A guide in the Conduct of Mediation

As a Conceptual Framework
It is a meeting facilitated by a trained mediator where the following people the victim and offender who have been affected by a particular crime or offense meet to discuss how that incident affected them and how the harm done can be made right. Mediation is conducted using the principle of Restorative Justice.

4 Sequential Objectives Acknowledgement of the wrong (facts discussed) Sharing and understanding of the harmful effects (feelings expressed) Agreement on terms of reparation (reparation agreed) Reaching an understanding about future behavior and plan of action (reform implemented)

Mediation
dread diversity is to dread life. Conflict is a precious resource for human learning's, development, and evolutionary adoption. Conflict is not a wasteful outbreak of incompatibilities, but a normal process by which social valuable differences reveal themselves to enrich all. Conflict is a set of lesson waiting to be learned, an unparallel opportunity to wake up to the need for a shift towards self-managing, democratic alternatives. This change results in participation, collaboration, awareness, authenticity, congruence, commitment and responsibility. The Conflict Resolution Group Foundation, Inc.
To

What come to our mind when we say conflict?

A fact of life. It is hardly possible to grow up in family, dwell in a community, attend school, work for a living, establish an intimate relationship, raise children, and actively participate in every kind of endeavor without in one way or the other experience /get involved in a conflict. Core Conflict is therefore : A struggle between opposing principles and aims. A clash of feelings or interest. NLWE Dictionary Conflict is a basic dynamic of human interaction in which people struggle to balance concern for oneself with connection to others. When this balance is upset, human interaction becomes alienated and destructive, resulting in a crisis in human interaction. Core

Conflict
Conflict is a fact of life. It is hardly

possible to grow up in a family, live in a community, attend school, work, have an intimate relationship, raise children or actively participate in a world without experiencing conflict.

Comfort Zone
Behavior (Skills)

Attitude

Programs

Values (Who am I?)

CONFLICT ZONE
Behavior (Skills) Attitude (Mind Set) Behavior (Skills) Attitude (Mind Set)

Programs

Programs

Values (Who am I?)

Values (Who am I?)

The Nature of Conflict

When we are in conflict we say things we dont mean and

mean things we dont say. Conflicts have the capacity to confuse and hypnotize us, making us believe there is no way out than battle. Conflict possesses a dark, hypnotic, destructive power. It alternately strokes and crushes our egos. It speaks to a deep and ancient part of our soul that thirsts for power and revenge. When we are in conflict, our emotions becomes enormously powerful and overwhelming. We become aggressive, judgmental, and hysterical or else, passive, apathetic and defensive.

Basic Conflict Issues

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

prestige, power, food etc.); Preferences and nuisances (arising from activities, style, tastes, preferences, sensitivities); Value system and cultural background ( a way of determining what is good or bad); Data (struggle over info, knowledge, facts or lack of it) Relationships (personal condition versus social realities and situations); Institutions/structures (setups or systems or external factors that affect the conflict);

Being so pained we do not know how to:

Temper our anger with compassion;

Listen to others pain;

Discover what caused the other person to

act as he did; Take responsibility for our own contribution to the conflict. As a result we feel confused and trapped

Responses to Conflict

Ways to Fight - Violently - Non-violently

AID Syndrome - Avoid - Ignore - Deny

Flight
Avoid- Procrastinate, postpone, appoint a

committee, pass the buck, rationalize etc. Ignore- Keep doing what you are doing, etc. Deny act as if nothing happen, etc.

Fight
Violently war, vote (win/lose), violence,

threaten, arbitrate, litigate, picket, strike, demonstration, whitepaper, civil disobedience, etc. Non-violently- Negotiate, compromise, consensus, mediate, conciliate, arbitrate, etc.

Conflict Resolution Spectrum

Mediation Arbitration
Negotiation Litigation

Negotiation
Decision
Party A Party B

Parties control the process Parties engage in verbal interaction completely in their own terms Decision is made by the parties Outcome is whatever the parties agreed to

 A friendly intervention in a disputes of others, with their consent, for the purpose of adjusting differences (Webster). A process where a trained neutral third party facilitates the negotiation between parties and using learned techniques, helps them reach a voluntary, mutually satisfying agreement (Core). - A restorative process that provides an interested victim the opportunity to meet his offender in a safe and structured setting engaging in the discussion of the crime with the assistance of a trained and neutral third party called mediator (Memo Order No. 12).

Mediation

Mediation versus Conciliation

Mediator facilitates rather than decide or

proposed decision, while Conciliators participation is more active who can provide suggestion and guidance to the disputants to achieve the end goal of Restorative Justice.

