MEDIATION: The Transformative Framework

Presented by ALT Associates

MEDIATION PRACTICE

FROM THE TRANSFORMATIVE

FRAMWORK

A 24 HOUR TRAINING PROGRAM FOR

NEW MEDIATORS

Trainer: Andrew Thomas ALT Associates:

Conflict Management Consultants


History of Mediation And

Mediation Legislation

Notes:

MEDIATION: The Transformative Framework


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THE EARLY HISTORY: OVERVIEW OF MEDIATION Mediation in one form or another has been practiced for many centuries. During the period known as the middle Ages right on through to the Renaissance period it was the Catholic Church which served as mediator. The clergy mediated family disputes, criminal cases, and diplomatic disputes among the nobility. This same function was mirrored in Eastern Europe by the Orthodox Church with the same responsibilities to both peasant and noble alike. With the rise of nation states in the 1600’s the role of mediator passed to professional diplomats and Intermediaries. This was in response to the growing nations attempt to wrestle power away from organized religion and therefore increase its own power and status.

1900’s By the turn of the 20th century mediation became institutionalized as a recognized profession. Legislation was enacted in 1913, creating the Commission of Conciliation (known as the USCS), which handled conflicts between labor and management. In 1947 the USCS Commission of Conciliation became the Federal Mediation & Conciliation Services; mediation procedures were added to settle employee/employer issues (collective bargaining) Responding to the social unrest of the 60’s the U.S. Department of Justice supported by the Civil Rights Act of 1964 established the Community Relations Services (CRS) to resolve disputes related to discriminatory practices. In addition the U.S. Department of Justice and the American Arbitration Association (AAA) collaborated to establish the National Center for Dispute Settlement in Washington D.C. Thus was born the concept of community mediation using the basic principles of labor Negotiation, Mediation and the science of Human Development. The concept was born out of the need for a process that encouraged social justice and supported parties’ empowerment, recognition and self-determination. The orientation of the mediation process had a heavy underpinning that was based on providing parties the opportunity to change their interaction, to be held accountable for their behavior and to build/re-build relationships if they so choose. A pivotal point in the evolution of community mediation and the expansion of mediation and ADR in general was the Pound Conference held in 1976. The



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Pound Conference -- formally known as the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice -- took place April 7-9, 1976 in Minneapolis, Minn. The event was a meeting of some 200 judges, legal scholars, and leaders of the bar who had gathered to examine concerns about the efficiency and fairness of court systems and their administration. By 1979 more than 100 community dispute resolution centers had been established across the country. Research, conducted by the VERA Institute in the mid 1970’s, concluded that these programs were not only successful, but also well received by communities, and reported a high client satisfaction rate as well as being cost effective. The decade of the 80’s witnessed the passage of Federal and State Community Dispute Resolution legislation. By the end of the 1980’s, over 75% of all States had passed some form of Community Dispute/Mediation Legislation. The use of mediation in family matters such as custody, visitation and support swept the country as we moved into the 90’s. During the early 1990’s the mediation process move into the American educational system in response to the creation of the National Association for Mediation in Education (NAME). This organization was charged with the responsibility of promoting, encouraging the teaching of conflict resolution education skills as well as establishing peer mediation programs in public schools. AmeriCorps embraced the value of conflict resolution skills, and committed to training all 10,000 AmeriCorps members as well as developing a handbook for their managers. During the mid 1990’s (1994) The Promise of Mediation was published and the Transformative orientation concept based on the theory and principles of empowerment and recognition as the cornerstone for creating shifts in human interaction from negative and destructive to positive and constructive. The concept reveals the transformative potential of mediation, showing what that potential is, why it is important, and how it can be realized in practice. The late 1990’s was exciting and brought a new wave of interest to the field as the use of facilitative and transformative mediation moved into the workplace, mental health, agricultural community, foster care and adoption, and police community disputes. 2000’s The thrust to expand mediation processes and skills within American schools became the theme for the next millennium. The ADR field lead by Community mediation centers and other conflict resolution agencies and organizations collectively committed to promoting and providing comprehensive youth initiatives that included conflict resolution education, peer mediation and



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peaceable schools programs to address the growing school violence. Report after report from the US Department of Education and US Department of Justice on school violence noted the importance of teaching students conflict management skills; teaching students how to resolve disputes peacefully; and peace education. In 2002 the Uniform Mediation Act (UMA) was released for public input and feedback, The UMA was the first attempt to create national standards for mediators. The UMA has been adopted by or mirrored by a number of states.



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HOW DOES COMMUNITY MEDIATION CENTERS SUPPORT COMMUNITIES? One of the most powerful ways community mediation centers contribute to the improvement of their community is through partnerships with local and national organizations. Police, housing and social services agencies, crime and violence reduction programs, courts community development programs and other groups can all benefit from the introduction of mediation services, training and skills. Working in partnership with community mediation centers, organizations throughout the country have found ways of improving their services by integrating conflict resolution and mediation and mediation tools. Community mediation centers from partnerships with courts and police to reduce the burden of frequent, “nuisance” cases. Centers train students as peer mediators and help schools develop student mediation programs and conflict resolution training. In all case, community mediation centers provide services to their clients regardless of their ability to pay. The focus of community mediation centers is to promote alternative dispute resolution processes that enable individuals, community/neighborhood groups, and organizations to resolve conflicts without litigation; and to improve community group and personal relationships through neutral third party intervention. CHARACTERISTICS OF A COMMUNITY MEDIATION CENTER The organization and/or program use volunteers from the community as primary providers of services Provides services to the clients regardless of their ability to pay Initiates, facilitates, and educates for collaborative community relationships to effect positive systematic changes Provides direct access to the public through self-referral and strive to reduce barriers to services including but not limited to physical, problematic language, cultural, economic and other barriers Engage in public awareness and education activities about the values and practice of ADR and collaborative problem solving. National Association for Community Mediation



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What is Mediation

Notes: ____________________________________________________



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Ming Dynasty Exercise

Mediation Arbitration Characteristics

Mediators Arbitrators Characteristics



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Ming Dynasty Exercise cont.

Mediation Process Arbitration Process

Benefits

Drawbacks



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MEDIATION DEFINED Mediation is a process in which a third party works with parties in conflict to help them change the quality of their conflict interaction from negative and destructive to positive and constructive, as they discuss and explore issues and possibilities for resolution.

New York State Unified Court System The purpose of the mediation is not to judge guilt or innocence, but to help parties...get at the root of their problems and devise their own solutions to them. A mediator can help the parties talk it out unrestrained by questions of admissibility. This should help the parties concentrate on what should be done in the future rather than punishment and revenge, or “who is responsible” for “what past event.”

Dorchester District Court Mediation Unit Friendly or diplomatic intervention, usually by consent or invitation, for settling differences between persons, nations, etc.

Webster’s New World Dictionary The act of a third party intervener who mediate between two contending parties with a view to persuading them to adjust or settle their dispute

Black’s Law Dictionary

“Mediation” a process whereby a neutral third party person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decisions making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting State of Florida Supreme Court



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MEDIATION DEFINED Mediation is a process of dispute resolution in which one or more impartial third parties strive to maintain the integrity of the mediation process with the consent of the disputing parties. Simple put, mediators provide a safe place for people involved in a conflict to talk freely and openly. The decision-making authority rest with the parties themselves. Through the mediation process, citizens learn how to improve their conflict resolution and communication skills so that the next time they encounter a problem, they can attempt to solve it on their own. A unique feature of mediation is that the process can transform disputants by creating a new understanding of other views to the situation and the realization that they can directly handle future disputes of this nature. Many of those involved in community mediation believe that the process empowers peoples to improve their social interaction. National Association for Community Mediation Mediation is a process in which a third party works with parties in conflict to help them change the quality of their conflict interaction from negative and destructive to positive and constructive, as they discuss and explore various topics and possibilities for resolution.

Institute for the Study of Conflict Transformation



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COMMONLY USED METHODS OF ADR

Alternative ways of handling conflict are:

1. Negotiation – This is a voluntary process where a third party is not used. The disputing parties work together to gain consensus, compromise etc. by discussing, facts, feelings, interests, needs perceptions, ideas, solutions etc.

