From Our Training Manual
Athens Area Mediation Service
1 WHAT IS INTERPERSONAL DISPUTE MEDIATION?
2 Six Key Principles in Mediation
3 Community Mediation
4 Strengths of Mediation
5 Conflict is:
6 REDISCOVERING THE LOST ART OF LISTENING
7 MORE LISTENING
8 SUMMARY OF MODEL STANDARDS OF CONDUCT FOR MEDIATORS
9 STANDARD I. SELF-DETERMINATION
10 STANDARD II. IMPARTIALITY
11 STANDARD IV. COMPETENCE
12 STANDARD V. CONFIDENTIALITY
13 STANDARD VI. QUALITY OF THE PROCESS
14 STANDARD VII. ADVERTISING AND SOLICITATION
15 STANDARD VIII. FEES AND OTHER CHARGES
16 STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE
17 STAGES IN THE PROCESS OF MEDIATION
18 STAGE 1: SETTING THE STAGE
19 STAGE 2: LISTENING TO THE STORY
20 STAGE 2a: SUMMARIZING
21 STAGE 3: IDENTIFYING KEY ISSUES
22 STAGE 4: GENERATING AND EVALUATING ALTERNATIVE SOLUTIONS
23 STAGE 5: REACHING FULL AGREEMENT
24 STAGE 6: CONCLUDING
25 INTRODUCTORY PHASE OF MEDIATION
26 SUMMARIZING EFFECTIVELY
28 COMMUNICATION SKILLS FOR MEDIATORS
29 UNDERSTANDING POSITIONS AND INTERESTS
30 IDENTIFYING PROBLEM BEHAVIORS AND THEIR EFFECTS
31 IDENTIFYING PROBLEM BEHAVIORS AND THEIR EFFECTS
32 LABELS AND RULES
33 THE INVISIBLE THIRD STORY
34 QUESTIONS YOU WERE AFRAID TO ASK ABOUT CAUCUSES???
35 WHAT CAN A MEDIATOR DO IN A CAUCUS?
36 POWER IMBALANCES
37 HANDLING IMPASSES
38 EXPLOSION: CUTTING IT OFF AT THE PASS
39 SOME SIMPLE IDEAS ABOUT HUMAN BEINGS, FEELINGS, AND COMMUNICATION
40 Have your feelings - or they will have you!
41 HUMAN BEINGS & THE NATURE OF ISMS . . . A FEW ASSUMPTIONS
43 HEALING THE WOUNDS OF RACISM
VOLUNTEER DISPUTE MEDIATOR
Welcome to a training program designed for individuals who are interested in learning more about the process of dispute mediation and the opportunities for community involvement that exist through sharing your time and skills with others as a mediator. During this program, you will be exposed to new knowledge and skills for the management and resolution of conflict. From this workshop, we hope you gain the basic information needed to understand the limitations and the promise of the dispute mediation process. At times, you might feel overwhelmed by the volume of material presented to you and the challenges you are asked to face. However, once the role plays and actual mediations begin, the information, processes and techniques will make more sense and should begin to fall into place. No matter how experienced we may be, we can learn something new from every mediation. With time and practice, what is shared with you here should become more natural and comfortable for you.
During this training, the hope is that you will become excited about using mediation and the possibilities that mediation holds for assisting others in the community in working through their conflicts. An additional hope is that you will find the principles and philosophy of mediation applicable to other areas of your life and the lives of those with whom you come in contact. Your questions, observations and comments are very welcome. Your input will help improve future training sessions of this nature and help everyone involved develop a richer understanding not only of the process of dispute mediation but of the role that mediation can and should play within our community.
WHAT IS INTERPERSONAL DISPUTE MEDIATION?
Ideally, individuals who are in conflict with each other are capable of constructively resolving their problems for themselves. While that is the ideal, the reality is often quite different. In some situations, the involved individuals might not possess the communication skills necessary for constructive problem solving. In other situations, emotions might be running too high for the involved parties to be able to effectively coordinate their efforts. In other situations, cultural and social differences might present barriers to effective communication and conflict management. Unresolved conflicts can continue to grow, resulting in violence, unnecessary court cases, failed partnerships, broken relationships, poor decision making, diminished productivity, lost opportunities, and feelings of anger, mistrust, hopelessness, and despair.
One of the most constructive opportunities available to individuals experiencing conflict is dispute mediation. Recent years have seen a dramatic increase in the use of mediation as an approach to resolving conflicts. For years mediation has been used in labor management disputes and as an approach to resolving some of the controversies which emerge during divorce. Many communities look to mediation as an approach for handling family disputes, neighborhood disagreements, landlord-tenant difficulties, workplace tensions, environmental issues, appeals in the use of government services, and customer-merchant problems.
Mediation is a process involving two or more parties who are in conflict with each other and a third party (the mediator) who is uninvolved in the conflict. The mediator serves as a neutral and impartial guide, structuring an interaction which enables the conflicting parties to share their perspectives on the dispute, how it has affected them, and how they would like things to be. Through the mediation process the parties may engage in meaningful conversation, may understand each other more clearly, and may reach a mutually satisfying solution to the dispute.
Six Key Principles in Mediation
- It is primarily voluntary in nature.
- The mediator needs to avoid taking sides.
- The parties themselves decide on the outcome.
- Confidentiality is crucial.
- People bring their histories with them.
- Listening leads to many good things.
