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Mediation and Conflict Management
Week 5
The Mediation Process
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Week 5: The Mediation Process
Week overview
The mediation process is the backbone of mediation and, without a formal and rigorous
process, successful mediation is not possible. This week, we will review the mediation
process in more detail, focusing on the opening statements, the storytelling phase, setting the
agenda and the negotiation and problem solving phase. We also focus on the key skills
needed for those phases such as using powerful reframing, appropriate language and
facilitating collaboration.
Learning outcomes
At the successful completion of this section, you will be able to:
•
describe the phases of mediation
•
explain and prepare an opening statement
•
describe the techniques employed in the story telling phases
•
explain how to map a conflict and set the agenda
•
explain how to negotiate and solve problems that occur.
Prescribed textbook reading
During this section you will need to read the following:
Moore, C. (2014). The Mediation Process: Practical Strategies for Resolving Conflict(4th
Edition) Jossey Bass: San Francisco, pp. 301-434.
In planning mediation, it is useful to have a more robust model such as the balanced model:
1. Opening Statement
2. Storytelling, issue identification and establishing commonalities
3. Agenda building
4. Negotiation and problem solving
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5. Testing the agreement and writing the settlement agreement
6. Closure
1. Opening statement by the Mediator
The opening statement made the mediator should set a positive tone for the entire session,
giving the parties reassurance in the process and feel safe (Moore, 2014). Moore breaks down
the opening statement into 11 stages.
1. Introduction
Mediators need to first introduces him/herself and explain why or how he/she was chosen. It
is recommended that mediators provide details on their background, their experience to build
their credibility and provide some assurance to the parties that they are in capable hands
(Moore, 2014).
2. Affirmation of Willingness to Cooperate
Next, the mediation should commend the parties willingness to cooperate and at the same
recognize how difficult and emotional it can be do undergo such a process. This can ease the
tension for both parties and allow them to focus on the issues (Moore, 2014).
3. Definition of Mediation and Mediator’s Role
While this stage would have been covered in the pre-mediation, it is good for the mediator to
reiterate the mediator is not a judge or jury but as someone who helps both parties come to an
agreement on their own. Disclosing this information in front of both parties reassures each
party has access to the same information and minimises misinterpretation (Moore, 2014,)
4. Statement of Neutrality and Impartiality
Mediator’s need to be unequivocal that they are impartial to each party’s views and neutral in
their relationships to both parties (Moore, 2014). If a mediator does have some potential bias
which may impact their impartiality then the mediator should disclose this to both parties and
ask if they feel the mediator can still remain impartial (Moore, 2014). For example, in an
employee/management dispute, mediators may think that their previous role as a manager
might be considered a potential bias towards the manager. Mediators should ask how each
party feels about the mediator’s ability to be impartial.
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5. Description of Mediation Procedures
Usually this is reiterating what was discussed in premediation but, if the mediator has taken
the steps to design negotiation and mediation processes independently of parties, then the
mediator should present it and get agreement from both parties to proceed with this plan
(Moore, 2014). Such a process gives a feeling of transparency, trust in the mediator, and also
a feeling of owing the process by both parties.
6. Explanation of the Caucus or Private Meetings
After explaining the basic process, mediators should also mention how caucuses may be used
to help each party gather their facts, thoughts and reflect more on their short and long-term
interests. It is also about talking about something they may not yet feel comfortable in
discussing with the other party. Moore (2003
7. Discussing the issue of confidentiality
Mediators need to inform both parties that the details discussed in mediation are kept private.
They should also highlight that in special cases, the mediator may be subpoenaed to testify in
postmediation court proceedings (Moore, 2014).
8. Description of Logistics
This step covers the time schedule, the length of sessions and that some notes will be taken
but should ask permission to take notes. They should inform parties that any notes taken in
the mediation can be used to construct the final agreement. Mediators should reassure that
once the agreement has been written, the mediation notes are destroyed (Moore, 2014).
9. Suggestions for Behavioural Guidelines
At this time, mediators should establish some ground rules for the mediation session which
facilitate an orderly discussion and allows parties time to be heard, without interruptions from
the party. If additional parties are required to attend the mediation such as counsellors,
lawyers, their role will be discussed. Rules for negotiation such as bargaining in good faith
should also be discussed with both parties (Moore, 2014).