2. Facilitation – An impartial third party or parties manages meetings and

negotiations for various public and private agencies, labor groups and coalitions.

3. Mediation – A voluntary process where a third party impartial clarifies and

summarizes the disputants’ conversation about the disputant identified issues. In addition the mediator identifies empowerment and recognition opportunities that allow the parties to enhance their decision-making efforts.

4. Med-Arb – This process begins with mediation, however the parties have

agreed that if they perceive the mediation as unsuccessful, the mediator is given the authority to conduct a hearing and make the final decision.

5. Arbitration – A trained, impartial, third party holds a confidential hearing

with the disputing parties. Based on the facts and evidence presented, a legally binding award is rendered.

6. Conciliation – A voluntary process facilitated by a neutral third party who

acts as a middleman to the disputing parties. This process is often handled by telephone.

7. Fact Finding – An impartial third party studies the facts of the dispute and

focuses on major issues. Findings with or without recommendations may or may not become public.

8. Litigation – Although not considered an ADR alternative, it is one of

the commonly used methods of dispute resolution. When parties decide to use litigation, their dispute is settled by a judge or a jury. The decision is considered final; however, they can appeal if either party is dissatisfied with the decision. This position is voluntary on behalf of the person filing the claim and lawyers are used as trained advocates for their client’s positions.

National Institute for Dispute Resolution



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THE MEDIATION MOVEMENT

The Satisfaction Story (parties satisfaction with process)

§ Flexibility, informality and consensual § Not limited by legal rules § Allow parties to be creative in coming up with solutions § Can reduce economic and emotional cost of disputes § Higher rates of compliance § Speedier

Sees Mediation as creative problem solving, which produces settlements that satisfy disputing parties on all sides. The Social Justice Story

§ Effective means of organizing individuals around common interest § Support community organization § Adjust power imbalances § Encourages self-help

Sees mediation as helping to organize and build coalitions and strengthen the have-nots. The Oppression Story

§ Increases the power of the strong to take advantage of the weaker § Magnify the power imbalance § The lack of legal over-sight allows for unjust outcomes § Mediators intentionally or unintentionally control and manipulate the process and

outcome Sees mediation as applying pressure and manipulation in ways that cause greater unfairness to the already disadvantaged The Transformative Story

§ Allow parties to define problem and goals in their own terms § Supports parties exercise of self-determination in deciding how or even whether to

settle a dispute § Provides parties the opportunity to explain and humanize themselves to the other

person § Parties can feel and express some degree of understanding and concern for

one another despite their disagreement (RECOGNITION) § Participants gain greater sense of self-respect, self-reliance and self-

confidence (EMPOWERMENT) Sees conflict as an opportunity to engender moral growth and compassion in disputing parties. The Promise of Mediation, 1994; Robert A. Baruch Bush and Joseph P. Folger



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4 STYLES OF MEDIATION

Facilitative Mediation In the 1960's and 1970's, there was only one type of mediation being taught and practiced, now often called "Facilitative Mediation". In this type of mediation, the mediator assists the parties in reaching a mutually agreeable resolution by asking questions; validating and normalizing parties' point of view; searching for Interests (that is, those needs and issues behind the position a party takes) rather than simply working with those positions; and assisting the parties in finding options and analyzing those options. In no instance does the facilitative mediator make a recommendation to the parties or give his or her own advice or opinion as to the outcome of the case or what a court would do with the case. Facilitative mediators want to ensure that parties do not feel coerced into agreement, but rather come to agreements based on information and understanding. In practice, facilitative mediators tend to meet in joint meetings with all parties present so that they can hear each other's points of view in order to help them clarify their positions. Facilitative mediation grew up in the era of volunteer dispute resolution centers, in which the volunteer mediators had no substantive expertise concerning the area of the dispute, and in which often there were no attorneys present. The volunteer mediators came from all backgrounds.

Evaluative Mediation In the late 1980's and 1990's, as mediation became more popular and started to be court ordered and court referred, the practice of "Evaluative Mediation" came into being. In a process modeled on settlement conferences held by judges, an evaluative mediator assist the parties in reaching resolution by pointing out the weaknesses of their cases, and evaluating what a judge or jury would be likely to do in that case. In some mediations, an evaluative mediator might make a formal or informal recommendation to the parties as to the outcome of the issues. Evaluative mediators are more concerned with the legal rights of the parties than with satisfying their interests, and are more concerned with legal fairness than subjective fairness. In practice, evaluative mediators meet more in separate "shuttle diplomacy" meetings with the parties, in order for the mediator to give the parties more information about their legal odds, and the cost of pursuing a legal resolution. Evaluative mediation grew up in an era of court-mandated or court-referred mediation where attorneys normally were present during the mediation and the mediators were usually private mediators either picked by the parties or from a court roster. Many of the private mediators are lawyers or business people.



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4 STYLES OF MEDIATION CONT.

Transformative Mediation Transformative mediation is the newest concept of the three, named such by Folger and Bush in their book, The Promise of Mediation. Although it is a new concept, it hails back to the early days of volunteer mediation in that it is based on the values of "empowerment" of each of the parties as much as possible, and "recognition" by each of the parties of the other parties' needs, interests, values and points of view. The transformative mediator follows the parties' interests in how they would like the process of mediation to be, staying open to the possibilities of empowerment and recognition. The potential for transformative mediation is that any or all parties or their relationships may be transformed during mediation. In practice transformative mediators meet with parties together, since only they can give each other "recognition." Narrative Mediation Narrative mediation is an innovative conflict resolution paradigm that is a revolutionary departure from the traditional problem-solving, interest-based model of resolving disputes. Based upon a postmodern, social constructionist philosophy, narrative mediation views conflict as arising within cultural contexts that have a direct bearing on how parties construct their perceptions of a particular event. A narrative mediation approach encourages the conflicting parties to reach understanding and resolution through a deep understanding of the shared personal and cultural narratives underlying the conflict. This new conflict-resolution methodology is a powerful resource for mediators and facilitators seeking to address intransigent problem-saturated conflicts. The Conflict Resolution Information Source

Journal of the DuPage County Bar Association By Zena D. Zumeta

Modified by Andrew Thomas 6/ 2007



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WHAT ARE THE BENEFITS There are many reasons given to support the growth of mediation as a voluntary option for parties seeking to improve their human interaction and explore resolution of issues in dispute.

Mediation is:

1. Affordable: Mediation services are, for the most part, free or at nominal cost to the parties.

2. Convenient: Can be done anywhere from home to work to school. Mediation sessions are schedule at times convenient for the parties.

3. Comfortable: Mediation sessions are often held in informal settings that are familiar and comfortable to the disputants; and not in courtrooms.

4. Non-Threatening: mediators are trained to include the parties in building the process, to explain the mediation process as the parties’ process; explain the mediator’s role in terms of supporting the parties’ decision making. Since the process belongs to the parties, they can focus upon the issues important to them as well as the outcome of the session.

5. Private: Mediation sessions are held in private so the parties do not need to discuss their issues in a public setting.

6. Confidential: Mediators are bound to confidentiality, which means that no part of the discussion will be reported outside the room. The only written record of the session, if a settlement is reached, is the parties signed agreement.

7. Timely: Mediation session are heard shortly after disputes arise or the complaint is filed.

8. Empowering: Free from the usual rules of evidence that courts operate under and with the gentle, but skilled, support, encouragement and assistance of the mediators, parties can tell their story in t6heir words and share their perspectives on the situation, thus they are better able to hear the other party’s point of view. Such an airing of issues, feelings and emotions can mend relationships.

9. Effective: Evaluations show that over 80% of the mediations conducted result in agreements.



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WHEN IS MEDIATION APPROPRIATE Mediation is used in a number of venues across the United States. Community mediation centers offer mediation services to people involved in a wide range of disputes. Cases are referred directly from the community, by schools, by law enforcement, district attorneys, public defenders, courts including: small claims, family and supreme courts or other civil and even criminal jurisdictions. Based on recent research; mediation is effective in a variety of case regardless of parties on-going relationship. Typical cases referred by the courts might include:

1. Family Members: This could include disputes between husband and wife, children and parents, siblings, or domestic partners. For example, violence may have erupted between a husband and a wife who are separating. They may need to agree upon terms for mutual respect, division of property along with child custody and visitation rights.

