Mediation Writing

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 MEDIATION WRITING

1. Read the hand out on mediation.

2. Have you ever been involved in a (formal or informal) mediation process?

Describe it.
What role did yoc play -- one of the parties? observer? mediator?
Was the mediator skilled? What effective things did the mediator
do (you can answer this even if you were the mediator.)?
What was the resclution?

3. Do you often fine yourself in any one or more of the following roles:
-mediator of a conflict
-party to a conflict
-observer of a conflict
-avoider of a conflict
-resolver of a conflict

Are you coafortable with this/these roles? In what ways would you
like to exfand your repertoire, develop new skills, in dealing
with conflict?

4. Think about timeE when you have felt bad about your role in a conflict and/or
about the conflict itself. Then think of any times when you have been involved
in a conflict and have felt good about yourself, and/or the outcome, and/or
the other(s) invclved. What were the differences? What generalizations
can you make aboct when conflict can be productive and constructive vs. when
it is destructive and not productive?
5. Is there anything in the mediation handout which is particularly interesting?
Anything you find clarifying? Anything you don't understand? Anything
you would like tc try out?

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 MEDIATION GUIDELINES

1. Definition: Mediation is an inforrnal dispute resolution

process in w·hich a mediator works to facilitate an
agreement of a conflict which is satisfactory to all parties.

Mediation is a process which involves specific techniques

and methods (which can be taught) and specific qualities
such as empathy. the ability to listen and hear clearly a I

sense of timing, an ability to think in the midst of strong

feelings, intuition ( which cannot fully or easily be
taught). As mediator, you are deliberately putting
yourself into a dispute with the goal of helping the
disputants to reach a solution-- it is their dispute, not
yours.

The purpose of mediation is not to judge guilt or

innocence but to help disputants get to the root of their
own problems and to help them devise their own
solutions. The question of right and wrong is secondary.
and often a blind alley in terms of solving the dispute.
Mediation concerns itself with future behavior -- what
resolution can be worked out that avoids the problem
once both parties leave mediation?

2. Some Useful Guidelines of Human Behavior:

•People will rarely make a decision if there is a way to
avoid it.
*People usually act out of self-interest.
•When two people have a dispute, it can·t be resolved
until both parties decide to resolve it.
•when to people have a dispute. they can ·t resolve it
until some of the mistrust has been eliminated.
�eople tend to carry out decisions they helped
-formuiate.
*People do not like to be told what to do.
-People are more important than disputes. If they can
a�ree to live neacefullv with P.�rh nthP-r wHhn11t
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'
resolving who did what to whom, then those precipitating
incidents become unimportant.
•01sputes are not resolved by dwelling on the negative.
They are resolved by discovering preliminary areas of
agreement. accentuating the positive. and expanding
small agreements into larger ones.
-The dispute belongs to the disputants.
�No agreement is entered into without some doubts or
reservations.

