MEDIATION
Professor John Barkai
William S. Richardson School of Law
University of Hawaii at Manoa
2515 Dole Street, Honolulu, Hawaii 96822
Phone (808) 956-6546; Fax (808) 956-5569
E-mail: barkai@hawaii.edu
Web Page: www2.hawaii.edu/~barkai
The Hawaii Mediation Model
"Applying The Hawaiian Mediation Model To Disputes and Conflicts"
11 Interspectives 40 (1992)
Professor John Barkai
Introduction
In its simplest form, mediation is a conflict resolution method in which a mediator
helps two people negotiate a voluntary solution to their dispute. What makes mediation
different from other third-party dispute resolution processes is that the mediator does
not have the power to decide who "wins" the dispute or what the solution should be.
The mediator is neutral and provides nonjudgmental management of the
negotiation process. Even though the mediator has no power to decide, mediation is a
powerful and successful dispute resolution process. The majority of mediated conflicts
result in negotiated solutions that are satisfactory to all the disputants. Statistics from
mediation centers indicate that approximately 85 percent of the mediations end in
agreements. Even if there is no mediated solution, the disputants are no worse off than
before the mediation.
A Basic Model of Mediation
The basic mediation process can be most clearly identified in its purest form by
looking at the mediation of minor disputes. Mediators of minor disputes devote their
attention to managing the mediation process and using techniques which allow the
disputants to 1) identify, clarify, and communicate the issues and interests in dispute, 2)
effectively negotiate with each other, and 3) structure a settlement that is fair and
workable from their perspectives.
Especially in minor disputes, the mediator has no way of knowing what a fair and
workable settlement would be from the disputants' perspectives. In addition, there is no
legal standard by which to judge, for example, how much noise to too much for the
neighborhood or how the children of the neighbors should relate to each other.
Because the disputants have to live with any negotiated agreement, the disputants (not
the mediator) are the people in the best position to decide what is the best, most
workable solution.
The native Hawaiian people had their own family problem solving process called
Ho'oponpono. [See, V. Shook, Ho'oponpono: Contemporary Uses of a Hawaiian
Problem-Solving Process. Honolulu: University of Hawaii Press (1985).] This article,
however, focuses on the contemporary, community mediation process in Hawaii.
Formal mediation began in Hawaii in 1979 with the establishment of the Neighborhood
Justice Center (NJC) of Honolulu. The following model of mediation was developed
over more than a decade and thousands of mediations at the NJ. The mediation model
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presented here has been revised and refined as a result of the experiences of many
volunteer mediators and almost countless mediator trainings.
The Core Process
The core process of mediation is designed around two central tasks: 1) defining
the problems, and 2) negotiating solutions. When teaching mediation in Hawaii, the
mediation process is conceptually divided into two phases referred to as the "Forum"
and the "Negotiation." Each phase is in turn divided into three stages.
The Forum includes: 1) the mediator's opening statement, 2) the disputants'
statements, and 3) private meetings called "caucuses" with each disputant to discover
all the issues and interests important to a fair, workable solution. The Negotiation
includes: 1) a second round of private caucuses with each disputant to define options
and begin the bargaining, 2) a joint session with all disputants to negotiate the general
terms of the agreement, and 3) a drafting session that results in a specific, written
agreement. Such a mediation process can be diagramed as two triangles, each with
three layers, as seen below.
The Mediation Process
Phases
Conceptual Model
Stages
Mediator's Opening
Forum
Disputants' Statements
First Caucuses
Second Caucuses
Negotiation
Joint Session
Draft Agreement
A. The Forum Phase
The Forum phase, represented by the top triangle, starts with the mediator's
opening statement, then allows each disputant to tell their view of the conflict, and
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finally moves to caucuses with each disputant. In the mediator's opening statement,
the mediator first convenes the meeting by discussing the voluntary, confidential, and
impartial nature of the process. In addition, the mediation process is described
generally (especially the confidential caucuses), and it is stressed that the mediator will
not issue a decision as a judge would in court. Next, in the disputants' statement stage,
each disputant is asked to make a short statement about their view of the conflict and
the other disputant is asked to not interrupt. Finally, the mediation moves into a series
of confidential caucuses with just the mediator and one of the disputants present. As
the mediator process moves to the caucus stage, the upper triangle has its widest part,
signifying the increasing amount of information that becomes available to the mediator
and the disputants as issues, positions, interest, feelings, and hidden agendas are
discussed and clarified in the caucuses.