2. Neighbors: Quite commonly, disputes break out between neighbors living in close proximity or even in the same building. Some disputes involving an entire block have come to the mediation center. A typical dispute might center upon respecting one’s property, controlling one’s pets and treating one another with respect.

3. Friends: Disputes among friends can flare up into violent incidents. They can focus upon borrowed but unreturned goods, broken promises or a host of other complaints.

4. Teacher/Student: The school setting is ripe with disputes, which, if not settled, can lead to suspensions and patterns of non-attendance and increased violence. Often the complaints center upon verbal or threats of physical violence.

5. Landlord/Tenant: Disagreements about the upkeep of apartments, unwanted entries, noise levels and rent payment disputes are common.

6. Consumer/Merchant: Goods that don’t work, services not rendered properly,

payments not made, and repairs more costly than anticipated are a few of the disputes that arise among consumers and merchants.

7. Employee/Employer: Workplace disputes between supervisor and supervise as well as co-workers

Experience has shown that the incidents, which prompt the parties to request the use of mediation services often, are not the underlying cause of the conflict. The mediation process, which gives parties an opportunity to express their feelings, is an effective process for changing the quality of parties’ conflict interaction from negative and destructive to positive and constructive



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MEDIATION RESEARCH

A. Party's main reasons for high satisfaction with mediation;

1. Allows parties to deal with issues they themselves felt are important.

2. Allows parties to present their views fully.

3. Gives the parties a sense of being heard.

Note: These reasons relate to how the process worked rather than the outcome it produced.

B. Parties report high satisfaction with mediation, for these reasons, even in cases where no settlement was reached, and even when they "did worse" in mediation than they might have done in court.

C. Parties’ favorable attitudes toward mediation stem largely from how the process works, especially.

1. The greater degree of participation in decision making; and 2. The fuller opportunity to express themselves and communicate

their views.

D. Studies of mediation programs show that when the kind of mediation offered lacks the features mentioned, satisfaction levels are very low.

From: Bush: R.A.B. (1996). "What do we need a mediator for?” Mediation's "value-added" for negotiators. Ohio State Journal of

Dispute Resolution, 12 (1), 14-23.



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PURPOSE DRIVES PRACTICE

^

Premises & Beliefs about people and conflict and our role in intervention

Our choices in response…

…behavior, application of skill set

Effects & consequences of the process for the parties

INFLUENCE

INFLUENCE

Orientation

Practice

Outcome



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MEDIATOR’S BELIEFS AND ORIENTATION All mediators operate from some type of orientation, although not all mediators are explicit about their orientation This orientation rest on the mediator’s view of what parties want and expect from the intervener; and that view of “party expectations” is in turn based on the mediator’s fundamental value-based beliefs about the nature of conflict and the motivations/capacities of human beings in conflict.

A mediator with a “Transformative” orientation starts from Relational premises and therefore believes:

v Parties in conflict want most of all to change (transform) their interaction

with each other from destructive to constructive, while they explore various topics and possibilities for resolution;

v The mediator’s job is to help the parties achieve such change, by

supporting them in making empowerment and recognition shifts; and

v If mediators do this job, parties are likely to make positive changes in their interaction and, as a result, find acceptable terms of resolution for themselves when and where such terms genuinely exit.

Mediation practice is always more than a simple matter of “skills.” Stated another way, purpose drives practice. Mediation cannot be practiced competently or responsibly without a constant awareness of this

ORIENTATION (why)

PURPOSE (what)

PRACTICE (how) Developed by ISCT used with permission



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MEDIATOR GOALS

In general, the goal of the transformative mediator is to support the possibility of conflict transformation (constructive change in the quality of the interaction) by supporting party efforts at self-empowerment and inter-party recognition. Therefore the mediator maintains a dual goal focus throughout the mediation process:

Empowerment

Recognition

The mediator aims to foster empowerment,

By supporting

(and never supplanting)

each party’s voluntary efforts at deliberation and decision-making

The mediator aims to foster recognition,

By supporting

(and never forcing)

each party’s voluntary efforts to

achieve new understanding of the

other person’s perspective

at every possible opportunity in the session(s)

The mediator aims to assist and enhance

the parties’ own decision-making

The mediator aims to assist and enhance

the parties’ own perspective-taking efforts.

Developed by ISCT used with permission



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MODELS OF MEDIATION PRACTICE “Models” of mediation practice are defined by their theoretical framework… i.e., the explanations offered for the nature of the conflict and the goals of conflict intervention. There are two primary models for mediation practice in the field today: transformative and transactional.

Transformative Transactional* Conflict is:

Crisis in human interaction

Problem in needs - satisfaction

Successful outcome of conflict intervention

Shifts from destructive to constructive interaction

between the parties

Increased party capacity for future

decision-making and communication

Settlement agreement that Solves the problem on fair,

realistic terms

Goal of third-party intervention:

Foster empowerment and

recognition

Enhance party decision-making and communication

Encourage interest-based

Bargaining

Generate an agreement that resolves tangible issues

Practice hallmarks:

Micro-focus on interaction Identify opportunity for Party empowerment and Inter-party recognition Support party deliberation & decision-making and inter-party perspective-taking

Macro-focus: form global Assessment of “problem” Shape settlement terms Drop “intangible” issues

* The term “transactional” is used here for a single,

overarching theoretical framework that is given non transformative orientations to mediation

Developed by ISCT used with permission



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What is Conflict

Definition

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________



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CONFLICT: A CRISIS IN RELATIONSHIPS

“People fail to get along because they fear each other,

They fear each other because they don’t know each other;

They don’t know each other because they have not communicated

with each other.” Dr. Martin Luther King, Jr.

Conflict: Act of striking together Mental struggle resulting from incompatible or opposing needs, drives, wishes external or internal demands; antagonistic state or action (as of divergent ideas, interest, or persons)

Webster Dictionary

Conflict: A Crisis in Human Interaction Conflict is a crisis in human interaction that presents and opportunity for the parties to change that interaction if they so chose

Institute for the Study of Conflict Transformation



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Theories Of Conflict Different theories exist, offering different answers to the question “What is conflict?”

o Power Theory: Conflict is a struggle for domination

o Rights Theory: Conflict is a contest between competing claims of “Rights”

o Needs and Interest Theory: Conflict is a problem in how to meet incompatible needs with limited resources

Each theory suggest a different type of intervention is needed to help

o According to Power Theory, parties need help in organizing and mobilizing

o According to the Rights Theory, parties need help argumentation and advocacy

o According to the Needs/Interest Theory, parties need help in problem

solving Transformative mediation is based on a different theory of conflict: According to Transformative Theory:

o Conflict is a crisis in human interaction, and

o Parties need help in overcoming this crisis and restoring constructive interaction



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How Does Conflict Impact the Way You View Others

n TYPICALLY, CONFLICT HAS A DESTRUCTIVE IMPACT ON OUR RELATIONSHIPS

n IT CAUSES US TO VIEW OTHERS IN A NEGATIVE WAY

n WHEN WE FEEL THIS WAY WE ARE LEAST ABLE TO SEE OR VALUE

ANOTHER PERSON’S PERSPECTIVE

THE PROMISE OF MEDIATION, BUSH & FOLGER, 1994

CONFLICT PARADOX

n WHEN YOU ARE FEELING BAD (I.E., HURT, ANGRY, TENSE, POWERLESS, FRUSTRATED) AND THINKING THE OTHER PERSON IS A JERK, REMEMBER THE OTHER PERSON IS PROBABLY FEELING THE SAME AND THINKING YOU’RE A JERK ALSO.



