1. Seminar on Alternative Dispute Resolutions held at The Sarova Panafric Hotel, Nairobi on September 10-11, 2015.

2.  1. NEGOTIATION  In negotiation, the parties themselves attempt to settle their differences using a range of techniques from concession and compromise to coercion and confrontation  There are two negotiation theories

3.  POSITIONAL NEGOTIATION- competitive or compromise.  Positional negotiation strategy is essentially, a manipulative approach designed to intimidate the other party such that they lose confidence in their own case and are pressured into accepting the other side’s demands.

4.  a, High opening demands  b, Threats, tension and pressure  c, Stretching the facts  d, Sticking to positions  e, Being tight lipped  f, Desire to outdo, out-manoeuvre the other side.  g, Desire for clear victory

5.  PRINCIPLED NEGOTIATION – interest based, co-operative, collaborative.  Main points of principled negotiation include:-  a, Separate the people from the problem  b, Focus on interests, not positions  c, Invent options for mutual gain  d, Select from among options by using objective criteria

6.  a, Maintains relationships  b, Achieves satisfactory /efficient agreements  c, Is flexible  d, Can redress power imbalances.

7.  A private and non –binding form of dispute resolution method where an independent third party (neutral) facilitates the parties reaching their own agreement to settle a dispute.Mediation is often a structured process where the settlement becomes a legally binding contract.

8.  Mediation is the most widely used and accepted ADR technique

9.  - Workplace mediation  -Community mediation  -Victim offender mediation(restorative justice)  -Civil mediation /commercial mediation /court mandated mediation  -Landlord tenant mediation

10.  Family mediation (Divorce and separation mediation)  Peer mediation in schools  Mediation for law enforcement officers (Police)  Environmental conflicts Mediation  Mediation for constructions disputes and many others

11.  Conciliation is an ADR (alternative dispute resolution) that utilizes a third party, who meets with the sides separately and communicates the needs of the other side. The purpose of conciliation is to improve communication between two parties so they can effectively articulate their disagreements to the other party.

12.  In improving communications through the efforts of a third party conciliator, some tension from the dispute may dissipate, allowing the parties to come to a resolution amicably. The key element in conciliation is the conciliator is a skilled negotiator and takes an active role in negotiating a settlement.

13.  A combination of mediation and arbitration where the parties agree to mediate but if that fails to achieve a settlement, the dispute is referred to arbitration. The same person may act as a mediator and arbitrator in this type of arrangement.

14.  A private and non –binding technique where a third party neutral (often legally qualified) gives an opinion on the likely outcome at trial as a basis for settlement discussions.

15.  These are long established procedures in English law and have been used across a number of industries.example include : accountants valuing shares in limited companies, valuers fixing the price of goods etc

16.  This is a voluntary non binding process. The parties involved present their respective cases to a panel comprised of senior members of their organization. The panel is assisted by a neutral facilitator and has decision making authority.After hearing presentations from both sides, the panel asks clarifying questions and then the facilitator assists the senior party representatives in their attempt to negotiate a settlement

17.  a process which provides for a referral of a dispute arising under the contract at any time to a neutral third party who, unlike the architect or engineer, will not have any personal involvement in the contract.  Adjudication is a procedure where power is given by the contract to an independent third party to make interim decisions on disputes between the parties arising under the contract

18.  A formal, private and binding process, where disputes are resolved by an award made by an independent tribunal. The tribunal is either agreed by the parties or nominated by a further independent body.eg a court, or a professional institution like the law society of Kenya.

19.  The formal processes whereby claims are taken through court and conducted in public.Judgments are binding on the parties, subject to rights of appeal

20.  NECESSARY KNOWLEDGE FOR MEDIATION 

21.  A condition between people who are task interdependent, and where one or both feel angry, and find fault with the other, and use behaviors that cause a business/Community problem

22.  Intentional behaviors avoiding withdrawing withholding information not returning messages silent treatment

23. threatening pre-empting getting others to take sides shouting hostile gestures

24. facial expressions agitation body posture fidgeting perspiring

25.  Flight” Distancing = “Walk-aways” avoiding withdrawing withholding information not returning messages silent treatment

26.  Coercion = “Power-plays” threatening pre-empting getting others to take sides shouting hostile gestures

27.  An alternative to our reflexive strategies of Distancing and Coercion is the Essential Process of mediation:  Face-to-face talking  about the problem  without interruption  long enough to find a solution

28.  The Essential Process requires the Cardinal Rules: 1) No Walk-aways We must stay in the Essential Process 2) No Power-plays We must not impose one-sided solutions

29.  Trigger  Perception of threat  anger  Acting out

30.  The Conciliatory Cycle Retaliatory Cycle explains how we make “war” Conciliatory Cycle explains how we make “peace”

31. Naturally-occurring behaviors in conflict interactions: ● Conciliatory Gestures ● Inhibitory Reflex

32. Apologizing Owning responsibility Conceding Self-disclosing Expressing positive feelings Initiating both-gain

33. Instinctive reaction to others’ conciliatory gestures Reflex: “Inhibition of aggression” Appears in all species of social mammals, but less reliable in humans Evolved as a behavioral mechanism to reduce destructive aggression in territorial encounters

34.  The path from conflict to cooperation leads over the top of Conflict Mountain.

35. A mutual attitude shift from “me against you” to “us against the problem”

36.  FATIGUE  INHIBITORY REFLEX  DESIRE FOR PEACE  CATHARSIS

38.  A, 4 STEP METHOD FOR BUILDING BETTER RELATIONSHIPS.  STEP 1. FIND A TIME TO TALK  - the approach  -the issue statement  -the request  -the sale  -the cardinal rules  -time and place

39.  PLAN THE CONTEXT  Remove the “land mines” from your time and place environment

40.  TALK IT OUT  The opening  -express appreciation  -express optimism  -Remind cardinal rules  State issue  The invitation

41.  The dialog  -task# 1 stay engaged in the essential process  -task# 2 support conciliatory gestures

42.  Balanced  Behaviorally specific  Written

43.  STEP 1. DECIDE TO MEDIATE – make an informed decision.  STEP 2-HOLD PRELIMINARY MEETING – prepare the parties

44.  STEP 3- PLAN THE CONTEXT – protect the meeting.  STEP 4. HOLD THE THREE –WAY MEETING – do three simple tasks  -use natural forces towards harmony to produce breakthrough

45.  STEP 5 –FOLLOW UP – support deal

47.  Background Information about the parties and the nature of the dispute  Arranging the Physical Space Introducing the parties to the goals and the process of mediation.  Setting Ground Rules

48.  Joint Sessions: parties discuss and listen to each others’ concerns, issues, vent emotions  Separate Sessions: parties further explore their concerns, options, view of “reality”

49.  Establishing Criteria for acceptable solutions  Generating Options

50.  Identifying areas of agreement  Agreeing on principles and then on details, if possible.  Preparing and Signing (if appropriate).a Written Agreement, including process to revisit if needed.  Implementing decisions

51.  In your introduction, be sure to discuss: What Mediation Is Role of the Mediator Confidentiality Role of Advocates Courtesy (Ground Rules) The Agreement to Mediate Use of joint and Private Sessions

52. THE INSTITUTE OF CERTIFIED PUBLIC SECRETARIES OF KENYA(ICPSK)