controlled conditions?

Education

Most of these occupations require a four – year bachelor’s degree, but some do not.

Interests

Social — Social occupations frequently involve working with, communicating with, and teaching people. These occupations often involve helping or providing service to others.

Enterprising — Enterprising occupations frequently involve starting up and carrying out projects. These occupations can involve leading people and making many decisions. Sometimes they require risk taking and often deal with business.

Conventional — Conventional occupations frequently involve following set procedures and routines. These occupations can include working with data and details more than with ideas. Usually there is a clear line of authority to follow.

Work Styles

Integrity — Job requires being honest and ethical.

Concern for Others — Job requires being sensitive to others’ needs and feelings and being understanding and helpful on the job.

Self Control — Job requires maintaining composure, keeping emotions in check, controlling anger, and avoiding aggressive behavior, even in very difficult situations.

Cooperation — Job requires being pleasant with others on the job and displaying a good-natured, cooperative attitude.

Dependability — Job requires being reliable, responsible, and dependable, and fulfilling obligations.

Stress Tolerance — Job requires accepting criticism and dealing calmly and effectively with high stress situations.

Analytical Thinking — Job requires analyzing information and using logic to address work-related issues and problems.

Initiative — Job requires a willingness to take on responsibilities and challenges.

Persistence — Job requires persistence in the face of obstacles.

Adaptability/Flexibility — Job requires being open to change (positive or negative) and to considerable variety in the workplace.

Work Values

Relationships — Occupations that satisfy this work value allow employees to provide service to others and work with co-workers in a friendly non-competitive environment. Corresponding needs are Co-workers, Moral Values and Social Service.

Achievement — Occupations that satisfy this work value are results oriented and allow employees to use their strongest abilities, giving them a feeling of accomplishment. Corresponding needs are Ability Utilization and Achievement.

Independence — Occupations that satisfy this work value allow employs to work on their own and make decisions. Corresponding needs are Creativity, Responsibility and Autonomy.

Regarding the importance of certain attributes, please visit: http://online.onetcenter.org/link/details/23-1022.00 in order to see the percentage of user’s expectations.

An approach to mediation

While preparing the conflict resolution design, the mediator has to master his knowledge of legal issues, psychology, human geography, communication styles and methodology of mediation. To help him build up a concept of operations, here is a litte overview of the most important topics for a dispute settlement design:

Conflict and violence are not the same thing
Conflict can be defined as a state of disharmony between persons, ideas, or interests, and is used to denote both a process and a state of being. Violence is commonly defined as the aggressive use of force exerted for the purpose of violating, damaging, or coercing, as well as an abusive or unjust exercise of power. Whereas conflict is not inherently negative or damaging, and can in fact produce positive outcomes, violence always results in injury and destruction.

Adversarial versus cooperative approaches to conflict
Adversarial approaches to dispute settlement occur when parties in conflict perceive themselves as opponents competing for mutually incompatible outcomes in which one side wins and the other loses. Typically, issues in dispute become polarized, feelings and perceptions become hostile, options are narrowed, communication between parties is restricted or non-existent, and disputants strive for all-or-nothing solutions. By contrast, the cooperative or problem-solving approach involves both sides collaborating – merging resources to seek solutions that address everyone’s interests and are mutually beneficial. This approach to dealing with conflict is characterized by the use of joint problem-solving techniques, respectful communication and the pursuit of win-win solutions.

Advocating for common ground
“Understand the differences, act on the commonalities.” Today’s problems – whether ethnic, environmental, or economic – are too complex and interconnected to be resolved on an adversarial basis. It is our assumption that everyone’s interests are best served by reframing the issues in a non-adversarial way, and advocating for a process that can maximize the gain of all those with a stake in the outcome. While ethnic, cultural and religious disparities may seem insurmountable in difficult conflict situations, common ground between parties can be found where interests overlap, and mutually beneficial solutions can come to the fore.

Impartiality versus neutrality You can be impartial, if not completely neutral. Being partial means defending one side or the other. Being impartial is working with people on both sides – our hearts might go out to those we feel have been wronged, naturally – however, our work is to bring people to the table to talk, to get them into dialogue about what they can do to improve the situation. We are not advocates for either side, but for finding common ground: it is not about justice for one but justice for all.