Community mediation is characterized by, and/or committed to:
- The use of trained community volunteers as the primary providers of mediation services; volunteers are not required to have academic or professional credentials
- A private non-profit or public agency, or program thereof, with a governing/advisory board
- Mediators, staff and governing/advisory board are representative of the diversity of the community served
- Providing direct access of mediation to the public through self referral and striving to reduce barriers to service including physical, linguistic, cultural, programmatic and economic
- Providing service to clients regardless of their ability to pay
- Initiating, facilitating and educating for collaborative community relationships to encourage positive, systemic change
- Engaging in public awareness and educational activities about the values and practices of mediation
- Providing a forum for dispute resolution at the early stages of the conflict
- Providing an alternative to the judicial system at any stage of the conflict
Strengths of Mediation
- Cooperative process
- Encourages a change in attitude by providing a situation where the parties must be civil
- Relatively quick response
- Minimal cost
- Parties have the opportunity to voice their feelings and opinions
- The final agreement is designed by those involved
- Related problems can be identified and dealt with or referred
- Restitution can be paid at the session or arrangements can be made
- People can learn how to resolve future disputes
- Simpler aspects can be tackled first, building trust in the process before handling more complex parts of the situation
- Court personnel can spend time on more appropriate situations
- National studies demonstrate high satisfaction and compliance rates
- Services can be tailored to meet the needs of the situation
- The parties’ self-esteem is enhanced by working through the dispute
- The community is enriched
Conflict exists when two or more ideas, opinions, interests, feelings, goals, actions are in actual or perceived opposition.
2. Present in even the best relationships
3. Dreaded by many people
4. Costly, if maintained and fed
5. Pervasive into other areas of our lives
6. Neither inherently good nor inherently evil
7. Not usually about who is right and who is wrong
8. Potentially growth producing, both intra-personally and inter-personal
9. Potentially a win-win situation
10. Full of intense feeling for most people
11. Something that doesn’t go away by itself
12. Sometimes a result of differing experiences, values, and cultures
13. Often found to have issues of prejudice or discrimination at the root
REDISCOVERING THE LOST ART OF LISTENING
Some things to remember . . .
- People are smart. We don’t need advice; we need someone to listen while we figure out our own best solutions.
- We all have a story to tell.
- Emotions are not bad. Expressing them openly to someone who will listen can be liberating and powerful.
- Take turns.
- Make eye contact at least some of the time.
- Communicate respect, caring, patience, delight & confidence (in the person you are listening to and in yourself).
- Let them do almost all of the talking.
- When you do respond, ask questions or make comments that will help them share even more.
- Refrain from interrupting or giving advice.
- Trust your thinking and your hunches. It’s OK to make mistakes.
- Listen with respect and maintain confidentiality.
- Take risks.
- Speak from your heart.
- Relax, be yourself, and have fun!
- Think of a time someone listened to you well. Describe what happened and how you felt.
- Think of a time you needed to be listened to but weren’t. Describe what happened and how you felt.
- Think of a time when you listened to someone else. Describe what happened and how you felt.
- What sometimes prevents you from listening as well as you might (with complete respect, delight, patience, and relaxed confidence)?
SUMMARY OF MODEL STANDARDS OF CONDUCT FOR MEDIATORS
Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts.
STANDARD I. SELF-DETERMINATION
- A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to produce an outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
- Although party self-determination for a process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.
- A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
- A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.
- A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator.
- A mediator shall disclose all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.
- If a mediator’s conflict of interest might be viewed as undermining the integrity of the mediation, a mediator shall withdraw.
- Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation.
- A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.
- If a mediator, during the course of a mediation, determines that he or she cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.
- A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.
- If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.
- A mediator should not communicate to any non-participant with information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.
- If a mediator participates in teaching, research or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.
- A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.
- A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.
- Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality.
- A mediator shall conduct a mediation in accordance with theses standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.
- A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation.
- A mediator should only accept cases when the mediator can satisfy the reasonable expectation of the parties concerning the timing of a mediation.
- The presence or absence of persons at a mediation depends on the argument of the parties and the mediator. The parties and mediator may agree that others may be excluded from particular sessions or from all sessions.
- A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly misrepresent any material face or circumstance in the course of a mediation.
- The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and he role of another profession is problematic.
- If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.
- If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
- If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent of theses standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
- A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees.
- A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation.
- A mediator should act in a manner that advances the practice of mediation.
- A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.
These stages describe steps that are often present as a mediation flows.
We are not interested in rigidly forcing the process to follow these stages.
1.SETTING THE STAGE
Establish the purpose of the communication (i.e. to try to better understand the nature of the problem and each other’s perspective, see whether or not an acceptable solution can be found). Assure confidentiality of communications and full opportunity to share ideas, react to one another. Assure that any decisions will be theirs, not yours. Discuss guidelines for the mediation.
2. LISTENING TO THE STORY
Ask one participant to describe the problem from their perspective. Listen attentively, giving full eye contact and taking brief notes if needed. Once the first person has finished, you might want to summarize (keep your language as “neutral” as possible—don’t use loaded or emotional language). Then turn to the other person and ask them to share their view of the problem. (Don’t ask them to respond to the first person; do ask for their point of view concerning the problem.)
Repeat the main points of what you have heard in their opening statement, including content and feelings expressed. Summary is important because it helps people notice that they have been heard, and allows an opportunity for them to clarify points that have not been understood.
3. IDENTIFYING KEY ISSUES
With their input and agreement, define the key issues which must be discussed. Bring the “stories” together in terms of shared perspectives. What do they agree on? What concerns (e.g., privacy, respect, money) are common to them?
4. GENERATING AND EVALUATING ALTERNATIVE SOLUTIONS
Possible solutions are proposed by the parties for the key issues that have been identified. Brainstorming or caucus may be used. Proposals are explored and discussed. Mediators work to create a climate of respectful problem solving.
5. REACHING FULL AGREEMENT
Specific agreements are proposed and written, using their own language when possible. Agreements are discussed and refined, with attention to who, when, where, how, and how much. Agreements may include procedures for future disagreements.
Compliment them on their efforts in working out the problem. (If a solution hasn’t been found, then you might compliment them for trying.) In most cases, you will want to write out the agreement with each party signing and receiving a copy of that agreement. If there are some resolved issues and some unresolved issues, then the agreement might even include a listing of the areas where the disputants have “agreed to disagree.”
