John G Bell

PALOD4

Spring '03 - Hill

20hr Basic Exam

1. Continuum of Conflict

   1. Describe in your own words:

      1. mediation – is a style of conflict resolution that involves an acceptable third party that helps the 1^st and 2^nd parties to resolve their own difficulties.

      2. Arbitration – is a style of conflict resolution that involves a third party that develops a solution on behalf of the 1^st and 2^nd parties with their input and agreement.

      3. Litigation – is a coercive style of conflict resolution where the 1^st and 2^nd parties are not necessarily in agreement about resolving the conflict and rely on the authority and precedent of the 3^rd party to determine the facts and resolution to a conflict.

      4. Therapy – is a personal method of conflict resolution that involves the 1^st and 3^rd parties, but does not always directly involve the 2^nd party of a conflict, if there is one.

   2. What are the major differences between them?

      The major differences between these styles of conflict resolution are the amount of coercive force necessary to bring the parties to the table, the amount of involvement by the 1^st & 2^nd party in the process, the amount of involvement of the 3^rd party in determining the resolution on behalf of the other parties, whether the participants recognize that there's a conflict without 3^rd party intervention, and primarily they differ on the quality of satisfaction each party gains from the outcome, which in turn affects the quality of the resolution.

2. What do you do as the mediator when the clients walk into the mediating session and you realize you know one of them?

   First, I would quickly determine for myself whether I should immediately preclude myself from the mediation. Assuming that I feel that it would be possible for me to remain impartial enough to continue, I would inform the other participants of the nature of my familiarity and my determination that I believe I can remain impartial but allow all the parties to determine for themselves if they feel that the mediation can continue or if another mediation with different a mediator should be arranged.

3. Briefly describe in your own words each of the 8 stages used in the DRC mediation model:

   1. Case-development, scheduling, room set-up, check-in – Before the clients arrive at the location of the mediation there will have been several contacts between the clients and the DRC to develop the case, determine suitability for mediation and to prepare the clients for the process. Further, the mediators will have arrived and prepared for the mediation and checked in with each other as this may be the first time they've worked together.

   2. Mediator opening statement and agreement to mediate – The mediation is framed by the mediators by providing information about themselves and the process, preparing the clients for the expectations and requirements of the mediation and the boundaries of the process.

   3. Client opening statement and mediator feedback – Each client is given exclusive time to explain their ideas about the issues and interests that will be discussed during the mediation. The mediators act as, perhaps the first the client has experienced, an active listener to the client and reflect back to the client's satisfaction what has been said.

   4. Agenda building – The clients are guided and coached to develop an agenda for the mediation from the information that's been provided during the mediation. These items will be the outline of the negotiation process that follows.

   5. Negotiations – The clients are helped to speak directly to each other over the items on the agenda that they have developed during the previous stage. The process of negotiation is the part of the process where the clients work through the issues of the meditation.

   6. Optional Caucus – There may be times when a more direct interaction is necessary for the mediators to effectively facilitate the process. This direct interaction may be between the mediators to work out how best to continue or it may be a chance for the mediators to address each client individually and use more concentrated techniques to find out what the issues and interests are for each client, and offering a chance to offer more specific guidance and coaching for the clients.

   7. Settlement Agreement and Closure – The process of negotiation should develop into agreements matching closely to the agenda. These agreements form the line items of a settlement agreement between the clients which is written down in their words and turned into a possibly legally binding agreement the clients sign and will bring the process to closure by the mediators.

   8. Co-mediator and observer debriefing – After the clients have left, there is an opportunity for the mediators and the observers to speak about the way that the mediation progressed, discussing ideas about things that worked well or not so well as part of an ongoing learning and skill building meta-process.

