LGL201PA – CHOICES IN APPROACHING CONFLICT
↓ CHAPTER 1 | CONFLCIT AND CONFLICT STYLES
2014-07-XX
* Conflict – the perception, in an interdependent relationship, of incompatible wishes, goals, attitudes,
emotions, or behaviours
- Perception; Interdependency; Incompatibility element; Possible hidden reason for conflict
* Conflict resolution – the process of ending a disagreement between two or more people in a
construction fashion for all parties involved
CONFLICT ICEBERG
+ Above water – readily apparent, what you can see and touch
+ Below water – what is invisible, often hard to figure out, but hugely important
- Attitudes, values beliefs, culture
WHAT CAUSES CONFLCIT?
+ [ 1 ] Basic Needs
+ [ 2 ] Interest-based Needs
- Substantive
- Procedural
- Psychological
+ [ 3 ] Identity-based Needs (Mayer’s Wheel of Conflict)
- a. Need for meaning
- b. Need for community
- c. Need for intimacy
- d. Need for autonomy
FISHER & SHAPIRO’S IDENTITY-BASED NEEDS
+ Five reasons that reflect the “human wants that are important to almost everyone in virtually every
negotiation”
- 1 – Appreciation
- 2 – Affiliation
- 3 – Autonomy
- 4 – Status
- 5 – Role
DAVID ROCK’S IDENTITY-BASED NEEDS [ # SCARF ]
+ Five “social domains” that drive human behaviour
+ If any of these five dimensions is threatened during a legal dispute, the threat must first be eradicated
before a wise settlement is possible
+ 1 – Status
+ 2 – Certainty
+ 3 – Autonomy
+ 4 – Relatedness
+ 5 – Fairness
WAYS TO RESOLVE CONFLICT
+ Constructive discussion/resolution; Negotiation; Conciliation; Mediation; Litigation; War
SELECTING A STRATEGY
+ Relationship and outcome concerns – 2x2 model
+ Five potential outcomes
+ Contingency Factors
- Situation; Experience; Style; Perceptions and Past Experiences; Other Factors (voluntary or
imposed; level of structure; setting)
CONFLICT RESOLUTION STRATEGIES
BENEFITS OF CONFLICT RESOLUTION SKILLS
+ Ability to maintain better control in business and personal situations
+ Much better way to reach a solution than either a lawsuit or arbitration
- More likely to end in a “win-win” scenario
- Both parties are involved from the outset
+ Helps both parties achieve a workable resolution, and helps to preserve and improve their
relationship, reputations, and sense of professional achievement
+ Reduces stress and frustration
+ Often reduces the number of future potential conflicts
↓ CHAPTER 2 | ALTERNATIVE DISPUTE RESOLUTION
NEGOTIATION
+ A process to resolve the dispute as between the parties or their representatives
+ Continues all the way through the litigation process
+ Important to move the “yardsticks” forward throughout the process
+ At minimum, it helps to define and refine the issues between the parties
+ Finding the zone of possible agreement
2014-05-14
NEGOTIATION CHECKLIST
+ About You
- Goals, Issues, Evaluating Offers, BATNA, Resistant Point
+ About the Other Side
- Issues, BATNA, Resistance Point, Determination of your target
+ The Situation
- Deadlines, Norms and Reference Points, Things to avoid
+ Relationship between Parties
- Future negotiations?, trust levels, styles and tactics, principal or agent?
