Mediation: Best Practices

00:01 Hi and welcome to Best Practices in mediating conflicts.

00:05 The first question I want to answer from the very beginning is will you be a mediator by the end of this lecture? And the quick and short answer is no, and I don't want you to be a mediator.

00:18 Don't panic.

00:20 You don't have to be a mediator.

00:22 What I want you to do is to make sure that if you're asked to participate in mediation, or if you are in a position to promote mediation, you will be able to make an informed decision. In this lecture, we will deepen your knowledge of understanding what is mediation? What are the benefits of mediation? And how can you determine when mediation is helpful? You will be able to understand what the process of mediation is, and you will have a better understanding of how to make the process more effective.

01:00 Now, the first question we have to ask is what is mediation and how is it different from other types of third party intervention? Here is a very concrete and helpful definition.

01:15 Mediation is the intervention and a standard negotiation or conflict by an acceptable third party who has limited or no authority over the decision making power, but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in the dispute? Now, when is mediation helpful? Very clearly mediation is helpful when negotiations have reached a stalemate and parties wish to resolve their problems together. When parties have exhausted their resources and the level of conflict has exceeded what is deemed acceptable by the rest of the team or the organization, mediation will come in helpful. The team is suffering because the interpersonal issues consume the everyday life in the office or the threat of conflict is spreading to unacceptable levels throughout the organization.

02:19 Specifically, mediation is useful when the parties really want a solution that cannot be resolved by a court of law because they involve interests and relationships.

02:31 So one thing that people need to consider is the stage of the conflict and whether that conflict is ripe for resolution. They also have to consider what is the balance of power relative to the other parties involved and how complex is this conflict? In the end, one of the most important considerations we need to make is what do we expect as an outcome.

02:59 Do we expect to have a judgment then mediation is not helpful.

03:05 Do we expect to fulfill our interests equally and mutually? Then again, mediation is the right tool for you.

03:16 Having done the conflict management spectrum.

03:18 In another lecture, we want to now maybe turn our attention to what is the difference between a mediated process and a judicial process, a litigated process in a judicial process.

03:33 The third party, the judge, makes the decision.

03:37 The focus is on positions.

03:39 There are winners and there are losers.

03:42 The process is very public and it is enforced by law.

03:47 It can be rather long and very expensive, and usually the parties have no control over the process.

03:57 On the other side is mediation.

04:01 Mediation involves third parties helping the parties resolve their own conflict.

04:08 It involves focusing on interests, mutually acceptable solutions, trying to achieve that win win situation.

04:19 Mediation is also confidential and it's 100% voluntary.

04:24 You can walk away at any time and say, I'm finished with this. You are there because you want to be there.

04:33 Mediation seeks to be sustainable and transformative and looks towards long term goals to prevent future disputes.

04:43 The parties keep full control of the process.

04:48 So let's look a little closer at what is mediation and the features of mediation. Number one, mediation is an extension of negotiation, but it is not direct negotiation.

05:02 It involves an external actor where the process is voluntary, non coercive, and the mediator is there to help resolve, modify and influence the perception of the parties involved.

05:19 There is an expectation that mediators add resources to the process by adding ideas, bringing in knowledge or any kind of material that will help the parties make informed decision. The process can be ad hoc or can be systemic, and it focuses on improving relationships, dealing with emotions and satisfying needs.

05:45 When I engage a mediator, what can I expect? Well, we can all expect the mediator to support the parties in improving their communication.

05:59 We can also expect the mediator to have an expert knowledge on conflict analysis and to help the parties bring together different perspectives throughout the conflict analysis.

06:11 The mediator is there to help promote creativity when the parties have run out of creativity.

06:19 One very special service that a mediator can do is find objective criteria by which the parties can evaluate their options.

06:28 And lastly, when people don't trust each other, the mediator can help identify which parties need to come into the process to help secure guarantees.

06:42 At this point, it would be helpful to look at the process of mediation.

06:47 The process of mediation involves five stages pre mediation, the opening exchange, the problem solving negotiation and the agreement.

06:59 In the pre negotiation we talk about first contact and information meeting, setting the environment, designing a plan and an agreement to the process.

07:13 These are the five steps in the pre mediation phase. In the opening exchange we have the formal beginning, bringing the different perspectives together and this phase ends with defining issues and an agenda by which the mediation process will continue.

07:37 In the problem solving negotiations, the mediator will help the parties do several things.

07:44 First of all, to do an assessment of the interest, help them generate options and help them assess options.

07:52 And lastly, the mediator will help them come to a formal agreement in the mediation process.

08:00 I've added one more box, which is called the implementation phase.

08:05 What we're seeing is that in traditional mediation processes, implementation is left up to the parties.

08:12 However, as problems become more complex in our society, we realize that many organizations and many teams are asking mediators to come back during the implementation phase to help them renegotiate problems in the implementation.

