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Mediat ion & Conf l ict

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This manual was lovingly adapted by Jen Comiskey

from the original CMC manual (first edition) by Grayfred Gray.

Special Thanks to

Jackie Kittrell, Becky Jacobs, Julian Wick, Delores Mitchell, John R. Selser,

Paul Rajkowski, Marsha Hupfel, Lisa Givonetti, Charley Comiskey, and Stacy Monday

for their invaluable input and advice.

Unless otherwise noted, all material in this manual is copyrighted by the Community Mediation

Center of Knoxville, Tennessee, and may not be duplicated or modified without the permission of

the CMC. To obtain permission to use these materials, please contact the CMC Executive

Director by phone (865-594-1879) or by email (jkittrell@2mediate.org).

© Third Edition, 2013

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Table of Contents

Tab 1: Mediation and Conflict

CHAPTER 1. MEDIATION AND CONFLICT ........................................................................... 1

1.1 THE MEDIATION PROCESS ....................................................................................... 1 1.1.1 What is Mediation? ..................................................................................................... 1 1.1.2 What Kinds of Cases Can Be Mediated? .................................................................... 1 1.1.3 Forms of Mediation...................................................................................................... 2

1.2 CONFLICT: WHY WE NEED MEDIATION .............................................................. 3

1.2.1 Defining “Conflict” ....................................................................................................... 3 1.2.2 Addressing Conflict ...................................................................................................... 4

1.2.3 Dynamics of Conflict .................................................................................................... 4 1.2.4 Barriers to Communication and Collaboration ............................................................. 5 1.2.5 Conflict Management Styles .......................................................................................... 6

CHAPTER 2. THE MEDIATOR’S TOOLBOX ......................................................................... 11

2.1 ACTIVE LISTENING ....................................................................................................... 11 2.1.1 Restating ..................................................................................................................... 11

2.1.2 Reframing .................................................................................................................... 11 2.1.3 Summarizing ............................................................................................................... 12 2.1.4 Clarifying .................................................................................................................... 13

2.1.5 Questioning ................................................................................................................. 13 2.1.6 Body language ............................................................................................................ 13

2.1.7 Silence ......................................................................................................................... 14 2.1.8 Acknowledgment of Feelings ..................................................................................... 14

2.1.9 Pitfalls to Avoid ......................................................................................................... 15 2.2 FOCUSING ON THE FUTURE ....................................................................................... 15

2.2.1 Task Statement ............................................................................................................. 16 2.2.2 Possible Future-Focusing Scripts ................................................................................. 16

2.3 VISUAL AIDES ................................................................................................................ 18

2.3.1 To Invoke Others ........................................................................................................ 18 2.3.2 Records of Progress .................................................................................................... 18

2.4 CAUCUSING ................................................................................................................... 19 2.5 BREAKING BREAD ........................................................................................................ 19

CHAPTER 3. ROLES OF MEDIATION PARTICIPANTS ....................................................... 20 3.1 THE ROLE OF THE MEDIATOR .................................................................................... 20

3.1.1 Function and Scope ..................................................................................................... 20

3.1.2 Goals and Duties of a Mediator .................................................................................. 20 3.1.3 Values and Attitudes of a Mediator ............................................................................ 24 3.1.4 Threats to a Mediator’s Role....................................................................................... 24

3.2 ROLES OF OTHER PARTICIPANTS IN THE MEDIATION ....................................... 26

3.2.1 Disputants .................................................................................................................. 26 3.2.2 Attorneys ..................................................................................................................... 26 3.2.3 Support Persons .......................................................................................................... 28 3.2.4 Third Parties ................................................................................................................ 28 3.2.5 Observers .................................................................................................................... 28

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4.1. OVERVIEW ...................................................................................................................... 29 4.2 PREPARING TO MEDIATE ............................................................................................ 29

4.2.1 Discussions Between Co-Mediators .......................................................................... 29 4.2.2 Environmental Issues .................................................................................................. 30

4.3 STEP ONE: ORIENTATION (INTRODUCING THE MEDIATION PROCESS) ......... 31 4.3.1 Purpose ........................................................................................................................ 31 4.3.2 Conducting an Orientation .......................................................................................... 31

