Topic 5, 6 , 7- Facilitation of Mediation.ppt

Hrm

1. PUB 321
Strategic Negotiation
&
Mediation
Topics 5, 6 & 7
Facilitation of Mediation,
Process and Principles of Mediation

2. Mediation Defined
What do you understand by ‘Mediation’?
•The intervention of acceptable third party in a negotiation.
•Has limited or no authoritative decision-making power.
•Assists negotiating parties voluntarilyin reaching a mutual
agreement.
What does Mediation do?
•Establishes relationships of trust.
•Enhances respect between parties.
•Terminates relationships in a manner that minimizes costs
and psychological harm (when parties achieve an
integrative solution in a dispute settlement through
mediation).

3. Mediation Defined…
What is the golden rule for a mediator in mediation?
•Acceptability by conflicting parties.
•Impartiality in order to gain acceptability.
What is mediation in the broad perspectives?
•Extension of the parties’ own efforts to manage conflict.
•Non-coercive, non-violent, and ultimately non-binding.
•Voluntary form of conflict management.
•Whereby:
•Conflict parties retain their control over the
outcome
•Conflict parties retain freedom to accept or reject
any aspects of the process or ultimate agreement.

4. Facilitative Mediation
What is meant by the concept of “Facilitative
Mediation”?
•The term that describes third party-assisted dialogue.
•It is less directive than mediation.
•It does not focus so much on decision-making.
•It aims to enhance the mutual understanding of perceptions,
interests and needs among the parties.
What is the position of “Facilitators” in facilitative
mediation?
•Their position is passive one. How?
•No mandate over the conflict parties.
•Not much involved in the substance of the negotiations.

5. Mediator Strategies
What are the basic mediator strategies?
–There are three basic mediator strategies:
•Communication Facilitation.
•Substantive Directive.
•Procedural.

6. Communication-Facilitation Strategy
Whatiscommunication-facilitationstrategy?
•Designedtoenhancecommunicationbetweenparties.
•Helpsthemediatorunderstandtheconflict.
•Usedthroughoutmediation,butiscommoninthefirst
stageofmediation.

7. Tactics in Communication-Facilitation Strategy
Whatarethecommontacticsinthisstrategy?
–Threecommontacticsinthisstrategyare:
•SearchforInformation
–Aboutthenatureoftheconflict.
–Abouttheoverallrelationshipbetweentheparties.
•Instruction
–Aboutthemediationprocess
–Constructiveconflictmanagementbehaviors
•SupportiveCommunication
–Todecreasedefensiveness
–Toassistpartiestoestablishtrustinthemediator.

8. Substantive-Directive Strategy
What is substantive-directive strategy?
–Designed to involve the mediator in discussing substantive issues in
the conflict/dispute.
What are common tactics in substantive-directive strategy?
–Reality Testing
•Designed to help parties realize options for actions and
consequences of actions.
•To invoke social norms.
•To detail costs of disagreement.
–Empowerment Tactic
•Designed to improve parties’ ability to get what they want or need.
•To assist parties recognize their goals.
•To assist parties review their power resources.
•To discuss possible consequences.

9. Procedural Strategy
What is the procedural strategy?
–The strategy constructs an efficient procedure for the flow
of communication.
–It consists of three tactics:
•Agenda-setting
–Proposing an order for the discussion of issues.
•Caucusing
–Conducting private meetings with each party.
•Explanation of process

10. Stages in Facilitation Mediation
Stage I
–Pre-Mediation & Opening the Session
Stage II
–Identification of Issues
Stage III
–Generating Options and Problem-Solving
Stage IV
–Agreement Writing and Post-Mediation

11. Stage I -Pre-Mediation & Opening the Session
“Setting the Tone”
The most important phase in mediation process.
–It provides the opportunity to make a good “first
impression.”
–How the mediator performs during this stage will impact
either positively or negatively on the other stages.

12. Stage II -Identification of Issues
Mediator assists parties:
•To identify issues in their disputes
•To express their views and perspectives
•To identify areas of agreement and disagreement on the issues
•To identify common ground
•To remind parties they will have time to present their perspectives
•To establish and commit to ground rules
•Mediation Ground Rules
•Whoever is speaking has floor, no interruptions.
•Take notes and bring point up later.
•Any party can stop the process for break at any time or can
request a caucus.
•Negotiate in good faith; our common goal is to resolve
dispute.
•Listen.
•Follow ground rules and direction of mediator.

13. Stage II -Identification of Issues…
What is the significance of Caucuses in facilitation mediation?
–Used by mediator to:
•Gain control of mediation.
•Allow party to share information.
•Ensure party understood what was said.
•Move beyond impasse.
•Provide an opportunity for each party to explore
strengths/weaknesses of case
•Find out more on party’s interests
•Reinforce confidentiality
•Encourage information sharing
•Set agenda for next joint session
•Identify information that can be shared in joint sessions

14. Stage II -Identification of Issues…
What is the significance of validation in facilitation mediation?
–Mediator acknowledges party’s views and feelings on the issue,
while remaining neutral.
•“I understand you feel hurt and upset about…”
•“I understand your feelings in this matter.”
•“I can empathize with your concerns about what happened.”
What kinds of questions are appropriate in facilitation
mediation?
–To facilitate discussion, the mediator asks open-ended questions.
•“Help me understand what you meant by…”
•“Can you be more specific?”
•“What do you mean by that?”
•“What is important to you?”
•“Why is that important to you?”

