Mediation Principles and Practices
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Questions and Answers

Which of the following is NOT a characteristic of mediation?

  • Entirely voluntary
  • Resolution focused
  • Unstructured (correct)
  • A decision-making process

A mediator's role is to make decisions and express views to aid in settling the dispute and compromise.

False (B)

What is the primary goal of using mediation services in children's courts?

reunification

When a person consents to mediation, they are consenting to having an ______ person assisting their dialogue.

<p>impartial</p> Signup and view all the answers

Which of these contexts is considered more personal, and hence, may see a different approach to mediation?

<p>Family Law disputes (B)</p> Signup and view all the answers

Mediation is effective only when the evidence is unclear and there is no clear 'guilty' party.

<p>False (B)</p> Signup and view all the answers

Match the following mediation contexts with their typical features:

<p>Court ordered mediations = Often legally assisted Voluntary mediation = Requires capacity to participate Commercial disputes = May not benefit from therapeutic mediation Children's Court = Reunification is the goal</p> Signup and view all the answers

What is the main aim of mediation?

<p>to find a solution which advantages both parties or neither</p> Signup and view all the answers

Which of the following is NOT a typical characteristic of mediation?

<p>Public proceedings (B)</p> Signup and view all the answers

Evaluative mediation is generally favored over facilitative mediation in legalistic contexts.

<p>False (B)</p> Signup and view all the answers

What is the estimated success rate of mediation?

<p>80%</p> Signup and view all the answers

In mediation, a party can present a position that is completely different from the position they take during a ______.

<p>trial</p> Signup and view all the answers

Match the mediation type with its description:

<p>Settlement mediation = Highly transactional and simple Facilitative mediation = Most common form of mediation in Australia Evaluative mediation = Similar to conciliation Conciliation mediation = Fluid process from mediation to conciliation</p> Signup and view all the answers

Why might retired judges and silks as mediators cause issues?

<p>They tend to be litigious and lack soft skills (C)</p> Signup and view all the answers

Accreditation for mediators is mandatory in Australia.

<p>False (B)</p> Signup and view all the answers

According to the Chief Justice of the FCFCOA, what should parties do instead of focusing on the weaknesses of the other side?

<p>advocate their own case</p> Signup and view all the answers

What is a key focus when finding common ground in a dispute?

<p>The substance of the dispute (B)</p> Signup and view all the answers

Mediators should always decide the issues in a dispute to ensure a fair outcome.

<p>False (B)</p> Signup and view all the answers

What should mediators encourage parties to provide for possible solutions?

<p>Constructive solutions</p> Signup and view all the answers

In mediation, it is important to avoid ______ claims that lack foundation.

<p>ambit</p> Signup and view all the answers

Match the following elements with their descriptions within the context of mediation:

<p>Interests based = Focusing on the needs and desires of the parties. Voice least heard = Mediator refraining from taking center stage. Private forum = Ensuring discussions are not public. Voluntary = Participation is not compulsory.</p> Signup and view all the answers

Which of the following is a strength of mediation?

<p>It is cost effective (A)</p> Signup and view all the answers

A mediator should always work harder than the parties in a dispute to find a resolution.

<p>False (B)</p> Signup and view all the answers

Which of these is NOT key when managing conflict?

<p>Judgement (A)</p> Signup and view all the answers

What is a potential risk when a mediator relies heavily on a lawyer's perspective?

<p>The client's understanding of the dispute may be overlooked. (B)</p> Signup and view all the answers

Joint sessions are always the preferred method for beginning mediation, as they force parties to confront each other.

<p>False (B)</p> Signup and view all the answers

Why is it important to consider how the mediator will influence the other party when representing someone in mediation?

<p>Because you can't control your own client's experience, you need to focus on the other party's influence.</p> Signup and view all the answers

Shuttle diplomacy, using __________, can be a good way to help vulnerable clients speak out, and where they feel more safe.

<p>private rooms</p> Signup and view all the answers

Match the steps involved once the decision to mediate has been made with the correct action:

<p>selection of mediator = Choosing the facilitator for the process mediation process and style = Determining the approach for the session language/cultural dynamics resources = Considering possible diversities legal representation = Considering engaging legal counsel</p> Signup and view all the answers

What is a primary benefit of intake happening one to two weeks before the mediation?

<p>It allows parties time to process and prepare. (B)</p> Signup and view all the answers

Mediation statements should be written primarily with the mediator in mind, as the mediator is the key recipient of information.

<p>False (B)</p> Signup and view all the answers

What is the purpose of the intake process in mediation?

<p>To screen issues, determine willingness, identify types of parties and representatives, and build rapport.</p> Signup and view all the answers

Which of the following is a key element of the 'opening' phase in mediation?

<p>Establishing confidentiality and rapport (B)</p> Signup and view all the answers

During mediation, it is crucial to focus primarily on the legal arguments presented by the lawyers, rather than the needs of the parties.