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10. Answer to Questions
It is recommended that the mediator asks both parties if they have any queries or concerns
regarding the process. Not addressing these at this stage could result in a misunderstanding
about the process and result in decreased commitment to the process and resistance (Moore,
2014).
11. Commitment to Begin Mediation
Once the mediator has gained verbal or nonverbal consent to proceed, the mediator can turn
to the parties to begin the story telling phase (Moore, 2014).
2. Story Telling-Opening Statements by Parties
Special Note: While Moore (2014) uses the term opening statements for parties, this study
guide uses story telling so that it aligns more with the Balanced Mediation Model. When
reading this section, please note that the party opening statements refers to storytelling.
There are a variety of ways in which parties undertake storytelling. The parties own story
telling statements can be used to present and test their views, but also this story telling phase
can be used to express their frustrations and assert their interests. Moore (2014) provides a
few different types of storytelling approaches.
Substantive Issue Focus
Here, the parties provide the background of the dispute, how it has caused damage, why a
change is needed and recommends how the problem should be solved. This method may
dispense with the history of the problem and focus on how the dispute developed and
describe the issues and explain which issue needs to be explained first (Moore, 2014). Such
an approach gives the mediator better clarity on how intolerable the situation may be, parties’
interests and also their non-negotiable positions. For this story telling approach to work, the
mediator needs to explain the process and be explicit on how to follow this process. The
mediator may need to guide parties and get them back on track if they become focused on the
hurt the dispute as caused them. It is important that positions are at the very least surfaced in
this stage.
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Opening Focused on Procedure or on the Relationships of Disputants
One possible approach is to have the parties discuss the agenda, timeline, how information is
shared and how negotiation procedures are followed. Such an approach can help the mediator
and parties gain information on the behaviours, attitudes and trust worthiness of each and get
them to focus on problem solving rather than focus solely on the substantive issues (Moore,
2014).
Alternatively, mediators can use a more relationship oriented approach, one which gets both
parties to engage in social activities, casual dinners and field trips. Such activities can get
parties to informally focus on the topics and see each other as individuals instead of
adversaries (Moore, 2014). This approach is appropriate when disputants that have no strong
negative emotions towards one another, although such instances are rare.
Choice of Story Telling Approaches
Which approach to use depends on the type of dispute, emotional level intensity, ability of
parties to focus on substantive issues, how much control the mediator has in regulating the
process and also the internal and external pressures to settle quickly (Moore, 2014).
Facilitation of Communication
During the storytelling phase, it is important that mediators use a variety of communication
techniques to help the mediator and both parties understand the issues and mutual interest
(Moore, 2014). Some techniques include:
•
Restatements
•
Paraphrasing
•
Active listening
•
Summarisation
•
Expansion
•
Ordering
•
Grouping
•
Structuring
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•
Separating or fractioning
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Generalisation
•
Probing Questions
•
Questions of Clarification
Creating a Positive Emotional Climate
The mediator must create the right emotional climate that allows both parties to feel safe,
communicate clearly and engage in collaborative problem solving. This can be achieved by
preventing interruptions and verbal attacks, bargaining in good faith, focusing on the
problem; not using judgemental language and intervening to prevent conflict from escalating
further.
Probably the most important principle for a positive emotional climate is to acknowledge that
disputants need to be heard and they need to be acknowledged. They may need to know their
concerns are valid and that there story is important and has value. The mediator reassures
them by paying attention and confirming that what is being said is not trivial.
What Party Speaks First?
The parties are not experienced at telling their stories in detail and may be nervous or
embarrassed. The mediator will use the communication skills discussed previously to help
draw out the story but will also use other strategies. The initial decision is who will speak
first. In some ways, the first person to speak has an advantage as they can frame the
discussion and the other party is put into the position of having to respond. On the other hand,
it helps some parties to go second, to learn perhaps that the experience is not so frightening or
difficult or even to modify their own position in light of what has already been said. At or
immediately after the close of the opening statement the mediator will ask one of the parties
to tell their story. They are invited to tell their whole story without interruption by the other
party. On completion, the other party may tell their story. The stories are told one at a time.