The full development of facts and feelings in the Forum phase offers the greatest
opportunity to create in the Negotiation phase a cooperative, integrative solution - what
some people refer to as a "win-win" solution. As the mediator uses this Forum phase to
learn the history of the conflict, the disputants often focus on just the facts which
support their view of the conflict. In both joint meetings and especially in the caucuses,
the mediator probes beyond the apparent facts to learn the disputants' underlying
interests and feelings about the conflict. During the Forum, the time focus is on the
past and the present.
B. The Negotiation Phase
In the Negotiation phase, represented by the second, inverted triangle, the
mediator shifts the focus to the future and assists the disputants to negotiate solutions
based upon their interests. The Negotiation usually begins with another series of
caucuses. The caucuses are used to move the disputants off their current negotiating
positions by asking them to brainstorm possible solutions to the problem. Mediators
can use a number of techniques to narrow the differences between the disputants and
allow them to save face. Common mediator tactics are to review the good parts of the
prior relationship, create doubts, stress the consequences of no agreement, provide
reality testing about proposed solutions, and emphasize the progress that has been
made. Several caucuses may be necessary.
When the disputants appear ready to bargain effectively face-to-face, the
mediator brings the disputants together for a joint meeting. Although the mediator may
still manage the bargaining as mutual concessions are proposed and accepted, the
disputants are encouraged to negotiate directly with one another. Finally, as the
disputants work out the solution, the mediator assists them by drafting a written
agreement that is balanced, specific, complete, workable and in the disputants' own
words.
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C. A Communication Focus
Throughout the entire mediation process, Hawaiian mediators use facilitative
communication techniques. During the Forum, the mediators try to get the disputants
to reveal and clarify their interests and express their feelings by using various
communication techniques such as open-ended questions, clarifying questions, and
active listening. Mediators often summarize to acknowledge what the disputants have
said, to prevent repetitive accounts, and to check their understanding of what the
disputants mean. They use active listening to acknowledge the disputants' feelings
because feelings can be as important to a solution as the facts. Mediators also
"reframe" the disputants' language to eliminate blame and the attribution of motives.
A fundamental hypothesis of Hawaii community mediation model is that the
disputants are in charge of their own dispute. Hence, during the Negotiation phase the
disputants are expected and encouraged to create their own solutions to the conflict.
Acting under the assumption that disputants are more likely to move from their
entrenched negotiation positions towards mutually acceptable solutions if the basis of
the solutions comes from a disputant's own mouth rather than if suggested by someone
else, mediators are taught to refrain from giving advice. Hence, rather that make direct
suggestions to the disputants, mediators ask well crafted questions that are intended to
stimulate the creative thinking of the disputants.
The Neighborhood Justice Center
The basic mediation model described in this article is used in many different
types of disputes in Hawaii, including complex, multi-party construction cases in court,
bitterly contested divorce proceedings, minor neighbor-neighbor disputes, and for
playground conflicts mediated by grade school children. When the mediation is done at
the Neighborhood Justice Center, the mediators are community volunteers from a wide
variety of backgrounds and professions, who mediate without compensation. All such
mediators have gone through at least 40 hours of training using role plays and
debriefing sessions as the primary teaching techniques. Finally, at the NJC all
mediations are done with two mediators in a process called "co-mediation."
Conclusion
The process of mediation has been used for thousands of years to resolve
conflicts. In some parts of the world, mediation is considered to be the same as, or
similar to, conciliation. Whatever its name, at its core is a voluntary process used to
help two or more disputants negotiate and settle their differences. The article has
described a basic model of mediation taught to community mediators in Hawaii and
adapted to a wide variety of disputes. The people of Hawaii have made it their own
process.
