Student Mediator Training

What is mediation?

Definition of Mediation A process for resolving disputes in which another person helps the parties negotiate a settlement

What is mediation? How does that differ from arbitration and negotiation? When is it used? When should it not be used?

FORMS OF DISPUTE RESOLUTION (Consider the degree of self-determination) AVOIDANCE NEGOTIATION MEDIATION ARBITRATION LITIGATION

THE MEDIATOR’S ROLE Convener Educator Communication Facilitator Translator Questioner and Clarifier Process Advisor Angel of Realities Catalyst Responsible Detail Person

What is not the Mediator’s Role? To be a detective To be an arbitrator

TYPES OF MEDIATION How do the goals and mediator roles differ? Facilitative Evaluative Transformational How do the goals and mediator roles differ?

Suppose a party withdraws from a mediation. Would that be a success or failure? What might make it feel like a “success?” What outcomes might have occurred?

STEPS IN THE MEDIATION PROCESS Mediator opening statement Party opening statements Exchange/negotiation Caucuses Closure/agreement

MEDIATOR OPENING The opening is critical It can set the stage It can establish trust Communicate concern Provide a structure for discussing issues

MEDIATOR OPENING Welcome and introduction Purpose of mediation; the mediator’s role Logistics: timeframe, breaks, restrooms Confidentiality explained Agenda Caucusing explained Ground rules Questions Commitment to proceed

THE AGREEMENT It must be doable & durable. Write a draft of the agreement immediately after the disputing parties have verbally agreed upon a solution. Read the agreement out loud. Use positive language.

Student Mediation Program at Process Co-Mediation Confidentiality But some information must be reported Impartiality Types of cases

What challenges face college mediation programs?

PREPARING FOR MEDIATION 1. Figure out the real interests — not the “positions” — and reservation point for each side as well as you can. Privately review these points with each side. If appropriate, keep reviewing these points during the mediation. Stay alert for new data. 2. Through acquiring information and brainstorming, seek to expand the pie so that each side might get as much as possible of what it would like. Explore moving the reservation points of each. 3. Help the parties decide on fair principles to determine how to decide the issues at hand. 4. Do you what you can to see that all parties come to see the settlement — any — as the best possible one under the circumstances

BARGAINING /DISPUTE MANAGEMENT METHODS Distributive Zero-Sum Positional Competitive Integrated Win/Win “Interest Based” Cooperative

The Distributive Bargaining Situation Goals of one party are in fundamental,direct conflict to another party Resources are fixed and limited Maximizing one’s own share of resources is the goal

PREPARING FOR DISTRIBUTIVE BARGAINING I. Figure out your own interests and reservation point as well as you can. Keep reviewing these points while you negotiate. 2. Figure out the interests and reservation point of the Other (the other party or parties). Be alert to new data while you negotiate. 3. Seek to move the reservation point of the Other to widen the bargaining range especially if there is a negative range. (This process is often begun by “sowing doubt.”) However, if necessary for a settlement that you must’ achieve, move your own reservation point. 4. Seek a settlement as close as possible to the reservation point of the Other so that you win the maximum profit. 5. Do you what you can to see that both you and the Other come to see this settlement as the best possible one under the circumstances.

Example Larry, a business major, spent the summer in his uncle’s store. His uncle was so appreciative of all the work he did that he gave him a new computer. Larry decided to sell his old computer, which was only a year old, but the new computer was an upgrade. (You know how fast technology changes.) He could use the money to buy his textbooks. He put a sign up at school asking advertising the sale.

Example – P. 2 Larry had originally paid $799 for his old computer. He had seen used ones advertized for $585. His textbooks cost $535. He advertizes the computer for $585, but he wants to get at least enough money to pay for his textbook. Minnie, is a math major. She needs a new computer, but after buying books, has only $450 left. She cannot afford the new computer she wants, so she decides to find a used one. She is going to start a part-time job in 3 weeks, but she isn’t working now. She answers Larry’s ad, hoping he will take less than the advertized price.

What Makes Integrative Negotiation Different? Focus on commonalties rather than differences Address needs and interests, not positions Commit to meeting the needs of all involved parties Exchange information and ideas Invent options for mutual gain Use objective criteria to set standards

Getting to Yes The Seven Elements of Negotiation INTERESTS What do people really want? OPTIONS What are possible agreements or bits of an agreement? ALTERNATIVES What will I do if we do not agree? LEGITIMACY What criteria will I use to persuade each of us that we are not being ripped off?

The Seven Elements of Negotiation (cont’d) COMMUNICATION Am I ready to listen and talk effectively? RELATIONSHIP Am I ready to deal with the relationship? COMMITMENT What commitments should I seek or make?

Overview of the Integrative Bargaining Process Create a free flow of information Attempt to understand the other negotiator’s real needs and objectives Emphasize the commonalties between the parties and minimize the differences Search for solutions that meet the goals and objectives of both sides

Key Steps in the Integrative Bargaining Process Identify and define the problem Understand the problem fully identify interests and needs on both sides Generate alternative solutions Evaluate and select among alternatives

PREPARING FOR INTEGRATIVE BARGAINING 1. Figure out your own interests and reservation point as well as you can. Keep reviewing these points while you negotiate. 2. Figure out the interests and reservation point of the Other. Be alert to new data while you negotiate. 3. Through judiciously shared information and brainstorming, seek to expand the pie so that each side may get as much as possible of what it would like. Explore moving the reservation points of each side. 4. Decide on fair principles to determine how to divide the pie. 5. Do you what you can to see that both you and the Other come to see this settlement as the best possible one under the circumstances.

Example How would you approach the sale of Larry’s computer using an integrative style?