THIRD PARTY INTERVENTIONS [ Mediators ]
+ Neutral third parties are brought into bargaining/litigation process to help parties resolve their
differences
* Neutral – unbiased and impartial
- not concerned with the outcome (just that there is an outcome), results or what is settled for
- does not intervene or give legal advice
+ Apart from arbitration, only binding if parties agree
+ Mediation is not binding on the parties (unlike arbitration)
- Mediators help resolve, not bind
TYPES OF INTERVENTIONS
+ 1 – Conciliation ( ~ industrial relations )
+ 2 – Mediation
+ 3 – Arbitration
OTHER TYPES OF INTERVENTION
+ 1 – Mediation-Arbitration [ # med-arb ]
- The natural progression from mediation to arbitration
+ 2 – Final Offer Vote
- Generally used in sports leagues, a union takes a settlement offer to a vote among its members
+ 3 – Sentencing circles (criminal matters)
+ 4 – Diversion programs (criminal matters)
- criminal discharge – restorative programs in lieu of imprisonment
+ 5 – Truth and Reconciliation Commissions
- how can we compensate without punishing aggressors
CONCILIATION
+ Mandatory before a strike or lockout can occur in Ontario
+ Conciliator is usually a government employee
+ Does not take part in actual bargaining
+ Attempts to see if there is a scope for agreement
+ Does not make recommendations
+ Writes a “no board” report if there is no hope for settlement of the dispute without resorting to strike
or lockout
+ Receipt of the “no board” report allows parties to strike or to lockout
# Rarely a success; Parties rarely want to compromise their positions; Simply a step in the process
towards an anticipated strike or lockout
MEDIATION
+ More intensive than conciliation
+ Can be a voluntary choice by the parties (except mandatory mediation)
+ Attempts to help parties to find zone of agreement
+ Makes recommendations to the parties (perhaps in caucus)
+ Cannot be compelled to testify if mediation fails
+ In court, if you go to mediation, you cannot mention mediation in any way
- The judge cannot know anything about any mediation history
+ The last step where control is still in the hands of the parties (i.e. not being decisions)
+ Can take many forms (~ workplace, community, school yard, public policy)
+ More successful than conciliation
ARBITRATION
+ Most intensive and invasive step
+ Mandatory in some legislation or contracts
+ Binding decision – cannot go Court
+ Only appeal is if arbitrator made a mistake in law (rare)
MEDIATION-ARBITRATION
+ Hybrid process
+ Potential to lead to a perception of bias on behalf of the arbitrator
+ Allows the parties to maintain control at the outset
OTHER ALTERNATIVES
+ Sentencing circle
+ Truth and Reconciliation Commissions
+ Ombudsmen
+ Online Dispute Resolution
# Negotiation Check List
# pg. 28 – 50
↓ TEXT NOTES
↓ CHAPTER 4 | WHAT IS NEGOTIATION?
* Position – the particular result a party wants to gain from a negotiation
* Interests – the legitimate need that underlies the position a person takes in a conflict
2014-05-21
DEFINING NEGOTIATION
+ Negotiation is a fact of life… it is a basic means of getting what you want from others
+ A two-way form of communication designed to reach agreement when you and the other side have
interests that are shared and other interests that are opposed
- Is negotiation concerned with situations in which two or more parties, recognizing differences
is their interests or values, wish to seek a compromise or collaborative agreement through
discussion?
- Or is negotiation the art of concealing one’s true position, misleading another about your real
goals and gaining as much as possible while ignoring the interests of the other?
WHEN SHOULD PARTIES NEGOTIATION?
+ When both parties…
- Need to achieve a result
- Believe unilateral action will not achieve what they need or want
- Both interests are compatible or shared and in conflict
- Are stuck in a stalemate which is harming both sides
- Perceive that negotiation is the best way to end a conflict or a stalemate
HOW DO PEOPLE APPROACH NEGOTIATION?
+ [ 1 ] Competition
+ [ 2 ] Collaboration
THE COMPETITIVE APPROACHES
+ Competitive negotiation is distributive in nature
+ Competitive negotiation:
- designed to segregated rather than integrate the needs of the parties
- is done on a win-lose basis
- focuses on one’s own interest with little interest given to the other’s needs
COMPETITIVE NEGOTIATION FOCUSES ON…
+ Manipulation of interests and strategic disclosure
+ Each party’s concern with his/her own interests
+ Distribution of value (~ getting the biggest slice of a fixed pie)
+ Competition
+ Bargaining
POSITIONAL BARGANING THEORY
* Aimed at getting as much as possible for the negotiating party, with no concern for the other side’s
needs
+ Positional bargaining is a distributive model
+ Parties will:
- take a fixed position, usually based on perceived power or the strength of a rights-based
argument
- put all effort into defending the position and arguing for it, while attacking the other’s position
- Make concessions (counter-offers) progressively, either resulting in a stalemate or compromise
(which leads to convergence and agreement)
- Give up interests to reach agreement instead of finding solutions to incorporate all interests
TACTICS USED IN POSITIONAL BARGAINING
+ Exaggerated or extreme claims followed by slow concessions
+ “Take it or leave it” offers
+ Personal insults
+ Bluffing, puffing and lying
+ Threats and warnings
+ Attacking to belittle the other side’s arguments, ideas and options
ADVOCATES OF POSITIONAL BARGANING ARGUE…
+ It is simple to participate in
+ It is the acceptable process in most societies
+ Parties can focus on what they want and how much they want it
+ A party’s stated position becomes an anchor from, which to move in a sometimes uncertain process
