PROCESS OF MEDIATION:Stages of Mediation, Facilitative tactics in mediation

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Conflict Management HRM624

Lesson 34

PROCESS OF MEDIATION

Quotations

Focus 90 percent of your time on solutions and only 10 percent of your time on problems.

Anthony J D'Angelo, The College Blue Book

Introduction

Gender equality movement is likely to enhance gender-based conflicts. Therefore understanding gender

based conflict and the processes of resolving those conflicts are becoming important. It will become even

more important in future, when the frequency of such conflicts arises. Mediation is one of the methods of

resolving conflicts.

This lesson deals with formal mediation, mainly mediation service and mediation law.

In this lesson we will study the stages of mediation

Mediation

Mediation sessions are 1-2 hour long

Several caucus sessions followed by joint sessions to tie down agreements

In family disputes (divorce cases) less likelihood of caucus sessions-due to the need for instilling trust.

Stages of Mediation

Mediation is a highly fluid process; it is possible to conceptualize mediation as occurring in a series of

stages.

Following is the list of all the stages of mediation

1. Initial client contact

2. Introductory stage

3. Issues clarification and communication

4. Productive stage

5. Agreement consummation

6. Debriefing and referral

1. Initial client contact

Mediation begins when one or both disputants make contact with a mediation provider. Although clients

may be referred to mediation by a court or their lawyers, often one of the two disputants contacts the

mediator directly to inquire about services. The mediator must inform the person making contact of the

nature of the services etc. The mediator will frequently send informative brochures that provide specific

facts about mediation and demonstrate its advantages.

Although some disputants will be making contact with the mediator with the knowledge and consent of the

other disputant, others will be making contact independently. Trust is essential for success. Disputants are

generally hostile against each other. Under certain circumstances the other disputant may regard it as a

hostile invasion of his/her privacy, if the mediator tries to contact him.

2. Introduction

The purposes of the introductory stage of mediation are to break the ice and get comfortable, to introduce

and clarify the mediation process, to establish the ground rules and policies of mediation, to clarify and

establish the legal basis of mediation, and to begin to orient the disputants toward productivity in the

mediation.

Mediators usually seat their clients around a conference table. The table may be round to eliminate symbolic

power distinctions between mediator and clients, emphasizing the critical role the disputants have in

fashioning the settlement. A competent mediator will balance the need of each client to talk about what is

the bone of contention that is escalating the conflict.

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After establishing a certain level of control the mediator set the stage to play active role. The mediator must

be well aware of what the mediation is all about. The mediators must also ensure that the client knows what

the mediation is. The mediator will typically also present contractual documents that participants must sign

in order to create a mediator-client relationship, protect the confidentiality of the mediation process, and so

forth.

Because disputants entering mediation have been unable to achieve a settlement of differences on their

own, it is typical for them to enter mediation caught up in a competitive conflict cycle. Mediators work

actively from the beginning to break the cycle of blame game of the disputants and to replace it with the

cycle of cooperation.

Numerous techniques are used to subtly reorient the disputants away from conceptualizing the conflict as a

win-lose contest and replacing it with the idea that the disputants have a joint problem to be solved

together. Another technique used by mediators to interrupt the competition cycle is to emphasize the

cooperative elements of the disputants' relationship and to deemphasize the competitive elements.

3. Issues clarification/communication:

Facilitative and evaluative mediators generally handle the issues clarification and communication stage quite

differently. An evaluative mediator's goal at this stage is to get a sense of the positions and aspirations of

each disputant. The evaluative mediator is apt to begin by asking each disputant to state the case, or to

describe the disagreement. The mediator will sometimes use information gained in the other side's

presentation in an effort to lower the expectations of each disputant.

Following the joint session, the evaluative mediator will typically meet each disputant separately to gain

further information about the disputant's real aspirations. The reason for this emphasis is that, in a

facilitative mediation, the primary goal at this stage is to facilitate the disputant's clarification of issues and

underlying interests with each other.

Each disputant speaks about the conflict; the facilitative mediator reframes and refocuses the

communication to defuse personal attacks directed at the other disputant and to clarify the interests, needs,

principles and values connoted by the speaker's statements. Active listening is a critical skill the mediator

uses to help the speakers.

Mediators of all persuasions often act as organizers of information. Facilitative mediators will also make a

list of the issues that need to be resolved but will also typically list the deep seated interests, needs, values,

and principles with which the disputants agree.

4. Productive stage:

Third stage is the productive stage. In an evaluative mediation, it is in the productive stage that the

evaluation occurs. During caucus, the evaluative mediator expertly probes the situation, pointing out

weaknesses in the case of the disputant before him/her and suggesting strengths in the opponent's case that

the disputant might have missed or discounted.

In a facilitative mediation, the productive stage often involves a period of brainstorming for possible

options to address the list of interests that the disputants generated previously. Both facilitative and

evaluative mediators will write down any settlements that the disputants reach, either in an informal

memorandum of agreement or in a formal contract.

5. Agreement consummation:

Agreement consummation can occur inside or outside of the mediation. If the mediator has drafted a

formal contract, sometimes the disputants will execute this contract at a mediation session.

6. Debriefing and referral:

The last stage of mediation is debriefing and referral. This stage may occur before or after the agreement

consummation stage. The mediator and disputants review what has been decided in mediation and what

remains to be done. Mediation can back track to initial stage; the disputants may decide that they have

missed something.

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The process of mediation is typically non linear. The stages presented in any description of mediation are

not fixed in sequence.

What do mediators do?

Mediation is both science and art. Each mediator and mediation is different.

Facilitative tactics in mediation:

Even highly evaluative mediators have as a goal the facilitation of a negotiated settlement. For this reason,

nearly every mediator uses a number of facilitative tactics.

It is helpful to an understanding of mediator behavior to place facilitative mediator tactics in the following

categories:

1. Educating

2. Structuring the negotiation

3. Improving communication

4. Handling emotions

5. Maintaining disputant motivation

1. Educating

Mediators educate their clients in numerous ways. Much of this educational process occurs in the

introductory stage of mediation but continues through out the mediation process.

2. Improving communication

At all times, a competent mediator improves communication between the disputants. Effective

communication helps in achieving the goals of complete interest analysis, encouraging perception of

cooperation, building up mutual trust and performing effective conflict diagnosis.

3. Handling emotions

Mediation inevitably gives rise to strong emotion, and handling emotions is an important aspect of the

mediator's craft. In setting the stage for effective communication, emotional expression is tricky to handle.

The mediator reads in-between the lines, listen with the third ear and finds cause behind emotions. In this

process anger is important to understand. Active listening, avoiding name calling and staying positive are

important factors.

4. Maintaining disputant Motivation

The final group of facilitative mediator tactics relate to maintaining disputant motivation. Conflict is usually

an unpleasant experience, and mediation confers only limited protection from this unpleasantness.

Numerous tactics are used by mediators to maintain or improve disputant motivation.

5. Evaluative tactics in mediation:

Even evaluative mediators use many of the facilitative tactics. However there are techniques that are unique

to evaluative mediators e.g.

i. Instilling doubt

ii. Case evaluation tactics

iii. Caucusing

Summary

We learnt mediation process, the stages of mediation. We also learnt about tactics used in facilitative

mediation and evaluative mediation. If we understand these stages of mediation and the tactics used, we can

act like a good mediator or a good and well informed disputant.

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