Reframing
Reframing, or creating a new context, is a technique of shifting the perception of a situation or problem to give it a different and/or more constructive interpretation. In mediation and negotiation, this method is used to recast a conflict in neutral terms to break deadlocks or stalemates and make further progress in attaining a joint resolution. In popular management literature, it is often referred to as causing a paradigm shift.

Conflict management versus conflict resolution
For those unfamiliar with the terminology of this field, there can be great confusion about these two concepts. Conflict management generally involves taking action to keep a conflict from escalating further – it implies the ability to control the intensity of a conflict and its effects through negotiation, intervention, institutional mechanisms and other traditional diplomatic methods. It usually does not address the deep-rooted issues that may be at the cause of the conflict or attempt to bring about a solution. Conflict resolution, by contrast, seeks to resolve the incompatibilities of interests and behaviours that constitute the conflict by recognizing and addressing the underlying issues, finding a mutually acceptable process and establishing relatively harmonious relationships and outcomes.

Choosing between hope and despair
It is human nature to experience feelings of despair, hopelessness and depression in destructive or intractable situations. We make the assertion that despair is a choice that hinders action. The people we work with on a daily basis are courageously choosing the alternative – hope – and are working through the personal anguish that arises in conflict situations to accomplish something constructive. The world is becoming more and more diverse, and its potential – both negative and positive – has never been greater. We believe it is critical to choose to work together creatively to turn that diversity into progress.

Breakdowns to breakthroughs
Often a breakdown in the functioning of a community, organization or government is considered a disastrous event with dire consequences. By shifting our perception, such occurrences can also be viewed as opportunities to step back and analyze problems, relationships and miscommunications. When the underlying causes of breakdowns are illuminated and addressed in this way it can lead to a breakthrough in cooperation and productivity. Learning from past difficulties is the surest way to avoid future mistakes and prevent conflicts from reoccurring.

Positions versus interests
Positions are points of view that are generally more specific and narrower in scope than interests, which typically underlie (and can include many) positions. Interests tend to be fundamental needs, while a position is often a statement of opinion about how to achieve that need. A position is much more easily altered than an interest. There are always places where parties’ interests overlap in a conflict, whereas positions may appear mutually exclusive. The more intense the dispute, the farther apart positions tend to be from each other.

Attack problems, respect people
Transforming conflict can be as simple as reframing a situation – creating a new context in which people attack problems, rather than each other. The perception of a situation can be shifted so that both sides are working together on a common problem, rather than seeing each other as the problem. To address the problem in a cooperative problem-solving manner, it is important to discover mutual interests, generate options and develop agreements as steps for maintaining harmonious relations while dealing with problems directly.

Active listening
When two parties in conflict are speaking with each other, one or both sides are often more concerned with formulating a response and winning the argument than listening attentively. Active listening is a structured form of communication that focuses the attention on the speaker in order to improve mutual understanding and facilitate problem solving. The listener must attend fully to the speaker, and then reflect back what he or she has heard; enabling both parties to find out if the message was fully understood. This process serves to reduce misunderstandings, encourage positive exchanges, and deepen mental and emotional understanding of each side’s concerns to create a relationship conducive to mutual problem-solving.

Active speaking
Active speaking is a communication process whereby a speaker appeals to another individual’s higher self – the deepest level of humanity within each individual where dignity, integrity and compassion resonate the strongest. Often the key to achieving this is for the speaker to come from a place of respect, compassion and understanding. Active speaking is a courageous, creative act that usually requires the speaker to rise above their fears and concerns and speak from their own highest sense of self.

Perceptions versus reality
From the conflict resolution perspective, the absolute reality of a conflict situation is often less important than what each party’s perception of that situation is. For example, while there may be no actual stated threat of violence between groups, the simple perception of a threat may be enough to bring one or both disputants to action. It is necessary to consider perceptions objectively and without value judgments, in an attempt to determine how such perceptions can create misunderstandings, limit options and hinder communication.

Transforming stereotypes
Typically in protracted conflicts, extremely negative stereotypes of opposing parties form based on their group identities. This can lead to dangerous assumptions that can devolve to the point where adversaries become dehumanized, opening the door to violence and genocide. One of our main goals in working with identity-based conflicts is to shift such negative perceptions, re-humanizing combatants in each other’s eyes and paving the way for cooperative problem-solving. Methods for transforming stereotypes include facilitating inter-group contact, conducting workshops and activities that help to build social cohesion, and providing information via mass media that reduces the fear and misunderstanding.