THE PRINCIPLES NEGOTIATION MODEL OPPOSES POSITIONAL BARGANING BECAUSE IT…
+ Is based on greed and is not a “decent” process
+ Is inefficient and prevents focus on creativity
+ Has higher transactional costs
+ Can damage relationships and produce less stable agreements
+ Focuses singularly on result not relationship
+ Uses fixed bottom lines instead of relational creativity
COLLABORATIVE APPROACHES
+ Integrative
- Serve the interests of all parties
- Integrate rather than segregate the interests of the parties
- Are done on a win-win basis
+ Focus on…
- Full disclosure of relevant information
- Each party being concerned with the interests of all parties
- The creation of new value (a larger pie) rather than the division of a fixed pie
- Collaboration
PRINCIPLED NEGOTIATION
* Negotiation aimed at preventing parties from getting entrenched in positions
+ In order to avoid position bargaining one must:
- 1 – Separate the people from the problem
- 2 – Focus on interests and not positions
- 3 – Invent options for mutual gain
- 4 – Insist on using objective criteria
+ Created by Fisher, Ury and Patton, in “Getting to Yes”
SKILLS ESSENTIAL TO COLLABORATIVE NEGOTIATION (“Ground Rules”)
+ Communicate respectfully
+ No interrupting
+ Use of “I” statements when sharing concerns
+ Agree at the outset and refer back to as needed
ACTIVE LISTENING AS A TOOL IN CONFLICT RESOLUTION
+ Stop talking
+ Give the person your total attention
+ Invite the person to share their thoughts, feelings or frustrations about the issue(s)
+ Indicated that you are listening
+ Seek to clarify the person’s needs, interest, and concerns
* Reframing - Reflect back the words spoken and the feelings expressed
+ Show genuine interest
REACHING A GOOD NEGOTIATION OUTCOME
+ It should produce a wise agreement, if an agreement is possible
+ It should be efficient
+ It should improve or at least not damage the relationship between the negotiators
↓ CHAPTER 14 | PREPARING FOR AND CONDUCTING NEGOTIATIONS
2014-XX-XX
STEPS IN PREPARATION
+ Define and prioritize all your interests, values, needs, timing, and resources
+ Set objective measurable criteria, information and argument, buy researching and consulting experts
(~ evaluators, cases, actuaries)
+ Set your goals
+ Establish an acceptable bargaining range at high and low points
+ Establish alternatives should this bargaining fail
+ Review what is known of other parties priority on the same considerations
FOUR KEY POINTS TO PREPARE
+ 1 – * Target point – your desired criteria for a realistic settlement; these should be objective,
reasonable and demonstrable
+ 2 – * Resistance point – your least desirable but still acceptable settlement criteria
- This is the walk away point, below which you will not go
+ Between the target and resistance points lies your range of acceptable bargaining
+ Next you establish alternatives should the current negotiations stall or breakdown
+ These points are referred to as the BATNA and the WATNA
* BATNA - Best Alternative To a Negotiated Agreement
* WATNA - Worst Alternative To a Negotiated Agreement
+ 3 - * (B/W)ATNA – (Best/Worst) Alternative To a Negotiated Agreement
- Present realistic alternatives to be used as resistance points
- Your back door
+ 4 – Opening bid – your opening bid can be crucial to success so
- Set elements objectively on determined needs and perceived directions
- Remember aggressive negotiations may double or cut in half opening bids to control range
- Remember that the opening bid can predetermine and fix the range of negotiation if set too
high or low
- Preparation is the best defence and guide
ESTIMATE THE OTHER PARTY’S NEEDS
+ Once you have set your own 4 major points, seriously consider the needs, desires, and fears of the
other party
+ To the best of your ability, set out what are likely to be their 4 major points as well
THE VALUE OF PREPARATION
+ The knowledge and strategies you can develop through preparation will give you:
- A place to begin
- A bargaining range
- A walk-away point
- Confidence that will not allow you to be bullied into a poor agreement
ADDITIONAL CONCEPTS FOR ANALYSIS BEFORE NEGOTIATION
+ Worldview - A negotiator’s worldview is comprised of deeply held beliefs, attitudes, and values from
one’s culture, family, and other important groups with which one identifies
- The central component of one’s identity
- Almost never negotiable but can change with time, experience and greater knowledge
- May affect the form of and expectations for negotiation
+ Climate - The mood of the negotiation can be competitive or competitive-based on the orientation of
the parties
+ Positions - Are specific and often rigid demands made by parties at the outset of negotiation (A party’s
preferred solution)
- Competitive Negotiators – often inflate their position and state it as non-negotiable
- Collaborative Negotiators – set out positions that are specific, clear and honest with respect to
negotiability
+ Needs and Interests - these are what each party is looking to satisfy based upon the four points you
have prepared
# Remember – positions are what you want; interests are why you want it
- Collaboration requires sorting through positions and needs to where the salient needs of both
parties can be
- defined and understood
- adequately address
- met to the greatest degree possible
THE SHIFT FROM COMPETITIVE TO COOPERATIVE
+ Reframing – a way of refocusing the conflict issue from positions to needs
OTHER PRE-NEGOTIATION CONSIDERATIONS
+ Establish location of the negotiations
+ Regarding timing
- Schedule the initial meeting
- Set the length of overall negotiations
- Set the duration of individual sessions (based on the needs of the parties)
+ With regard to parties
- Are all interested parties or groups represented?