COMMUNICATION IN MEDIATION Up to 85% of communication that passes between people is nonverbal. The parties have the answer. Bob Berlin 80/20 rule

How People Communicate Use of language Logical level (proposals, offers) Pragmatic level (semantics, syntax, style) Use of nonverbal communication Making eye contact Adjusting body position Nonverbally encouraging or discouraging what the other says

Communication skills Active listening Skillful questioning Paraphrasing Reframing Sending clear messages

SKILLFUL QUESTIONING General – most open What’s on your mind? What can you tell me about this situation? What happened? Opinion Seeking – open What do you think would be fair? What is most important to you? What is your reaction to his/her proposal? Fact Finding – somewhat open Who needs to approve this? When is the deadline? Where, What, When, How?

SKILLFUL QUESTIONING Narrow Direct or Forced Choice – mostly closed Did you tell him/her before it happened? Will you be there before 5 o’clock? Will you accept his/her version of the agreement w/o any changes? Leading – closed Isn’t it true that there is no alternative? Didn’t you say that it would be done without fail by Tuesday? Isn’t it a fact that s/he cannot go to another school?

How to Improve Communication Listening: three major forms Passive listening: Receiving the message while providing no feedback to the sender Acknowledgment: Receivers nod their heads, maintain eye contact, or interject responses Active listening: Receivers restate or paraphrase the sender’s message in their own language

Listening is Important and Powerful • Good listening is helpful in and of itself--if you do nothing else in mediation • Builds trust and rapport • Deescalates/calms • Creates clarity • Listening is a precursor to problem-solving • Feels like a “gift”--everyone wants to be heard

Demonstrate that you want to listen Focus your eyes on the person who is talking. Lean forward occasionally. Respond with appropriate facial expression or body language Encourage by asking supporting questions Acknowledge what is said.

What’s “Active” About Active Listening? • Requires work and concentration • Two-way

Three ways of looking at Active Listening – Set of skills (e.g. open-ended questions) – Ability to focus/concentrate -- focused on all aspects of speaker’s communication, setting aside my own issues for the moment. – Attitudes (ideally): • I care what this person has to say • I’m sincerely curious about how this person sees things • I’m willing to withhold judgment and accept this person’s reactions, perceptions, feelings as legitimate.

Active Listening Skills • Get the Story • Probe / Clarify Meanings • Listen for Emotions • Summarize • Value Silence

PARAPHRASING Focuses on the experience of the speaker. Important because: Lets speaker know s/he has been heard and understood Receiver makes sure s/he gets it right Gives the speaker an opportunity to access the message and to modify it Gives the other party to the mediation a second opportunity to hear and understand the message

REFRAMING Redirecting, limiting, or shaping the perception of a message so that it is more constructive Message may have negative dimension May contains threat, insult or offensive language Mediators choose a positive interpretation

REFRAMING-Examples: Reframing position to interest Reframing a judgment to a problem Reframing a blame to a need Reframing a past to a future Reframing an individual problem to a shared problem

SENDING CLEAR MESSAGES Mediators need to make sure they are understood Suggestions Replace abstract concepts with concrete descriptions Send I messages instead of You. Accept personal responsibility for interpretation. Avoid placing blame and putting others on the defensive.

PRONOUN FORM OF LANGUAGE LIKELY RESULT They Stereotype Prejudice You Accusation Denial & counter attack He/she Demonization or Victimization Hostility or disem-powerment It Objectification Problem solving

PRONOUN FORM OF LANGUAGE LIKELY RESULT I Confession/ request Taking responsibility/ introspection We Collaboration Commitment

Communication Reminders When explaining our own actions, we usually point to external circumstances and conditions. When explaining the actions of others, we usually point to personal weaknesses or character flaws. Human beings continually make assumptions & inferences about others based on first impressions.

SOURCES OF POWER IN NEGOTIATION * Positional power or the power of legitimate authority • Rewards • Sanctions • Force • Expertise • Information • An elegant solution • Commitment • Charisma — referent authority — moral authority • BATNA — the best alternative to a negotiated agreement • Relationship — power gained or power lost

Impasse What are some indications that parties are stuck? What are some reasons that settlements stall? What tactics can you use when the parties are stuck?

Role reversal Negotiators understand the other party’s positions by actively arguing these positions until the other party is convinced that he or she is understood Negotiators realize that increasing understanding does not necessarily lead to easy resolution of the conflict

EMOTIONS Expressing strong feelings may be an essential part of the process Guidelines When one party is venting, pay attention to the parties. It may be counterproductive There is a difference between venting and personal attacks. If necessary, ask the speaker to stop and reformulate the statement.

EMOTIONS (continued) When emotions are not being expressed, consider using probing questions. If feelings are not revealed in the joint session, they may be in caucus. Inject feeling issues into the mediation with reality-testing questions.

MODEL STANDARDS OF CONDUCT FOR MEDIATORS Self-Determination Impartiality Conflicts of Interest Competence Confidentiality Quality of Process Advertising and Solicitation Fees Obligation to the Mediation Process

CHECKLIST FOR A GOOD RESOLUTION Is the resolution specific enough? Does it tell: When? Where? How? Who? Is the resolution balanced? Can both disputants really do what they promised? Will the resolution solve the problem?

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Mission Mediators Beyond Borders brings together experienced mediators to volunteer their skills world-wide, in collaboration with local, indigenous and global partners, to improve conflict resolution capacity and support alternative approaches to expressing, negotiating and resolving interpersonal, political, economic, social, ethnic and religious differences.

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University Chapters http://www.mediatorsbeyondborders.org/who/university_chapters.shtml

Mediation Conference and Tournament http://www.adrpeacemaking.org/intercollegiatetournament.htm Drake Law School in Des Moines, IA on November 5-6, 2010 Brenau University Mock Mediation Tournament, October 1 and 2, 2010