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THE COST OF UNRESOLVED CONFLICT Frequently individuals or groups chose to avoid dealing with a conflict. When this happens the usual results are: 1 2 3 4 5 Direct Cost: Productivity Cost: Continuity Cost: Emotional Cost:

The Impact of Unresolved Conflict in the Workplace

1 2 3 4 5 6 7 8 9 10

“Unresolved conflict impacts individuals and organizations in much the same fashion as high blood pressure impacts the

human body. It acts as a “silent killer”, undermining innovation, execution, the effectiveness of team diversity and

over-all high performance”



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ECONOMICS OF UNRESOLVED CONFLICT

“Time is Life’s Greatest Resource”

Negotiation Facilitation Arbitration Adjudication Legislation Mediation Conciliation Litigation

Conflict

Indi

vidu

al P

ower

Cost

Power/Control

Time



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Myths About Conflict A group discussion about the generally held myths about conflict §

§ § § § § Facts About Conflict A B C D E



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Understanding Conflict Physiological Effects of

Conflict

Emotions Caused by Conflict

What do you Dislike Most About Conflict



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Understanding Conflict Conflict often causes people to feel:

• Weak o Unsettled o Confused o Fearful o Disorganized o Unsure of what to do

• Self-absorbed o Self-protective o Defensive o Suspicious o Incapable of stepping out side their own framework



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UNDERSTANDING CONFLICT Definition: Conflict is a crisis in human interaction Impact: Conflict often causes people to feel: Weak: unsettled, confused, fearful, disorganized, vulnerable, powerless, unsure of what to do Self-absorbed: self-protective, defensive, suspicious, incapable of

stepping outside of their Own frameworks But, when conflict is productive, it has the potential for: Empowerment: Shift from Weak – to -- Strong Parties grow calmer, more confident, more

organized, more decisive, regaining a sense of strength, being able to act and handle life’s problems.

Recognition: Shift from Self-absorbed – to -- Responsive Parties voluntarily choose to become more open

attentive, responsive to the situation of another, thereby expanding their perspective to include an appreciation for another’s situation.

Advanced Mediation Training Manual ISCT: Used with permission



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What is Empowerment and RECOGNITION DEFINE EMPOWERMENT: DEFINE RECOGNITION:



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Beliefs & Attitudes

About Conflict

§ Stress § Relief § Escalation § De-escalation § Resolution § Better or

Poorer relationship

§ Hurt feelings

Consequence

Response what we do when conflict occurs:

Conflict Occurs

THE CONFLICT CYCLE

Pretend nothing is wrong Cry Just give in Complain to someone else Hit someone or get visibly angry Smile no matter what Go to an authority Make jokes, kid around Use the silent treatment Agree to talk about it (no yelling)

Source NAFCM AmeriCorps; Conflict Resolution Curriculum



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STEPS OF A CONFLICT

Crisis

Tension

Misunderstanding Incident Discomfort Real Life Conflict Situation _________________________________________________ 1. Discomfort____________________________________________________________ ________________________________________________________________________ 2. Incident 3. Misunderstanding 4. Tension 5. Crisis

1

2

3

4

5



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INTERPERSONAL CONFLICT PATTERN

Two or More People

Interacting Perceiving an Incompatible Difference or Threat

To

Beliefs/Values Ego Needs Resources 1. Religion / Spirituality 1. Self Esteem 1. Possessions 2. Family 2. Accomplishments 2. Space 3. Loyalty and Country 3. Contribution 3. Money

Respond Physically / Emotionally / Mentally

Conflict Will Either

Escalate or De-escalate

Blah, blah, why should I…blah?

Blah, blah, blah ,blah!

Impossible…Blah, blah, why ….?

Stage 1

Stage 2

Stage 3 § Back to stage 1 § Stress § Poorer relationship

Stage 3 § Maybe resolution § Relief § Better relationship

Point of Conflict



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Conflict Handling Styles



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Shark

Owl

(FOX)

Teddy Bear

Turtle

Low ------ Cooperation – Relationship -----àHigh

CONFLICT HANDLING STYLES

Low

---

- A

sser

tive

– G

oal -

---à

Hig

h



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CONFLICT HANDLING STYLES What are the positive characteristics associated with each of the following style? COMPETING (Shark) __________________________________________

ACCOMMODATING (Teddy bear) ________________________________

AVOIDING (Turtle) _____________________________________________

COMPROMISING (Fox) ________________________________________

COLLABORATING (Owl) _______________________________________



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CONFLICT HANDLING STYLES DEFINITION OF TERMS

COMPETING is assertive and uncooperative - an individual pursues his own concerns at the other person's expense. This is a power-oriented mode in which one uses whatever power seems appropriate to win one's own position -one's ability to argue one's rank, economic sanctions. Competing might mean standing up for your rights, defending a position that you believe is correct, or simply trying to win. (Shark)

ACCOMMODATING is unassertive and cooperative -the opposite of competing. When accommodating, an individual neglects his own concerns to satisfy the concerns of the other person: there is an element of self-sacrifice in this mode. Accommodating might take the form of selfless generosity or charity, obeying another person's order when one would prefer not to, or yielding to another's point of view. (Teddy bear)

AVOIDING is unassertive and uncooperative - the individual does not immediately pursue his concerns or those of the other person. He does not address the conflict Avoiding might take the form of diplomatically sidestepping an issue, postponing an issue until a better time or simply withdrawing from a threatening situation, (Turtle)

COMPROMISING is intermediate in both assertiveness and cooperativeness. The objective is to find some expedient mutually acceptable solution that partially satisfies both parties. It falls on a middle ground between competing and accommodating. Compromising gives up more than competing but less than accommodating. Likewise it addresses an issue more directly than avoiding, but doesn't explore it in as much depth as collaborating. Compromising might mean splitting the difference, exchanging concessions, or seeking a quick middle ground position. (Fox)

COLLABORATING is both assertive and cooperative -the opposite of avoiding. Collaborating involves an attempt to work with the other person to find some solution that fully satisfies the concerns of both persons. It means digging into an issue to identify the underlying concerns of the two individuals and to find an alternative, which meets both sets of concerns. Collaborating between two persons might take the form of exploring a disagreement to learn from each other's insights, concluding to resolve some condition which would otherwise have them competing for resources, or confronting and trying to find a creative solution to an interpersonal problem, (Owl)

Thomas Kilman



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4 Main Causes Of Conflict

Perception

Communication

Beliefs / Values

Resources



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Perception Is…



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Perception Exercise



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44



45

Communication

Is….



46

Communication is:

Guess what percent each of the following functions play in the communication process.

___% - Tone of Voice

___% - Non-Verbal

___% - Words

Albert Marbian Study at U.C.L.A. 1967



47

Communication: "Any act by which one person gives to or receives from another person

information about that person's needs, desires, perceptions, knowledge, or

affective states. Communication may be intentional or unintentional, may

involve conventional or unconventional signals, may take linguistic or

nonlinguistic forms, and may occur through spoken or other modes."

(National Joint Committee for the Communicative Needs of Persons with Severe Disabilities, 1992, p. 2)

The communications process begins when a message is conceived by a sender. It

is then encoded - translated into a signal or a sequence of signals - and

transmitted via a particular medium or channel to a receiver who then decodes it

and interprets the message, returning a signal in some way that the message has

or has not been understood. Watson, Hill 1997]

Communication Process

The communication process is complex but vital to effective problem solving and

meaningful personal relationships. It is a process that is never really mastered;

one can continually improve on it. It requires certain attitudes, knowledge,

techniques, common sense, and a willingness to try. Effective communication

happens when we have achieved sufficient clarity or accuracy to handle each

situation adequately.

The 1978 Annual Handbook for Group Facilitators – J. Ryck Luthi



48

The Basic Process of Communication SPEAKER For communication to occur the following components must be in place:

1) Speaker______________________________________________ 2) Listener ______________________________________________

3) Message _____________________________________________ 4) Response ____________________________________________

1. Encodes a message >>I’m happy<<

LISTENER

2. Decodes the message >>He’s having a good

day<< 3. Encodes a response

4. Decodes incoming message >>He understands me<<

5. Confirms or denies response.

Simple Form



49

THE ACTUAL PROCESS OF COMMUNICATION Interference Data Distraction Meaning is not transmitted along with the message. Meaning is actually created in the mind of the receiver; based only in part on the sender’s message.