STAGE 1: SETTING THE STAGE
1. Check information.
2. Find name preferences.
3. Explain program and philosophy.
4. Explain confidentiality, exceptions to confidentiality, and note taking.
5. Cover ground rules:
a) Speak only to the mediators, at least at the beginning.
b) Speak one at a time.
6. Explain use of caucus and possibility of additional sessions.
7. Reassure and appreciate both parties.
Key points to remember:
1. Begin establishing a climate which is productive for conflict resolution, where the power is balanced, the mediators are objective, the participants feel safe, and open communication exists.
2. Remember from the outset that success depends on the disputants’:
c) and perhaps, need.
3. Parties are not considered able if either is intoxicated, emotionally incapable, mentally incapable, or if there is some other obvious reason for not continuing.
4. Compliment participants on their willingness to try to work out their differences. This helps put them at ease.
5. Explain that the mediator won’t judge and that the focus is on the future.
6. Assure participants that the process is confidential and all notes will be destroyed.
7. The key is to begin developing trust.
STAGE 2: LISTENING TO THE STORY
This is the usually the central and crucial part of the mediation. Generally parties will not be able to be open to the other parties’ needs and concerns until they feel heard about their own.
1. Listen...then listen more.
2. Ask questions if the parties need to be drawn out.
3. Look for interests that underlie positions.
4. It is good to be warm and friendly with all parties to build trust.
Key Points to Remember:
1. Help each participant see that you have heard both the content that has been shared and how they feel about the situation.
2. Help them describe a broad picture of the situation which may include:
a. stability of the relationship
b. history of the conflict
c. priority of the problems
d. communication patterns
e. cultural values
f. distribution of power
g. ability to problem-solve
a. ask open-ended questions
b. avoid questions that put them on the defensive
4. The positions parties state initially may be superficial and rigid. It is always useful -and often crucial- to uncover deeper interests and values. Use active listening and questioning to get beyond stated positions to what is truly most important to them.
5. Remember: The complaint which is brought may or may not be the most important issue. Some issues are concrete and some are symbolic. Help them talk about themselves, their experiences, and their values. Listen for the real issues in the stories.
6. You have the ability to take charge to assist them in meeting their goals. You can remind them of the guidelines to keep the parties working toward a solution together rather than against each other.
7. It may be useful to check in with the parties to see if the interaction is working for them or if they want a different kind of conversation.
8. Remain impartial and nonjudgmental.
9. Restate, re-frame, summarize, clean it up, validate and deepen when appropriate (See pg 29).
10. DON’T RUSH IN WITH SOLUTIONS. Take time to listen to the story fully.
STAGE 2a: SUMMARIZING
1. Use words which are nonjudgmental, similar in vocabulary to the parties’ words, non-accusatory, and non-possessive.
2. Include key points, but not all the details.
3. Summarize stating the interests rather than the positions.
Key points to remember:
1. The purpose is two-fold:
a. to make sure you understand,
b. and primarily: to let the party know you listened.
2. It’s alright if the parties correct some of your statements. They still appreciated the effort. Remember, you are modeling the process for them and they need to know it’s OK to make mistakes.
STAGE 3: IDENTIFYING KEY ISSUES
1. State the issues in terms of common interests.
2. Use non-judgmental and non-ownership terms.
3. Highlight the key issues.
4. Emphasize points of agreement.
Key points to remember:
1. The goal at this point is to clarify the issues that will need further discussion and setting the agenda for the rest of your time together.
2. You can remain positive and optimistic for meaningful conversation and the possibility for a resolution of their conflict.
3. Emphasize the ways the parties do have interests in common without glossing over the remaining difficulties.
4. State key issues in ways that are clear, concise, and inclusive without taking sides or pre-judging the outcome. (“We need to talk about the parakeet” rather than “We need to talk about Susan’s demand for ownership of the parakeet’.)
5. “Identifying Key Issues” is intended as a pivot point to move the mediation to “where do we go from here”. (“We could probably stay here for hours without deciding who is right and who is wrong, if anyone is. What we want to do now is to think about where can go from here to improve the situation for both of you.”)
6. You may find that the move to this stage is premature for some participants who have not yet felt heard about their concerns.
7. It is usually effective for the mediator to suggest key issues based on what we’ve heard from the participants It is the participants themselves who need to agree that these are in fact the crucial issues and who may have input on what they are and how they are stated.
STAGE 4: GENERATING AND EVALUATING ALTERNATIVE SOLUTIONS
1. Restate the proposals and present them to the other party.
2. Obtain a verbal response from a party when the other makes a proposal.
3. Engage in reality testing for the solutions (do they both understand, is it livable, is it specific).
4. Brainstorm if the participants can’t come up with mutually satisfactory solutions.
Key points to remember:
1. If the parties can’t come up with a solution acceptable to both, the mediator can add a point of information (i.e. options for resolution, ideas which have worked for others).
2. If it is absolutely necessary to suggest options, make sure you suggest several so it doesn’t appear as if you are advocating any one solution. Make them general.
3. Remember to remain impartial.
4. Intervene to keep behavior productive – remind about ground rules, discourage blaming and defensive behaviors.
5. Ask questions to test legality and workability of solutions -both material and psychological workability.
6. Guide the discussion but don’t force a solution.
7. Maintain balances in power so each feels comfortable to suggest solutions.
8. Encourage each party to consider what they are willing to do resolve it.
9. View the dispute as a situation, not a problem with two sides.
10. If a party is uncomfortable with any points, find more solutions.
STAGE 5: REACHING FULL AGREEMENT
1. Write down the terms of the agreement.
2. Read the written contract to each party and get each one’s approval
3. Have both parties and both mediators sign the contract. Keep the original and give each party a copy.
Key points to remember:
1. Money and property exchanges are not to go through the mediator
2. Mediators shouldn’t be involved in any exchanges.
3. Be specific:
a. avoid ambiguous words, such as soon, reasonable, quiet
b. cover all details and specifications
NOT: a fence
YES: a 5’ high board fence along their mutual property line
4. Set times - state clearly all times and deadlines.
5. Be balanced - state the agreements as separate, not contingent on the other fulfilling their part.
6. Be positive.
a. State what the parties will do, not what they won’t do.
b. Avoid using judgmental terms which may be offensive to the parties, such as: acceptable manner, bad attitude, good behavior.
