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Mediation
University of Missouri School of Law
Levin, James

 
 
August 21, 2012 Assumptions Regarding Dispute Settlement Art of Mediation pp. 3-22 TWEN
 
Majority of disputes are handled w/Mediation & negation & other forms of conflict mgmt; not w/ the alternative=litigation. ADR should be Application Disp. Res.
 
Med= least formal; the lack of controls, norms, standards & various contexts=FLEXIBILITY!!!
ALos works b4 litigation or late into litigation.
 
Mediation is a process in which a neutral person(s) assists two or more negotiating parties to ID matters of concern, develop a better understanding of the situation and, based on that understanding, develop a mutually acceptable proposal to resolve those concerns. (textbook)
·         Levin: Mediation is a facilitated negotiation where 3rd party neutral facilitates the negotiation
o     w/ 4 essential features (below)
·         Mediation, once parties mutually agree, is a binding contract.
·         Arbitration
·         Primary difference: parties reach the agreement as opposed to a judge reaching the agreement
 
Essential Features of Mediation
·         Consensual
o    Parties must agree on the final outcome. 
o    Mediator has no power to impose a resolution
o    Mediator has no preference for the settlement terms
·         Informal
o    No rules of evidence
o    No witnesses
o    Parties determine what is relevant and what is not.
o    No precedent
·         Binding (if parties agree)
o    Parties not made to settle but can create contractual obligations
·         Private
o    Need not share results with the public
o    Statements made in mediation may not be admissible in future legal proceedings
 – Mediation works because 1) people feel listened to because 2) they feel hurt
 
Job Description (Major Elements)
·         Mutualize: identifying shared interests; highlight progress made (encourager/optimist); let ppl have their say
·         Neutralize – de-escalate unproductive conduct that interferes with the negotiation and problem-solving focus. Help parties communicate and hear each other by neutralizing charged statements & antagonistic behaviors.
o    Shape on productive behavior; reframe; minimize polarization (division)
·         Clarify – help ensure parties clearly understand what is being said, options, & consequences of impasse.
o    BATNA/WATNA; What happens if we do not settle?
o    define process; identify options & consequences What happens if we do not settle?
·         Futurize – Cant change past; Help parties let go and focus on the present and future.
o    only revisit past to explore/ learn from it
 
 
 
 
 
August 23, 2012 Communication/Active Listening Art of Mediation pp.86-107 TWEN
Effective Communication:
·         requires parties to increase actual knowledge of the conflict & its options by sending & receiving messages accurately
·         The importance of Comm skills/overall goal: to create the best possible opp to reach mutual agrmnt
·         Ppl in conflict are often under the influence of fear/anger/uncertainty/depression/anxiety= miscom
 
·         Miscommunication causes disputes OR miscommunication can escalate the dispute.  Why?
o    People hear what they want based on
·         Ideology
·         Philosophy
·         How you see yourself
·         We hear things as we want to make ourselves comfortable
·    We listen differently depending on the context;
o    we listen in mediation actively and effectively
o    It takes effort to listen well
o    Then, Mediator can translate and take out emotions and relay information back
o    Mediation works because 1) you get to say what you want and 2) you feel listened to.
         ○               
See Chart: the communication takes on the form of a “Z”. what u give is received as something else
        
 
 
Communication
·         Message: What is the message intended?
·         A lot can happen when a message is sent and when a message is received that messes up the message intended:
o    Distractions/context
o    Bias
o    Jargon, language, accents
o    Cultural differences
o    Bad sound/garbled language
o    Ambiguous meanings of words
o    Movie clip example: “let him have it”.     
 
