Guide in the Conduct of Mediation & Conferencing(Edited)

7/29/2019 Guide in the Conduct of Mediation & Conferencing(Edited)

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A guide in the

Conduct ofMediation


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As a Conceptual Framework

It is a meeting facilitated by a trainedmediator where the following people the

victim and offender who have been affected

by a particular crime or offense meet to

discuss how that incident affected them and

how the harm done can be made right.

Mediation is conducted using the principle of

Restorative Justice.


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4 Sequential Objectives

Acknowledgement of the wrong(facts discussed)

Sharing and understanding of the harmful

effects (feelings expressed)

Agreement on terms of reparation

(reparation agreed)

Reaching an understanding about future

behavior and plan of action

(reform implemented)


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Mediation

To dread diversity is to dread life. Conflict is a

precious resource for human learning's, development, and

evolutionary adoption. Conflict is not a wasteful outbreak

of incompatibilities, but a normal process by which social

valuable differences reveal themselves to enrich all.Conflict is a set of lesson waiting to be learned, an

unparallel opportunity to wake up to the need for a shift

towards self-managing, democratic alternatives. This

change results in participation, collaboration, awareness,authenticity, congruence, commitment and responsibility.

The Conflict Resolution Group Foundation, Inc.


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What come to our mind when we

say conflict?A fact of life. It is hardly possible to grow up in family, dwell in a

community, attend school, work for a living, establish an intimate relationship,

raise children, and actively participate in every kind of endeavor without in

one way or the other experience /get involved in a conflict.

Core

Conflict is therefore :

A struggle between opposing principles and aims.

A clash of feelings or interest.

NLWE Dictionary

Conflict is a basic dynamic of human interaction in which people struggle to

balance concern for oneself with connection to others. When this balance isupset, human interaction becomes alienated and destructive, resulting in a

crisis in human interaction. Core


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Conflict

Conflict is a fact of life. It is hardly

possible to grow up in a family, live in a

community, attend school, work, have an

intimate relationship, raise children or

actively participate in a world without

experiencing conflict.


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Behavior

(Skills)

Attitude

Programs

Values(Who am

I?)

Comfort Zone


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Behavior(Skills)

Attitude(Mind Set)

Programs

Values (Whoam I?)

Behavior(Skills)

Attitude(Mind Set)

Programs

Values (Whoam I?)

CONFLICT ZONE


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The Nature of Conflict

When we are in conflict we say things we dont mean andmean things we dont say.

Conflicts have the capacity to confuse and hypnotize us,

making us believe there is no way out than battle.

Conflict possesses a dark, hypnotic, destructive power.

It alternately strokes and crushes our egos.

It speaks to a deep and ancient part of our soul that thirsts

for power and revenge.

When we are in conflict, our emotions becomes

enormously powerful and overwhelming.

We become aggressive, judgmental, and hysterical or else,

passive, apathetic and defensive.


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Basic Conflict Issues

Control of Resources (such as space, money, property,

prestige, power, food etc.);

Preferences and nuisances (arising from activities, style,

tastes, preferences, sensitivities);

Value system and cultural background ( a way of

determining what is good or bad);

Data (struggle over info, knowledge, facts or lack of it)

Relationships (personal condition versus social realitiesand situations);

Institutions/structures (setups or systems or external factors

that affect the conflict);


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Being so pained we do not know

how to:Temper our anger with compassion;

Listen to others pain;

Discover what caused the other person toact as he did;

Take responsibility for our own contribution

to the conflict. As a result we feel confused and trapped


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Responses to Conflict

Ways to Fight- Violently

- Non-violently

AID Syndrome- Avoid

- Ignore

- Deny


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Flight

Avoid- Procrastinate, postpone, appoint a

committee, pass the buck, rationalize etc.

Ignore- Keep doing what you are doing, etc.

Denyact as if nothing happen, etc.


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Fight

Violentlywar, vote (win/lose), violence,

threaten, arbitrate, litigate, picket, strike,

demonstration, whitepaper, civil

disobedience, etc.

Non-violently- Negotiate, compromise,

consensus, mediate, conciliate, arbitrate,

etc.


