Mediation

Mediation / Conciliation vs. Arbitration n Mediation / Conciliation –Process where a third party intervenes. –By invitation of the parties involved in dispute (contractual) or otherwise (emergent). –Attempt to secure a voluntary adjustment of the difficulties. n Arbitration –Third party acts as judge, referee, & umpire. –Third party hands down a decision.

Mediation Tactics n Structuring physical and social structure –Manipulate site neutrality and openness, encouraging secrecy, separating the parties if unable to be rational n Modifying issue and alternative structure –Identify real issues, reframe, sequence them optimally, challenge parties to invent options n Stimulating disputant motivation to reach agreement –Show stalemate and be optimistic about outcome. Set deadlines and urge parties to concede

When Does Mediation Work? n Disputants perceive stalemate and are optimistic about the outcome, negotiation failed n The parties want a resolution, or at least a change. n All the important stakeholders come to the table. n The parties are (eventually) able to express the reasons for their discomfort and distress. n The mediator is able to control and sustain the process. n The parties are capable of living up to their promises. n Not if: –Issues of principle are involved –Internal discord within one or both parties –Severe structural changes

Things a Mediator Can Do... n Separate emotion from fact, wishes from reality n Suggest realistic expectations. n Invite both parties to talk. n Listen to both sides without anger. n Pass information between parties. n Stimulate mutually beneficial creative thinking. n Suggest compromise positions and conclusions that either party alone would be afraid to propose for fear of weakening its bargaining position.

Things a Mediator Can NOT Do... n Sell new ideas to each side more easily than if each side proposed the idea. n Cause buyer and seller to ask “What decision do I want my opponent to make and what must I do to help him or her make that decision?” n Impose a solution

The Mediation Process n Mediation is any process for resolving disputes in which another person helps the parties negotiate a settlement. n “The problem is their responsibility.The process is yours.” –“Trust the process” Preparation The Mediation Session Wrap-up Multiple Sessions

The Steps in Mediation Session n Stabilize the setting –Introduce and explain—opening statement –Calm them n Help the parties communicate –Parties tell their view of the problem (uninterrupted) –What they want, ID problem n Help the parties negotiate –Generate and evaluate alternatives –Select alternative, resolve problem n Clarify their agreement –Summarize terms, Establish follow up meeting