Expanding identity
Often in violent, intractable conflicts, group identity is the central dividing factor around which a dispute revolves. Such a partition of identity creates an “us versus them” mentality, which inhibits communication and diminishes peaceful resolution options. In order to remove these barriers, an overarching level of identification that includes both parties must be developed, thereby creating a new category, which places disputants in a better position to work toward a common future. A successful example of expanding identity is South Africa’s transformation from the divisive apartheid system of Blacks versus Whites into the inclusive Rainbow Nation.

Reference: Yarn, D., 1999, Dictionary of Conflict Resolution. Jossey-Bass Inc., San Francisco.

On Mediating Multi-Party Disputes

This is an excerpt out of an excellent book on how to address mediation issues in multi-party disputes – recommended!

When addressing conflictive issues, mediators are often confronted with multi-party disputes, conflicts involving more than two opposing parties.
Although the strategies discussed elsewhere on this site are helpful in these cases, several special considerations should be kept in mind:

– Spend extra time in pre-negotiation and needs assessment. This helps gain a sincere commitment to the process from all participants. It also clarifies how the issues are perceived from the various vantage points of the parties, minimizing surprise factors at the point of discussion.

– Use opening statements by participants as an opportunity for each person to share initial positions and be understood. An extra “restating ground rule” may be appropriate, where participants are asked to restate the previous person’s viewpoint before presenting their own. Don’t rush past initial statements, despite pressure to get on with business.

– Actively seek common ground early, not to minimize areas of difference, but to clarify them. By identifying issues that can be resolved in light of these areas of agreement, support can be built for continued dialogue.

– Recognize that several levels of negotiation need to occur. Cross-group discussion is the primary focus of substantive negotiation, but within-group communication is important to psychological and procedural needs in conflict. Try to allow time for dialogue within smaller groups, while keeping large group discussions focused on the explicit tasks of the group.

– Whenever possible, have subgroups form that break down old coalitions. This may offer participants the chance to shift from adversarial to solution-oriented relationships. If the group has multiple meetings, they provide excellent opportunities to establish task forces, project teams and information gathering groups, which rearrange traditional alliances.

– Be sensitive to the tension between being (social cohesiveness) and doing (task effectiveness) within the group. Managing this inevitable tension requires great skill on the part of the mediator. Disputants often have a profound experience in “knowing the enemy.” This is valuable for its own sake, aside from substantive progress, and could translate into goodwill that is valuable in other settings. The mediator needs to constantly check with the group to be sure that any urge to be solution-oriented is a focus they continue to share, and help members realistically comprehend consequences of their decisions.

– Be especially sensitive to the role of moderates and extremists within the meeting. Moderates are defined here as those who demonstrate flexibility in negotiation. This includes a willingness to consider a variety of options and a desire to attend to others’ needs in negotiation. Extremists in this context are those who rigidly hold on to a minority position. They narrowly define the agenda and often sabotage efforts by others (even in their own camp) to negotiate. In such multi-party disputes, it is critical to empower the moderates to “find their voices,” and be sure their views are clearly expressed. Extremists tend to dominate such discussions, fearing that their concerns will lose if they don’t argue forcefully: They need to be able to express their concerns and have them acknowledged, but this must occur within a context that allows all views to be represented with integrity at the table.

– Continue to be vigilant regarding your neutrality throughout the process. Major issues raised by ad hoc subgroups should be brought back to the larger group for resolution. Watch for possibly biased responses to extremists within the group; since they may be exhibiting attitudes you do not share, biases may lurk just beneath the surface of the meeting and emerge in subtle language or non-verbal behaviors. You may find it beneficial to “de-brief” during such experiences with a colleague as a reality check for your neutrality in the dispute.

(adapted from Harry Webne-Behrman, The Practice of Facilitation, Quantum Books, 1998. All rights reserved.)

Terminology and Taxonomy

a brief description on the terminology used in the field of conflict resolution to jump-start the mediation era 2009!

Alternative dispute resolution (ADR) and mediation are definitely on the move. Preaching to the choir of supporters, there is no doubt about the difference in terminology and use. However, a great number of user’s still don’t know about the characteristics of ADR, mediation and other tools of constructive conflict resolution.
For a fresh start into 2009, here is a concise glossary of terms and definitions, commonly used in the field.