During the storytelling the party who has the floor has the whole attention of the mediator.
Whilst this method has the advantages of allowing the full story to develop, it does not ensure
equality in storytelling. One party may be more articulate than the other or the second party
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may feel a need to answer the points in the story and tell a different one to what they would
have told, had they gone first.
Transitioning to the Agenda Phase
Mediators can move onto the agenda phase when parties repeat themselves; there is enough
material and main issues on table; parties state that they feel they have been heard and parties
have indicated that they are ready to move on (McCorkle & Reese, 2005).
Before the mediator can move to the Agenda Phase, it is a good idea to summarise what the
two parties have said in the story telling phase by highlighting the differences, finding areas
of commonality and also the key issues to be discussed (McCorkle & Reese, 2005).
Activity 5.1
In this video, the mediators use the opening statement and storytelling phase. Review the
video: UK Mediation: Episode 4 Joint Mediation Session at
http://www.youtube.com/watch?v=SOgXOuUQwWI.
When reviewing the video consider the following:
•
How well do the mediators perform the opening statement?
•
How does the storytelling phase facilitate effective communication and a positive
emotional climate?
3. Defining Issues and Setting an Agenda
Identifying and Framing Issues
One reason why disputes remain in deadlock and a mediator is required is because the two
parties have framed issues in a way that facilitates competition rather than collaboration
(Moore, 2014). For example, a husband and wife may be locked in a custody battle, taking
extreme positions on where the child should stay. In this case, the two parties see their goals
as incompatible.
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Reframing and Meaning
The mediator’s role is to help both parties reframe their issues so that they become more
compatible. Before reframing can happen, the mediator needs to uncover the “essence of the
meaning, needs interests or concerns from these unproductive frames and present it in a way
that can be handled by both parties” (Moore, 2014). But first, mediators need to identify the
levels of framing.
a. Detoxification Reframing
When conflict reaches its peak strong negative emotions surface leading to derogatory,
judgemental, negative attributions about the other emotions and/or taking extreme positions
(Moore, 2014). For example, a party member may call the other person “an idiot or crazy” for
not accepting their proposal. Mediators can get past this toxic framing by removing the
negative emotions and using more neutral language. A possible reframe could be: “So you
are concerned over the lack of agreement on this proposal?”
b. Definitional Reframing
Conflict can reach an impasse when both parties define the problem as an either/or situation.
Seeing a conflict as a Win/Lose situation makes both parties competitive rather than
collaborative. For example, in a payment dispute one party may demand immediate payment
while the other seeks to get the creditor off their backs. Definitional reframing means
changing how the parties conceptualise or define the problem in a way that makes it easier to
collaborate on solving the problem (Moore, 2014). For example, the mediator may reframe
the issue as “Finding a way to pay back the creditor in way that makes repayment possible”.
This reframe gets parties to answer this question in negotiations.
c. Metaphorical Reframing
This reframing involves finding a new way to describe the problem or situation that can be
recognised by both parties. For example, one party may see this conflict as a game about
winning while the other sees this as survival. The mediator takes elements from both parties’
metaphors and reframe them into a new metaphor (Moore, 2014) like the following “This is a
game where both of you can survive.”
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Reframing Issues, Positions and Interests
a. Specific to General
With reframing issues, the mediator seeks to move parties from specific interests to more
general ones (Moore, 2014). For example in a pay dispute between an employer and an
employee, the mediator can reframe the employee’s need for a salary increase to being
rewarded for their high performance. Such an approach expands options for this party. In this
example, they may be able to address the employee’s need to be rewarded through a
combination of a salary increase and an extra week’s holiday.
b. Narrowing issues and interests
Sometimes mediators can be more effective by taking issues and interests and making them
into smaller, more manageable issues (Moore, 2014). For example in a pay dispute, the
mediator may move away from “does the company pay” to “How much should be paid”,
“When it should be paid?” and “With interest?”
