Mediation

TRAINING IN MEDIATION: MEDIATION: Seeking African Solutions to African Challenges Through a Participatory Learning Process – Workbook Workbook © ACCORD, 2004 All rights reserved. Apart from any fair dealing for the purposes of private study, research, criticism or review, as permitted under t he Copyright Act, no part may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, photocopying, recording or otherwise, without the prior permission of the publisher. First published 2004 Published by African Centre for the Constructive Resolution R esolution of Disputes (ACCORD) Private Bag X018 Umhlanga Rocks 4320 South Africa Phone +27 (0) 31 502 3908 Fax +27 (0) 31 502 4160 4160 e-mail: [email protected] http://www.accord.org.za Written Written and developed d eveloped by Ian Henderson Editing, Design and layout by Ian Henderson Draws on the manual: ““Tr Transforming ansforming conict: Seeking African Solutions to African Challenges Through a Participatory Lear ning Process”, written by Kim Jones, LandMark, and illustrated by Kathy Arbuckle, Centre for Adult Education, University of Natal ISBN NO: This training manual was developed with support from:

“The opinions, ndings, and conclusions or recommendations, expressed in this (publication, program, exhibition, etc.) are those of the author(s) and do not necessarily reect the views of the United States Institute of Peace.”

ACCORD | African Centre for the Constructive Resolution of Disputes

Contents Introduction

5

My learnings

6

What is mediation? Getting a perspective on conict

8

What perspectives can I identify with?

9

What is conict? Conict can be positive

11

Where does mediation t in?

12

Types and levels of conict

12

What is mediation?

My personal story

14

Advantages of mediation

When to mediate?

Models of mediation

18

Mediation abacus

20

Becoming a mediator

21

Stages in mediation

23

Stages in mediation

24

Understanding negotiation

26

Styles of negotiation

26

Approaches to negotiation

27

What’s wrong with positional bargaining?

27

Finding an alternative approach

28

Preparing for mediation

31

Preparation

32

Mediator’s entry

33

Analysing a conict

ACCORD’s approach

Identify the parties

36

Tools for identifying and analysing the parties

37

Sorting the parties

38

Root causes of conict

40

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Training Programme in Mediation

Stages of conict

43

BATNA

50

Opening the mediation

53

Arrivals and departures

54

Seating & physical space

55

Opening statements

56

Mediator’s opening

56

Parties’ presentations

56

Ground rules

58

The mediation process

59

Setting the agenda

60

Identify areas of agreement

60

Role of a mediator

62

Getting to interests

63

Separating the people from the issues

63

Shift from positions to interests

63

One text procedure

65

One-text and multi-party

67

Generating options for settlement

68

Formulating recommendations

69

Separate meetings

70

Closure & agreements

73

Helping parties to make offers

Agreements

Mediator tool kit

76

79

Co-mediation

80

The right approach

82

Perspectives & problem solving

83

Listening & Communication

85

Reective listening

85

Open-ended questioning

87

Data & Interpretation

88

Neutrality & Impartiality

90

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Working with Channels

2004

93


Empathy & Compassion

95

Climate report

96

Looking after the mediator

97

Recognising emotions

97

Where is it coming from?

98

Preparing teams

98

Energy, stress & motivation

99

What to do in a break?

100

Resources

101

Reading list

102

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Introduction We often hear that a majority of the world’s conicts are being played out right here in Africa. This is a continent of huge diversity – in culture, race, levels of development, poverty and wealth, ideology – and one which faces many challenges with massive conict potential. There is thus a huge need for peacemakers with conict management skills, and particularly the specialised role of conict mediator. There are many different approaches to mediation, and some specialised contexts in which it can be found – in a legal environment, in labour disputes, in marital and relationship therapy. This training is focused on giving you a broad understanding of the theoretical base of mediation, teaching you how to run a mediation process, and helping you to begin working on some of the personal skills and attributes you will need to be an effective mediator. You will take these skills and learning away and apply them to the specic context of conict that you are working with. Lear ning to become an effective conict mediator is a life-long process. To continue your education, please read some of the books listed in the “Resources” section at the end of this manual. The best way to learn is to continue to receive new knowledge, and then to test and reinterpret it in the furnace of real daily experience. ACCORD is an African conict management organisation. We are committed to building African skills, capacity and expertise to bring African solutions to the challenges we face on this continent. Training mediators is one of the ways we are making a contribution to this process. We believe that each person we train has a unique contribution to make to bringing about peace and constructive resolution of disputes in Africa.

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THEORY

PROCESS

SKILLS

This training integrates three aspects of learning – theory, process knowledge and the acquisition of skills. In most exercises you will be gaining all three simultaneously. Your trainer will assist you to reflect on what you are learning in each sector, and how to bring the three perspectives together.