<p>False (B)</p> Signup and view all the answers

What should a mediator consider when managing 'entrenched views' during a joint mediation session?

<p>The mediator should consider techniques to de-polarize the parties, such as reframing, positive priming, and focusing on interests rather than positions.</p> Signup and view all the answers

The principle of 'Keep It Simple' when referring to how a mediator should simplify a complex problem is referred to as ____

<p>K.I.S</p> Signup and view all the answers

Match the following terms with their respective descriptions in the context of mediation:

<p>Positive priming = Highlighting positive aspects to influence perceptions Reframe = Changing how an issue is presented Interests identification = Understanding what each party truly needs, not just what they demand Non-judgment = Maintaining impartiality and avoiding bias</p> Signup and view all the answers

Which of the following is NOT a factor that can impact negotiations during the 'joint session' of mediation?

<p>The mediator's personal preferences (B)</p> Signup and view all the answers

Why is it important for mediators to ask how the parties feel at the end of a session?

<p>Asking how parties feel at the end provides an indicator of their sentiment about the process moving forward, and will allow the mediator to ensure the mediation process is as effective as possible.</p> Signup and view all the answers

During the 'information gathering' stage of mediation, a mediator should always demand all requested documentation, irrespective of its relevance to the dispute.

<p>False (B)</p> Signup and view all the answers

Flashcards

Mediation

A process where a neutral third party, the mediator, facilitates communication and helps parties reach a mutually acceptable agreement.

Mediation Contexts

Mediation that involves court orders or is undertaken voluntarily by parties.

Legally Assisted Mediation

Mediation where lawyers assist parties in navigating legal procedures.

Capacity and Ability in Mediation

The ability of parties to freely engage in mediation and come to a shared understanding of the disagreement.

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Resolution-Focused Mediation

Mediation that focuses on settling legal conflicts, with the emphasis on finding solutions that benefit both parties.

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Therapeutic Mediation

A method of mediation that emphasizes therapeutic aspects, often used in youth justice conferencing.

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Mediator Impartiality

The mediator must remain impartial and cannot express personal opinions that could compromise their neutrality.

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Consensual Mediation

A model where parties consent to having a neutral mediator assist them in their dialogue.

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Facilitative Mediation

Mediation focusing on guiding parties to reach a solution themselves. The mediator acts as a neutral facilitator rather than imposing solutions.

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Evaluative Mediation

Utilizes mediator expertise to offer opinions and suggestions. The mediator contributes to the process by evaluating the strengths and weaknesses of each side's case.

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Key Features of Mediation

Confidentiality and non-binding agreements are core principles. The mediator facilitates open communication and helps parties explore potential resolutions.

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Mediator's Role

The mediator is impartial and neutral. Their job is to create a safe space for dialogue and not to advocate for any specific outcome.

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Mediation's Focus

Focuses on understanding the parties' perspectives, rather than just legally valid positions. It emphasizes finding solutions that address the underlying interests of everyone involved.

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Mediation and the Law

Mediation approaches can be flexible and adaptable. However, it is vital to understand the legal framework and use it as a guide for negotiations.

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Preparing for Mediation

Mediation requires preparation. Be realistic about the potential outcomes and adjust your approach based on the dynamics of the situation.

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Mediation vs. Court

Mediation is an alternative, more collaborative way to settle disputes. If you are considering it, don't make unrealistic promises or expectations.

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Interests-based approach

Focusing on the underlying interests of the parties involved in a dispute, rather than their positions.

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Voice least heard

A principle in mediation emphasizing the importance of allowing parties to explore and express their needs and concerns.

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No opinion

A key element of mediation, requiring the mediator to remain neutral and impartial, refraining from expressing opinions or taking sides.

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Reading a person

The ability to read a person's underlying motivations and factors driving their behavior, which is essential for effective mediation.

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Information Gathering

The process of gathering and analyzing data to understand all aspects of a conflict, which is a vital step in effective conflict management.

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Present constructive solutions

The mediator's role is to help the disputing parties explore their options and develop mutually acceptable solutions.

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Confidentiality

Keeping information shared during mediation private and confidential.

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Non-judgment (Transference and Counter Transference)

The ability to remain unbiased and not let personal feelings influence the process. This includes recognizing and addressing both personal and professional biases.

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Interests Identification

Understanding the needs, interests, and underlying values driving each party's position.

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Positive Priming

Using positive language and focusing on building a collaborative atmosphere.

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Reframe

Reframing a situation or issue in a new light to help parties see it from a different perspective and find common ground.

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How they feel?

Asking parties about their emotions and how they feel at the end of a mediation session can provide insights into their progress and readiness to move forward.

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Gravitas/Authority

Creating a sense of authority and control over the mediation process.

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Rapport

Building trust and rapport with the parties involved in the mediation to facilitate communication and collaboration.

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Lawyer's understanding vs. Client's understanding

Understanding the mediation process from the lawyer's perspective can differ from the client's understanding of the dispute.

