Mediation Techniques PDF

00:16 Mediation is a process where two disputing parties negotiate with each other with the help of a neutral third party, the mediator. And part of the mediator\'s role is of course is to facilitate and to assist the parties in their negotiation. And that\'s why sometimes mediation is also known a...

00:16 Mediation is a process where two disputing parties negotiate with each other with the help of a neutral third party, the mediator. And part of the mediator\'s role is of course is to facilitate and to assist the parties in their negotiation. And that\'s why sometimes mediation is also known as a facilitated negotiation. 00:45 Positional bargaining is actually something quite common in many negotiations. It\'s a strategy used by parties where they will start with a position at the beginning, what we call an opening position, and they will stick with it throughout the process. Quite often they will be defending that position and at the same time attacking the position. 01:13 taken up by the other side. Now this process is not helpful because quite often parties end up haggling or threatening each other or sometimes suspiciously withholding information from one another. So it\'s a competitive kind of process and it\'s taxing and exhausting for the parties in the end. So positional bargaining is not something that is effective. 01:42 A position is quite often a demand by a one party, or what that person feels that he wants, or thinks he wants. For example, a party will say, I want my neighbour to stop playing piano at night. Now that\'s a position. As opposed to an interest, an interest is something that\'s the motivation behind a position. 02:09 It\'s about the parties or the person\'s concerns, the person\'s needs. For example, a party will say, I want the person to stop playing the piano at night because I have to work the next day early and I need some rest. 02:32 So the interest or the underlying interest quite often is not very obvious to the parties. Sometimes parties don\'t even know what their interests are. And part of the mediator\'s role is also to elicit or to encourage parties to share their interests. And in a setting like a mediation, parties will get an opportunity with the help of the mediator to actually surface their interests. 03:01 and the mediator will also encourage parties to address or to look at the other party\'s interests as well. So when parties are collaborating, they\'re helping each other, that is part of the collaborative effect of mediation. Part of a mediator\'s role is to focus on the common interests of parties. 03:31 When parties have a common interest, they are able to assist and collaborate. When parties are all rowing in the same direction, parties are more willing to help each other. So, common interest is something which the mediator will try to encourage and elicit from the parties and encourage parties to recognise that they do have a common interest. At the opposite end, of course, parties also may have conflicting interests. 04:00 And quite often, the mediator will assist by helping parties prioritize what is more important, and to differentiate between common interests and interests which are helpful, and conflicting interests which are unhelpful. As I mentioned earlier, sometimes parties may not know or appreciate the interests or their underlying interests. And sometimes what the mediator can do is 04:28 they will try to surface those interests. And one technique which some militars use is of course to ask, why? Why would you like your neighbour to stop playing the piano at night? 04:42 Or sometimes we ask, why not? So asking the why questions will help parties think about what their underlying interests. They may want someone to stop doing something, but they may not have thought about why they want to do that. And that\'s part of the mediator\'s role, to ask why, to elicit as much the party\'s concerns or needs as possible. 05:13 Interest-based negotiation is something that came up from the Harvard Negotiation Program. The two directors, William Urey and Roger Fisher, created this negotiation technique where it includes seven essential elements. One of them would be interests. Two, it\'s about options. Three, it\'s about objective criteria or sometimes known as legitimacy. 05:44 Four is alternatives. Five is about communication. Six, relationship. And the last one, seven, is about commitment. Interest-based mediation is a species of mediation based on these seven elements. So what the mediator does is, using the seven elements, he or she will assist the parties in negotiation. 06:13 The mediator will try to move parties away from positions and focus on interests, what the parties\' respective underlying interests are, surface them, talk about them, engage both parties to come up with ideas or solutions, or what we call options. The focus is also on common interests, so that parties are able to collaborate and to help each other. 06:40 The process itself is not adversarial but collaborative. It\'s about joint problem solving. Options. Now what are options? I suppose simplistically, options are about choices. The more choices or the more options parties have, the greater the opportunity or chance the parties can resolve their dispute. So part of the mediation, the mediator will encourage parties to generate options. 07:10 But options are generated on the basis of the party\'s interest, as opposed to their positions, so that whatever options that are shared or discussed during the session will be productive and towards resolving the dispute. Sometimes in the course of the mediation, when parties are encouraged to generate options, the style of discussion sometimes develops. 