My learnings Use this “learning map” to record key learnings that have been signicant for you in this training. Draw a line from a circle and make a brief note about what is important, to remind yourself and start “putting it all together”.

THEORY

PROCESS

SKILLS

6

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INTRODUCTION

What is mediation?


Getting a perspective on conflict What words come to mind when I think of conict?

8

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What perspectives can I identify with? Name some different perspective on conict that you can identify with, and make some notes about what strikes you about these different perspectives:

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What is conflict? Mediation is a response to the challenges raised by conict. It is a particular attempt to intervene in conict to: change the course of that conict; and to manage the conict constructively so as to lessen its destructive impact and increase its creative value for parties in conict. But what is conict? Why do we automatically think of conict as negative? Why are almost all of us scared of conict? ❆

Conict is a state of human interaction where there is disharmony .

❆

It emerges when parties compete over perceived or actual goals, values or interests .

❆

It occurs when parties confront each other with opposing actions and counter-actions .

❆

It is an indicator that something is changing, has changed or needs to change .

❆

It is an interaction which aims at ‘beating’ an opponent.

Conflict is a form of competitive behaviour between people or groups. It occurs when two or more people compete over perceived or actual incompatible goals or limited resources (Boulding 1962, cited in CDR 1986:2). A social conflict exists when two or more persons or groups manifest the belief that they have incompatible objectives (Kreisberg 1988:2). Conflict is an outgrowth of the diversity that characterises our thoughts, our attitudes, our beliefs, our perceptions, and our social systems and structures. It is as much a part of our existence as is evolution (Weeks 1994:7). The existence of social or political conflict is not in itself a cause for concern. Conflict is often a source of creativity and change (Rupesinghe 1998:27). Conflict is a state of human interaction where there is disharmony or a perceived divergence of interests, needs or goals. There is a perception that interests, needs or goals cannot be achieved due to interference from the other person/s). (ACCORD 2001) 10

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Conflict can be positive Conict is often seen as negative. But, conict can: ❆

❆

create an opportunity for balancing the power within a relationship or the wider society and the reconciliation of people’s legitimate interests; lead to greater self-awareness and understanding and awareness of diversity and differences between people, organisations and societies;

❆

lead to personal, organisational and even systemic growth and development;

❆

act as a useful medium for airing and solving problems ;

❆

allow for different interests to be reconciled ; and

❆

foster unity within groups.

Why see the positive aspects of conflict?

Most people are terrified of conflict, and would rather avoid it – they deal with it only as a last resort. To be an effective mediator you will have to learn to accept conflict and deal with your own internal apprehension around conflict. A first step is to learn to deal with conflicts in your own life. This will help you to be neutral when assisting other people with their conflicts.

We should see the positive sides of conict so that we don’t: ❆

avoid dealing with conict or doing battle with the ‘adversary’;

❆

see conict only as a battle between incompatible selfinterests and desires;

❆

see the conict in terms of absolute differences. This colours the whole relationship and ignores healthy, more positive aspects of the relationship.

Conict is not good or bad – it simply “is” . The natural systems of nature involve conict at many different levels – whether it be a lion eating a warthog for sur vival, or a male buffalo ghting and competing for leadership of the herd. As we observe, we become aware that conict is often necessary for change in life – it should not be suppressed, However, there is evidence all around us, particularly here in Africa, of the devastating impact of unrestrained or unmanaged conict. This training programme should assist you to play your part in the management and resolution of conicts as you encounter them in your daily lives. 11

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Types and levels of conflict P E R S O N R E A T

N I

There are three levels of conict: Example:

L

Conflict between a parent and child over responsibilities within the household. R G R O U T E

I N

Example:

P

In 1991 conflict broke out between two rival taxi associations in the Western Cape. The conflict centred around control of lucrative taxi routes. I N

T E R S T A T E

Example: In the late 1970s, there was conflict in the Sinai Peninsular. Egypt was demanding the immediate return of the entire Sinai; Israel, who had occupied the Sinai in the 1967 war, refused to return any of it. Israelʼs underlying interest was in security – that its borders were safe from attack by Egypt. Egyptʼs interest was sovereignty – control over land that had been part of Egypt for centuries.