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Conflict Resolution Spectrum

Negotiation

Mediation Arbitration

Litigation


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Negotiation

Party A Party B

Decision

Parties control the process

Parties engage in verbal interaction completely in

their own termsDecision is made by the parties

Outcome is whatever the parties agreed to


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Mediation A friendly intervention in a disputes of others, withtheir consent, for the purpose of adjusting differences

(Webster).

A process where a trained neutral third party facilitates

the negotiation between parties and using learned

techniques, helps them reach a voluntary, mutually

satisfying agreement (Core).

- A restorative process that provides an interested victim

the opportunity to meet his offender in a safe andstructured setting engaging in the discussion of the crime

with the assistance of a trained and neutral third party

called mediator (Memo Order No. 12).


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Mediation versus Conciliation

Mediator facilitates rather than decide or

proposed decision, while Conciliators

participation is more active who can

provide suggestion and guidance to the

disputants to achieve the end goal of

Restorative Justice.


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Mediation is a form of Dispute

Resolution that: Achieve swift resolution of conflict;

Acknowledges/respects expression of emotions;

Makes justice accessible to everyone;

Provides parties to decide to achieve a mutually acceptable outcome;

Focus on the future;

Third party facilitates rather than decides;

Encourages parties to be honest, not manipulative;

Supports collaboration, rather than coercion;

Moves towards healing and reconciliation; Invites everyone to consider all their positions and perspectives


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Why does Mediation Work?

It is rooted in all cultures and religions;

It is based on traditional principles of

compassion, sincerity, wisdom, unity,

healing and reconciliation.

It is an outcome of democratization;

An effective alternative tool in disputeresolution;

It guarantees a swift, inexpensive,

restorative and harmonizing result.


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When is Mediation useful?

When parties: Want to resolve conflict or change in situation;

Value confidentiality;

Be directly involved in the process;

Verbalize cause/s of their distress/discomfort; Have issues that are complicated by strong emotions; need

to continue or maintain relationship;

Feel uncomfortable confronting others;

Are able to live up to their promises.


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Is truth Necessary to be achieved?

Social/cultural truth?

Forensic/legal truth?

Limited truth?Bigger and beneficial truth?


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Mediation

Disputant Disputant

Decision

(Forward Looking)

Mediator

Mediator agreed to by the parties

Informal process controlled by the mediator

Mediator is independent and impartial facilitator Parties fully participate in deciding issues, creating,

evaluating and agreeing option

Focus is on the present and future and solving problem

Outcome aims for mutually accepted win-win.


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ARBITRATION

oArbitrator appointed by the parties

o Formal process regulated by arbitration procedures

o Parties input ideas and backgroundoAdversaries proceedings

o Focus is on right and past events

o Decision which is based on evidence and technical

assessment is imposed on the parties by the Arbitrator.


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LITIGATION

o Judge appointed by the state

o Formal process regulated by the Rules of Evidence

and court procedure, controlled by the Judge

o Role of lawyer is to act as advocate and discreditopposition

oAdversarial process, where lawyers act in parties behalf

o Focus is on right and past events

o decision is imposed on the parties by the Judge.


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Negotiation

ImpasseMove on to the other issue

(temporary Stalemate).

StalemateStock in one issue.

DeadlockNo way can two parties meet

eye to eye (need third party to move on).

Trade offGive little, ask more.

Higher Authority Gambit- referral to higher

authority to delay(Tactic).


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Negotiation

Distributive- Aims is to get the best deal for

oneself, thus parties aim to conquer;

Integrative- Parties harmonize their interest,

which they bargain, not position. Needs of

all parties must be addressed to reach

agreement.


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What can be negotiated?

Behavior- People treatment to each other,

sharing space, respecting boundaries, etc.

Things and Money;

Structures and Systems-how are decisions

made, rules and procedures, schedule, job

responsibilities, etc.

Others


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What cannot be Negotiated?

Beliefs, attitudes, what happened, values,

perceptions, interpretations, blame, fault,

truth, prejudices, style, anger, trust, rights,

principles, hurt feelings, justice, etc.


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Why People Settle?