Sensory

Data

Sensory

Data

Filters § Beliefs § Values § Physical State § Learned

Behaviors

Meaning

Filters § Beliefs § Values § Physical State § Learned

Behaviors

Meani

n

g

Channel

Message



50

NON-VERBAL COMMUNICATION Non-verbal communication is the unspoken communication that goes on in every Face-to-Face encounter with another human being. Between 60-80% of our message is communicated through our non-verbal means, only 7-10% is attributable to the actual words of a conversation. You can prove this for yourself by seeing how many different meanings you can give to the following statement [I like you.] simply by changing the rate, tone, inflection and gestures. Whenever there is a conflict between the words that someone says and their non-verbal signals, we almost always believe their body language!

NONVERBAL COMMUNICATION includes facial expressions, tones of voice, gestures, posture, eye contact, spatial arrangements, patterns of touch, expressive movement, clothing and hairstyle, proxemics (personal space), Artifacts and symbols, paralanguage, cosmetics, time symbolism cultural differences, and other "nonverbal" acts. Research suggests that nonverbal communication is more important in understanding human behavior than words alone--the nonverbal "channels" seem to be more powerful than what people say.

Remember when your parent kept asking what was the matter and you kept saying nothing? They probably know your signals well enough to recognize your mood changes even before you do. The same type of thing can happen with group members who have worked with you for a while. So - being aware of the cues and signals being sent to you by others is a crucial skill if you want to understand a person's attitude towards you, regardless of what they are saying. Paying close attention to the parties every move (MICRO FOCUS) provides cues for intervention.

May be freely copied and used provided the SPARC attribution line is kept and the SPARC link

Copyright SPARC 1998. All Rights Reserved.

Page Location: http://www.deltabravo.net/custody/body.htm



51

Examples of Examples of NonNon--Verbal Verbal Body LanguageBody Language

NONVERBAL BEHAVIOR INTERPRETATION

Brisk, erect walk Confidence

Standing with hands on hips Readiness, aggression

Sitting with legs crossed, foot kicking slightly Boredom

Sitting, legs apart Open, relaxed

Arms crossed on chest Defensiveness

Walking with hands in pockets, shoulders hunched Dejection

Hand to cheek Evaluation, thinking

Touching, slightly rubbing nose Rejection, doubt, lying

Rubbing the eye Doubt, disbelief

Hands clasped behind back Anger, frustration, apprehension

Locked ankles Apprehension

Head resting in hand, eyes downcast Boredom

Rubbing hands Anticipation

Sitting with hands clasped behind head, legs crossed Confidence, superiority

Open palm Sincerity, openness, innocence

Pinching bridge of nose, eyes closed Negative evaluation

Tapping or drumming fingers Impatience

Steepling fingers Authoritative

Patting/fondling hair Lack of self-confidence; insecurity

Tilted head Interest

Stroking chin Trying to make a decision

Looking down, face turned away Disbelief

Biting nails Insecurity, nervousness Copyright SPARC 1998. All Rights Reserved. May be freely copied and used provided the SPARC attribution line is kept intact and the SPARC link is included http://www.deltabravo.net/custody/body.htm:



52

INTER-CULTURAL NON-VERBAL COMMUNICATION

When verbal and nonverbal contradict, we tend to believe the

nonverbal!

*There are: Approximately 281.4 million persons in the United States.

§ Between 34.7 and 36.4 million are Black or African American

§ Approximately 35.5 million are Hispanic

§ Approximately 10.2 million are Asian

§ Approximately 2.5 million are Native American

(*According to US Census 2000)

What happens when two people of different cultures talk in the same language but employ different nonverbal communication techniques? Many times this dynamic causes misperceptions, misinterpretations, friction, confusion, misunderstanding and discomfort. Awareness that different cultures have distinct ways of communicating nonverbally allows a mediator to stay as clear as possible and maintain impartiality. Pay attention to the non-verbal patterns identified as Space (Proximics); Face/Gesture (Kinesics); Touch (Haptics); Eye contact (Oculesics); and Tone (Paralinguists). Please note that the following are “generalizations” for the purpose gaining new awareness.

1. Space - Conversation Distance: • US and Northern European 18” to 30” • Caribbean cultures, Latin America and Southern European 8” to 18”

(Average = 14”) • Saudi 9” = 10”



53

INTER-CULTURAL NONVERBAL COMMUNICATION

2. Face/Gestures • Chinese and Japanese culture – a smile is used to hide displeasure, suppress anger or frustration, mask embarrassment, express anxiety, nervousness or social discomfort. • Latinos – a smile is a substitute for: “Hi, how are you?” “thank you”;

May I help you?” (Smile only, no words) • Anglos – a smile takes place in friendly circles but rarely in serious

situations like worship, teaching, learning and work. • Indians (India) and Greeks - will wobble the head to signify yes or

agreement. African Americans, Anglos, Latinos, and Northern European cultures will misperceive this as the opposite.

3. Touch: - High/Low Contact • African American men shake hands and hug with the left arm. • Arab culture –will stand and sit closer than Anglos. It is common to

see two men or two women holding hands when walking or crossing the street.

• Malays and Arabs view contact by opposite sex handshakes as taboo. • Anglo men – shake hands with little touching there-after • Jamaican, Trinidadian, Bahamian and Latino men – express high body

contact, by hugging, slapping backs, grabbing arm or shoulder for a couple of seconds etc.

4. Eye • Anglos – will look steadily and intently into the eyes in one to one

relations and gaze. • African Americans will look into the eyes when speaking and provide

indirect eye contact when listening. • Latinos – will focus on the face but will not provide a prolonged look

into your eyes. It is more of a glance or a fleeting look. • Asian and Native Americans have been taught to show respect by

averting eye contact (especially when conversing with elderly or high-status persons.

5. Tone – Accents/Feedback • Anglos have positive prejudices of European accents such as

“cultured”” and “educated”. • Brits have negative prejudices of U.S. Americans speech styles as

“too casual” and having “no class”. • Anglos have negative prejudices of the US Southern accent such as

its “uncultured,” “unrefined.”



54

INTER-CULTURAL NONVERBAL COMMUNICATION

• Anglos misperceive Spanish accents as not being able to speak English.

• Anglos use less feedback than African American and Latinos. • African American and Latinos may repeat something a different way

since no acknowledgment is provided by an Anglo or may ask for an acknowledgment by asking, “you know?” or “you understand?”

• Anglos feel like we are interrupting when we provide verbal acknowledgment of understanding.

• Anglos are direct in communication. • Chinese and Latinos are indirect.

Adapted from “Communicating Across Cultures” – William Cruz – TCB Consulting



55

LISTENER Listening

Thinking SPEAKER Listening Feeling

SENDING A NON-CONGRUENT MESSAGE



56

Beliefs / Values Are…



57

Beliefs/Values

Beliefs: A mental frame of reference for my truth. Ex: People are basically good.

Values: The things that I recognize as right or wrong according to my belief. Ex: It is good and right to always give people the benefit of a doubt.

List Your Top 10 Values from the list: 1. 2. 3. 4. 5.

6. 7. 8. 9. 10.

Instruction

Select your top three values

1. 2. 3.

Select your top value. 1.

Why is this Value important to you? Why is it so hard to mediate STRONG values?