Mediation is a form of Dispute Resolution that:

Achieve swift resolution of conflict; Acknowledges/respects expression of emotions; Makes justice accessible to everyone; Provides parties to decide to achieve a mutually acceptable outcome; Focus on the future;

Third party facilitates rather than decides;

Encourages parties to be honest, not manipulative; Supports collaboration, rather than coercion; Moves towards healing and reconciliation;

Invites everyone to consider all their positions and perspectives

Why does Mediation Work?

It is rooted in all cultures and religions;

It is based on traditional principles of

compassion, sincerity, wisdom, unity, healing and reconciliation. It is an outcome of democratization; An effective alternative tool in dispute resolution; It guarantees a swift, inexpensive, restorative and harmonizing result.

When is Mediation useful? When parties:

Want to resolve conflict or change in situation;

Value confidentiality;
Be directly involved in the process; Verbalize cause/s of their distress/discomfort;

Have issues that are complicated by strong emotions; need

to continue or maintain relationship; Feel uncomfortable confronting others; Are able to live up to their promises.

Is truth Necessary to be achieved?

Social/cultural truth?

Forensic/legal truth?
Limited truth?

Bigger and beneficial truth?

Mediation
(Forward Looking)

Mediator Disputant Decision

Mediator agreed to by the parties Informal process controlled by the mediator Mediator is independent and impartial facilitator Parties fully participate in deciding issues, creating, evaluating and agreeing option Focus is on the present and future and solving problem Outcome aims for mutually accepted win-win.

Disputant

ARBITRATION

o Arbitrator appointed by the parties o Formal process regulated by arbitration procedures o Parties input ideas and background o Adversaries proceedings o Focus is on right and past events o Decision which is based on evidence and technical assessment is imposed on the parties by the Arbitrator.

LITIGATION

o Judge appointed by the state o Formal process regulated by the Rules of Evidence and court procedure, controlled by the Judge o Role of lawyer is to act as advocate and discredit opposition o Adversarial process, where lawyers act in parties behalf o Focus is on right and past events o decision is imposed on the parties by the Judge.

Negotiation
Impasse Move on to the other issue

(temporary Stalemate). Stalemate Stock in one issue. Deadlock No way can two parties meet eye to eye (need third party to move on). Trade off Give little, ask more. Higher Authority Gambit- referral to higher authority to delay(Tactic).

Negotiation
Distributive- Aims is to get the best deal for

oneself, thus parties aim to conquer; Integrative- Parties harmonize their interest, which they bargain, not position. Needs of all parties must be addressed to reach agreement.

What can be negotiated?

Behavior- People treatment to each other,

sharing space, respecting boundaries, etc. Things and Money; Structures and Systems-how are decisions made, rules and procedures, schedule, job responsibilities, etc. Others

What cannot be Negotiated?

Beliefs, attitudes, what happened, values,

perceptions, interpretations, blame, fault, truth, prejudices, style, anger, trust, rights, principles, hurt feelings, justice, etc.

Why People Settle?

Structuralist Paradigm- based on rational

worldview; parties reach a mutually hurting stalemate; Socio-Psychological Process Assumes communication and exchange as basis for changing perceptions and attitudes; provides forum for exploring interests and options.

When Do people settle?

When they reach a mutually hurting

stalemate. When they are able to understand and explore their interests and options. When they are able to participate in a communication process that encourages a change in perceptions and attitudes.

Integrative Negotiation Analysis Framework PDIOS

Problem- immediate source of the dispute.

Demand- positions, threats, fixed solutions proposals,

point of view. Interest- things that really matters most to the parties. It is the need of the persons that is not being met, but would like to be acknowledged and fulfilled. Options- Ways to solve the problem based on interests surfaced and recognized during the process. Solution- Options that best serves all parties interests and needs.

An Actual Case of Oral Defamation A Neighbor irked by the howling of a neighbors dog at midnight
Problem Howling of the dog Demand Kill the dog/silence the pet permanently. Interest - To sleep well. Options:

Have the neighbor take sleeping pills Muzzle the dog Use ear plugs Transfer the dog to other area where it cannot disturb anyone. Neighbor transfer room or residence. Have neighbors room sound proofed, etc.. Solution It should be immediate and not inconvenient. The dog owner wants to keep the dog , and it should be without cost and harmless to all.

The Problem
It is the immediate source of the conflict.

Sometimes the problem is complicated by other issues that triggered the parties to seek other processes or venues for dispute resolution. Mediator needs to muster his listening and questioning skills to dig deeper and understand what, how and why the situation deteriorated into a dispute.