Structuralist Paradigm- based on rational

worldview; parties reach a mutually hurting

stalemate;

Socio-Psychological ProcessAssumes

communication and exchange as basis for

changing perceptions and attitudes;

provides forum for exploring interests andoptions.


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When Do people settle?

When they reach a mutually hurting

stalemate.

When they are able to understand and

explore their interests and options.

When they are able to participate in a

communication process that encourages a

change in perceptions and attitudes.


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Integrative Negotiation Analysis Framework

PDIOS

Problem- immediate source of the dispute.

Demand- positions, threats, fixed solutions proposals,

point of view.

Interest- things that really matters most to the parties. It is

the need of the persons that is not being met, but would

like to be acknowledged and fulfilled.

Options- Ways to solve the problem based on interests

surfaced and recognized during the process.

Solution- Options that best serves all parties interests and

needs.


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An Actual Case of Oral DefamationA Neighbor irked by the howling of a neighbors dog at midnight

ProblemHowling of the dog

DemandKill the dog/silence the pet permanently.

Interest - To sleep well.

Options:

Have the neighbor take sleeping pills

Muzzle the dog

Use ear plugs

Transfer the dog to other area where it cannot disturb anyone.

Neighbor transfer room or residence.

Have neighbors room sound proofed, etc..SolutionIt should be immediate and not inconvenient. The dog owner

wants to keep the dog , and it should be without cost and harmless to all.


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The Problem

It is the immediate source of the conflict.

Sometimes the problem is complicated by

other issues that triggered the parties to seek

other processes or venues for disputeresolution.

Mediator needs to muster his listening and

questioning skills to dig deeper andunderstand what, how and why the situation

deteriorated into a dispute.


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THE DEMAND

Parties often expectation is what he/she is

asking will immediately translate into an

action by the other party that will put

closure.

Identification of the parties demand is very

important considering that it is the

commencement point in understanding whatlies behind these wants


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THE INTEREST

o Types of interests:

- Substantivethe specific object or goal to

be reached in the process like money, time,

resources, etc. - Procedural - the process must be seen as fair, with

equal opportunity for parties to participate (how the

problem is addressed).

- Psychologicalthe parties must see that they aretrusted, respected, appreciated, which influence the

way they handle themselves and other people in the

process (the way they are treated).


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Levels of Listening

Spurt- listener is tuning in and out, being aware of the other, but

attention to oneself. Often fakes attention, makes judgment, forms

rebuttals or advice, interested to talk than to listen.

Words- Hears words, but not fully understanding. Listener tend to stay

at the surface level missing out to hear deeper meaning and content of

the message. Listener tends to be logical, concerned about content than

feeling, and emotionally detached from the conversation.

Emphaticplaces himself/herself in place of the other/trying to see

things from others point of view. Characterized by awareness,

acknowledgement, responsiveness, focus on speakers total

communication such as tone and body language, feelings, thoughts.

Listening is listening from the heart.


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Benefits of Questioning

Understanding facts and events that resulted

to the situation.

Ascertaining the consequences.

Focus on a particular angle or topic.

Direct the path of conversation.

Verifying positions, mind set, agreementetc.


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Questioning benefits parties

Ease their tensions/emotions.

Make them thing over their positions,

reality check, ascertain consequences, etc.

Clarify if their demands meet their real

needs.

Invite creative option making.

Ground them in reality.


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Questioning

Our questions- what and how we ask, our body language, physical and

spiritual state. Form and sequence of questions- invite some responses

and discourage others.

Mediator should question the intent of his question.

Focus on specific experiences. Focus on specific meaning of experiences recounted.

Invite small steps they have taken or can imagine to take.

Short and easy to understand.


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Potentially Problematic Questions

NO/NO Questions

Attributive Questions:

If you thought about people what would you have done?

Why didnt you do X instead of Y?

Problem and past-focused questions:

What needs are not being met?

What contributed to things getting this bad?

Knowing, Distant and Intrusive Questions:

I know you are upset, but I want to know a good outcome would be?

Dont you think it would have worked better if x and y are involved?

Rhetorical or Pseudo Questions:

Dont you think that?