08:32 Now let's look at the pre mediation phase a little closer.

08:37 In the pre mediation phase, we're going to look at the relationship.

08:40 We're going to see what kind of relationship is there, what kind of strategy might be needed for the entire mediation process. We're going to look at information, how it flows through the parties, how it flows to the mediator, and how we can improve the sharing of information.

09:01 We're going to design a plan and we're going to do is to build trust not only amongst the parties, but with the mediator, so that when we sit down in a formal session, there'll be trust that has already been generated in the pre mediation phase.

09:19 So here on the screen you have your 12 pre mediation checklist steps.

09:25 Number one, design your framework.

09:28 Number two, design objectives.

09:31 Number three, designate roles for the mediation team.

09:35 Number four, select all the participants that need to be involved.

09:40 Number five, make sure all information has been incorporated.

09:45 Number six, check the mediators assumptions about the conflict.

09:50 Number seven, understand who is supporting the different parties and who might spoil the mediation process.

09:58 Number eight, make sure that you have a neutral place where people can meet. Number nine, make sure you've gone through the logistics, for example, that there are bathrooms, there are lights, the time of day as well for all the parties involved, and that everybody has access to the room.

10:17 Number ten, make sure that all material has been approved and has been shared with the parties.

10:23 Number 11 hold bilateral meetings with all the parties at least once before you sit down in a meeting.

10:30 And finally, and most importantly, don't forget, everyone needs to agree to a common procedure before you sit down at the table. Once you are done with the pre mediation stage, you're ready for the opening exchange.

10:49 This involves sitting down with the parties and giving the mediation process a formal beginning.

10:58 Making sure that the process is set and that the parties have agreed to the role of the mediator and the process before them.

11:07 Once you have done the formal beginning of the mediation, you want to begin to invite the parties to share their experiences and to define their issues.

11:18 It's important that we realize that most people are very nervous and they do not choose mediation as a first choice.

11:26 Most of them are very skeptical, and they have a fear that mediation might even escalate the conflict.

11:34 However, we know that by working on the relationship during this phase and improving the relationship, we will be able to set up the next phase of mediation.

11:46 Once the parties have defined an agenda that they feel are the issues involved in the negotiations, we are ready to move into the interest assessment part of the problem solving negotiation phase.

12:03 Then you will deal with the different types of issues such as identity data, relationship interest and structural issues.

12:14 Once you've identified the different interests, you are ready to move to the generating option phase.

12:21 Let me be very clear right here.

12:24 Do not try to identify interest and generate options at the same time.

12:32 The generating phase of options deals with figuring out where are the boundaries, what procedures can be implemented to improve options? How to clarify the reality of each of the parties.

12:50 What concessions are parties ready to make in the interest of a mutually acceptable solution? How we can improve open dialogue and maybe even encourage the parties to think bigger than themselves.

13:08 Once we've understood the interest, once we've generated some options, we're ready for the final phase of making agreement. This involves, first of all, working on the detailed wording of an agreement and also figuring out what kind of agreement do we want to have.

13:30 A strong agreement is substantive, comprehensive.

13:35 It deals with permanence.

13:38 It's detailed.

13:40 It's not conditional on some external factors, and it's binding on the parties.

13:47 On the other hand, we might have softer agreements.

13:52 Maybe some people would even call it weaker agreements, which are more procedural in nature.

13:58 They're partial.

14:00 They don't fulfill all of the interests of all the parties.

14:04 They might be provisional or temporary.

14:07 They might be, in some instances, a little abstract.

14:11 They're also non binding.

14:16 Finally, we want to think about how to create an effective process. It's important to make sure that throughout the mediation process, the power balance amongst the parties is focused into a more balanced approach.

14:35 We want to make sure that people realize that when they chose mediation, they chose to leave power at the door.

14:44 We also want to make sure that we break down complexity to more manageable bite size.

14:51 We want negotiation teams to feel that there's harmony and that the process is moving forward.

14:58 Every single person in the mediation process should have an understanding of the decision making authority of the people in the room. We also want to make sure that information is transparently transmitted and is freely flowing amongst the parties.

15:16 Any hiccups in the communication flow need to be dealt with swiftly.

15:21 Lastly, to be effective, we want at the very beginning to understand how will the agreement be ratified and implemented. Agreeing on a ratification process at the beginning will help us to be more effective.

15:40 In conclusion, I hope you have a deeper understanding of mediation as a format.

15:48 Number two, understand what are some of the benefits of mediation? Number three, that you're able to determine when mediation is helpful and that you have a basic understanding of the multiple phases involved in a mediation process and the micro phases within each phase that will lead you to an effective process of mediation.

16:15 At this point, I want to thank you very much for listening to this lecture, and I want to wish you good luck.

16:21 If at this moment you are contemplating mediation as a potential for helping you either a resolve one of your own conflicts or be bringing in a mediator to support you in a conflict within your team or your organization.