4.3.3 Orientation Checklist .................................................................................................. 32 4.4 STEP TWO: PRESENTING VIEWPOINTS ................................................................... 33

4.4.1 Purpose ........................................................................................................................ 33 4.4.2 The Narratives ............................................................................................................. 33 4.4.3 Utilizing Mediation Skills ........................................................................................... 33

4.4.4 Controlling the Process ............................................................................................... 34 4.5 STEP THREE: DEVELOPING THE TARGET STATEMENT ..................................... 35

4.5.1 Purpose ........................................................................................................................ 35 4.5.2 Crafting a Target Statement ........................................................................................ 35 4.5.3 Some Examples ........................................................................................................... 35 4.5.4 Presenting the Target Statement ................................................................................. 35

4.6 STEP FOUR: GENERATING OPTIONS (BRAINSTORMING) ..................................... 35 4.6.1 Purpose ......................................................................................................................... 35

4.6.2 Brainstorming ............................................................................................................. 36 4.7 STEP FIVE: EVALUATING OPTIONS ......................................................................... 38

4.7.1 Purpose ......................................................................................................................... 38

4.7.2 Evaluating Potential Solutions .................................................................................... 38 4.7.3 Addressing Common Obstacles .................................................................................. 38

4.7.4 Dealing with Impasse .................................................................................................. 38 4.8 STEP SIX: CONCLUDING THE MEDIATION ............................................................... 40

4.8.1 Terminating the Mediation .......................................................................................... 40 4.8.2 When An Agreement Is Reached ................................................................................. 41

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CHAPTER 1. MEDIATION AND CONFLICT

1.1 THE MEDIATION PROCESS

1.1.1 What is Mediation?

Mediation, a form of alternative dispute resolution, can be defined as “an informal process in which a

neutral person conducts discussions among disputants designed to enable them to reach a mutually

acceptable agreement among themselves on all or any part of the issues in dispute.”1 Mediation is a

voluntary and confidential process, allowing disputes to be dealt with in a private, informal setting.

Through mediation, individuals are able to take active roles in making decisions that affect their lives;

mediators work with disputants to create flexible, creative solutions to their shared problems.

Mediation provides a variety of benefits to individuals in conflict. Mediation offers “the opportunity to

have an experience with conflict that is not only not alienating, but actually enhances human

connections.”2 Mediation empowers individuals to engage in productive dialogue, to tell their stories, to

express their opinions, and to listen to each other. It also provides disputants the opportunity to avoid the

costs and acrimony associated with an extended court battle. Disputants in mediation can transcend the

win-lose or lose-lose dynamics found in other modes of conflict resolution and develop a solution that is

agreeable to everyone involved.

1.1.2 What Kinds of Cases Can Be Mediated?

Many kinds of cases can be mediated, as long as the disputants are willing and able to participate in the

process. While mediation can be useful in addressing conflicts that arise among strangers, it can be

especially beneficial when the disputants have continuing relationships (e.g., landlords and tenants,

neighbors, and family members) because mediation provides an opportunity for the disputants to resolve

their issues and ultimately improve their future relationship.

At the Community Mediation Center (CMC), mediation is used to resolve civil disputes (e.g., sales, goods

and services, contracts), and has proven useful in addressing long-standing emotional disagreements

between unrelated people (e.g., landlord/tenant, co-workers, or neighbors). CMC mediators also help

families address a variety of conflicts, including parenting and visitation disputes, divorce, and disputes

among parents and children. CMC has also used mediation to help DCS workers, attorneys, parents and

foster parents develop permanency plans for children who had been removed from their homes. CMC also

helps resolve issues between victims and offenders in both juvenile and criminal courts.

As the field of mediation continues to grow, the range of issues considered mediable will likely expand.

Regardless of the issue, a successful mediation generally requires a number of elements to be present.

Perhaps most important, mediation requires active, creative involvement from participants. If either or

both of the disputants do not WANT to resolve the conflict (or at least to change their present

circumstances), they will probably be unwilling to think creatively or move from their initial positions. In

cases where mediation takes place between a victim and an offender, the mediation can be scheduled only

if the victim is willing to participate. If a mediated agreement contains binding provisions on a third

party, that third party must participate in, and be a signature to the agreement.