7. Provide for the future: encourage a decision on future communication strategies, including a return to mediation.
8. Dispose of legal charges - if charges were filed, specify what the parties would like to happen to those.
9. Be sensitive that some people may not be able to read or write.
10. Remember: write agreements that deal with behaviors, rather than attitudes.
STAGE 6: CONCLUDING
1. Make referrals, if necessary.
2. Explain follow-up procedures.
3. Thank parties for coming.
4. Affirm their efforts.
5. Ask them to fill out the exit surveys.
Key points to remember:
1. Encourage them to contact the AAMS often if further help is needed.
2. Present referral sources as information, not suggestions.
3. Leave the file at the AAMS office.
4. Debrief with your co-mediator.
5. Call the AAMS with any concerns or questions.
INTRODUCTORY PHASE OF MEDIATION
Hello. My name is Susan and this is George. We will be your mediators for this session. I’d like to thank you both for coming today. Our goal is to help you talk with and listen to each other, perhaps reaching some agreements that will allow you to move forward. In the next few minutes, we’d like to tell you a bit about what we’ll be doing this morning.
Do you mind if I call you Katherine? And Darnell, may I use your first name as well?
Let me tell you a bit more about the process and our roles here today. In mediation, it is the two of you who have the opportunity to try to work things out.
· As mediators, George and I will not be acting as judges or jurors and we will not be trying to decide who is in the right or who has done wrong. We will be assisting you in having the kind of conversation you may need to have, and helping you in searching for solutions.
· While we are meeting today, each of you will have a chance to speak while the other listens. Once the main parts of the story have come out, we will work together to summarize and clarify so that the most important issues can be identified for discussion.
· Then, with our help, you will be asked to explore the issues. If you find options that each of you can live with, we’ll work together to clarify agreements. These agreements can be in written form if you want them to be.
· The work we do here is confidential, except in the disclosure of things like child abuse or threats of bodily harm. The Uniform Mediation Act is the Ohio law that explains confidentiality and related issues. We may take notes, but these will be destroyed at the end of the mediation. The only records we keep are the copies of any agreements you sign here and your contact information.
There are two guidelines. One person speaks at a time. While that person is speaking, we ask the other to listen, even if you disagree with something that has been said. You will also get a turn to speak, and we will go back and forth as often as necessary. You may take notes if that will help you remember things you want to discuss further. Second guideline: At least at the beginning, please speak directly to us, rather than to each other, since we want to hear and understand what you have to tell us. Are those two guidelines acceptable to you Darnell? And to you Katherine? Thank you.
A couple of quick items - We may choose to meet separately with each of you at some point, so don’t be too surprised if we suggest that. Also, it is not unusual for mediations to require more than one session, so we will check in about the possibility of another session before we leave today. I understand we have until about 11 AM, is that correct?
George, is there anything you would like to add?
Who would like to begin? (Darnell volunteers) Is that OK with you, Katherine, if Darnell begins? You will have a full opportunity to speak as well.
So, Darnell, would you tell us a bit about the situation you want to mediate here?
Summation is woven into listening to the story (Stage 2) and in some ways it is not a separate stage of its own. It is usually useful and important to summarize after each party’s opening statement. It is not necessary to summarize after everything they say.
Order of events for Stages 2 and 2a:
1. Ask one participant to describe the situation from his/her point of view.
2. Listen - respond as needed to clarify, clean it up, re-frame, to draw them out to say more, and to communicate your attention and interest.
3. When the basic story has been told - when you as a mediator feel you have heard what happened and how they feel about it - move on to summarize back to them the main themes as you
4. Invite the second party to describe the situation from their point of view.
5. Listen and respond appropriately.
6. Summarize back to her/him.
7. Return to the first participant for more details or with specific questions to help you understand the problem behaviors and their interests.
8. Go back and forth as often as necessary.
Summaries should be concise, as accurate as possible, and be non-inflammatory. They should contain your understanding of the problem behaviors and their effects on the speaker. It should include a reflection of their feelings as well as the content. Opinions of the speaker should be identified as opinions rather than stated as facts. For example:
Mediator: So, Bill, you told us that Fritz has been your co-worker for the last two years and that you got along well enough at the beginning. You believe he is picking on you now because of your promotion. You find it very difficult to work with him at this point. Did I get that right?
Much of the communication from participants early in the mediation may be positional - designed to “score points” for their point of view. Their purposes may include commanding, threatening, manipulating, moralizing, preaching, pleading, advising, lecturing, judging, blaming, praising, buttering up, ridiculing, analyzing, diagnosing, consoling, distracting, or diverting.
To move a participant beyond these purposes toward an honest discussion, it is often useful to ask questions. Asking questions may show your genuine interest and curiosity, help them to feel listened to, give you needed information, and help them begin to think about the difficulties in a new way.
1. Narrow questions - “Did you say that?” or “Were you there?” are designed to elicit short, usually YES or NO answers, to clarify information. Be careful that the person does not feel they are being interrogated.
2. Who, What, When, Where, - also designed to elicit specific responses to collect additional information.
3. Broad - Open-ended Questions - These are the kinds of questions that may help move things toward mutual, cooperative problem solving.