? n i t i f n o i t a i d e m s e o d e r e h W

Informal discussion

Negotiation

Mediation

DECISION BY THE PARTIES

Arbitration

Adjudication

DECISION BY EXTERNAL PARTY

Force

DECISION BY FORCE

Parties lose control of the process/content/solution

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What is mediation? Mediation is a way for people to deal with problems and conict. It happens when the people involved want to talk to each other to nd a solution to the problem but are unable to come together and reach agreement without the assistance of a third party. In most cases, mediation: ❆

involves two or more parties ;

❆

occurs under the invitation of the parties to a conict;

❆

involves an acceptable, impartial and neutral third party whose role is to assist the parties to reach their own mutually acceptable agreement, and who has no authoritative decision-making power;

❆

happens when there is a problem, a conict of interest or a common concern between parties;

❆

is appropriate when the parties have an uneven power balance;

❆

can only occur when parties are willing to negotiate;

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happens when the parties want to reach a joint agreement;

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is a verbal, interactive process;

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requires a mediator to assist parties to identify the issues of conict, educate each other about their needs and interests, come up with possible settlement options and bargain over terms of a nal agreement.

Most people have some experience of being mediators, whether in your family, or work context, or in your community or neighbourhood. Mediation is thus both a formal and an informal process – everyone can be and has been mediators. Reflect on these experiences – they will help you in your quest to learn the formal art of mediation. Learning to be a mediator is a long process of integrating your personal experience and insight with skills, techniques and theoretical approaches that you learn.

Mediation can have different “avours” in different contexts – it may have a therapeutic angle (e.g. in the case of family or community mediation), it may have a legalistic undertone (e.g. in a labour dispute), or it may have a statesmanship quality (e.g. in an international political dispute).

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My personal story Write down a personal story of your experience acting as a mediator, or being in a mediation. How did it feel? What was good, or went right; and what went wrong, or was negative about the experience.

WHAT DID YOU DO WELL?

WHAT WENT WRONG?

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Advantages of mediation There are many advantages to using mediation where appropriate conditions exist: ADVANTAGE

Mutually satisfactory outcomes High rate of compliance Comprehensive and customised agreements Experience of creative problem solving Greater control and predictability of outcome

Personal empowerment

Resolves relationships

Workable and implementable decisions

Decisions that hold over time

REASON?

Parties are generally more satisfied with solutions which have been mutually agreed upon, rather than those imposed by a judge or arbitrator. Parties who have reached their own agreement are generally more likely to comply with its terms. Mediated settlements can address both legal and extralegal issues. The parties can tailor the settlement to their particular situation. Mediation teaches people practical problem-solving techniques that can be utilised to resolve future disputes. Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a negotiated or mediated settlement than they would be if a case was arbitrated or went before a judge. People who negotiate their own settlements often feel more powerful than those who use lawyers to represent them. Mediated negotiations can provide a forum for learning about and exercising personal power or influence. Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties’ interests can often preserve a working relationship in ways that would not be possible with a win/ lose decision-making procedure. Mediation can also make the termination of a relationship more amicable. Parties who mediate their differences are able to attend to the fine details of implementation . Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. Because of these above reasons, mediated settlements tend to hold over time , and if a later dispute arises, the parties are more likely to use problem solving to resolve their differences than to pursue an adversarial approach.

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When to mediate? There are certain conditions under which mediation is more suitable and is more likely to succeed: SUITABLE

UNSUITABLE

Moderate conflict Party commitment Lawyer commitment Continuing relationship Power equality Multiple issues Adequate resources No clear guidelines Privacy accepted External pressure

Matters of policy Pure legal question Ulterior motives Personal danger Fact-finding required Emotional problems Responsibility avoidance Value differences Court remedy needed Great urgency

It would be most appropriate to use mediation when: ❆

parties have a history of co-operation and problem solving on some issues;

❆

parties do not have a long history of adversarial relations or prior litigation;

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the number of parties is limited and the dispute has not spread to other persons or groups;

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issues in dispute are not too many and the parties have been able to agree on some issues;

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the parties have low or moderate hostility and anger towards each other;

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the parties have, or may have, an ongoing relationship;

❆

the parties’ desire for settlement is high;

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the parties accept the intervention and assistance of a third party;

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there is some external pressure to settle, for example time pressure, diminishing benets of remaining in conict, unpredictable outcomes of the conict;

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❆

there is more than a single issue in dispute; or

❆

there are adequate resources to effect a compromise.

It may be inappropriate to mediate when: ❆

The dispute involves a pure legal question – e.g. the interpretation of a contract;

❆

The parties have ulterior motives for using motivation – e.g. to gain further information, to punish the other party, or to cause a delay beyond a limitation period;

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Use of mediation could involve risk of physical danger – e.g. in a case of abuse;

❆

One or more of the parties is in a disturbed emotional or psychological state ;

❆

There is an uncompromising difference over matters of value or fundamental principle – e.g. afrmative action; or

❆

A mediator has to learn to become aware very quickly of parties who are in a mediation with ulterior motives , such as punishing the other party, or delaying settlement, or gaining further information. After drawing awareness to the problem, a decision must be taken to either terminate mediation, or to deal with these issues before proceeding.

Where a remedy is needed that only a court can provide – e.g. a restraining or protection order.