Another important element of mediation is communication. Participants must be able to express their

concerns, ideas, and personal narratives. A variety of factors can impair an individual’s ability to express

himself/herself, including fear, intimidation, mental illness or incompetency, serious emotional distress,

and physical impairment or disability. Power imbalances among participants can also compromise the

mediation process and make a fair result unlikely or impossible. At CMC, staff conducts a thorough

intake and safety screening with each disputant prior to the initial mediation session for all family and

1 Tennessee Supreme Court Rule 31, Section 2(f).

2 Louise Senft & Cynthia Savage, ADR in the Courts: Progress, Problems, and Possibilities, 108 Penn. St.

L. Rev. 327 (Summer 2003), p 334.

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criminal cases, to make sure that mediation is appropriate. Mediators remain vigilant regarding the

effects of such concerns on the mediation and take appropriate actions to control the process by

facilitating expression, otherwise balancing power, or terminating the mediation.

Cases may be unsuitable for mediation for other reasons. Isabelle Gunning identifies situations involving

“fundamental rights and freedoms” as inappropriate for the confidential confines of a mediation room and

needs to be addressed in a public forum.3 She also reports that when members of minority groups mediate

with individuals from a majority group, the minority groups typically recover less than when the same

groups face off in court. However, she also notes that “minority parties were often quite satisfied with the

process and the ability to tell their own story in their own voice.”

Empowering all participants to communicate their narratives and goals is fundamental to mediation. By

identifying and addressing the emotional elements and individual needs underlying monetary conflicts, all

participants are able to leave the process as winners - even when the monetary settlement is less than what

they could have been obtained through a court judgment.

1.1.3 Forms of Mediation

Mediation is difficult to define because it has become an umbrella term for many types of alternative

dispute resolution and has undergone significant changes in its short history.4 Training techniques vary

depending on the type of mediation as well as the particular setting.5 Three forms of mediation are

generally recognized: Evaluative, Facilitative, and Transformative. While many similarities exist

across these forms, the goals and/or strategies of each are distinct.6 This manual will focus on the

facilitative mediation model used by CMC.

Transformative Mediation: The Transformative Mediation Model is based primarily on empowerment

and recognizing the needs and interests of disputants. A primary attraction of Transformative mediation is

“its focus on self-determination and responsiveness to others.”7 Transformative healing comes from “the

process of creating a higher vision of self and society, one based on moral development and interpersonal

relations rather than on satisfaction and individual autonomy.”8 This form of mediation incorporates many

of the techniques of facilitative mediation (below) but also includes techniques aimed at healing the

disputants and teaching them how to be more peaceful, enlightened individuals.

Evaluative Mediation: The Evaluative Mediation Model reflects the growing influence of the legal

community on the field of mediation.9 These mediations tend to resemble settlement conferences. A

3 Isabelle Gunning, Know Justice, Know Peace, 5 Cardozo J. Conflict Resol. 87 (Spring, 2004); see also

The Mediator’s Handbook, p 7, 16, 117-8 (noting that mediation may be inappropriate when “the issue

deserves public attention so that mediation does not hide a problem or settlement from public knowledge

(e.g. concealing environmental or work dangers; racial harassment patterns”). 4 For interesting reading, see Louise Senft & Cynthia Savage, ADR in the Courts: Progress, Problems,

and Possibilities, 108 Penn. St. L. Rev. 327 (Summer 2003), p 333-334. 5 For interesting reading, see Brian Wessner, A Uniform National System of Mediation in the United

States, 4 Cardozo J. Conflict Resol. 1 (2002) (describing the need for national training standards for

mediators). 6 For an overview, see Brian Wessner, A Uniform National System of Mediation in the United States, 4

Cardozo J. Conflict Resol. 1 (2002) (comparing and contrasting these styles of mediation). 7 Isabelle Gunning, Know Justice, Know Peace, 5 Cardozo J. Conflict Resol. 87 (Spring, 2004) (noting

similarities between Transformative Mediation and the community justice mediation movement). 8 Brian Wessner, A Uniform National System of Mediation in the United States, 4 Cardozo J. Conflict

Resol. 1 (2002), p. 10. 9 For further reading, see Louise Senft & Cynthia Savage, ADR in the Courts: Progress, Problems, and

Possibilities, 108 Penn. St. L. Rev. 327 (Summer, 2003), p 328 (noting that “the combination of increased

participation by lawyers and the close connection with litigation of court-referred mediation cases is

leading to the increased “legalization” of mediation.”).