Is it safe to do what you are doing?

What will it take to satisfy you?


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Ask the right Question

Opening Question

What bring you here?

Could you tell us what happened?

Can you tell me your story?

Question for Information

Can you give me an example?

Can you tell me more about how you view ?

Can you described what appended when----?

Questions to get at Interests.

What is important to you?

What is it that makes you want ______?

What concerns you about the situation?


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Ask the right Question

Questions to get at solutions

What might work for you?

What can you do to help resolve this issue?

What might make this idea work better?

Questions to get at consequences.

What will you do if you dont get into agreement today?

How long will it cost if you go to court?

What will happen if you pursued this idea?

Questions to test Agreement

Is this agreement ok with everyone?

Is there any part of the agreement you are uneasy with?

Can you live with this from now on?


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SUMMARIZING

When you dont know what to say, summarize.

Give an outline of what has been said;

Highlights important points of the narrative;

-Omit extraneous information;

-Condense the content and feeling of previous statements.

Example: Complainant: The clerk of court is stupid and good for nothing.

The first time I came she asked me to fill up a form and asked me to

return. I returned and lined up for 4 hrs., even skipped my lunch, only to

be told that my form couldnt be found so my request cannot be processed.

Know what? Youre all a bunch of corrupt, incompetent employees. The

nation will be better off having all of you exterminated.Mediator: I sense your extreme frustration over all the efforts you

went through only to be told that your request could not be processed. Am

I correct?


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Reframing

Change the point of reference and speakers

perception.

To detoxify (negative to positive)

To reorient parties from negative to neutral or

positive perception.

To shift focus to an underlying interest, or

direct attention to the present and the future.To mutualize and promote collaboration.


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Anger Management

Anger may be an appropriate expression of

feelings.

What looks like anger may have different

meaning. You are onlooker to anger or aggression,not the target.

Anger or aggression is not there because of you.

You have the permission of the parties to interrupt

as appropriate.


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What Mediator Should Do?

Be attentive to both loud or quiet anger.

Manage ones own response(ground rules

imposed).

Create a safe place in which to sustain dialogue.

Help parties understand the feelings, their source,

and their consequences, and take responsibility for

them.

Create opportunity to move beyond to what people

need.


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NAC Approach to Anger

State what you are observing(Experiencing or seeing)

using neutral language.

Explain the feelings it evokes.

Show understanding but say what need is not met as a

result of the feeling or experiences.

Communicate your requested alternative. A NAC ExampleQuiet Anger.(OFNR)

O- Gene , I notice your looking out of the window.

F- I am concerned that you may be missing out on the benefits of the sessionby not taking part.

N- I understand it may be hard for you to listen to some of the things.


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Key Qualities of Mediator

An A-grade Listener.

Non-Judgmental and tolerant.

Open-minded.

Positive under pressure.

Good at getting the best out of people.

Able to maintain confidentiality.Organized.


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Benefits of Mediation

Saves time, private and confidential, treats

people like adult, restores relationship,

makes parties feel competent and effective,

improves understanding of underlyingissues, does not close door to other options

if not satisfied, cost less than 10% of the

cost of litigation, and successful.


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The Mediation Process

Who are present?

Parties involved (stakeholders).

Mediator.

Others as decided by parties.


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Mediation Session

The Process:

Opening Conversation (Knowing each other,

set the ground rules, etc.).

Uninterrupted time.

The exchange and private caucusing.

Setting the Agenda

Building the Agreement.Making the Agreement


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Stage I- Opening Conversation

Welcome and words of encouragement.

Purpose and goals of par ties in Mediation.

Role of the Mediator and Parties.

Confidentiality

What to expect.

Ground rules. Answers questions and clarification.

Consent to proceed.

Why impt? It prevents failure often due to: parties lack of knowledge about what is

expected, unwillingness of parties to participate, and lack of understanding of the

process.

It establishes what can be expected of the mediator.

It saves time.


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Stage 2- Uninterrupted Time

Set a courteous, unhurried tone.

Explain listening and speaking.

Give each person his turn to speak.

Listen to what each person say. Select someone to start (random).