58

Beliefs and Values - Brainstorm with your group beliefs and values frequently argued about:

In the workplace: In the family: In intimate relationships and Platonic (friend) Relations:

Between countries of the world:



59

Resources

Identify examples of resources below:

1. _________________ 11. _________________

2. _________________ 12. _________________

3. _________________ 13. _________________

4. _________________ 14. _________________

5. _________________ 15. _________________

6. _________________ 16. _________________

7. _________________ 17. _________________

8. _________________ 18. _________________

9. _________________ 19. _________________

10. _________________ 20. _________________

From the list above chose 2 resources. What circumstances would lead to conflict? What conflict could you foresee resulting? 1. _________________________________________________________

_________________________________________________________

2. _________________________________________________________

_________________________________________________________



60

Resources - Brainstorm with your group common resources frequently argued about:

In the workplace:

In the family: In intimate relationships and Platonic (friend) Relations:

Between countries of the world:



61

The Impact of Prejudice, Bias,

Stereotyping and Power in Conflict



62

Sexual

orientation

Physical abilities/ qualities

Gender

Ethnicity

Race

Age

Me

Ascribed Status



63

Achieved Status

Education

Parental Status

Geographic

location

Religious

Beliefs

Military experience

Marital status

Work

background

Income

ME



64

Sexual

orientation

Physical abilities/ qualities

Gender

Ethnicity

Race

Age

Me

Normal Limits Of Conversation

Religious

Beliefs

Education

Geographic

location

Military

experience

Marital status

Income

Work

background

Parental Status



65

PREJUDICE/BIAS/STEREOTYPING (For Your Eyes Only)

As human beings, it is impossible not to hold some bias or prejudice against and/or about individuals and / or groups of people. As a mediator, it is essential that you are aware of this critical knowledge about yourself.

Definitions

Stereotype: A mental picture that reflects an oversimplified judgment about

something or someone.

Bias: A predetermined and often prejudiced view.

Prejudice: An adverse judgment or opinion formed without knowledge or

examination of facts; irrational suspicion or hatred for a particular group,

race, or religion; the holding of preconceived judgments.

Answer the following questions:

1. Think of a situation where you were a victim of stereotyping.

2. Recall one of your own biases that have kept you from forming or having a

better relationship with a particular person.

3. Where did your prejudice about _________ originate? How does it impact

your life?



66

SOCIAL/CULTURAL INFLUENCES AND VALUES IN RELATION TO CONFLICT

1. What social and cultural influences have most impacted on the way

you deal with conflict?

2. In a conflict, what assumptions (incorrect) do people make about you?

3. How do any of your strongly held values play out in a conflict?

NAFCM Face to Face: Resolving Conflict Without Giving Up or Giving In



67

POWER STRATEGIES

SITUATION: Discuss how each of these powers can impact the mediation process and why we need to be aware of them and avoid them.

1. Coercive Power:

2. Legitimate Power: 3. Reward Power:

4. Referent Power: 5. Information Power:

6. Expert Power: 7. Connection Power:

Answer the following questions

v Which power strategy do you most frequently experience in the workplace?

v How do you think parties respond to these perceived powers?

v How do you avoid parties assigning these powers to you as mediator?

Adapt from - The 1989 Annual Developing Human Resources J. William Pfeiffer. Editor San Diego, California: University Associates, 1989



68

The Dynamics

Of Transformative

Mediation

3

R

1

7

5

R

4

E 2

E

6



69

Pre-Mediation Procedures

Staff Preparation PRIOR TO

MEDIATION

Meeting Mediators Needs

PRIOR TO MEDIATION

Meeting Parties Needs PRIOR TO MEDIATION

o Determine if

mediation issue is appropriate for mediator

o Parties contact by staff

o Intake conducted by staff

o Letter sent to parties confirming mediation session

o Mediation scheduled parties notified

o Mediator Identified confirmed no conflict of interest

o Reminder call in advance of mediation

o Staff meets with mediator to review file

o Meeting room set up by staff

o Weapons Release Form

o Notifies Mediator(s) of parties’ arrival

o Arrive no later than 30

minutes before the mediation

o Review parties file with staff

o Ask questions of staff for clarification

o If co-mediating, identify responsibilities and establish signals

o Review your opening comments

o Take care of you physical needs

o Take 5 minutes to sit and relax in a quiet area

o BREATHE & wait for Parties to arrive

o Meet parties in reception

area o Tone of voice friendly o SMILE-“thank you for

coming” o Introduce yourself by name.

“I am__ and I will be your mediator today

o For the sake of confidentiality, we will all introduce ourselves in the meeting room.

o Firm handshake. If appropriate nod and look party in eye

o Ask neutral questions during greeting

o Explain where you are taking them-meeting room

o Point out drinking fountain, restrooms

o Smile-Notice your tone of voice-Stay relaxed Trust the process

o Invite parties to sit – down mediator-by door

o Start Opening Comments to start the session



70

Mediation Room Set Up

Door

Party 2

Respondent

Party 1

Complainant

M

Solo Mediator

Door

Party 1

Party 2

M Co-Mediators



71

Opening Comments Introductions and clarify who is in the room Thank parties for choosing mediation Establish Credibility and Neutrality

• No knowledge of any party • No knowledge of issues/situation other than what is on the referral form

Explain Mediation

• Not a trial. It’s a facilitated discussion. • It’s an opportunity for parties to discuss the issues and explore options for

resolution. • Resolution is one option the others are no agreement, OR withdrawal of the

complaint, the decision is yours. • Mediation is a tool for self-determination, you the parties will make all

decisions concerning outcome of this session; including whether or not you want the case to return to court (if a court case)

• Explain that mediation is voluntary • Address Confidentiality and exceptions

Explain Mediators Role

• To facilitate your discussion to assist you in gaining clarity and understanding on the issues that brought you to mediation.

• Remain neutral and impartial • Not to give legal advice or advocate for either party • Not to determine who is right or wrong

Agreement to Mediate (if one exists review the form) Caucus (separate meeting) Courtesy/ Guidelines for the discussion (check with parties) Note taking Recording devices Weapons Questions Invite the parties to start the session



72

Core Activities and Function of a Transformative Mediator There are basically three (3) core functions of a Transformative Mediator. These three functions must be mastered to effectively practice from a transformative framework. To practice the functions the mediator must stay in the moment with a MICRO FOCUS on the parties’ interaction. ATTEND TO: Parties needs as they converse with each other by looking for opportunities for empowerment and recognition MONITOR DIRECTIVE IMPULSE: Pay close attention to the directive impulses to influence the parties’ deliberation, and decision making. “Avoid trying to solve the problem “ RESPOND TO PARTIES: By staying in the moment you can identify opportunities for empowerment and recognition that move the parties from states of weakness to strength and from self-absorbed to responsive. Advanced Mediation Training Manual ISCT



73

Step-By-Step

Identify Opportunities for Empowerment and Recognition as they arise

AVOID being directive and the

urge to lead, guide or control the process

ENACT a supportive response to lift up opportunities for empowerment and recognition



74

Transformative Mediators Are Responsive to Parties: Listening

Patient Supporting Encouraging Inviting Follow Open Welcoming

Never Try to Direct Parties: Telling Leading Controlling Ordering Limiting Pushing Pulling



75

Things are getting out of control!

I shouldn’t just sit here…

We’re going in circles!

How do I get them

to…?

We’re running out

of time!

“I can’t let him/her do that!”

I know just what will work…

Be Kind and Forgiving to Yourself!

Q Why is it unnatural to respond in an impartial neutral way

to someone who is experiencing a problem?

A Because ... we have been taught to try to:

• Fix it! • Preach to it! • Heal it! • Change it!

Try to avoid the direct impulse when you are thinking….

I’ve heard enough of

that…

We’re getting

nowhere!

That’ll never work!