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Shuttle rooms in mediation

A mediation room designed for separate discussions with the mediator, fostering trust and enabling vulnerable clients to speak freely.

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Impact of absence in mediation

The physical absence of a participant in mediation can impact the dynamics and flow of the process.

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AM's preferred mediation structure

A mediation structure where parties first meet together, then separate for individual discussions, with the option to reconvene as a group.

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Mediation: Discipline and flexibility

Mediation is a structured and disciplined process with flexibility, not a free-for-all exchange.

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Steps in deciding to mediate

The process of choosing a mediator, considering their approach, language and cultural dynamics.

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Mediator's impact on opposing party

Understanding how the mediator will influence the other party's behavior in the mediation.

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Online mediation challenges and benefits

Preparing for online mediations, understanding potential barriers and benefits for remote participants.

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Study Notes

Mediation - Theory and Approach

  • Mediation contexts can be court-ordered or voluntary, with varying levels of legal assistance.
  • Mediators' backgrounds can vary, encompassing elders, social scientists, and social workers, among others, but they are not always legally trained.
  • International and domestic disputes both suit mediation, and so do many other civil disputes such as industrial/employment issues, personal injury cases, neighborhood disputes, family law, children's court matters, and wills and estates.
  • Mediation in child sex abuse cases can be helpful by reducing trauma and addressing the victim/perpetrator dynamic.
  • Children's courts often use mediation for reunification goals.

Models of Mediation

  • Mediation is a voluntary, structured decision-making process focused on resolution.
  • Mediation is distinct from counseling, arbitration, or unstructured dialogue.
  • Therapeutic mediation is used in youth justice conferencing; it's not suitable for many commercial disputes.
  • Settlement mediation is simple, and not often used in legal contexts since it's not very complex.
  • Facilitative and evaluative mediation are the most common approaches in Australia.
  • Legalistic approaches tend to lean toward evaluative mediation, but a focus on facilitative aspects is beneficial.
  • Evaluative mediation benefits from the expertise of mediators, though retired judges and silks are often evaluative, which can cause issues if they lack soft skills.

Success Rate and Fundamental Tenants

  • Mediation has an 80% success rate.
  • Key features of mediation include: non-binding nature, rapport-driven approach, confidentiality during the process, impartiality of mediators, and autonomy of decisions.
  • Advice on mediation includes not creating unrealistic expectations, accepting differences from court-based resolution, avoiding bombastic representation, and focusing on future solutions.

Discussion and What a Mediator Should Do

  • Present constructive solutions, and discuss future information needs with the parties.
  • Mediator actions should help the parties exchange uncertainty for certainty. The mediator should be a voice for the least heard and not be overly involved with deciding the issues
  • Mediation strengths include interest-based, responsive process, flexible outcomes, relationship maintenance, cost-effectiveness, and private forum, with challenges including potential power imbalances, a non-binding nature, unfair outcomes possibility within a private forum, and the voluntary nature of the process.

Vital Elements of Mediation

  • Building rapport and connection is fundamental.
  • Maintaining confidentiality and impartiality are crucial.
  • Encouraging group discussions, accountability, suitable representation levels contribute to a productive mediation process.

Process Fundamentals

  • Intake is important for setting up the successful mediation process.
  • Intake should happen one to two weeks beforehand to allow time for the parties to process.
  • Factors in the intake stage include rapport building, discussing process details, maintaining confidentiality, understanding non-judgemental approaches (like transference and counter-transference), considering interests, positive framing of the situation, and clarifying details relevant to the parties. The mediator must also obtain and review information about the underlying complexities involved in the dispute
  • The opening stage is about managing dispute dynamics, ensuring productive communication among the parties and establishing rapport.
  • Checklists are fundamental to ensure thoroughness at critical stages like intake, and the openings

Joint Sessions

  • Joint sessions are the core of flexibility in mediation.
  • They require handling Gravitas/authority, rapport, confidentiality, and positive problem-solving. Avoiding polarization and addressing potential issues like entrenched views, power imbalances, mental health concerns, and poor advice is addressed through discussion during the joint sessions.
  • The process of information gathering is essential and should be guided by the parties' needs, with a focus on issues resolution.

Negotiation and Complexity

  • Realistic expectations, a structured approach (simplifying the complex), and an organized state of mind are useful components of successful negotiation during the mediation process.

Closure and Impasse Resolution

  • Mediation closure differs from the end of the process, emphasizing closure considerations including party needs, and realistic assumptions.
  • Realistically evaluating what is possible during a mediation, including what may or may not be provided by the parties is a useful tool to have.
  • Reality testing, doubt creation, and considering alternative solutions are essential elements for overcoming impasse points.

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Mediation: Theory and Approach PDF

Description

Test your knowledge on the fundamentals of mediation, including its characteristics, goals, and contexts. This quiz covers various aspects of mediation, especially in legal and personal scenarios, helping you understand when and how mediation is most effective.

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