- Do all parties have authority to settle?
- Do parties have physical challenges that need to be planned for?
+ Consider a pre-meeting with the other party to…
- Set an agenda specifying issues and order of coverage
- Consider setting simple ground rules to govern the negotiation process
- Consider washroom facilities and the presence of refreshments
SIGNALLING THE DESIRE TO COOPERATE FROM THE BEGINNING
+ Express concern about the other’s welfare and acknowledge his or her interests part of the problem
+ Indicate a willingness to change your proposals if a way can be found to bridge to the interests of both
+ Demonstrate problem solving capacity and willingness
+ Maintain open communication channels to show that you are ready for cooperation, flexibility, and
the potential for change
NEGOTIATION – BEHAVIOURS AND STEPS
+ Coleman, Raider and Gerson detail 5 types of behaviours found in negotiation
- [1] Attacking; [2] Evading; [3] Informing; [4] Opening; [5] Uniting
+ To negotiate collaboratively, emphasis should be on opening, informing and uniting
THE COLEMAN RAIDER MODEL
+ Stage 1 – Ritual Sharing – Uniting
- Both parties engage in uniting, opening and communication
- Both attempt to break ice and create rapport to increase mutual comfort zones
- Both highlight common ground
- Both attempt to link needs of each to those of the other
- Each may reframe apparent conflict issues to show joint direction
- Both prepare to use appropriate non-verbal; presentation techniques as well
+ Stage 2 – Stating Positions – Informing
- Each party gives his/her position flexibly in turn
- Information may be exchanged to explain each party’s perspective
- Each gives in a non-threatening way his/her needs, feelings, values, positions, and justifications
for them
+ Stage 2 – Getting to Underlying Needs – Opening
- Both parties seek to be open to the other by giving and proving for underlying needs, values,
feelings, and positions in a non-judgmental way
- Active listening to the other is critical
- Summarizing neutrally what is exchanged is important
- Demonstrating understanding for the other further builds rapport
+ Stage 3 – Reframing – Uniting
- The purpose here is to unite direction
- Look to win-win solutions by asking, “How can we meet the priority needs of both parties in a
creative way?”
- Link positive bargaining points to be expressed needs
+ Stage 4 – Problem Solving – Uniting
- Both parties brainstorm to establish a number of varied or alternative ways to satisfy priority
interests of both
- Free thinking and creativity should be involved by all
- Suggestions should not be valued and judged until all solutions have been offered
- Selection, improvement, and inclusion of ideas can then be undertaken
+ Stage 4 – Reaching Agreement
- The alternatives proposed are evaluated
- Best combinations of solutions which meet both parties priority interests are selected and
tested
- The agreement is summarized and set in properly expressed language
↓ CHAPTER XX | Culture
2014-06-11
WHAT IS CULTURE?
+ Culture is learned behaviour (transmitted or passed on) which makes you part of a discernible group
+ Consider how many different groups each of us belongs…
HOW IS CULTURE CREATED?