07:39 into what we call a problem-solving or brainstorming session, where the parties are encouraged to think of ideas or solutions that will help parties resolve their differences. And sometimes the media term may also set some ground rules to encourage parties to come up with as much options as possible, but without judging or without challenging\... 08:07 the ideas, at least at the outset. The main idea is to brainstorm, to come up with as many ideas as possible, and to generate as many solutions as possible. The assessment or the deciding which option is better can be done afterwards, after when all parties have exhausted their ideas and come up with ideas that even sometimes may appear unpractical or unfeasible at the beginning, sometimes may become possible solutions. 08:37 towards the end. Okay, so now we have the list of options. How do we decide which option will be best? Or how do we choose the options? And one way is to use the objective criteria or legitimacy element. Quite often in a dispute when parties are at loggerheads, quite often they are quite distrusting of each other. And one way of course is, or one way to look 09:08 is what we call in negotiation terms as reactive devaluation. What that means is basically parties, whatever party A says, party B is reluctant to listen. If he says it\'s black, he will just say it\'s white, just to make it the opposite or just to resist. So what an objective criteria can help is, in a sense, it takes the decision-making away from the other party. So it\'s not the other party\'s 09:38 a choice or decision, but it\'s from an objective point of view. And some examples of objective criteria would be market rates. When we\'re talking about salary, we\'re talking about the price of a product. If the other party\'s price is too high or the salary is too high, we can use an objective criteria such as what is the market rate? What is the common salary for someone in that position? So an objective criteria is a way 10:08 to help parties decide amongst the options which is fair or fairer. In any situation, every party wants to be treated fairly. So an objective criteria is something we can use to help parties feel that they have been treated fairly. Because it\'s not a proposal from the other side exactly, but it\'s something objectively someone else\... 10:38 has provided a solution. Another way of using objective criteria is sometimes parties will get an independent expert to come in. Now an expert, because he or she is an outsider and independent from the two parties, it becomes something more acceptable between the parties. So one way again to resolve differences is using an independent third party or an expert. 11:08 as an objective criteria to help parties decide or negotiate. And sometimes parties, for example, will approach a surveyor, for example, in dispute about construction, defects, for example. An engineer could be an independent expert that can come in and provide a report providing his or her views in terms of the list of defects. 11:36 and parties can use that report in the course of mediation to start or begin negotiations. So, objective criteria is helpful, especially when parties are unable to choose or decide which is a better option or choice. Sometimes when parties are in a negotiation table, they are stuck and they have a few options on the table and they do not know what to do. How do we accept the option? 12:06 or do we walk away? One element we can use to help us decide whether to walk away or not is alternatives. So alternatives is usually something we use to help us decide whether or not to stay and continue the conversation or to walk away. So alternatives quite often comes in the form of what is the worst case scenario. 12:37 kind of\... ask the question. 12:41 What if we do not accept this on the table? What if we do not accept this offer on the table? 12:49 So quite often we think about what is the worst case scenario. If we do not accept, we do not settle today, what will happen? So the alternative would be, we will go to court, we will fight or litigate this case in court, which takes up more time, more expense and more stress. So sometimes when my client, during mediation, is undecided 13:18 take the offer on the table or to walk away. I quite often use alternative as a means to reality check or reality test the situation. For example, the table says the other side will pay \$100,000. And I ask her, is \$1,000 enough? Right? She\'s undecided. She thinks that it may not be enough. So I will ask a question. 13:47 if we do not accept the \$100,000, what is our alternative? Which is, we walk away, we go to court. It\'s going to court something you want to do, it\'s something acceptable to you. If it is, we can walk away. But if it isn\'t, then maybe we want to seriously consider the \$100,000 on the table, and I\'ll help you go through the numbers, by also telling you or sharing with you. 14:16 the cost involved if we go to court. So something like that. Sometimes in that situation, the parties or the client will rethink about what she thinks is more important, the \$100,000 in settlement, enclosure, or to prolong the dispute, go to court and with a chance of perhaps gaining something more. 14:43 One of the seven elements includes communication. Now part of our role as a mediation advocate or as a lawyer is to assist the parties in their communication. Now, we can communicate on behalf of our clients during a session. Certain things may perhaps be easier to articulate or to come from a lawyer, but more often than not, we also want parties to speak for themselves. And our role again is to encourage parties to speak for themselves. 15:13 We can rephrase, help to rephrase or help parties or prompt parties to share in certain aspects of their case. Communication, as much of it is about speaking, but also quite often we forget that communication is also about listening. So the sending of messages and also receiving of messages. 