4. Why is mediator neutrality so important in mediation?

   While each person has their personal biases, it is a learnable skill to set these aside in order to maintain neutrality. This neutrality is a way of maintaining focus on the process of the mediation instead of the content of the mediation. Since the mediators are only nominally familiar with the context and content of the conflict, they would be imposing artificial limitation on the outcome if they did not maintain this neutrality. The clients have far more familiarity with their own issues and interests that form the context and the possibilities and opportunities that could inform the content of the mediation.

5. Good faith

   1. What does good faith negotiating look like?

      When the participants are able to negotiate in good faith it becomes more possible to develop meaningful and lasting agreements that are satisfying to the clients and the whole process is more likely to move forward and increase each participant's trust. Functionally, this is supported by the participant's willingness to listen to the other, to willingly share with the other participant, to keep an open mind toward the ideas and feelings expressed in mediation and to avoid a fixed position. This is further supported by abiding by the rules of common courtesy such as not interrupting others, not using inflammatory language and avoiding distracting behaviour.

   2. What can you do as a mediator if you suspect the clients are operating in bad faith?

      There are several techniques that one might use as a mediator if there's a possibility that participants are not negotiating in good faith. Some of these techniques are to re-explain what good faith is in the context of the mediation, remind the participants of the original commitment to negotiate in good faith, remind the participants of their agreement to the ground rules of the mediation. Probably the most important in my mind would be to make an observation about the behaviour that appears to be a problem, naming it and then inviting the participants to talk about that behaviour.

6. How would you describe the role of a mediator?

   Primarily, I see the mediator as a facilitator, in the sense of acting to further the process. This involves acting as a tutor in the process and as a subtle coach for the participants. Guiding the participants means helping them through the process and acting as a coach means reinforcing the participants as they develop the skills necessary for the process to take place. Being a facilitator that coaches and guides means that the mediator becomes an advocate for the healing process, and satisfaction, that comes from mediation. The restrictions on this role are that of staying away from becoming an advocate for one side or the other excepting in cases of abuse or other serious power imbalance. In the cases of abuse, the confidentiality of mediation may be broken or the the mediation may be determined to not be possible. One example of a power imbalance that must be guarded against is if the mediators are familiar with any of the participants in the mediation. Further, the role of the mediators is to maintain the good faith that each party has agreed to uphold in the mediation. Another part of the role of the mediator is to not become a participant in the conflict, but to remain outside of the conflict as a 3^rd party by not becoming and advocate for a particular solution but to remain an advocate for the process itself.

7. Power Imbalances

   1. Describe the major contributors to power imbalances

      Major contributors to power imbalances in mediation would be differences of age, gender, social status, religion, vocation, level of education, ethnicity and other personal characteristics. Instances of abuse are another contributor to an imbalance between clients during mediation.

   2. Identify at least three things a mediator can do to help keep the playing field more or less balanced.

      First an foremost, the mediation in the face of a power imbalance requires that the mediators strongly advocate the process which acts as a natural balance by creating a structure of respect and equanimity between the clients, such as balancing “air time” and to actively model attention and respect to each client equally. Other opportunities for the mediators to short-circuit a power imbalance would be to use the caucus to help uncover and support the sharing of information between the clients by guiding and tutoring each client on ways to share issues and interests that might be revealed outside the presence of the other client. Finally but not the only other option, would be that the mediators should try to be aware that there may be a limit to how mediation can be used to address serious imbalances of power, and the process may need to be ended in favour of other conflict resolution methods.

   3. What should a mediator do if s/he tried but can't help balance power?

      If the mediation does not appear to be able to address the issues of imbalance to create an environment where both clients are empowered to negotiate in good faith to achieve satisfaction through resolution, then the power imbalance may be too chronic for the session to continue and should be aborted.

8. Which of the mediation communication skills introduced to you in the training is most challenging for you and why?

   Judging from the mock mediations that we did during the training, I would say that the skill I need to practice more is how to confront extreme positionality by the participants. In the case of the final mock mediation, my co-mediator and I were both somewhat immobilized by the extreme positionality of sexism expressed by one of the clients. Further, we were unable to effectively short-circuit the ineffective communication between the clients, a style of communication that was isolating, alienating and counter-productive.