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LEVELS OF MEDIATION
1. Commercial
2. Community
3. Co-Workers
Friends & Family
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Stages
THE MEDIATION
PROCESS
1
CONVENE THE PARTIES
stressing the
voluntary, confidential, and impartial
nature of the mediation process
2
DEFINE THE PROBLEMS
by
COLLECTING
INFORMATION
about
past and current
issues, positions, interests, feelings & hidden agenda
3
FIND SOLUTIONS
by
HELPING THEM
NEGOTIATE
by
preparing them to bargaining
then
managing the bargaining
to find
solutions that look to the future
4
WRAP UP
by drafting
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a balanced, specific, workable agreement
MEDIATION
ADVANTAGES
* faster than litigation
* less expensive than litigation
* informal
* parties select the neutral
* parties determine the outcome
* non-binding until agreement is reached
* opportunity to vent emotions
* creative solutions are possible
* mediation sessions are private
* mediation outcomes are confidential
* parties decide who participates
DISADVANTAGES
* one party can refuse to mediate
* can't make legal precedent
* difficult if there is a power imbalance
* may not discover all the facts
* may not result in a decision
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MEDIATOR OUTLINE
Use the basic 4 part mediation model to try to resolve this dispute. If you are using comediators, each mediator should do some of the work in each part of the mediation.
1. INTRODUCTION
Introduction of people
Explain the Mediation process
- I will not decide
- Neutral & confidential
2. COLLECT INFORMATION
Have both parties explain the dispute
Ask some open-ended & clarifying questions
Hold private meetings with each disputant. Ask about
facts, feelings, history, needs, interests, reasons
ask "why?" Past and future relationship?
3. HELP PARTIES NEGOTIATE
Help parties brainstorm solutions
Be optimistic and positive.
Help save "face"
Do not judge the result
4. CONCLUDE THE AGREEMENT
Get a specific agreement
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FACILITATIVE & EVALUATIVE
MEDIATION STYLES
Two very different mediation styles are the facilitative and evaluative styles. The
following article explains more about the two mediation styles. Community mediators
tend to use the facilitative style; commerical mediators tend to use the evaluative style
MEDIATOR ORIENTATIONS, STRATEGIES AND TECHNIQUES
12 Alternatives to High Cost Litig. 111 (Sept. 1994)
Leonard L. Riskin
THE MEDIATOR'S ROLE
The evaluative mediator assumes that the participants want and need the mediator
to provide some direction as to the appropriate grounds for settlement--based on law,
industry practice or technology. She also assumes that the mediator is qualified to give
such direction by virtue of her experience, training and objectivity.
The facilitative mediator assumes the parties are intelligent, able to work with their
counterparts, and capable of understanding their situations better than either their
lawyers or the mediator. So the parties may develop better solutions than any that the
mediator might create. For these reasons, the facilitative mediator assumes that his
principal mission is to enhance and clarify communications between the parties in order
to help them decide what to do.
The facilitative mediator believes it is inappropriate for the mediator to give his
opinion, for at least two reasons. First, such opinions might impair the appearance of
impartiality and thereby interfere with the mediator's ability to function. Second, the
mediator might not know enough--about the details of the case or the relevant law,
practices or technology--to give an informed opinion.
SUBJECT-MATTER EXPERTISE
In selecting a mediator, what is the relevance of "subject-matter expertise?" The
term could mean substantial understanding of either the law, customary practices, or
technology associated with the dispute. In a patent infringement lawsuit, for instance, a
mediator with subject-matter expertise could be familiar with the patent law or litigation,
practices in the industry, or the relevant technology--or with all three of these areas.
The need for subject-matter expertise typically increases to the extent that the
parties seek evaluations--assessments, predictions or proposals--from the mediator.
The kind of subject-matter expertise needed depends on the kind of evaluation or
direction the parties seek. If they want a prediction about what would happen in court,
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they need a mediator with a strong background in related litigation. If they want
suggestions about how to structure future business relations, perhaps the mediator
should understand the relevant industries. If they want to propose new government
regulations (as in a regulatory negotiation), they might wish to retain a mediator who
understands administrative law and procedure.
In contrast, to the extent that the parties feel capable of understanding their
circumstances and developing potential solutions--singly, jointly or with assistance from
outside experts--they might prefer a mediator with great skill in the mediation process,
even if she lacks subject-matter expertise. In such circumstances, the mediator need
only have a rough understanding of the relevant law, customs and technology. In fact,
too much subject-matter expertise could incline some mediators toward a more
evaluative role, and could thereby interfere with developing creative solutions.
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VERY SIMPLE
MEDIATION CLAUSE
All disputes arising out this
contract shall be submitted to
mediation.