3. Steps of Mediation:
, A. Opening Statement by Mediator: make clear your
role as mediator -- that you are a neutral party there to
help the disputants; it is not your role to find a solution
for them, but to help them focus on the _problem, and to
determine whether they will not both be better served
by finding together some solution to the problem.
Introduce yourself if you aren't known to the parties.
Clarify that this is an informal discussion, that
confidentiality will be preserved by you, that the process
involves defining the issues. clarifying expectations.
exploring feelings, defining needs of each party, and
seeking alternatives to resolve the dispute. (Clarify any
particUlar ground rules-- who else may be present,
notes or recordings, smoking, breaks, time limits ., etc.)
B. Initial Statements of Parties:
Each party gets a chance to state from her point of view
what the issues are, what the dispute is about. This is a
time for both parties to air their grievances in the
presence of the other. One party should not be allowed
to interrupt the other during this portion of the
mediation. (Tell them that there will be ample
opportunity to add information ., tell their side of the
s�ory ., etc.) Mediator should note manner and mood of
··the parties, where the power seems to be ., are both
parties equally upset, are there_ veiled or actual threats .,
what is each party·s desired outcome. etc. Make mental
notes ., particularly of underlying emotions/issues.
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 C. Contracting: make sure the dispute is 'mediatable'
1. are there clear areas of disagreement which need
to be resolved? 2.have the parties have or have had
some type of on-going relationship to each other?
3.Would the parties like to resolve their dispute through
mediation? 4. are the parties willing to agree to
participate in good faith --to disclose all relevant
information? If the answer to all of these is yes .. then the
mediator should ask if each party is willing to make a
commitment to the mediation process. If the mediator
senses hesitancy or reluctance on the part of either
party, this should be addressed. The mediation process
· is a voluntary process and should proceed only when it is
clear that both parties are really willing to give it an
honest try.
D. Setting the Agenda: This is probably the single most
important function of the mediator. In this stage the
mediator helps parties to define the issues and determine
thE:ir priorities. This stage gives the parties a chance to
work toward a common goal-- the determination of the
issues that can be resolved and that they Tn'ish to resolve
through the mediation process. It is useful to write down
the agreed-upon agenda items.
E. Conflict. Communications .. and Negotiations:
1. Conflict: parties generally come to mediation after
a conflict, after communication has broken down, and
when the parties have a long list of complaints about
each other. They will appear to be locked into patterns of
behavior that keep them from working together toward
resolution. Parties need a chance during the mediation
process to act out the conflict in its extreme form. The
most successful mediators are those who have an
accepting attitude and who are not fearful of conflict, and
who enable a conflict to surface and be fully expressed.
Once the conflict has emerged ,. the mediator should try to
reflect back the parties' conflict to them, from a distant
yet empathic and non judgmental position. The mediator
shoUld attempt to enable the parties to express the
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 feelings and fear which underlie the conflict.
2. Communications: Mediation training is a particular
communtcauons skill training geared toward conflict
resolution. Mediators are not there to make judgments,
give opinions .. or advice; the mediator should strive to be
clear ., caring, empathic ., and impartial. The mediator will
need to sort out unclear messages ., bring out underlying
issues and feelings, and intervene to provide clarity and
structure. Some of the roles a mediator may assume
during a mediation are: *activity initiator; *information
seeker; • opinion seeker; • encourager; •gate keeper
. (helping each party to contribute);
*clarifier-elaborator; echo and mirror; *standard
setter; •summarizer; •reality tester; •consensus
tester.
With all of these tools the mediator is attempting to
ask questions which encourage people to talk ., to get
issues clarified, to keep the discussion on the point, to
prevent endless repetition of individual hurts or
demands, to leave room for people to be themselves and
still move the process along with clarity and efficiency.
The mediator is in charge of the process; the parties are
in charge of the dispute and of the resolution.
3. Negotiations: At this point it is particularly
important to work to equalize power --by helping the
weaker party to assert her needs .. by asking the parties
to reverse roles and ·role play· .. by talking privately to
each party. During this part of the process try to
a) separate content issues from process issues,
b) focus on interdependence of the parties
c) empower parties to invent multiple options.
After the parties have developed several options, they
can... begin to critique them and refine them until they
seem to 'fit' for each party. The mediator should help
'parties to test options in terms of mutual needs and their
sense of fairness. Each time consensus is reached on even
a small issue .. the mediator should emphasize this
agreement.
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. '

F. Caucus: At any point during the mediation process, the

mediator may decide to talk with one party alone. This
shol:,lld not be done as a way of avoiding conflict but as a
way of clarifying details, moving beyond an impasse,
building trust, reducing tension: to explore positions,
allow time for reflection, to explore hidden agendas, allow
the disputants to save face, to probe areas of flexibility,
etc. Before you can for a caucus it is important for you to
know what you want to accomplish.
G. Concluding the Mediation: There are several possible
outcomes: 1) it may be clear that no agreement is
possible; 2) some areas may be agreed upon and others
may be left unresolved: 3) all the issues on the agenda
may be resolved.
Whichever the outcome, it is important for the
mediator to state the outcome she sees and test for the
consensus of the parties. The mediator may at this point,
by stating that in her view no agreement seems likely,
move the parties to greater efforts to agree, so the
mediator should not state conclusions but ask for
feedback from the parties about where they are.
When parties have reached some agreement on one or
more areas ., it is important for the mediator to put the
agreements in writing, checking the wording with both
parties.
H. Closure: It is important after all agreements of the
parties have been recorded for the mediator to
acknowledge the efforts of both parties, to give positive
reinforcement to their work. This will enhance the
potential for success of the agreement they have arrived
at. Even if no agreement has been reached, it is
Important. to ackn-owtedge the efforts of the parties. In
this-situation the mediator can say that she will be
contacting both parties again in a week or two to discuss
the need for or possible value of another session. The
mediator should emphasize again at �he end of the
process the confidentiality of the session.

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