   However, after having some time to think about the way the mock unfolded, I was able to come back the next day and discuss some ideas with my co-mediator and the two role-players and feel I have some ideas of what to do in a similar situation if it were to occur in the future.

9. Client satisfaction

   1. Describe the substantive, procedural and psychological client satisfactions that mediators try to help satisfy.

      These intertwined goals are the surface issues, such as property, time or money; the emotional needs, relational and value interests of the clients; and the structural issues of the mediation process itself such as creating a neutral, safe and fair space for conflict resolution.

   2. Why are they so important?

      These three goals are parts of a holistic model of satisfaction which might not be addressed by other conflict resolution styles or methods. Combining satisfaction on these three levels has a greater chance to lead to lasting and effecting settlements to which the client willingly comply without further enforcement by more coercive methods of resolution. This is the primary purpose of mediation.

10. Give three examples of mediator statements that could be used to confront, cast doubt upon, and reality test a client's statement.

    Using confrontation is a technique that helps the mediators point out discrepancies in thinking or behaviour. Examples of how this can be used would be to wonder about the comment, reality test or cast doubt on statements. One might respond to such statements in the following ways:

“I'm wondering if this method of communication is what you've both expressed a desire to have stop. How would these statements sound if they didn't reflect the same unwanted styles?”

“I can hear in what you've said that there's a desire to have a good resolution to this conflict. Do realize that the process of going to court will be very expensive and time consuming?”

“You've expressed concern that your needs be met today. I've heard that from the other client also. Do you think that having to coerce compliance by court order will really be satisfying to you both when you've both expressed a desire to have an outcome that preserves friendly relations between you?”

11. Interests and Issues

    1. What are interests and how are they different from issues?

       Issues are the “finite, measurable and tangible” elements to the dispute and form the basis of the agenda. Interests are the underlying concerns of the client that drive the issues.

    2. How are they related?

       Issues are related to interests in that the interests inform and support the issues, in the sense that the issues are the “what” of a dispute where the interests are the “why” of the issues. They are further related that “acknowledgment, understanding, and creative management” of the interests can be used as creative tools to bring the client to see that the issues are internally consistent and understandable, leading the clients to also acknowledge, understand and creatively manage their conflict toward a satisfying resolution.

12. Interest vs. evaluative mediation

    1. Why is the type of mediation used by the DRC called interest-based mediation?

       Interest-based mediation tends toward the techniques of developing client awareness of each parties underlying interests that inform the issues of the conflict. This helps to develop a more satisfying and lasting settlement for the clients over alternatives that do not help the client recognize these underlying interests in the other.

    2. How is it different from evaluative mediation?

       The satisfaction model used by the DRC indicates that simply evaluating the issues of the conflict, as in litigation or arbitration, would not lead to as satisfying of a settlement for the clients. If the clients are willing to enter mediation then they will find a supportive environment for a satisfying resolution which further develops an awareness of constructive ways to resolve future conflicts.

13. What do you think would be the most profound impact on this culture if mediation were more widespread than it currently is?

    I think the number one advance that widespread mediation would provide to the greater culture is the development of skills and abilities to deal with the natural conflicts that will arise from increasing diversity. The skills and ability to see and accept that other people's issues and interests are just as valid even when they are different than one's own would be a significantly profound advancement toward an organic and synergistic multicultural ecology of individuals in community.

14. Under what circumstances would you be willing to use mediation if you were in a conflict?

    There are two answers. First, I will likely use the ideas of mediation more than ever in my personal life even outside of official mediation. Further, the mediation process as an alternative to litigation offers several significant advantages and benefits, not the least of which is a more likely to be satisfying conclusion to the conflict. In a case where I felt that I was not able to skillfully and effectively work with another person to reach a solution to conflict, mediation would definitely be a desirable option.