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WESTERN MEDIATION COMPARED TO
DISPUTE RESOLUTION IN OTHER CULTURES
CLASSIC WESTERN MEDIATION
Neutral
Face-to-face
Facilitate communication
Explore interests
Determine facts & perceptions
Identify options
Assist in evaluation of options
Document the agreement
KEIRETSU TRADING CIRCLE
JAPANESE
Mutual business associate from an
established trading circle
Meets separately with the parties
Explores facts, perceptions, interests
Identifies options for mutual benefits
Explores obligations to accommodate for the
good of future relationship
Searches for consensus
Convenes parties to confirm agreement
HO'OPONOPONO
HAWAIIAN
High status elder (haku) gathers disputing
parties
Opening prayer to gods and family guardians
(aumakua)
Identifies the problem
Elder questions the parties
Parties acknowledge their actions to gods
and each other
Talk about solutions, actions to disentangle
and to make right (pono)
Mutual forgiveness
Closing prayer
Sharing of meal
Professor John Barkai --- University of Hawaii Law School
OLD FRIEND SYSTEM
(Lao peng you) - CHINESE
Trusted old friend
Meets separately with the parties
Explores facts & interests
Explores interests in context of mutual
benefits & interdependence
Preserves valuable relationships
Identifies options
Suggests resolution
Save face & give face
Convenes parties to confirm agreement
Pours tea & talks
COUNCIL OF ELDERS
(VILLAGE MODEL)
Circle of Elders
Joint meeting of parties with Circle of Elders
Sharing of cultural customs;
- prayer to divine spirits
Explores facts & perceptions
Encourages full expression of views &
options
Evaluates options in context of group needs
Makes suggestions for resolution
Acceptance and ceremony
Created by Louis Chang,
Honolulu, Hawaii, 1995
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IDEAS ABOUT INFORMAL MEDIATION
You will probably know one or more of the parties.
You will probably not want to use the words "mediation," or
"caucus."
The parties may not need or want a written agreement.
You may not be seen as impartial by the parties.
You may have a stake in the outcome.
You may have a very hard time being impartial.
You may be the decision maker if the parties cannot reach an
agreement on their own.
The process may be VERY informal.
You will be applying the techniques and skills of traditional, formal
mediation.
Confidentiality will be as important as ever.
You will generally not have a co-mediator.
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MEDIATORS FIND SOLUTIONS
by
HELPING PARTIES NEGOTIATE
Uncover Interests
Prioritize Interests
Brainstorm Options
"What could they do...?"
"What could you do...?"
Establish criteria
Create Doubts
Review the Relationship
Engage in contingent Bargaining
"If they were to
"For you to
, what could you do?"
, what would you expect them to do?"
Narrow the differences
Save Face
Emphasize Progress
Engage in Reality Testing: BATNA
Stress the Consequences of No Agreement
Find External Standards & Sources
Cheerleader for settlement
And, as a last resort:
Mediator suggests MULTIPLE options
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PRACTICE MEDIATOR LINES
John Barkai
FORUM PHASE - DEALING WITH THE PAST AND THE PRESENT
Can we agree that as a ground rule, we will ...
Remember, you both agreed not interrupt. You will get your uninterrupted
time too.
Tell me more about that.
When did this happen?
So what you are saying is ...
Wait. Let me be sure I understand correctly. You're saying ...
So, as far as you are concerned ...
What else is important?
Could you say more about that?
How do you feel about what happened?
What do you mean by that?
Is there anything else you want to add?
Let's move to the issue of ...
Can you tell me more about ...?
What additional information do you have on that?
Of all that you have talked about, what is most important to you now?
NEGOTIATION PHASE - DEALING WITH THE FUTURE
What could X do to help you solve this problem?"
What can you do to help solve this problem?
Do you have any other ideas for solving this problem?
What do you think will happen if you can't negotiate a solution?
How do you want things to be between the two of you?
Is what you are talking about now helpful in reaching a solution?
Put yourself in Mr./Ms. X's shoes. How do you think they feel right now.
What do you have in mind on that topic?
If X were to do A, what would you be willing to do?
What I hear you saying is that you might be willing to ...
You both seem to agree that ...
Do you agree with the solution that we are talking about?
What you are talking about sounds like it might work. What will happen if ...
MUCH LATER - MEDIATOR SUGGESTIONS:
How would you feel about ...
What would happen if you tried ...
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