 
 
 
 
 
How can we improve listening? 4 steps to IMPROVE YOUR LISTENING
·         ATTENDING
o    Reduce distractions
o    Set aside preoccupations
o    Don't assume (no mental arguments)
o    Don't judge (blocks listening)
o    Be aware of your non-verbal messages
·     Non-verbal is anywhere from 60-90% of communication
·      Non-verbals trump verbals – they send a message you're not listening
o    Observe speaker's non-verbals. If the body language does not match verbals, need to ask more questions to get out what the party is thinking
o    M cannot listen if talking. M’s job is to listen, not dominate
o    Be yourself
o    Be patient (ppl tell stories differently)
o    Listen in the context of the immediate setting, life experiences, and culture
·         ACKNOWLEDING
o    Acknowledge content
o    Acknowledge Emotion
o    Hear the emotion then reflect the emotion back or ppl feel unlistened to
·         INVITING
o    Ask relevant questions
o    Use statements to encourage the speaker to continue
o    Use minimal prompts
o    Use silence
·         Don't jump in, let gravity of situation set in
 
·         SUMMARIZE
o    Summarize content
·         Hit the bullet points, only most important. Do not summarize everything
o    Summarize emotion
·         Reflect you've heard the emotion
o    Verify: summarize content and emotion and then if you are correct in the summary, it is clear you listened. If wrong, it gives the other speaker a chance to clarify.
 
*Communication is simple but very important to the mediation process. If we are not good listeners, then we are not good mediators.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
August 28, 2012 Theory of Conflict and Styles of Conflict  MTP 4-; 61-66 TWEN
 
What is conflict?
·         Conflict does not have to be negative; can be positive; it can open doors.
·         It's how we manage conflict that is most important to us!!!!
·         Mediators must learn to manage conflict
·         Are disputes different than conflict?
o    Conflict is general, dispute is more specific. (Battle vs. War)
o    dispute is the physical manifestation of the conflict.
o    Dispute might be encompassing of a larger conflict. We might be able to solve who                          gets the car, but it might not solve bigger sibling conflict
o    In Mediation, we need to be aware of what we are resolving?  What do the parties want?  Do the parties care about the larger conflict?
 
·         Conflict Defined: tension between 2 or more people or groups of people who perceive that they have incompatible goals and that those incompatible goals interfere with either or both sides from achieving their respective goals.
 
o    Tension: can be emotional, physical (symptoms: nausea). 
·         What can a mediator to deal with tension?
§  Use humor
§  Opening statement to relax
§  Divert with something they agree on
§  Reflect back

            What can we do as mediators?
                        – Separate the people from the problem. Put aside emotions to get a deal.
                        – Address emotional issues first; get an apology
                        – Set ground rules (ex: treat each other with respect, no name-calling)
                        – Acknowledge that they have a right to vent, but give time and space to calm down
 
Structural Disputes because of…
·         Unequal power/ authority
·         Procedural constraints or time constraints
·         The law
·         Geography
·         Destructive patterns of behavior
·         Unequal ownership or control or distribution of resources
·         Unlimited resources
·         Geographic, physical or environmental barriers
                        Factual Situation: contract with a no-compete clause; isolated town; only one office
                                                                As mediators: shift and re-frame to needs/interests of the parties.
Value Disputes because of…
·         Different values that come into conflict
·         As mediators, what do we do when we have value conflicts?
o    Understand each side; try to figure out ways to come up with solutions that do not challenge your values.
o    Look for common elements.
o    Hardest to overcome.
                         Factual Disputes: value of parents to both be involved with kids – live near their children. Value of K, must honor it.                                                                 ***Break down the disputes, identify, and help move it along with corresponding strategies. 
            LEVIN pointed out that our values seemed to be the same as our interests: valuing silence= desiring it
 
Styles of Conflict
·         Avoiding: not very assertive and not very cooperative
·         Accommodating: not very assertive but very cooperative
            o Never get your way
            o Not creative
            o Ok for a minor conflict
·         Competing: very assertive and not very cooperative
o    Hard bargaining
o    Winner take all
o    Dominate – not creative
                        – Mediator: job is to help give voice to the less assertive, balance the powers
·         Collaborating: very competitive and very cooperative
o    Interest based
o    Getting to Yes
o    Work it out
o    Takes time and effort
o    Takes both the play
·         Compromising: in the middle
 
INTERVENOR: primary goals (needs a “conflict road map” (a conceptual road map) that details)
·   (1) identify indicators of conflict: tension (communication, attitude, perceptions, etc) &
·   (2) the multiple causes of the conflict/ barriers (why the conflict is occurring- from conflict circle) &
·   (3) take action to address the settlement barriers (indicates procedures to manage or resolve conflict)
·   (4) gather similarities & differences in the values