Reframing Value Related Interests
Conflicts over values can be very difficult to mediate as people will defend their values,
claiming they are not for sale or not to be bargained with (Moore, 2014). Mediators can
reframe value based issues by translating values disputes into interest disputes. For example,
in a neighbourhood dispute over a noise, the mediator can move from the neighbour’s value
of a nice lifestyle to limited noise and harmony between the neighbours.
Mediators can also reframe value related interests by identifying subordinate goals and
finding a shared goal which joins both parties’ different positions and interests. Mediators
can also avoid identifying and directly dealing with values as sometimes value differences
fade and there are enough issues that can be solved through interest based negotiation
(Moore, 2014).
Explicit-Implicit Reframing and Timing
For mediation to proceed, the parties must be aware of what topics divide them. One reason is
that they are unaware of what the issues are or they are not psychologically ready to accept
the definition of the problem. It is therefore important that mediators consider the timing in
which reframing is used. Reframing too early could be met by resistance and denial while
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reframing on time makes them more willing and open to accept the mediator’s definition of
the problem (Moore, 2014).
Appropriate Language
When framing the issues, it is important that the mediator use language that is nonjudgemental, neutral and bias free and not adversarial. For example, mediators who refer to
the conflict as “situations” “problems” or parties as “your group” can polarise individuals and
give the perception of non-neutrality. On the other hand, the mediator may use less neutral
terminology when dealing with parties in caucus. This is often used to get parties more
willing to get agreement on the disputed issues (Moore, 2014).
Determining an Agenda
Once the issues have been identified, the mediator and parties discuss the order in which
these issues are addressed. This can be developed in an ad hoc manner where the mediator
introduces the item and each party discusses it. A simple agenda takes issues one at a time in
a set order. Alternation of issues allows parties to alternate in choosing the topic. Ranking by
importance gets parties to rank issues in order of importance.
With a Principled Agenda approach, both parties establish the principles and then work out
how they relate to specific agenda items. The Easier Items First approach gets parties to
identify and resolve issues that are easier to agree on and are less emotionally laden. The
Building-Block or Contingent Agenda works by making initial agreements and using those
agreements as the foundation for further discussions. The final approach, Trade-Offs or
Packing, gets parties to trade satisfaction of interests and packing a proposal containing
multiple issue solutions (Moore, 2014).
Activity 5.2
In this video, the mediators try to identify the key issues and then put them in agenda of items
to be covered. Review the video: UK Mediation: Episode 5 Making the Agenda at:
http://www.youtube.com/watch?v=-VOeGJTh5LA.
When reviewing the video consider:
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•
What issues have been identified? How are they identified?
•
How is the agenda determined?
•
Do you feel that they both parties are ready to move onto negotiation?
4. Negotiating and problem solving
Challenges in Identifying Issues
Despite a mediator’s efforts to obtain clarity on what the main issues are in the agenda stage,
the real issues may still remain below the surface. One reason could be a lack of awareness of
their interests. For example, a divorcing couple might see their position of getting sole child
custody as their real interests where it is not. In some cases, parties will hide their interests by
overinflating their positional demands in the hope of getting more concessions for the other
party. Moreover, parties may not reveal their interests out of their concern that revealing their
interests to the other party might weaken their position. Another reason is that parties have
difficulty separating their actual position from their interests. When this happens, parties
engage in hardline positional bargaining, making it difficult for parties to satisfy their
procedural, substantive and psychological interests and line positional bargaining and lead to
win/lose outcomes. Parties may also not explore interests because in high tension
negotiations, as they are accustomed to advocacy position stances and not used to thinking in
terms of interests (Moore, 2014).
Procedures for Identifying Interests
There are two ways in which mediators can identify interests. One is through indirect
procedures such as questioning a party about their underlying interests. Mediators can use
indirect approach by testing their understanding of a client’s interest by listening carefully
and then feeding it back to them. Another method is to present some hypothetical settlement
options to the parties and determine which proposal satisfies their interests (Moore, 2014).