“Fill me in about the kind of business you’d like to have.”
“Tell me more about your relationship before this incident.”
“How did you feel when that happened?”
“Could you help me understand why that has been difficult for you?”
“What’s it going to take for us to move past that?”
“What does friendship mean to you?”
“I’d like to know more about what is most important to you.”
“Is it fair to say that you feel betrayed?”
“Why does that matter so much to you?”
Your tone of voice is key. Interested and concerned will work better than accusatory or skeptical. We do not want to back them into a corner, push them into feeling defensive, imply that we do not believe them, or come off as if we know what they should do.
COMMUNICATION SKILLS FOR MEDIATORS
Conflicts often occur because the parties fail to communicate “accurate” messages about how they are feeling and what they need. Mediators must be able to use effective communication skills in order to improve information exchange, decrease anger and misunderstanding, and improve relationships among the involved parties.
VERBAL/NONVERBAL FEEDBACK TECHNIQUES:
ACKNOWLEDGE/ENCOURAGE - convey interest and encourage the speaker to keep talking. Acknowledgment shows interest, not necessarily agreement.
- establish / maintain eye contact
- physically orient yourself to the speaker by turning in his/her direction, leaning forward
- establish / maintain a tone of voice which is nonjudgmental in nature
- acknowledge with nodding, facial expressions, or “Mmm-hmmm;” “Uh-huh”
- “Can you tell me more?”
- “Please help me to understand . . .”
QUESTIONING/CLARIFYING - to obtain more information and to check meaning/interpretation.
Open-Ended Questions: intend to obtain additional information, expansion, and clarification. Open questions typically begin with “where,” “what,” “when,” or “how.” The open-ended questions to be especially thoughtful with are “why” questions. These questions may inadvertently sound like you don’t believe the speaker or want them to “prove it.” They may turn the mediation into an interrogation. “Why” questions may also be useful. We need to be careful with our tone of voice to express interest (“Oh, why is that?”), rather than judgment.
Closed Questions: tend to elicit a yes/no response; can provide additional information or clarification. “Is this a proposal you can live with?”
Leading Questions: seek a specific response.
“Can you think of a way that you can satisfy your roommate’s need for privacy while also meeting your own needs for an open living environment?”
STATEMENTS DISGUISED AS QUESTIONS are to be avoided.
“Don’t you think you made mistakes, too?” If you want to make a statement or observation, do it directly.
CLEANING IT UP - repeat what someone has said while cleaning up inflammatory language. Use judiciously without losing the strong feelings that have been expressed.
REPEATING – say again what someone has said, using their own words.
PARAPHRASING - restate the basic ideas/meaning in your own words.
REFLECTING - respond to the emotional aspects of someone’s statement.
1. identify the feelings being expressed
2. paraphrase the message in a way that accurately communicates the feelings being expressed without further inflaming the situation
RE-FRAMING - redefine the issues and perceptions of a disputant in order to facilitate moving the negotiations forward and avoiding impasse
“It sounds as though you are both concerned with respect.”
“The issues surrounding responsibilities within the suite and how they get done without arguing seems to be something that is of concern to both of you.”
SUMMARIZING - condense the basic facts and feelings of a statement into just a few, very precise words.
“Let me review the main concerns you have expressed..."
“These seem to be the key ideas that I’ve heard..."
VALIDATING - responses which show appreciation for the speaker’s efforts and actions.
Nonverbal:Facial expressions/gestures which indicate concern or understanding – showing that you like them and are listening thoughtfully.
Verbal:“You are to be congratulated for work you have done here today. I know that it isn’t easy to open up in this manner and talk about these issues.”
DEEPENING – response which encourages speaker to say more and reflect in depth on issues and their implications.
UNDERSTANDING POSITIONS AND INTERESTS
In most conflict, participants have opposing positions.
‘You owe me $50.’
‘No I don’t!’’
‘Yes you do!’’
‘No I don’t!’’
‘Yes you do!’’
- Positions are what we demand. Interests are the underlying experiences, values, and concerns that lead us to take specific positions.
- Positions are things that we decide. Interests are the why behind our decisions.
- Interests start discussion between participants. Positions end it.
- Positions require justification. Interests require thoughtful explanation.
- Positions are impersonal. Interests are personal.
- Restating positions is easy. Thinking about real needs and interests is harder, requiring reflection, honesty, and self discovery.
The goal is to encourage people to begin expressing their own needs and hopes. As they do so it is more likely that they will begin to see each other. They are more likely to notice ideas and experiences they share. A discussion about what can we do so that both parties can have their real interests met is more interesting and productive than arguing over positions.
IDENTIFYING PROBLEM BEHAVIORS AND THEIR EFFECTS
When we are helping young people in schools resolve their conflicts, the “classic” question we ask is, “Susie, can you tell Jimmy what he’s been doing that you don’t like?” We ask this question so that the behavior of Jimmy’s that is a problem for Susie can be identified and communicated. (Later in the mediation, we will ask the same question of Jimmy about Susie’s behavior.)
Though we may or may not use this kind of question directly, our goal in mediation sessions is similar. It is crucial to the success of the mediation that the problem behaviors - what Bob and Lorenzo want each other to do differently - are out on the table. The tricky part is often to have these expressed clearly as behaviors rather than as labels or personal attacks.
- Once the problem behavior has been expressed we can follow up to see that the person we are listening to gets to express the effect of the behavior on them - both concrete effects and emotional effects. We do this partly because:
- The person talking will benefit from being listened to about this and because it will help them to see the others behavior more clearly.
- The person listening may be able to hear for the first time specifically what they are doing that is seen as a problem and how it has affected the other party.
- The mediators will get a lot of information that will help to uncover common interests that may lead to resolution later.
- Participant: He is completely undependable.
- Mediator: What do you mean by that?
- Participant: I mean he is irresponsible.
