BASIC MEDIATION AS A METHOD OF ALTERNATIVE DISPUTE RESOLUTION Department of Labor National Professional Development Forum September 13, 2007 Presenters: Vern Best – Veta Hurst –

Alternative Dispute Resolution (ADR)

ADR uses a variety of voluntary techniques to resolve disputes rather than traditional adversarial methods, like litigation.

ADR Techniques Mediation Facilitation Fact Finding Early Neutral Evaluation Ombudsmen Settlement Conferences Mini Trials Peer Review Combination of Techniques

Alternative Dispute Resolution (ADR) EEOC’s regulations require agencies to establish or make available an ADR program for both: –The pre-complaint process; and –The formal complaint process.

Core Principles of ADR Voluntary Neutral Confidential Enforceable

Core Principles of ADR Voluntary –Both parties must agree to participate in ADR. –A settlement agreement must be acceptable to both parties. –The parties may end ADR at any time.

Core Principles of ADR Neutral –An objective, impartial third party who has been trained in ADR techniques and EEO law. –The neutral has no power to decide the dispute.

Core Principles of ADR Confidential –Confidentiality in any ADR proceeding must be maintained by the parties and the neutral. –The terms of the settlement agreement will not be confidential unless the agreement contains a confidentiality provision.

Core Principles of ADR Enforceable –The settlement agreement must be in writing and signed by both parties. –Settlement agreements are enforceable by the EEOC.

Mediation Defined Mediation is a process in which an impartial third party assists disputants in finding a mutually acceptable solution to their dispute. Mediation is both voluntary and confidential.

Third Party Assistance Mediator as a Facilitator of Process Mediator as Neutral No stake in outcome No position on issues

Mutually Acceptable Solution What would satisfy the parties? How can their needs be met?

The Process is Voluntary No obligation to mediate. No obligation to reach an agreement.

Confidentiality Parties sign confidentiality agreements. Why is confidentiality so important? Mediator bound by confidentiality.

Factors Favoring Mediation Desire to avoid adverse precedent. No need to establish precedent. Need to avoid publicity or need for confidentiality or privacy. Desire for speedy resolution; need to avoid delay. Need to preserve continuing relationship. Recognition that emotions or hostilities may bar a settlement. Desire to minimize risk of imposed outcome. Need to reduce high cost of litigation. Existence of collateral issues that may enhance resolution in a mediation forum.

Position Based vs. Interests Based

Position vs. Interests A Definition POSITIONS are what a party feels, believes or wants. They are proposed solutions for the party's issues. INTERESTS are why a party feels, believes or wants a certain thing. They describe what is important about the issue. They may or may not have solutions yet, but they are open to possibilities.

Questions to Determine a Party’s Interests What is important to you about this issue/ this action/ this party? What bothers you about this situation? How does the other party/ the action affect you? Could you explain why this issue/action means so much to you?

Stages of 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

Stage I “Setting the Tone” This is the most important phase in the mediation process. It provides you with the opportunity to make a good “first impression.” How the mediator(s) performs during this phase will impact either positively or negatively on the remaining mediation process.

Stage II Identification of Issues With mediator’s assistance, parties will:  Identify issues in their disputes  Express their views and perspectives  Identify areas of agreement and disagreement on the issues  Identify common ground Note: this stage does not include reaching agreement or selecting options to resolve disputes.

Elements of Stage II Joint Session In opening, mediator will:  Explain what will happen at Stage II  Remind parties they will have time to present their perspectives  Establish ground rules

Mediation Ground Rules Established by mediator –Whoever is speaking has floor, no interruptions –Take notes and bring point up later –Any party can stop process for break at any time or request a caucus –Negotiate in good faith; our common goal is to resolve dispute –Listen –Follow ground rules and direction of mediator Other ground rules requested by parties Ask parties to commit to ground rules

Elements of Stage II Joint Session (continued) Complainant presents views Mediator paraphrases what s/he heard complainant say Respondent/Agency presents views Mediator paraphrases what s/he heard Respondent/Agency say Mediator asks parties to “add or clarify, not respond” Continue back and forth until parties feel they have expressed their views Mediator summarizes common ground

Elements of Stage II Individual Sessions Individual Caucuses with each party Agenda setting for new Joint Session; What can be shared with other party?

Elements of Stage II Joint Session Return to Joint Session Repeat Elements of Stage II as needed

Caucuses Used by mediator to: –Gain control of mediation –Allow party to vent or share information –Ensure party heard/understood what was said –Move beyond impasse –Provide an opportunity for each party to explore strengths/weaknesses of case

Caucuses (continued) Used by mediator to: –Provide an opportunity for party to explore strengths/weaknesses of other party’s 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

Validation 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.”

Open-Ended Questions 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’s important to you?” –“Why is that important to you?”

Paraphrasing 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

Paraphrasing (continued) –Builds trust, demonstrates 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

Stage III Generating Options & Problem-Solving

Generating Options In individual sessions clarify what are the parties’ bottom line. Mediator may offer a solution not as an answer, but as an idea to think about. Ask parties “what if” questions.

Generating Options Brain Storming Techniques –May be used by the parties to develop options. –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.

Generating Options Reality Testing –Technique used by the Mediator to assist the individual party in evaluating the practicality and feasibility of their goals. –Mediator enters evaluative mode. Discuss strength and weakness of individual Party’s case. Feedback –Validate what party expressed through use of verbal or non-verbal response. –Paraphrase re-state what party said in your own words.

Stage IV Agreement Writing & Post-Mediation

Basic Mediation Skills for Federal Agencies