ALTERNATIVE DISPUTE RESOLUTION (ADR)
Refers to dispute resolution procedures utilized outside of court, cost effective litigation management and litigation prevention techniques

BRAINSTORMING
The process of inventing options and developing alternatives towards achieving a settlement. This is an open forum where neither party is obligated with respect to the ideas generated

CONFIDENTIALITY
Private matters discussed and held in confidence by the neutral third party

FACILITATE
To make easy or easier…to lighten the work of; assist; help [Webster’s New World Dictionary]

FACT FINDING
Informal process whereby a neutral third party investigates the question in issue and submits a report or testifies in court.

INTERESTS
Concerns, desires, wants. What caused people to take a position

NEUTRAL
Impartial Third Party; a disinterested party with no “connection” to the matter

POSITIONS
What people in a dispute want; something decided upon

WIN – WIN
A proposition in which both sides of a dispute have had an opportunity to explore positions, interests and options for resolution, and ultimately structure an agreement that has “appeal” to both.

A. Mediation
DEFINITION
A conflict regulation model where a third and accepted party helps or assist two or more conflicting parties to find a new ground for communicating their issues in a constructive manner.

NEUTRAL
Impartial third party selected by parties to assist in identification and clarification of issues, generation of options, and facilitation of a mutually acceptable agreement

ROLE OF LAWYERS
May present case, although parties usually communicate directly; may assist client regarding clarification of legal issues; drafts agreement

ROLE OF PARTIES
Able to ventilate feelings, tell their story and negotiate directly; participate in creative problem-solving

SCOPE OF PROCESS
Flexible; voluntary; no rules of evidence; private; confidential

OUTCOME
Mutually satisfactory resolution; relationship maintained; Ideally: Win-Win result for all parties. Often: Acceptable compromise

B. Arbitration
DEFINITION
Adversarial system of justice designed to present civil case to a neutral third party for decision

NEUTRAL
Usually retired judge or lawyer who serves as a professional third party neutral; sometimes non-lawyers act as neutrals particularly in labor disputes

ROLE OF LAWYERS
Advocate positions of client

ROLE OF PARTIES
Discuss case strategy with lawyer; be available to respond to discovery; answer questions

SCOPE OF PROCESS
Similar to lawsuit; discovery commenced, experts consulted; preparation for hearing; adversarial proceeding

OUTCOME
Win-Lose; costly; often time consuming

C. Negotiation
DEFINITION
Voluntary, informal, unstructured process used by disputants to reach a mutually acceptable agreement

NEUTRAL None

ROLE OF LAWYERS
May or may not be appointed by disputants to represent them in negotiating

ROLE OF PARTIES
May represent themselves in direct conversations with opposing side; high personal involvement; normal communication problems

SCOPE OF PROCESS Unstructured, voluntary and non-binding; position based

OUTCOME
Ideally: a mutually acceptable agreement based on shared interests; Realistically: Varies from Win-Win to Lose-Lose

D. Litigation
DEFINITION
Adversarial system of justice designed to present civil case to a court for decision

NEUTRAL
Judge employed by county to issue binding decision; jury selected from geographic area

ROLE OF LAWYERS
Advocate positions of client

ROLE OF PARTIES
Discuss case strategy with lawyer; be available to respond to discovery; answer questions

SCOPE OF PROCESS
Lawsuit filed and answered; discovery commenced, experts consulted; trial preparation; trial

OUTCOME
Win-Lose; costly; time consuming

E. Mini-Trial
DEFINITION
Abbreviated, informal presentation of case by the parties to a senior claims or business representative intended as a prelude to settlement discussions. Primarily used in large, complex, or multi-party cases

NEUTRAL
Impartial third party may be selected by parties, but not always, to preside over
presentations and assist the parties in eliciting information

ROLE OF LAWYERS
Summary presentation of case in adversarial manner

ROLE OF PARTIES
Observe, listen to case from both sides, ask and answer questions; make an informed evaluation; engage in settlement discussions

SCOPE OF PROCESS
Loose structure, flexible; agreement of parties; non-binding; confidential

OUTCOME
Negotiated settlement based on the full range of needs and objective of the parties.

F. Hybrids
HYBRID PROCEDURES/ COMBINED PROCESSES FACT FINDING
Process used in conjunction with other ADR procedures by which facts relevant to a controversy are determined.

MEDIATION/ ARBITRATION (MED/ARB)
Parties agree to mediate with stipulation that any issues not settled will be resolved by binding arbitration.

