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.

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