+ Culture is share
- Beliefs and values (often invisible)
- Operating as myth, symbol, and language to mold the organization and sharing of language
information and behaviour
- It sets and translates the behaviours, institutions, values, customs, and structures that are
acceptable to the group
CULTURAL DIFFERENCES
+ Culture becomes a part of the individual and collective identity and is both consciously and
unconsciously present
+ It is a kind of short hand for the group
+ Culture is dynamic and multifaceted
INDIVIDUAL CULTURES AND VALUES
+ Individualist cultures
COLLECTIVE CULTURES AND VALUES
+ Found in: the rest of the world (primarily Asia and Africa)
+ Group over individual
+ Harmony, getting along and saving face
+ See group conformity and commitment as paramount
+ See conflict as social failure and shame
+ Prefer insider within group to bringing in a third party to deal with disputes
WHAT IS GENDER?
+ While sex is biologically determined, gender is culturally constructed
+ Our culture dictates from the time we are children how we are supposed to think, dress and behave as
men and women
+ Men are supposed to be tough, unemotional and love the colour blue
+ Women are supposed to be …
+ Though deeply held ideas of gender can be deconstructed for meaning and to promote change, they
will often be anchored in the psyche at the level of myth, symbol, archetype, and story
+ In that way culture is converted to the level of personal identity, and change can threaten not only
what we believe but who we think we are
+ Our society and Charter rights promote equality between the sexes irrespective of sexual orientation
+ This does not make men and women the same
+ Often differences exist which, if misinterpreted, can become sources of conflict ….
+ Research in the field of negotiation shows no straightforward answers or advantages on the basis of
gender
+ Many assert we do not act in a given way in society because we are men and women, but that instead
society creates these roles and teaches us how to act as men and women
WOMEN AND MEN IN CONFLICT RESOLUTION
+ Women tend to be collaborative
- they will discuss outcomes by mutual benefit. This is borne out by some studies and disproved
in others
+ Some studies show women are more oriented to relationships and care more about building and
preserving them rather than strictly adhering to principles
+ Women tend to be more oriented to the action of others and will base strategies in relation to the
other rather than their own will
+ Men tend to be more focused on their own positions
+ In tactics men…
DIFFERENCES IN APPROACH
+ Substantive issues (rights) vs. relationship
+ Equality vs. equity
+ Short and long term goals
+ Comfort in negotiating with strangers
+ Issues: where the interaction is between power and gender
- High-powered men tend to be very aggressive and use take-it or leave-it positions
- High-powered women tend to be less aggressive and more inclusive
CONSIDER THESE POTENTIAL DIFFERENCES
+ Qualities normally valued as male are:
- individuality, independence, competitiveness, objectivity analytic rational thinking,
instrumentality, reasoning from universal principles, strategic thinking
+ Qualities normally values as female are:
↓ CHAPTER XX | Mediation Structure and Agenda
2014-06-11
PREPARING TO MEDIATE
+ Mediator Issues
- Neutrality vs. Bias
- Impartiality vs. Prejudicial Involvement with one of the parties
- Disclosure issues? Co-mediation?
+ Process Issues
- Premediation contacts
- Gathering information; Obtaining submissions; Explaining mediation process and roles
- Mediation agreement
- Appropriate parties (“It is easier to add than to take away”)
- Physical setting
- Formality/Informality
- process, demeanour, dress
- Timing and duration of mediation
- Anticipating and analyzing the “problem”
- Be careful not to predetermine outcome
- Ask yourself appropriate questions
WHY ORGANIZE A MEDIATION AGENDA
NEED FOR MEDIATION STRUCTURE
CRITERIA OF A NEGOTIABLE/MEDIABLE ISSUE
+ [ 1 ] Possibility of more than one outcome
+ [ 2 ] Tangible and concrete
+ [ 3 ] Within the control of the parties to resolve
WHY AN ISSUE IS NOT MEDIABLE
+ Issues of Law and Fact
+ Basic Values and Beliefs
+ Needs and Interests
+ Habits and Character Traits
TURNING NON-MEDIABLE ISSUES INTO MEDIABLE ISSUES
FRAMING THE ISSUES
+ [1] Neutrally
+ [2] Promoting creativity and problem-solving
+ [3] Future focused
+ [4] Collaboratively (reducing competition)
+ [5] Concretely
MEDIATION AGENDA – COMPLEXITY vs. MANAGEABILITY
+ [1] Importance/Urgency of the issue
+ [2] Blockage to resolution for one party
+ [3] Possibility of shared decision making
+ Facts in expanding/contracting issues
- Number of issues; Time available; Mediator’s Philosophy and Need
ORGANIZING THE MULTI-ISSUE AGENDA
+ [1] Issue by issue, “easy” first