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Models of mediation There are many different types of mediation, and different contexts for its use. While mediation can be used in a quasi-legal or industrial relations context, for instance, this is not our specic focus in this programme. ACCORD’s focus is towards the use of MODELS OF MEDIATION SETTLEMENT MEDIATION

Also known as

Compromise mediation

Main objective

To encourage incremental bargaining towards compromise, at a “central” point between the parties’ positional demands In terms of positions, based on parties’ self definition of the problem

Definition of dispute Types of mediators Mediator’s main role

Other characteristics

Strengths

Shortcomings

Areas of application

High status (lawyer, manager); no necessary experience in the process, skills and techniques of mediation Determine parties’ “bottom lines” and through relatively persuasive interventions move them in stages off their positions to a point of compromise Limited procedural interventions by mediator, positional bargaining by parties Understood by parties, culturally accepted, not difficult to do, little preparation needed Overlooks parties needs and interests, can be manipulated through initial ambit claims, difficult to cross last gap Commercial, personal injury, industrial disputes

FACILITATIVE MEDIATION

Interest-based, problem-solving mediation To avoid positions and negotiate in terms of parties’ underlying needs and interests instead of their strict legal entitlements In terms of parties’ underlying interests – substantive, procedural and psychological Expertise in mediation process and techniques; no necessary knowledge of the subject matter of dispute Conduct the process, maintain a constructive dialogue between the parties and enhance negotiation process Low intervention role for mediator, parties encouraged to fashion creative outcomes around mutual interests Can make most efficient use of negotiation opportunities, controlled by parties May not reach an outcome, can be lengthy, requires skills from parties

Community, family, environmental, partnership disputes

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mediation in conict – and at all levels from personal to inter-state conict. Boulle & Rycroft, in Mediation: Principles, Process, Practice have identied a useful structure of four models of mediation. In practice these models will merge, and a mediation may take on a number of these different roles, however it is helpful to understand the different roles. The approach of this course could be said to be focused primarily on Facilitative mediation, and including elements of Settlement and Therapeutic mediation.

Any sources referred to in this manual can be found in the “Resources” section at the end of this Workbook.

MODELS OF MEDIATION THERAPEUTIC MEDIATION

Also known as Main objective

Definition of dispute Types of mediators Mediator’s main role

EVALUATIVE MEDIATION

Reconciliation, transformative Advisory, managerial mediation mediation To deal with underlying causes of To reach a settlement according to the parties’ problem, with a view to the legal rights and entitlements of improving their relationship as a basis the parties and within the anticipated for resolution of the dispute range of court outcomes In terms of behavioural, emotional In terms of legal rights and duties, and relationship factors industry standards or community norms Expertise in counselling or social Expertise in substantive areas of the work, with understanding of dispute, no necessary qualifications psychological causes of conflict in mediation techniques Use professional therapeutic Provide additional information, techniques before or during advise and persuade the parties, mediation, to diagnose and treat bring professional expertise to bear relationship problems on content of negotiations

Other characteristics

Decision-making postponed until relationship issues have been dealt with

High intervention by mediator, less party control over outcome

Strengths

Can lead to “resolution” rather than just “settlement” of dispute

Shortcomings

Could be prolonged and terminate without any agreement, confuses counselling/mediation roles

Mediator’s substantive expertise used, outcome within range of likely court verdicts Blurs mediation/arbitration distinction, does not teach parties skills for the future, additional responsibilities for mediator Commercial, personal injury, trade practices, anti-discrimination, matrimonial property disputes

Areas of application

Matrimonial, parent/adolescent, family networks, continuing relationship disputes

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Mediation abacus See J. Wade “Mediation – The Terminological Debate” (1994) 5 ADJR

The mediation abacus, developed by Wade and Gribben, represents some of the variable features of mediation. The beads represent the fact that there are many dimensions on each variable. THE MEDIATION ABACUS

Consensual entry

Compulsory entry

Party choice of mediator

Mediator imposed on parties

Mediator qualied

Mediator with no qualications

Independent, neutral mediator

Mediator interested insider

Low intervention by mediator

High intervention by mediator

Non-evaluative mediator

Evaluative mediator

Outcome consensual

Mediator inuences outcome

Therapeutic/educational function

Settlement function only

High degree of condentiality

Low degree of condentiality

Rigid rules and procedures

Flexible rules and procedures

Agreement legally binding

Agreement not legally binding

Deals with past and future factors

Deals only with present issues

Factors which influence the variables: ❆

Resources of parties (time, funds, expertise)

❆

Degree of hostility between parties

❆

Mediator’s experience and preferences

❆

Bargaining strength of parties

❆

Facilities/amenities available

❆

Needs and wishes of parties

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Mediation

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