MULTI-STEP ADR
Progressive series of ADR processes utilized by parties to an agreement or dispute designed to give the parties an opportunity for achieving a resolution through the most effective forum. The process begins with low cost and informal procedures and moves towards more formal and costly methods. For example, if negotiations fail, mediation occurs; if that is unsuccessful, arbitration takes place.

TWO TRACK APPROACH
ADR processes or traditional settlement negotiations used simultaneously with litigation. Settlement discussions are often conducted by persons not involved in the litigation.

DAY BASEBALL
The parties give the neutral, at the end of the hearing, their last, best offer/demand. Having reviewed the evidence and listened to the testimony, the neutral picks one figure or the other as the award. This process encourages both sides to be as reasonable as possible in presenting their final positions.

NIGHT BASEBALL This option is similar to Day Baseball, except the parties seal their last, best offers instead of giving them to the neutral. After the neutral renders a decision, the party whose number is mathematically closer to the neutral’s award prevails.

TELEMEDIATION Similar to Confidential Listener, except that an ADR Provider staff person works with each party to explore the respective merits of the party’s case and attempts to mediate a resolution over the phone.

G. The Listener (Doctor-Patient-Model)
DEFINITION
A neutral third party appointed by the disputants to obtain a proposed final settlement offer from each party. Without disclosing the content, the Confidential Listener advises the parties if their offers are within a specified range. The range usually is agreed upon by the parties in advance, along with a mechanism for dividing the difference in the event that the offers overlap. If the offers are outside the specified range, the Confidential Listener may assist the parties in bridging the gap
and achieving a final settlement

NEUTRAL
Impartial third person selected by parties to listen to offers and facilitate settlement negotiations

ROLE OF LAWYERS
Can provide offer to listener and engage in settlement negotiations

ROLE OF PARTIES
Can provide offer to listener and engage in settlement negotiations

SCOPE OF PROCESS
Pursuant to agreement of parties; sometimes occurs during mediation as a means of closure; somewhat structured to ensure confidentiality

OUTCOME Negotiated settlement; Win – Win

H. Settlement
DEFINITION
Neutral individual, often a retired judge or professional attorney/mediator, listens to abbreviated presentation of case and renders an advisory opinion on factual or legal issues, as well as damages

NEUTRAL
Selected by parties or court to evaluate strengths and weaknesses of case; assists parties to reach settlement

ROLE OF LAWYERS
Summary presentation of case in best possible light; prepare client for negotiating

ROLE OF PARTIES
Available to answer questions, hear the other side’s case; engage in settlement discussions

SCOPE OF PROCESS
Voluntary or court ordered; loose structure; non-binding; no witnesses; private; confidential

OUTCOME
Advisory evaluation designed to narrow issues and assist parties in settlement negotiations

I. Check-List for Conflict Management
Step 1: Identify The Issues In Dispute

* Coverage
* Personality Related
* Liability
* Evidence
* Damages
* Credibility

Step 2: What’s At Stake?

What are the Insurer’s Interests?
What are the Claimant’s Interests?
What are the Plaintiff Attorney’s Interests?
What are the Insured’s Interests?
Are there any Critical or Key Controlling Interests?
What does each Party See as their Best Option?
What are the Realities vs. the Perceptions?

Step 3: Critical Information Analysis

What Information do We Need to Evaluate our exposure?
What Information do We Need to affect the Outcome?
What Information do They Need?
What Will it Cost to Get That Information?
Does “What’s at Stake” Justify Getting the Information?

Step 4: Possible ADR Outcomes

Given the Issues, Stakes, Critical Information, etc.:
What are the Pros and Cons of each Process?
Are we Ready to Present?
Select our Preferred ADR Process.
Look to See if We Need an ADR “Plan B.”

Step 5: Potential Proposals

What are the Proposals which Could be Made?
What Proposals Appear to be in Our Best Interest?
What Proposals do We think They will Consider?
What is Our Preferred Proposal?
What Objections can we Expect?

Step 6: Implement The Plan

Prepare our “Proposal” Conversation, Including:

* The Issues In Dispute – Get Confirmation!
* The Other Options We Considered and Dismissed
* The Mutual Benefits of Our Proposal
* Make our Proposal
* Handle Questions and Objections – Negotiate
* Get an Agreement on What will be Done