When using Direct Procedures, the mediator pre-empts parties from taking a hard line
positional approach (Moore, 2014). One way is to directly ask each parties what why their
positions are important or what interests will be met by their position. This approach can only
work if the mediator has high personal credibility and both parties have some trust in the
mediator. Another approach is to get the parties to engage in interest based discussion where
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they discuss what general interests need to be satisfied if there is to be a satisfactory
settlement. A third option is to get both parties to articulate what they perceive to be each
other’s interests. Brainstorming, another direct approach, involves generating the amount of
items and issues to being addressed (Moore, 2014).
Whatever the approach used, it is important that both parties understand how surfacing each
other’s interests are important and valid can help lead to more mutually satisfactory solutions.
Developing a more positive attitude towards interests can be developed when meeting with
parties individually in the pre-mediation stage and also in caucus meetings (Moore, 2014).
Positions, Interests and Bluffs
In mediation, one or both parties will assert what they will do if their needs are not met. This
usually occurs when one or both parties’ interests and concerns are not yet clear. Such bluffs
may work if they are deemed credible, and if the party has the perceived authority and
capacity to carry out the action. Mediators need to assess the long term cost of the bluff and
the cost of letting the bluff go unchallenged (Moore, 2014).
Mediators can minimise fallout of discovering such bluffs by getting the party to make their
interests more transparent. Some ways for doing this is to ask one or both parties to
rationalise their reasons for changing their position (or calling their bluff). Such an approach
could lead to a loss of face by one or both parties, but if mediator can get the party to
understand how their bluff is not meeting their interests, then it may disconnect one or both
parties away from their bluffs and engage in good faith bargaining (Moore, 2014).
Interest Identification, Acceptance and Agreement
In mediation, party interest can take three forms. One is mutually exclusive interests where
each party believes that they cannot satisfy their own interests if they satisfy the other party’s
interests. The other are mixed interests where there are some compatible and competing
interests. The final are compatible interests in which parties have similar and non-excusive
needs (Moore, 2014).
Mediators can get parties to move towards agreement by first getting both parties to jointly
define each other’s interests, accept them and then search for mutually acceptable solutions.
Mediators should then articulate what the compatible and complementary interests are to
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facilitate a climate of agreement and then move towards to identifying the mixed and
mutually exclusive interests (Moore, 2014).
Framing Joint Problem Statements
Once the issues have been identified, the mediator should work with both parties in defining a
joint problem statement that incorporates the interests of all parties. The mediator can
accomplish this by asking parties how they could state their problem in a way that identifies
both sets of interests that parties want satisfied (Moore, 2014).
Moore (2014) gives four steps to forming joint problem statements:
Identify party
interests
Restate and
Confirm Interests
Restate in Joint
Problem Statement
Check for Accuracy
and Revise
Figure 6.1: Process for Joint Problem Statements
Source: Moore (2014)
Cultural Considerations
When dealing with interests, mediators need to consider that the awareness of and willingness
to articulate one’s interests may vary across cultures. Indirect dealing cultures may express
their positions and needs in more roundabout ways such as body language, voice tone, eye
contact (Moore, 2014). Some cultures like Korea may believe that directly surfacing such
needs as being undisciplined and impatient and showing a lack of empathy for the other side.
In these cultures, asking subtle and indirect probing and questioning may help unsurface
these needs and preserve an atmosphere of harmony and preserve face.
Direct cultures may see clearly articulating interests as showing a sign of good faith, trust in
the process and willingness to build short term and long term relationships. Such cultures also
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believe that developing trust and focus on relationship building will lead to agreements on the
substantive and procedural issues (Moore, 2014).
Generating Options for Settlement
In order to settlement to happen, parties need to understand the need to consider other options
and also how to disengage from positional bargaining to more interest based bargaining
(Moore, 2014). This can be achieved in a number of ways.
Awareness of the need for other options
The Storytelling phase often shows a more competitive, positional approach adopted by one
or both parties and as the mediation progresses, one or both parties may try harder to stick to
their positions despite resistance by the other side. Mediators can get parties see the need for
other options by getting parties to see how their current positions are inaccurate and how
sticking to them will lead to a deadlock (Moore, 2014).