If I can get them to agree

on…



76

BASIC REPERTOIRE OF MEDIATOR RESPONSES Reflecting is when the mediator says back to the speaker what the mediator believes the speaker has just expressed, using language that is close to the speaker’s own. A good reflection captures both the substance and the emotional tone of what the speaker has said, without parroting. “So, for you, what’s happening is that …” “What you seem to be saying is…” “You’re feeling …” Summarizing is when the mediator condenses a series of things the parties have said, or a series of things that have happened, into essential points. A good summary is inclusive --- nothing is strategically “dropped out.” “So what you want to talk about today is…” “To summarize what you’ve both talked about so far…” “There are a number of things you’re disagreeing about, including…” Questioning is usually done with open-ended questions that encourage reflection, elaboration, dialogue, and deliberation. “What did you mean by…?” “Is there more that you’d like to say about that?” Checking in is a way the mediator makes the process transparent, by asking the parties whether a decision-point that the mediator has noticed is one they want to consider and/or act upon. “So where do you think the discussion should go at this point?” “Are you ready to move on to [this new point] or do you want to stay with this part of the discussion a while longer?” Staying/Backing out is when the mediator withdraws from direct involvement in the conversation, remains silent, and allows the parties to talk directly to each other without interruption. Advanced Mediation Training Manual ISCT: Used with permission



77

REFLECTION: PRACTICE GUIDELINES Reflection is most effective if practiced within some basic guidelines: • Reflection is done with one party at a time and with complete engagement with that party alone – not moving back and forth between the parties • Reflection involves “mirroring” to the speaker whatever s/he has expressed o It does NOT mean “carrying” the speaker’s message to the other party • Reflection means providing an undistorted mirror: this means a reflection should be complete and close. o It is most effective when inclusive, capturing the full range of what has been said o Try not to edit, soften or filter anything the speaker has said • Reflection can and should include reflection of emotions expressed – not just what has been said, but how the speaker appears to be feeling o There is hardly any form of “comment” that cannot be usefully reflected – even silence, reluctance to speak, etc. o In other words, what is being reflected is any and all communication or expression, not just speech • Reflection is most effective when it “matches” the intensity of the intensity of the comment – matching the energy, not the emotion Reflection usually carries its own confirmation: • An effective reflection will usually evoke an immediate confirmation response from the speaker: o “Yes, that’s it;” or o “That’s right, and also . . .” • Even if the reflection missed the mark, it usually evokes a response from the speaker that “cures” the mistake: o “That’s not it at all, here’s what I said” o “I’m not just mad, I said furious!” • In other words, provided the mediator is genuinely trying, reflection is self confirming and self-correcting. • The positive “empowerment” effect of reflection can be seen whether the speaker confirms or corrects the reflection – in either case, s/he is gaining clarity and strength Advanced Mediation Training Manual, ISCT: Used with permission



78

REFLECTION: HOW IT CAN SUPPORT E/R SHIFTS To practice reflection seriously, it helps to understand just how powerful it can be in supporting both Empowerment and Recognition shifts, for both the “speaking party” and the “listening party”. • Reflection can help the “speaker” make empowerment shifts by: o helping the speaker to “get on the record”, establish their presence in the room o giving the speaker the chance to “get clear” by “listening to himself” through the reflection o allowing the speaker to deliberate and choose to edit, modify and clarify comments • Reflection can help the “listener” make empowerment shifts by: o allowing the listener to “listen in” to what the speaker is saying without threat, “from a safe distance”, and thus o offering the listener the chance to hear and think about “new information” without pressure • Reflection can help the “speaker” make recognition shifts by: o allowing the speaker to hear when he has “gone too far” and reconsider and retract negative comments • Reflection can help the “listener” make recognition shifts by: o allowing the listener to hear the speaker’s comments “for the first time” or “in a different way”, because of the reflector’s voice In general: Reflection, practiced properly, acts as an “amplifier” of the conversation for each party – it makes what is being said more audible and intelligible to both parties. This gives strong support to party decision making and inter-party communication. Advanced Mediation Training Manual ISCT: Used with permission



79

SUMMARY: PRACTICE GUIDELINES Summary is most effective if practiced within some basic guidelines: • Summary, unlike reflection, directly involves both parties – that is, it involves what both have said during a “chunk” of the conversation, and it is delivered in a way that addresses both parties • Summary is not a literal “reflection” of everything said, but rather a thematic replay of the “subjects of discussion” that have emerged o subjects summarized should include whatever topic either side brought up o subjects summarized should include what the parties seem to agree about and, especially, what they disagree about – subjects of disagreement o summary of subjects disagreement should include the different views each side expressed on each point • In summarizing subjects discussed and areas of disagreement, engage with both parties alternately, but directly – not “he said this, she said that,” but “you said this, and you said this” • Summary, like reflection, should use parties’ language where possible, and subjects should not be omitted, edited or prioritized for the parties o Most important, summary should not soften or dilute differences and disagreement o Rather, summary should highlight sharp differences • Summary is often usefully followed up with a “check-in” As with reflection, summary usually produces its own confirmation of effective practice: • In response to a summary, parties will usually move the conversation in a direction, or choose a next step, that the mediator could not have predicted • This unpredictable movement is the sign that the summary was effective in supporting party choice, unaffected by any mediator judgment or agenda Advanced Mediation Training Manual ISCT: Used with permission



80

Separate Meetings Why use separate meetings? Who decides on a separate meeting? How to adjourn and resume a separate meeting? What happens to information shared in a joint session? What are the concerns about separate meetings?



81

EMPOWERMENT AND RECOGNITION EMPOWERMENT “Empowerment is achieved when disputing parties experience a strengthened awareness of their own self-worth and their own ability to deal with whatever difficulties they face regardless of external constraints.”* From Weakness >------- to -----à Strength Unsettled Calmer Confused Clearer Fearful More confident Disorganized More focused Unsure More decisive

Empowerment may be as to:

Goals

Options

Skills

Resources

Decision-making

*From The Promise of Mediation by Bush & Folger; 1994



82

EMPOWERMENT & RECOGNITION RECOGNITION “Recognition is achieved when given some degree of empowerment, disputing parties experience an expanded willingness to acknowledge and be responsive to other parties’ situations and common human qualities.”* From Self-absorbed >---- to ---à Responsive to Other Self-protective More attentive to other Defensive More open Suspicious More willing to accept other’s good faith Incapable of stepping More able to see outside own frame other’s perspective

Recognition may consist of:

Consideration of giving recognition

Desire for giving recognition

Giving recognition in thought

Giving recognition in words

Giving recognition in action

*From The Promise of Mediation by Bush & Folger



83

EMPOWERMENT AND RECOGNITION CYCLE

With recognition will come opportunities for empowerment, which in turn will tend to produce additional opportunities for recognition. This is a continuous cycle.


Empowerment

Recognition



84

Empowerment To give authority to somebody; to give somebody a greater sense of confidence or self-esteem

DECISION

MAKING

To Participate

In The Process

To Be

Responsive To

Others

To Be

Responsive To Self

Issues To Be

Discussed

Designing

Process

Outcome

Of Issues

Order Of

Issues To Be

Discussed When To

Stop The Mediation

Session



85

Recognition To give credit, express gratitude, give thanks, show appreciation and respect; to acknowledge another person. Recognition can be as simple as speaking/greeting a person, calling them by their name or just being cordial.

When you feel empowered you can respond to and acknowledge others

Consideration

Thought Words Actions Validating by

addressing the person

Acknowledging of others POV



86

EMPOWERMENT AND RECOGNITION (OPPORTUNITIES)

WHAT IT SOUNDS LIKE: “This is the first time I heard that. He never said that before.” “You don’t understand.” “You need to know where I’m coming from.” “That’s exactly what I’d expect you to say.” “What should I do?” “There’s no use to this.” “That’ll never work.” “That’s a terrible idea.” “That’s ridiculous!” “You’ve worked with a lot of people. What’s the answer?” “What do you expect from someone like that?” HOW TO RESPOND:

o Listen for and identify the opportunity for a party to “lift up” a possible thought/feeling message that could move a party from weakness to strength and/or from self –absorbed to responsive to other. Respond with your skills.

o Avoid overlooking or ignoring the opportunity, slow down, and invite

elaboration or reflection.

o Enact supportive response.

*From The Promise of Mediation by Bush & Folger, 1994



87

Opportunities to Support EMPOWERMENT and RECOGNITION

Parties object to Party seeks mediator’s Participating in, advice and suggestions mediation or to procedures Party express confusion, Party objects strongly either directly or by to a mediator’s being disorganized suggestion

EMPOWERMENT Party express doubt or Party express anger uncertainty about process or or frustration about a tentative agreement apparent impasse

Party appear to be “in a hurry” To make a decision



88

Opportunities to Support EMPOWERMENT and RECOGNITION

A party makes passionate statement about self or other party/ situation

Party levels accusations at Party makes statement that other party, or calls names assumes worst about other party’s motives at present time or in the past Party offers statement of Party states / shows they Justification or explanation they feel misunderstood of past conduct

RECOGNITION Party makes “yes but” Party returns /repeat response to other party same point over and over again

Party makes statements about how they want to be seen by other party



89

Yes – But When DO I Intervene? For the most part conversation in general even brief segments are rich with opportunities for Empowerment and Recognition. All opportunities cannot be responded to; some choice is inevitably necessary. These choices are impacted by our own filters to a degree. Here are some points to be considered: The Flow of the Conversation

• Parties notice and work with opportunities for transformation themselves, without any assistance. They do this everyday in ordinary conversation and argument. They do not need you to intervene if “SHIFTS” are happening.