Protect each persons speaking turn.

Formality end each turn; check that each person is

finished. Thank them and move on.


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Stage 3- The Exchange/Private Caucus

Keep control of the session.

Include each person.

Ask necessary questions.

Listen to interests and issues.

Refrain from finding solution yet.

Watch for moments of reconciliation.


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When to use a Private Caucus?

For SupportTo separate cool off or calm down angry

people, give shy or fearful people a chance to speak, and

help people think through what they want.

For ControlChange the mood or direction of the

session, interrupt disruptive or unhelpful behavior, andconfront people privately.

For Solving the ProblemReceive private info, explore

interests and potential solutions, help unstuck the situation

(stalemate, impasse, deadlock).


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Private Caucus- How to conduct it?

Before mediation start, decide where a separate sessions will take place

and where parties will wait.

Always meet with each party.

Call for a separate meeting in a matter-of-fact tone.

Be clear in your own mind about the purpose and goal.

Assure them of confidentiality of info. Stay focused.

Ask permission to what you can reveal to other party.

Take notes with you when you leave the table.


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Stage 4- Setting the Agenda

Summarize what has been accomplished so far. Give a brief rundown

of what has been said then ask if both parties are ready to look at the

important points of the problem.

Make a checklist of the issue they need to negotiate.

Organize your notes and select key issues(focus on issues that need

joint decision, mentioned often, emotionally charged, potentially

negotiable, key to a durable solution). Use positive, impartial language.

Reflects each ones concern.

Presents problem as shared concern.Read aloud and check the topics for accuracy- Ask if the issue is accurately

stated. Along the way, the mediator, together with the parties, will

discover which of the topics listed need to be given top priority.

Agree on the Agenda-Check for accuracy and completeness.


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Stage 5 -Building the Agreement

Once the issues comprising the agenda are determined and clarified, and the

demands and interest are understood, the parties can begin to:

Identify and evaluate a range of possible outcomes to the problem.

Develop and test specific proposals for relevance, workability and

acceptability.

Gain confidence in their ability to resolve the situation, and to buildcommitment to the emerging agreement.

Again: Work Through Each Issue: Elicit ideas, evaluate and refine

alternatives, test for agreement and explore consequences, and write down

tentative agreements. Keep discussion on track: expect going back and forth, refer back to

the agenda to keep all in focus, and stay with the time.


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Guide in Writing the Agreement

Review each point of the agreement, watching out for its

workability, wording, acceptability, finality and

conditionality.

Write out the final copy, read aloud.

Have every person present sign and give each party a copy.

Elements of a good written agreement: Details specific, be

evenhanded, make it final and unconditional, use clear,

familiar language (no legal or technical language),

emphasize positive action, deal with pending proceedingsif any, and provide for the future.


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Can Mediator Suggest Solution?

No. Reasons why mediator should hold

back making suggestions:

To show trust that parties knows better;

To prevent them from feeling incapable

To prevent them from not taking responsibility

to give them more stake on the solution

To prevent them from feeling uncomfortable

To protect the mediator from taking blame.


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Stage 6- The Agreement

It often builds the confidence of the parties that the dispute is finally

over when a written agreement is prepared and signed by both of them.

A written Agreement:

Gives evidence that parties have accomplished something together.

Reminds people what they agreed to.

Helps define how the parties will behave to avert future recurrence

of the dispute.

Gives a clear closure to the Mediation process.

A good written Agreement:Detail specifics, be fair, do not attach conditions, use clear familiar

wording, emphasize positive action, deal with any pending

proceedings, provide for the future and be even handed.


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Stage 7- Closure

The appropriate time to thank the parties for

their involvement and cooperation.

The appropriate time to announce that the

PPA Office with the parties cooperation

will monitor the Agreement of the parties.

The appropriate time to inform them that

the PPA office is always at their service.


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RESTORATIVE JUSTICE

There can be no real reformation of a wrong

doer unless there is at least a willingness on

his part to right the wrong committed.

PPA Balanced and Restorative Justice Program


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The End

Documents

Guide in the Conduct of Mediation & Conferencing(Edited)