15:44 Because what happens is when we listen, we are able to identify the concerns, and we are able to help resolve those concerns. And if we are able to do that, if we are able to help resolve the other party\'s concerns, they were more likely to not, in turn, help and reciprocate, and help us resolve our concerns. So listening is, in fact, quite critical in any mediation or any\... 16:13 negotiation, where parties are given the opportunity to speak as well as an opportunity to listen, which in a court setting or in a trial setting, those opportunities will not be available. Relationship is also another element or part of the seven elements. 16:37 As a mediation advocate, we should remind the clients or encourage them to build on a relationship. As much as parties are in dispute at the time, the relationship building or being able to have a decent or workable relationship is more important than trying to get even or trying to get one over the other. 17:06 So it\'s about getting what you want rather than about getting even. So building a relationship during the mediation is important. Why? Because if we help parties have a good working relationship, parties are more open to talk, they\'re more open to listen as well, and they\'re more open to come up with workable and practical solutions. Now if parties are at loggerheads as it is in a dispute, 17:34 Part of our role as lawyers is not to act in the mix and not make things worse. We want to make the session as conducive as possible. With the help of the mediator, council\'s role is also to help parties build that relationship. It\'s about negotiation. It\'s about thinking about what happened before parties started this dispute, before the conflict. Quite often, there\'s always a history of a good relationship in the past. 18:03 And what we as council can do is to build on the good relationship, rebuild trust and rebuild that rapport that we have with the other side. And it makes the conversation a lot more conducive for parties to resolve the differences. Quite often in a dispute, parties may be very worked up, it may be emotionally charged, 18:34 has a lot invested in it and it\'s very personal and it\'s an emotional attachment to the dispute. For example, divorces, quite clearly, parties quite often will fight over the child or the children. And the unfortunate thing about family disputes or matrimonial disputes is that sometimes the child becomes a pawn in the dispute. So the emotional part of one party or both parties 19:04 get mixed up with the substantive part, which is what is important for the child. But because they\'re so emotional and attached to the child, they cannot seem to see what is important for the child. So it ends up parties fighting over a child just to spite one another. So one way, or as lawyers, we can help is that we try to separate the emotional part 19:34 or the person, we separate the person or the emotional part from the substantive part, right, focusing more on the child instead of focusing on how the spouse feels about the other spouse. Parties should only reach an agreement when they have been given an opportunity to share their concerns and an opportunity to discuss and negotiate and collaborate during the mediation process. So\... 20:04 We need to give parties an opportunity and time to do that. Do not rush into a commitment or an agreement when certain things are left open or unresolved. We will only reach a commitment and an agreement when all the items have been dealt with and enough time has been spent addressing and dealing with them. Only then will the agreement be firm and the parties committed to the agreement because they\'ve invested so much in it. 20:34 been given a chance to speak, they\'ve been given a chance to participate in the negotiation. So the more effort they put into the process and to the negotiation, the more likely they\'re going to commit to the agreement that\'s reached at the end, which makes a settlement agreement far, far much more stronger than if it was rushed through or it was inadequately addressed or concerns are inadequately addressed during the session. 21:09 So imagine this is the negotiation table. And what do we bring to the negotiation table? We have interests. Yes, we have interests of the parties. We talk about interests in the negotiation table. We also talk about options. What are the possible options that may satisfy the interests of the respective parties? And one way also to decide or to choose from a list of options would be to use the objective criteria. 21:40 So all these elements we bring to the table, we can use it at the negotiation table. Now, then there will be offers being made that are on the table, and we need to decide whether or not to accept these offers. And one way to do that is to use alternatives. Right? When we\'re looking at a list or we\'re looking at a possible proposal or offer, 22:10 on the table if the offer is worse than or equal to the webinar. 22:20 or better. 22:23 That means whatever it is, I can have a better deal elsewhere. We can decide and walk away, right? So we have no agreement. 22:34 However, if whatever the offer is on the table is better than or as good as your partner, then it is something we can accept and then we have our agreement. And with that agreement, we can have a commitment. 22:55 Now, the other two or balance elements, which is relationship and communication, we will also bring it to the negotiation table, but it\'s an overarching kind of element where we\'re continuously trying to build on a relationship, we\'re continuously trying to improve the communication between the parties. So this little drawing here is basically the seven elements in a diagram.