- Mediator: What does he do that leads you to feel that way?
- Participant: He doesn’t turn in reports on time and he doesn’t tell me when they are going to be late or when I can expect them to be done.
- Mediator: How does that affect you?
- Participant: It ticks me off - I hate being late with things!
- Mediator: It sounds like you have a strong interest in seeing things get finished on time.
- Participant: That’s for sure - I think everybody should want it that way.
- Mediator: How does this problem you’ve had with him affect the way you interact with him?
- Participant: Well, I sure don’t give him any really important jobs to do - things that will really mess me up if they’re not done well. I can’t trust him with those kinds of projects.
- Mediator: It sounds like you’d like to have a working relationship where you feel you can trust him with important projects. Is that true?
When you are looking to identify problem behaviors, you are trying to find out what the other party in the conflict does. Participants will often tell you how the other party is, from their point of view. These descriptions (“she’s self-centered,” “he is vindictive,” “she is irresponsible,” “he is a liar”) are the speaker’s labels for the other - the conclusions they have reached about the other’s personality and motives.
These are often based in part on the behavior of the other and in part on the past (often painful) experiences of the speaker. Those who’ve had several experiences where they have felt “ripped off” in past business transactions are much more likely to label the other in a current dispute as “greedy and unfair.” Questions may help you distinguish the current problem behavior from the labels that have been placed on it:
- What did she do?
- How did what she did affect you?
- How did you feel about that?
- Have you been in similar situations in the past?
It may be useful to notice that conflicting rules may have their roots in cultural differences between the parties. In some cultures, the rule is that you are expected to break off conversations because you must be on time for appointments. In other cultures, it would be seen as unspeakably rude to do so. Some cultures expect independence and individual action; others value collaboration and group decision making.
When we can move past the rules and labels to talk about what is being done by one party and how it affects the other concretely and emotionally, we may have something we can work with. Our task as mediator is not to decide who is right or whether the feelings are justified. Our task is to help both parties clearly express the problem behaviors they see so that they can work toward an agreement to behave differently.
THE INVISIBLE THIRD STORY
Every difficult conversation includes what is called a “Third Story.” This Third Story may be invisible because it often requires an impartial observer to tell it. This person takes no position in the particular problem, but understands the concerns that both sides of the argument may have. For example, when a problem arises between a married couple, the marriage counselor acts as a neutral observer. Mediators, of course, usually play this role.
The Third Story is used to describe the difference between the two opposing stories. It would remove the judgment from the description, and instead describe the problem as a difference between the two parties. Both parties should agree with the dissimilarity between their stories. In the Third Story, there is no judgment about right or wrong, or about which view is more common. Its aim is to only capture the difference. When both sides agree on the same description of the problem, then they feel that their story is recognized as a legitimate part of the discussion. After the difference is identified, it can then be addressed.
Jason’s Story: Jason’s roommate, Jill, leaves dishes in the sink for days on end. This drives Jason crazy, and means that he ends up doing much of the cleaning up, since he can’t stand to let them sit. In the past, Jason has raised the issue with Jill by saying, “Do I have to do everything around here? You can’t let dishes sit this long - it’s a health risk.”
Jason is speaking from his side of the story. Jill may not be thrilled with this start to a conversation and will likely respond by defending herself or attacking Jason.
Jill’s Story: Jill would begin the conversation differently. “Jason, we need to talk about the fact that you are so annoyingly anal about the dishes. Last night you practically cleared the table before I was finished eating. You need to relax.”
This start to the conversation would suit Jill but not Jason.
Third Story: Instead, Jason might say, “Jill, you and I seem to have different preferences about when the dishes get done or how they should be done. I wonder if that is something we should talk about?” Jason can offer that without sacrificing his own views and Jill can sign on without defensiveness.
QUESTIONS YOU WERE AFRAID TO ASK ABOUT CAUCUSES???
What is a caucus?
Caucusing is meeting separately with the parties involved in a dispute. A caucus is a tool that can be used in mediation to effectuate many different results. A confidential discussion can take place between those involved in the caucus that may allow more open discussion, more freedom to express feelings, and more direct approaches from the mediators.
Why do mediators caucus?
There are many different reasons why a mediator might choose to caucus, including:
- To confirm or deny a mediator’s suspicion that there is some dynamic present (i.e., substance abuse, abuse, lack of power, etc.) that would interfere with one person’s ability to negotiate fairly
- When one party or the other is clearly not representing their own self interest (i.e., “Selling the Farm”), giving in to demands because they feel intimidated.
- When the level of hostility interferes with the process and prevents effective communication
- When a party or parties cannot adhere to the guidelines of the mediation after the mediator has reminded them
- When by one or both of the parties seem unable to let go of the past to focus on forward progress
- When the mediator believes there is something important that is not being shared
- To give a party a “reality check”
- To allow the participants to express their feelings more openly
- To create safety
- To allow the mediator to be more confrontational without appearing to take sides
- To allow the participant to think through options – especially when there are two or more participants on one side of the table
HINT: You can begin a caucus by saying, “So how is this thing going for you?”
The mediator can allow time for each party to let off some steam and express their feelings more openly.
If the party is maintaining an obviously unreasonable position the mediator can challenge them to try to meet their needs in a more workable way.
The mediator can practice “Shuttle Diplomacy” by passing proposals from one party to another
The mediator does not have to be as careful in a caucus. The Informality of a caucus allows for defensive or positional parties to become more relaxed and perhaps more willing to express their underlying concerns and issues.
Confidentiality remains important. Things disclosed by one party should not be shared with the other party without permission. Often parties can be encouraged to share with each other when the mediation returns to the joint session.
Be sure to caucus with both parties.
Is a caucus always necessary?
Some Mediators will tell you that you should NEVER do a mediation WITH a caucus and others will say that you should NEVER do a mediation WITHOUT a caucus.