+ [2] Issue by Issue, “Hard” or crucial first
+ [3] Independent first, dependant second
+ [4] Dependent first, independent second
+ [5] Packaging issues
STAGES OF EFFECTIVE MEDIATIONS
+ [1] Opening the process and developing information
+ [2] Expand information base, identify issues, organize agenda
+ [3] Problem-solving and persuasion
+ [4] Dealing with impasse
+ [4] Closing and settlement agreement
↓ CHAPTER XX | Mediation
2014-06-11
MEDIATION
* the process by which a neutral or 3rd party, upon being asked to do so, negotiates a dispute between
parties
+ Mediators can’t always avoid getting involved in substantive issues
+ It is sometimes used in mandatory schemes that focus on settlement as success
+ Mediation is used on an ad hoc basis, in different contexts, with different people, and for different
purposes
THE MEDIATOR
+ Assists in establishing an open, positive, and trusting negotiation atmosphere
+ helps plan the steps to be undertaken throughout the process
+ helps frame the issues to be dealt with and helping parties prioritize those issues
+ helps parties explore their underlying desires, hopes, fears, and concerns
+ promotes problem solving on the basis of the parties’ own growing perception of the facts and of their
interests
+ enables the parties to save face where possible
+ helping the parties develop skills that will permanently enhance their ability to problem-solve
+ asking the disputing parties the kinds of questions that will enable them to come to grips with their
own interests and solutions
RIGHTS-BASED NEGOTIATION
+ Western historical tradition dictates that rules and laws keep humanity from descending in chaos
+ Experts are needed to assess and judge departures from law to maintain social order
+ Such legal players have the power to declare right from wrong; to make winners and losers
DISTRIBUTION AND ZERO-SUM THINKING
+ Presupposes that resources are limited
+ Giving to one means taking away from another
+ The state maintains order by controlling the redistribution of property and wealth
+ Therefore
- Conflict resolution in a distributive system will be adversarial
- Winning requires adapting your argument persuasively to your society’s prevailing norms, or
principles
- Authorized 3rd parties will measure the merits of each argument to see which falls more closely
in line with societal norms
WHATS WRONG WITH RIGHTS-BASED THINKING
+ Conflict is not an ill that needs to be banished; it is a symptom of underlying interests
+ Attending to needs and interests will not necessarily produce chaos; it can be balanced with social
norms if the rule of law is maintained
+ Those best attuned to the causes of conflict are the parties involved; real, lasting solutions are
therefore more likely to come from the disputants
+ Society will be enhanced if people are empowered to resolve their own disputes
INTERESTS –BASED THINKING
+ Moves the parties away from rights-based adversarial positions
+ Reminds parties that they have shared status as human beings with real interests and aspirations
+ Creates an atmosphere of trust, where cooperation is possible
THE ROLE OF THE MEDIATOR
+ A mediator’s role is to counteract the adversarial impulse
+ Keep parties focused on cooperative problem solving
THE SOCIETAL PURPOSE OF MEDIATION
+ Speeds up negotiations; reduces legal costs; unburdens an overworked court system
+ Transformative process – enables and empowers people to be better problem-solvers
CUATIONS: CULTURE, GENDER, AND POWER
THEORIES OF MEDIATION
FACILITATIVE MEDIATION
+ Stresses the autonomy of the individual
+ Stresses the individual’s knowledge of his/her needs
+ Mediators help parties to see and understand what interests are in conflict
+ Mediators use their skills to help the parties problem-solve
+ Mediators do not impose their will, or evaluate interests or positions on the basis of rights or possible
legal outcomes
EVALUATIVE MEDIATION
+ Assumes that the parties need advice about an appropriate settlement of a conflict
+ A mediator’s expertise in other areas is used to provide such advice
+ Mediators see it as their role to give advice, influence the parties toward a particular settlement,
stress likely outcomes from court or other proceedings
+ Considered quicker and more economical
TRANSFORMATIVE MEDIATION
+ Stress the potential for mediation to be a transforming force
+ The purpose is to transform people by empowering and encouraging them to recognize one another’s
interests
+ Mediators help parties understand their interests, develop better problem-solving and communication
skills, take responsibility for teaching and transforming the parties
+ Mediators do not take control of the conflict of interests
NARRATIVE MEDIATION
AN EXIT FROM THEORIES
↓ CHAPTER 7 | The Stages of Mediation
2014-06-11