THE DEMAND
Parties often expectation is what he/she is

asking will immediately translate into an action by the other party that will put closure. Identification of the parties demand is very important considering that it is the commencement point in understanding what lies behind these wants

THE INTEREST
o Types of interests: - Substantive the specific object or goal to be reached in the process like money, time, resources, etc.
- Procedural - the process must be seen as fair, with equal opportunity for parties to participate (how the problem is addressed). - Psychological the parties must see that they are trusted, respected, appreciated, which influence the way they handle themselves and other people in the process (the way they are treated).

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

attention to oneself. Often fakes attention, makes judgment, forms rebuttals or advice, interested to talk than to listen. Words- Hears words, but not fully understanding. Listener tend to stay at the surface level missing out to hear deeper meaning and content of the message. Listener tends to be logical, concerned about content than feeling, and emotionally detached from the conversation. Emphatic places himself/herself in place of the other/trying to see things from others point of view. Characterized by awareness, acknowledgement, responsiveness, focus on speakers total communication such as tone and body language, feelings, thoughts. Listening is listening from the heart.

Benefits of Questioning
Understanding facts and events that resulted

to the situation. Ascertaining the consequences. Focus on a particular angle or topic. Direct the path of conversation. Verifying positions, mind set, agreement etc.

Questioning benefits parties

Ease their tensions/emotions.

Make them thing over their positions,

reality check, ascertain consequences, etc. Clarify if their demands meet their real needs. Invite creative option making. Ground them in reality.

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

spiritual state. Form and sequence of questions- invite some responses and discourage others. Mediator should question the intent of his question. Focus on specific experiences. Focus on specific meaning of experiences recounted. Invite small steps they have taken or can imagine to take. Short and easy to understand.

Potentially Problematic Questions NO/NO Questions

Attributive Questions:

If you thought about people what would you have done? Why didnt you do X instead of Y? Problem and past-focused questions: What needs are not being met? What contributed to things getting this bad? Knowing, Distant and Intrusive Questions: I know you are upset, but I want to know a good outcome would be? Dont you think it would have worked better if x and y are involved? Rhetorical or Pseudo Questions: Dont you think that? Is it safe to do what you are doing? What will it take to satisfy you?

Ask the right Question

Opening Question

What bring you here? Could you tell us what happened? Can you tell me your story? Question for Information Can you give me an example? Can you tell me more about how you view ? Can you described what appended when----? Questions to get at Interests. What is important to you? What is it that makes you want ______? What concerns you about the situation?

Ask the right Question

Questions to get at solutions

What might work for you? What can you do to help resolve this issue? What might make this idea work better? Questions to get at consequences. What will you do if you dont get into agreement today? How long will it cost if you go to court? What will happen if you pursued this idea? Questions to test Agreement Is this agreement ok with everyone? Is there any part of the agreement you are uneasy with? Can you live with this from now on?

SUMMARIZING
When you dont know what to say, summarize.

Give an outline of what has been said; Highlights important points of the narrative; -Omit extraneous information; -Condense the content and feeling of previous statements. Example: Complainant: The clerk of court is stupid and good for nothing. The first time I came she asked me to fill up a form and asked me to return. I returned and lined up for 4 hrs., even skipped my lunch, only to be told that my form couldnt be found so my request cannot be processed. Know what? Youre all a bunch of corrupt, incompetent employees. The nation will be better off having all of you exterminated. Mediator: I sense your extreme frustration over all the efforts you went through only to be told that your request could not be processed. Am I correct?

Reframing
Change the point of reference and speakers

perception.
To detoxify (negative to positive) To reorient parties from negative to neutral or positive perception. To shift focus to an underlying interest, or direct attention to the present and the future. To mutualize and promote collaboration.

Anger Management
Anger may be an appropriate expression of

feelings. What looks like anger may have different meaning. You are onlooker to anger or aggression, not the target. Anger or aggression is not there because of you. You have the permission of the parties to interrupt as appropriate.

What Mediator Should Do?

Be attentive to both loud or quiet anger.

Manage ones own response(ground rules

imposed). Create a safe place in which to sustain dialogue. Help parties understand the feelings, their source, and their consequences, and take responsibility for them. Create opportunity to move beyond to what people need.

NAC Approach to Anger

State what you are observing(Experiencing or seeing)

using neutral language. Explain the feelings it evokes. Show understanding but say what need is not met as a result of the feeling or experiences. Communicate your requested alternative.
A NAC Example Quiet Anger.(OFNR) O- Gene , I notice your looking out of the window. F- I am concerned that you may be missing out on the benefits of the session

by not taking part. N- I understand it may be hard for you to listen to some of the things.

Key Qualities of Mediator

An A-grade Listener.

Non-Judgmental and tolerant.

Open-minded.

Positive under pressure.

Good at getting the best out of people. Able to maintain confidentiality. Organized.