Those that feel that you should have a caucus do so to encourage reflection and sharing that may not happen during the mediation with the other present.
Those who feel that you should not have caucus do so because they feel that the mediator should encourage all discussion to be “on the table.”
Retreating to caucus simply because things have become emotional or difficult may be a mistake. Avoiding caucus altogether may be missing an important opportunity for each participant to be heard.
You get to experiment to see what will work well for you.
Mediation is often more art than science.
In some sessions one party may have more power than the other. This power can come from various sources. Some of these to watch for are:
1. Formal authority (power in the position)
2. Power to reward and punish
3. Personal power (charisma)
4. Expert information
5. Financial power
6. Physical appearance
7. Race and class
10. Verbal ability
12. Secrecy (withholding information)
13. Emotional manipulation
In a situation of imbalances of power the stronger party may try to wear down the other and the weaker may give up, thinking it’s no use. Two ways of bridging this difference in power are:
1. Insure that each person has equal time to speak, and
2. Assist the weaker party in expressing their thoughts by slowing down the session and using active listening.
1. Ask for a trial suggestion.
2. Urge disputants to talk through the consequences of proposed solutions and their demands.
3. Move to another issue where agreement is more likely. Once discussion begins flowing, the earlier roadblock may shrink.
4. Ask each side to explain why they want the situation to change.
5. Ask each person what changes s/he would like.
6. Restate the problem clearly so that everyone is discussing the same issues. Break it down if helpful.
7. Point out that all parties have obviously reached the end of their patience with things as they are, or they would not have come to mediation. Where can they go from here?
8. Have everyone brainstorm and not reject any solutions right off.
9. Move away from position-oriented discussion. Talk about interests.
10. Move the focus from a close-up of the problem to a broader view. Help the parties share who they are and what they value.
11. Ask: What is your ideal neighborhood, workplace, relationship,
12. Review their BATNA (Best Alternative to a Negotiated Agreement), the WATNA (Worst Alternative to a Negotiated Agreement), and the MLATNA (Most Likely Alternative to a Negotiated Agreement).
13. Take a break.
14. Move into caucus.
15. Remind them that parties often reach a point of frustration during the mediation process, but it is still very possible to be successful.
EXPLOSION: CUTTING IT OFF AT THE PASS
When anger begins to become destructive:
Note: With any of these approaches, always be polite and if at all possible, take the blame on yourself. Also, make sure that you are validating their feelings. There is a difference between strong, honest emotion and destructive verbal attacks.
- Remind the Parties of the “Talking One at a Time Rule” and ask them to re-agree to it.
- Have the Parties Direct Hostile Communications towards you if they need to vent and you feel their venting is productive.
- Remind Parties of their Cooperative Goals.
- Draw attention to the big question: “Where do we go from here?”
- Refocus with a summary of where things stand in the discussion, including any progress or areas of agreement.
- Recognize the issue that underlies the difficulty for each of them.
- Meet with the parties separately (Call a Caucus).
- Take a Short Recess.
- If all else fails, Shut Down the Mediation (Only do this if you have WARNED the parties first!)
SOME SIMPLE IDEAS ABOUT HUMAN BEINGS, FEELINGS, AND COMMUNICATION
Every person is inherently good. We are brilliant, confident, resourceful, loving, cooperative, and fun to be with by nature.
Every person has needs. We need nourishment and shelter. We need to love and be loved. We need intimacy, attention, and meaningful work. We need to be listened to and treated with respect.
Every person gets hurt. We get hurt emotionally and physically. We get hurt when our needs are not met. We get hurt by being treated badly. We get hurt by being ignored, criticized, yelled at, hit, and abused. We get hurt by racism, sexism, and other oppressive attitudes in the society. We get hurt by observing others being hurt.
When we are feeling hurt our intelligence does not operate freely, we “just can’t think straight.” It becomes more difficult to act cooperatively and lovingly with others. It is harder to work together and to communicate thoughtfully and clearly.
These simple ideas have profound implications for all of us who work with people on a regular basis. The echoes of our past hurts and old struggles are sometimes deafening. In any given interaction, one or more parties may be caught up in feelings and attitudes that have more to do with the past than with the present.
Communication with clients, employees, supervisors, and co-workers can often become confused. Our challenge is to try to be completely present, and to help others do the same. This usually means we get to develop our ability to listen effectively, and to find people who can listen to us.
Have your feelings - or they will have you!
A mother hears a crash in the living room and runs in to find her four-year-old son, baseball bat in hand, standing next to a shattered vase. “What happened?” she asks. Contrite, looking away, the boy answers, “Nothing.”
When it comes to acknowledging difficult emotions, we often adopt the strategy of the young batter. If we deny that the emotions are there, then maybe we can avoid the consequences of feeling them, but we have about as much chance of hiding our emotions as the boy has of convincing his mother that all is well with the vase. Feelings are too powerful to remain peacefully bottled. They will be heard one way or another, whether in leaks or bursts. And if handled indirectly or without honesty, they contaminate communication.
Feelings are, of course, part of what makes good relationships so rich and satisfying. Feelings like passion and pride, silliness and warmth, disappointment, and even jealousy and anger, let us know that we are fully alive.
At the same time, managing feelings can be enormously challenging: our failure to acknowledge and discuss feelings derails a startling number of difficult conversations, and the inability to deal openly and well with feelings can undermine the quality and health of our relationships.
HUMAN BEINGS & THE NATURE OF ISMS . . . A FEW ASSUMPTIONS
Human beings of every description are inherently good. Our goodness is not affected or limited by race, gender, class, country of origin, religion, sexual orientation, disability, age, occupation, education, ethnicity, or individual beliefs. It is our nature to be very smart, loving, cooperative, enthusiastic about living, and in charge of our lives.
Every person alive today has been hurt. The accumulated scars of these hurts make it difficult to remember and act on our goodness and our intelligence.