• If parties get stuck in the destructive cycle, opportunities for

transformation are still likely to be arising, but the parties are not likely to be noticing or acting upon them. This could be an appropriate time to intervene.

Intention from the Parties

• Parties sometimes stay quite engaged, even when the conflict looks to the mediator like it might be in a destructive cycle. However, they may signal to the mediator that they want help with their interaction, by:

o Turning to look at the mediator o Asking directly for help in some way o Asking indirectly for help, e.g.,: “Do I have to keep doing

this?” o Shifting their engagement with the other party from second

person to third person (from “talking to” to “talking about”)




90

Timing • Some degree of Empowerment generally comes before an offer

of Recognition. Consider whether the parties are interacting with relative increases in personal Empowerment before highlighting Recognition opportunities.

• Conversation tends to have “rhythms”, with periods of intensity

and then points where the conversation “lulls” or “pauses” in the conversation can provide opportunities to intervene without interrupting the parties’ conversation flow.




91

Negotiation

&

Position VS Interest



92

Negotiation Definition of Negotiation: A process whereby disputing parties work together to gain consensus, compromise, etc. by discussing facts, feelings, interest, needs, perceptions, ideas, solutions, etc. Getting to Yes: Negotiating Agreement Without Giving In: By Roger Fisher and William Ury developed the premise of “Principled” rather than “Positional” negotiation. Issue:

The situation around which the dispute, disagreement or difference revolve around

Position:

The stance parties take on the issue Things you say you want Demands Things you say you will or will not do Example: Party A – “I want $4,000 to have the deck on my house rebuilt. Party B – “You’re not getting a penny” Interest:

What drives your position Underlying motivates Needs and concerns Fears and aspirations Example:

Party A – “You’ve got to be kidding. The workmanship is shoddy, substandard and downright inferior. It’s your fault all this happened.

Party B – “You sure changed your tune. When I suggested I do the work and would give you a break on the cost, you were thrilled. You ingrate.

Parties should always keep in mind two outcomes to the negotiations B A T N A W A T N A B----- Best W ---- Worst A----- Alternative A ----- Alternative T------ To T ----- To N------ Negotiated N ----- Negotiated A------ Agreement A ---- Agreement



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POSITIONAL STATEMENTS Positional statements can be challenging to identify in the context of mediation. As a mediator you have to listen for polarity in statements. There may be more than one. Sometimes it will be the first thing a party shares in their opening statement. Most times you need to listen for strongly proposed solutions or demands. “Frankly Scarlet, I don’t give a dam!” “Rhett, if you loved me you would give a dam.” “Straighten up your office” “There’s nothing wrong with my office” “I want sole custody of the children” “Over my dead body” “You’re doing it wrong” “I am not” You are a racist I am not a racist “You have to change the color of your house” “I am not changing the color of my house” “I am not paying for the extra work” “You owe me for the work” Positional statements represent an opportunity for either empowerment or recognition.



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POSITION VS. INTEREST AND NEEDS

Positions

Fears and Beliefs

Interest

Needs

“Positions” The Tip of the Iceberg



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POSITIONS & INTERESTS

Remember . . .

q In conflict situations, be aware that many interests may exist. q Parties usually do not think in terms of “interests”.

q Interests can change, however, only the person who owns the

interest can change it.

q The term “interests” may be viewed as an umbrella term that can help to identify deeply rooted human fears, beliefs, values, and needs. Bottom line basic needs!

q The 3 MOST basic needs are 1) belonging (relationship,

opportunity to love, share and cooperate); 2) Ego/Esteem (how I view myself & how others view me) 3) Power (the authority to make something happen).

q There is no one-way to determine interests. The mediator

needs to listen to the verbal and watch carefully for the non-verbal to develop an awareness of the hidden interests that drive the positions while navigating a conflict in process!



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Basic Agreement Writing



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RECORDING ACCOMPLISHMENTS

• The parties determine whether there should be anything in writing at all. They may want a written record of the outcome, even if no agreement was reached, or a partial agreement was reached. Likewise, they may not want anything in writing, even if agreement was reached. The mediator should facilitate this discussion.

• Writing any summary or agreement is part of the process. Producing the document

should be an interactive, conversational process in which the parties are actively involved.

• The parties determine what is significant and what should be recorded; the

mediator facilitates their decision-making in this regard.

• Opportunities for decision-making exist with respect to whether to write, what to write, who should write, when to write, how to write, what the writing should be, who should be involved in writing, who should be involved in any review of the writing, and how review should take place.

• Writing a summary or record can occur at any time during the process, not just

“the end.” Parties sometimes want to have summaries of their accomplishments as they move through the mediation, particularly if there are multiple sessions.

• A written summary or record of outcome should record all significant

accomplishments of the session that the parties want recorded. This might include decisions about the process of the mediation itself, decisions to give recognition to the other, and substantive decisions about the dispute.

• During the writing process, the mediator checks with the parties constantly for

clarity, choice, and understanding.



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WRITE A SOUND AGREEMENT THAT IS:

Effective: Resolves major issues for both individuals fairly.

Realistic: The action steps are reasonable and can be accomplished by both

individuals.

Balanced: Both individuals agree to be responsible for something.

Specific: The action steps need to answer Who, What, When, Where, and How.

Mutually Satisfying: Both individuals think it is fair. Continue to use your skills

throughout the writing process!

Sample Agreement 1. Joan Smith & Dan Jones agree that Joan will arrive at work no later than

9:00am and be seated at the front desk at 9:00am Monday through Friday to insure telephone coverage for the marketing division. The agreement begins Monday February 19, 2007.

2. Dan Jones and Joan Smith agree that under emergency circumstances (extreme weather conditions, traffic back-up situations, last minute illness etc.) Joan will notify Dan by cell phone regarding the status of her attendance and/or her arrival time as soon as possible upon realizing the situation.

3. Joan Smith and Dan Jones agree that Dan will give Joan his cell phone number before they leave the room today.

4. Dan Jones and Joan Smith agree that Dan will leave his cell phone on each week day morning between the hours of 7:00am and 9:00am.

5. Joan Smith and Dan Jones agree that Dan will have another staff person cover the phones every third Thursday of the month between 9am – 9:15am to allow Joan to drop off her daughter at day care center.

Participants will practice writing an agreement



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Ethical Considerations



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Reference Sources The Promise of Mediation, Responding to Conflict Through Empowerment and Recognition, by Robert A. Brauch Bush and Joseph P. Folger, 1994 Jossey-Bass Publishers, San Francisco, CA. New and Revised Edition The Promise of Mediation: The Transformative Approach to Conflict ; by Robert A. Brauch Bush and Joseph P. Folger, 2004 Jossey-Bass Publishers, San Francisco, CA. Mastering The Art of Communication: by Michelle Fairfield Poley, 1995 by Skillpath Publication, Mission Kansa The Handbook of Conflict Resolution: Theory and Practice by Morton Deutsch and Peter T. Coleman, 2000 by Jossey-Bass Publishers, San Francisco, CA The Resolution of Conflict; Constructive and Destructive Processes; by Morton Deutsch; 1973 by Yale University Press Getting to Yes: Negotiating agreement without Giving In, Second Edition; by Roger Fisher and William Ury; 1991 Penguin Books, New York, New York GETTING PAST NO: Negotiating Your Way From Confrontation to Cooperation: by William Ury, 1991 Bantam Books Managing Public Disputes: by Susan L. Carpenter and W.J.D. Kennedy; 1988 Jossey-Bass, San Francisco, CA No Future Without Forgiveness; by Desmond Tutu, 2000, An Image Book – Published by Doubleday a division of Random House, Inc.

Documents

MEDIATION: The Transformative Framework