↓ CHAPTER XX | Microskills in Mediation
2014-06-11
MICROSKILLS IN MEDIATION
* Specific skills that people may possess that are useful in particular situations
+ [1] Active listening
* a process of being fully engaged in what another person is communicating to us
- not only listening, but attempting to understand their message
- SOLER
- sit up straight; open body language; lean in; maintain appropriate eye contact; relax
- Don’t interrupt
- Give feedback – verbal and non-verbal
- Watch for…
* Latent content – message that lies beneath the surface (suggested/implied)
* Manifest content – what is being said
COMMUNICATION SKILLS
+ [2] Paraphrasing
- Involves repeating in your own words what someone else has said
+ [3] Summarizing
- Condense the speaker’s message while including all of the relevant points
- Allows for clarification
+ [4] Reflecting
- Provide feedback that shows that the speaker’s feelings and emotions have been recognized
+ [5] Reframing
- Look at a situation from a different perspective, often a more positive one and restating it
+ [6] “I” Messages
- Statements that eliminate blame and accusations by using “I” instead of “you”
+ [7] Observation
- Clear language
- Non-verbal language
+ [8] Questioning
- Open-ended questions – allow the person responding to answer with a variety of answers
- Closed questions – usually require only a “yes” or “no” response
- Clarifying questions – used to bring out more information or to clarify a point someone has
made; they help clear up confusions or misunderstandings
- Justifying questions – used to resolve inconsistent or contradictory statements, and to ensure
clarity and understanding
- Probing questions – used for exploring situations more or when parties give vague responses
↓ CHAPTER 18 | Legal and Ethical Considerations
2014-06-11
CODES OF CONDUCT
+ Established by the Canadian Bar Association, the ADR Institute of Canada and The Ontario Mandatory
Mediation Program
+ Four purposes
- Guide practicing mediators
- Inform clients about the mediation process
- Protect mediating parties from the harm of lax standards or unknowledgeable, unskilled or
unethical mediators
- Promote public confidence
+ Typical contents
- Impartiality of the mediator; self-determination of the parties; conflicts of interest;
confidentiality; quality of process and educating the parties; advertising; fees; agreement to
mediate; termination of the process
REGULATION OF THE PROFESSION
+ Self-regulated
+ No laws exist that force all mediators to abide by particular codes or meet particular standards of
training or practice
+ However, a number of organizations require mediators to abide by their respective codes in order to
belong
OTHER QUALITY STANDARDS
+ Mediators should make other considerations in respect of their clients to ensure a quality process
including: age; culture; gender; education; emotional and psychological well-being; financial
circumstances
DEALING WITH ABUSE
↓ CHAPTER XX | Professional Practice Considerations
CAREER CHOICES
+ Private practice
- Generalists
- Specialists (commercial, family, restorative justice
+ Employment
- Government ministries and departments
- Administrative commissions and tribunals
- Private firms and H.R. Departments
- Schools and school boards
2014-06-11
MEDIATION ROSTERS
+ Mediators in private practice may qualify to be listed on mediation rosters for:
- The Ontario Mandatory Mediation Program
- The family court mediation programs through the family court clinics
- Child Protection Mediation Roster
- Other organizations or community-based mediation rosters
TYPES OF DISPUTES REQUIRING MEDIATORS
PROFESSIONAL ASSOCIATIONS
PRACTICE INSURANCE
+ Exists to protect the client and the mediator
- Covers damages (up to the amount of the policy) sustained by the client in the case of a
mediator’s error
- Protects the mediator from having to pay those damages out of pocket
+ Membership in professional associations often has the benefit for discounted group rates for practice
insurance
+ Insurance should cover at least $1M in liability, but frequently mediators opt for more coverage
FEES
+ In private practice, mediators charge according to the free market
+ Under certain programs, such as the OMMP, fees are locked at specific rates
FEES UNDER THE OMMP
+ 3 hour session
+ Shall not exceed
- 2 parties - $600
- 3 parties - $675
- 4 parties - $750
- 5 parties - $850
THE AGREEMENT TO MEDIATE
+ Contains the purpose of mediation, the parties and mediator involved and any confidentiality
agreements (such as a proscription against compelling the mediator to testify)
- Self-determination of the parties
- Rules of the process
- Full disclosure
- Issues to be mediated
- Structure of the process
- Fees and costs
- The role of lawyers and the need for independent legal advice
- Termination of mediation