People everywhere have been hurt and mistreated because they belong to, or are thought to belong to, a particular group or identity.
We live in the midst of tremendous confusion about what it means to be black, white, Hispanic, Asian, Native, female or male, Jewish, Protestant, Catholic, rich, poor, middle class, etc. Our society is saturated with hurtful stereotypes about people with particular backgrounds or identities.
All of us have absorbed at least some of this confusion and stereotyping. We even internalize oppressive ideas about our own groups and identity, leading to confusion about our own value, status, ability, and self-esteem.
Our own mistreatment and confusion form the backdrop for the ways in which we may be confused about and mistreat others.
Dramatic change in individual, group, and societal attitudes and behavior is possible. The process of change can be emotional and difficult, at times, requiring clear thinking and persistence.
Personally, we can assist that change by:
Listening with interest and respect as others share their stories, their experiences around prejudice and discrimination, in depth.
Telling our own stories.
Building close relationships with those who seem different, across all apparent boundaries (e.g. race, age, disability, class, etc.)
Standing up for what we know is right for ourselves and our allies.
Playing a role in fostering organizational changes in policy and practice.
Shame, guilt, and blame are not appropriate, and are certainly not helpful.
The key role of prejudice, discrimination, and mistreatment in the difficulties faced by us as individuals and as societies, is often not understood. Almost all of the struggles we face are rooted in individual oppressive attitudes and institutional oppressive practices. This systematic devaluing of people because of their identity within a particular group affects us deeply. Prejudice is often hidden and unaware, yet is a key element in many conflicts.
Individuals face prejudice and discrimination because of social class, race, religion, ethnicity, appearance, disability, age, sexual preference, occupation, country of origin, political affiliation, gender, language, and more. All oppression is important. Oppression breeds conflict.
Mistreatment based on gender affects everyone. All of us have been thoroughly subjected to confused and confusing notions about what it means to be female, and what it means to be male. Trying to meet the expectations placed on our “performance” as men and women occupies a great deal of our attention. Feeling bad about failing to measure up to impossible, idealized standards of appearance or accomplishment distorts our efforts toward more interesting concerns. Our personal hopes and dreams are often long forgotten as we try to fit into society’s definition of being female or being male.
Participants in mediation may have values regarding gender and gender roles that are not shared by the other party nor by the mediators. Our job is not to make judgments about these values, but to bring them into the open where they can be seen and addressed.
HEALING THE WOUNDS OF RACISM
As we develop effective strategies to overcome racism, we need to understand that it is both institutional and attitudinal in nature. Attempts to create institutional change must be accompanied by efforts to change racist attitudes and beliefs. The ideas that follow offer some practical assumptions and guidelines for the work of undoing racist attitudes.
The systematic mistreatment of people because of their race divides and isolates us from each other. This process is painful and damaging to people of all races.
Human beings of every description are inherently good. Our goodness is not limited or affected by our race. No one has ever been born with racially prejudiced attitudes and beliefs.
It is not possible to grow up in present societies without acquiring some confusion about race. We are all innocent of the creation of racism. We all have the opportunity to do something about it.
Young people do not develop racist ideas or beliefs through their own free choice. Racist thoughts and feelings can only be created through misinformation, ignorance, and separation imposed through a painful process of social conditioning.
People hurt others only because they themselves have been hurt. Overcoming racism involves understanding and breaking the cycle of mistreatment.
White people have the opportunity to engage in a healing process, in order to recover from the effects of living in a racist world. We can reclaim our right to close, powerful relationships with all people. We can develop our power as allies who can move effectively to end the injustice around us.
People of color have the opportunity to recover from the injuries inflicted by the racism we have experienced. We can free ourselves from any “internalized racism” we may carry. (Internalized racism is an unaware acceptance of the pervasive message of racial inferiority that has been directed at us. It can diminish our sense of our own value, and make relationships with other people of color more difficult.)
The situation is far from hopeless. As we move beyond feelings of discouragement and powerlessness, we can develop relationships, respond to racist comments and behaviors, change institutional policies and actions, and work together to build a truly human society.
There is only one race . . . the human race. As we share our stories with each other, we can notice, and celebrate, our common humanity.
Community mediation services often use a co-mediator model. This means two mediators work closely together in each mediation session. There are a number of reasons for using co-mediation. It allows inexperienced mediators to get some “on-the-job-training.” It allows the mediation to continue to move ahead when the lead mediator gets stuck. It often provides an option for a different style within the mediation when one or both parties are not responding in a useful way. It allows us to model good communication between two individuals for the benefit of the disputing parties. It provides a “teammate” who can provide feedback and support during and at the conclusion of the session.
Athens Area Mediation Service uses a model with a designated “lead mediator.” It is the responsibility of the lead mediator to see that things go well. The second mediator also is expected to play an active role. Ideally, both mediators are thinking well, listening, asking questions, summarizing, and being thoughtful of each other as well as of the process itself. When co-mediation is working well, the mediating parties will often be unaware of who is the lead mediator. We do recognize, however, that varying levels of experience, skill, and ease with a particular issue may affect the nature of the working relationship for each pair of mediators.
When one mediator is being more active, the other can play a very useful role by attending to some of the following needs:
1. Observe the reactions of both parties to the comments of each other and to those of the mediators.
2. Supplement the other mediator’s statements if anything is omitted and add clarification if the other mediator has misunderstood.
3. Take notes on issues that may need to be pursued later on.
4. Begin to write the first draft of the agreement at the appropriate time.
Remember that it is fine to make mistakes; we all do. Our goal is not to be perfect. Our goal is to become better and better as mediators and to develop good working relationships with each other. Appreciation of each other and honest communication will go a long way to help us work as a team, and model the kind of thoughtful, caring, respectful relationships we are trying to help others develop.
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