15. Stage II -Identification of Issues…
Paraphrasing is critical to the mediation process.
–Mediator re-states what was said in his/her own words
–Not verbatim, instead provide a shorthand summary which includes
all-points made
–Ensures everyone heard what party intended to convey
–Parties may correct mediator’s paraphrasing
–Builds trust
–Demonstrates that mediator was listening and understood what was
said
–Coming from neutral mediator, facilitates understanding by other
party
–Provides “breather” as parties go back and forth expressing views

16. Stage III -Generating Options & Problem-Solving
Generating Options
Clarify what are the parties’ bottom line.
Mediator may offer a solution not an answer, just an idea to think
about.
Techniques in generating options include:
–Brain Storming Technique
•The parties throw out ideas.
•After the ideas are on the table, the parties discuss.
•Hopefully this discussion of ideas will lead to an agreement.
–Reality Testing
•Mediator to assist the individual party in evaluating the feasibility
of their goals.
•Discuss strength and weakness of individual Party’s case.
–Feedback
•Validate what party expressed through use of verbal or non-
verbal response.

17. Stage IV
Agreement Writing and post-Mediation

18. Principles of Mediation Ethics
1.Conflict of interest.
2.Competence/professional role boundaries.
3.Impartiality.
4.Voluntariness
5.Confidentiality.
6.Do no harm.
7.Self-determination.
8.Informed consent.
9.Duties to third parties.
10.Honesty.

19. Principles of Mediation Ethics
Conflict of interest. Mediators must avoid serving in cases
where they have a direct personal, professional, or financial
interest in the outcome of the dispute.
Competence/professional role boundaries. Mediators have
a duty to know the limits of their ability; to avoid taking on
assignments they are not equipped to handle; and to
communicate candidly with the parties about their background
and experience.
Impartiality. Mediation requires engagement, and it is difficult
to engage the parties without developing some feelings about
them. The duty to remain impartial throughout the mediation –
from beginning to end --does not require us to withdraw from
the case if we become aware of such feelings, but instead to act
in such a way that those feelings (whatever they may be) are
kept to ourselves.

20. Principles of Mediation Ethics …
Voluntariness.Although some parties come to mediation because
they are required to do so (e.g., ordered by a judge, or compelled to
mediate under a dispute resolution clause in a contract), they must
have the right at a certain point to walk away from the table. In other
words, even in a mandatory mediation setting, the parties’ duty is to
participate in good faith and make an effort to negotiate a resolution.
Confidentiality.This is the basic mediation pillar and has two aspects
of the duty of confidentiality.
•First, mediators must safeguard the privacy and confidentiality of
the mediation process and those outside the mediation.
•Second, when a mediator meets separately with one of the parties,
he must maintain the confidentiality of anything said in that private
session which that party does not want the other party or parties to
know. In addition, mediators have a duty to inform the parties of
any relevant limits of confidentiality.

21. Principles of Mediation Ethics …
Do no harm. This familiar principle requires mediators to avoid
conducting the process in a manner that harms the participants or
worsens the dispute.
Self-determination.Party autonomy is one of the guiding principles of
mediation.
–Supporting and encouraging the parties in a mediation to make their
own decisions.
–Mediators should prevent one party from dominating the other
parties.
Informed consent. A voluntary, self-determined resolution of a dispute
will serve the parties’ interests only if it is an informed choice.
Duties to third parties. Just as the mediator should do no harm to the
parties, he should also consider whether a proposed settlement might
harm others who are not participating in the mediation.

22. Principles of Mediation Ethics …
Honesty. For mediators, the duty of honesty means, among other
things:
•Full and fair disclosure of:
a)Their qualifications and prior experience,
b)Any fees that the parties will be charged for the mediation, and
c)Any other aspect of the mediation which may affect their
willingness to participate in the process.
Honesty also means telling the truth when meeting separately with the
parties.
•For example, if Party A confidentially discloses his “bottom line,” and
Party B asks the mediator if he knows the opponent’s bottom line,
saying “no” would be dishonest. (Instead, the mediator might say that
he has discussed a number of things with the Party A on a confidential
basis and therefore is not at liberty to respond to the question, just as
he would be precluded from disclosing certain things he learned from
Party B).

23. Principles of Mediation Ethics …
When mediating separately and confidentially with the parties in a
series of private sessions:
•The mediator is in a unique and privileged position:
•He must not abuse the trust the parties place in him
even if he believes that bending the truth will further
the cause of settlement.

24. PUB 321 FOR BHRM III TEST II
1.The mediation process is
informal, which means that it
is not governed by the rules
of evidence and formal rules
of procedure it is not a
extemporaneous or casual
process. The mediation
process itself is structured
and formalized, with clearly
identifiable stages. Discuss
stages in facilitation mediation
(15 Marks)
2. Mediation provides an
efficient, effective, speedy,
convenient and less expensive
process to resolve a dispute
with dignity, mutual respect
and civility. Discus the
principles of mediation ethics
(15 Marks)
3. The mediator employs certain
specialized communication skills and
negotiation techniques to facilitate a
productive interaction between the
parties so that they are able to
overcome negotiation impasses and
find mutually acceptable solutions.
Discus mediation strategies (15
Marks)