Detaching from Unacceptable Positions
Parties will commit to their positions because it meets some intangible psychological need,
they feel it is the best solution, they believe that the other party does know what is in their
best interest; and/or they think that they have the power and if they push enough, the other
party weaken (Moore, 2014).
Mediators can detach parties from their positions through a number of ways. One is to
identify the parties’ psychological needs through active listening, restatement and
summarization and then seek to find other options for meeting their psychological needs.
Another method is to introduce some logical or acceptable problem solving process that
allows the parties to abandon their current position for better options. A third option is to
leverage the other side to move away from their position by making the party aware of how
they may be overestimating or underestimating the costs in maintaining their position or
rethink the importance of their position (Moore, 2014)
Strategies for Option Generation
Once parties are aware of the need to consider other options, the mediator and both parties
can consider a number of strategies. One is using the Building Block Approach where parties
divide an issue into sub issues or component parts and then when final agreement is near,
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these sub issues are then recombined to form a total solution. Another solution is the
Agreement-in Principle Approach to Settlement where parties create or identify a bargaining
formula or a set of principles which guide the settlement (Moore, 2014)
General Procedures for Generating Options
a. Positional Based Bargaining
Generating Options can be done through Positional Bargaining and Interest Based
Bargaining. The positional bargaining approach which gets parties to exchange proposals and
counterproposals allows both parties to hone in on each other’s interests and needs. However,
this approach can constrict the negotiation process because packages are examined one at a
time, do not consider multiple views or even the complete package, and most importantly,
this approach is grounded on the win/lose or right or wrong mentality (Moore, 2014).
b. Interest Based Bargaining
Interest Based Bargaining allows parties to combine both parties’ interests and co-create a
solution. This win/win approach can be facilitated by expanding the resource or adding
issues, where in a dispute over salary increases, the mediator can introduce other options such
as working conditions, benefits etc. The Interest Based Bargaining approach may also be
achieved through logrolling where parties trade items that are valued differently. For example
an employer may give away an item that they do not value such as an extra week’s vacation
but the employee does value (Moore, 2014). For this to happen, the mediator and both parties
need to identify the importance each party ties to the negotiated interests. While this approach
can help parties reach mutually acceptable settlement options, it is an approach based on trust
and bargaining in good faith, and if one party attempts to coerce the other side, this approach
will not work (Moore, 2014)).
Approaches to Generating Options
Whilst generating options, there are a number of approaches that the mediator and parties can
use. Some examples are ramification of the status quo; development of objective standards;
open discussion; brainstorming; nominal group process; plausible hypothetical scenarios;
vision building; model agreements; linked trades; single-text negotiating document;
procedural solutions to reach substantial agreements; package agreements, the use of outside
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experts or resources and finally mediator suggestions (Moore, 2014). Such approaches can be
combined with more than one, depending on the complexity and nature of the dispute.
Type of Settlement Options
For mediators to get parties to move towards settlement, it is important that the agreements
satisfy the substantive, procedural and psychological interests of both parties (Moore, 2014).
Mediators can help parties create a mutually agreeable package that satisfy the needs of both
party by ensuring that the agreements are substantive, that is they define specific tangible
exchanges like money, services and labour. Mediators must also check with parties that the
agreement comprehensively addresses all issues related to the dispute. The agreement must
also be permanent, final, non-conditional and binding (Moore, 2014).
Activity 5.3
This video picks up from the agenda phase and moves on to showing how Andy and Leticia
negotiate the main issues. Review the video: UK Mediation: Negotiating the Issues at:
https://www.youtube.com/watch?v=AJqGZwYadjs
When reviewing the video, consider:
•
How does the mediator get the Andy and Latisha to engage in Interests Based
Negotiation?
Resources
McCorkle, S. and Reece, M. (2005) Mediation Theory and Practice. Pearson Education:
Boston, USA.
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Extension readings and resources
Mediate.com
This short article titled Reframing: The essence of Mediation, adds to Moore’s (2014) view
on reframing, explaining why it’s important. It also provides some examples of reframing.
This can be found at:
http://www.mediate.com/articles/blanciak.cfm
Now that you have completed this week, visit the learning portal to participate in the latest
discussion forum and to check your progress by completing the self-check questions.
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Mediation a