Benefits of Mediation
Saves time, private and confidential, treats

people like adult, restores relationship, makes parties feel competent and effective, improves understanding of underlying issues, does not close door to other options if not satisfied, cost less than 10% of the cost of litigation, and successful.

The Mediation Process

Who are present? Parties involved (stakeholders). Mediator. Others as decided by parties.

Mediation Session
The Process: Opening Conversation (Knowing each other, set the ground rules, etc.). Uninterrupted time. The exchange and private caucusing. Setting the Agenda Building the Agreement. Making the Agreement

Stage I- Opening Conversation

Welcome and words of encouragement. Purpose and goals of par ties in Mediation. Role of the Mediator and Parties. Confidentiality What to expect. Ground rules. Answers questions and clarification. Consent to proceed. Why impt? It prevents failure often due to: parties lack of knowledge about what is expected, unwillingness of parties to participate, and lack of understanding of the process.

It establishes what can be expected of the mediator. It saves time.

Stage 2- Uninterrupted Time

Set a courteous, unhurried tone.

Explain listening and speaking.

Give each person his turn to speak. Listen to what each person say.

Select someone to start (random).

Protect each persons speaking turn. Formality end each turn; check that each person is

finished. Thank them and move on.

Stage 3- The Exchange/Private Caucus

Keep control of the session.

Include each person.

Ask necessary questions.

Listen to interests and issues.

Refrain from finding solution yet. Watch for moments of reconciliation.

When to use a Private Caucus?

For Support To separate cool off or calm down angry

people, give shy or fearful people a chance to speak, and help people think through what they want. For Control Change the mood or direction of the session, interrupt disruptive or unhelpful behavior, and confront people privately. For Solving the Problem Receive private info, explore interests and potential solutions, help unstuck the situation (stalemate, impasse, deadlock).

Private Caucus- How to conduct it?

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

and where parties will wait. Always meet with each party. Call for a separate meeting in a matter-of-fact tone. Be clear in your own mind about the purpose and goal.
Assure them of confidentiality of info Stay focused. Ask permission to what you can reveal to other party. Take notes with you when you leave the table.

Stage 4- Setting the Agenda

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

of what has been said then ask if both parties are ready to look at the important points of the problem. Make a checklist of the issue they need to negotiate. Organize your notes and select key issues(focus on issues that need joint decision, mentioned often, emotionally charged, potentially negotiable, key to a durable solution).
Use positive, impartial language. Reflects each ones concern. Presents problem as shared concern. Read aloud and check the topics for accuracy- Ask if the issue is accurately stated. Along the way, the mediator, together with the parties, will discover which of the topics listed need to be given top priority. Agree on the Agenda-Check for accuracy and completeness.

Stage 5 -Building the Agreement

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

demands and interest are understood, the parties can begin to: Identify and evaluate a range of possible outcomes to the problem. Develop and test specific proposals for relevance, workability and acceptability. Gain confidence in their ability to resolve the situation, and to build commitment to the emerging agreement.
Again: Work

Through Each Issue: Elicit ideas, evaluate and refine alternatives, test for agreement and explore consequences, and write down tentative agreements. Keep discussion on track: expect going back and forth, refer back to the agenda to keep all in focus, and stay with the time.

Guide in Writing the Agreement

Review each point of the agreement, watching out for its

workability, wording, acceptability, finality and conditionality. Write out the final copy, read aloud. Have every person present sign and give each party a copy. Elements of a good written agreement: Details specific, be evenhanded, make it final and unconditional, use clear, familiar language (no legal or technical language), emphasize positive action, deal with pending proceedings if any, and provide for the future.

Can Mediator Suggest Solution?

No. Reasons why mediator should hold

back making suggestions:

To show trust that parties knows better; To prevent them from feeling incapable To prevent them from not taking responsibility to give them more stake on the solution To prevent them from feeling uncomfortable To protect the mediator from taking blame.

Stage 6- The Agreement

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

over when a written agreement is prepared and signed by both of them. A written Agreement: Gives evidence that parties have accomplished something together. Reminds people what they agreed to. Helps define how the parties will behave to avert future recurrence of the dispute. Gives a clear closure to the Mediation process. A good written Agreement: Detail specifics, be fair, do not attach conditions, use clear familiar wording, emphasize positive action, deal with any pending proceedings, provide for the future and be even handed.

Stage 7- Closure
The appropriate time to thank the parties for

their involvement and cooperation. The appropriate time to announce that the PPA Office with the parties cooperation will monitor the Agreement of the parties. The appropriate time to inform them that the PPA office is always at their service.

RESTORATIVE JUSTICE
There can be no real reformation of a wrong

doer unless there is at least a willingness on his part to right the wrong committed.
PPA Balanced and Restorative Justice Program

The End