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third party neutral listens to viewpoints and arguments from both sides of a dispute. The neutral

questions the participants, assesses their positions, evaluates their legal arguments, and directs them

toward a compromised settlement. An evaluative mediator must have a legal background so he/she can

judge the merits of the case. Attorneys are often more comfortable with the Evaluative Model because

they find it more familiar, and better suited to the aggressive, adversarial strategies of attorneys than are

the other models.10

This model has many critics, including Brian Wessner, who argues that:

[E]valuation should not be permitted under the guise of mediation. It detracts from

parties’ abilities to reconcile their differences through self-determination, focuses their

attention on winning over the mediators [sic] evaluation, causes standstills in the

negotiation process, confuses people as to a general consensus as to what mediation

actually is, places the mediators in positions that could cause them to commit the

unauthorized practice of law, and may eliminate the ability of non-attorneys to continue

practicing mediation. 11

Evaluative mediators fall into two categories: directive-evaluative (focusing on the merits of each side’s case) and non-directive evaluative (focusing on the needs and interests of the disputants).

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Facilitative Mediation: The Facilitative Mediation Model empowers disputants to work together

to build a solution that benefits both parties who might otherwise become adversaries in a

confrontational legal proceeding. In the Facilitative Model, empowering disputants to seek their

own solutions is more important than reaching an agreement. Accordingly, the success of a

session is not measured by the presence or absence of an agreement, but by the extent to which

the disputants are able to fully participate and make a voluntary and informed decision about

whether mediation was the appropriate forum to resolve their dispute. A facilitative mediation is

successful if the participants engage in proposing and evaluating solutions to the stated problem.

It is important to note that mediation is not the same thing as a settlement negotiation. In a

negotiation, disputants bargain as adversaries. They are likely to remain committed to certain

positions and to approach the resolution of their dispute in a manner that produces ’winners’ and

‘losers’. Such negotiations are unlikely to meet the needs of the people involved in the dispute

or to bring about a resolution that is satisfactory to all disputants. By contrast, mediators guide

the parties through a careful evaluation of possible solutions to ensure that any agreement is

workable and appropriate contingencies are considered. If the mediation becomes merely a

negotiation, the disputants are not fully empowered to participate in the process.

1.2 CONFLICT: WHY WE NEED MEDIATION

1.2.1 Defining “Conflict”

“Conflict” has been described as “a universal condition that exists in all types of human relationships and

in all cultures”13

; it is a natural part of human interaction. Conflict, which can be defined in many other

ways,14

is basically a state of disharmony - a tension, clash, or disagreement - between incompatible

10

For more discussion, see Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of

Client Representation. 10 Harv. Negotiation L. Rev. 103 (Spring 2005), at 107-108. 11

Brian Wessner, A Uniform National System of Mediation in the United States, 4 Cardozo J. Conflict

Resol. 1 (2002), p. 11. 12

Discussed further in Brian Wessner, A Uniform National System of Mediation in the United States, 4

Cardozo J. Conflict Resol. 1 (2002), at p. 9. 13

Mark Bennett and Michele Hermann, The Art of Mediation, p. 108. 14

For further reading on defining conflict, see, e.g., Mark Bennett and Michele Hermann, The Art of

Mediation, p. 108 (defining conflict as “a state of disagreement, opposition, contention, competition, or

tension between individuals of groups of people”); Jennifer Beer and Eileen Stief, The Mediator’s

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persons, ideas, values, or interests. Conflict usually indicates an unmet need. Conflict can impair one’s

ability to communicate effectively, both in sending and receiving information. Ultimately, conflict is

likely to impact an individual’s ability to examine his or her own problems in a thorough and creative

way. Therefore, it can be difficult for individuals in conflict to see a resolution to these problems.

Mediators treat conflict as an opportunity to enhance communication, address unmet needs, and

ultimately strengthen relationships through mediation.

1.2.2 Addressing Conflict

Conflict can be addressed in a variety of ways. Individuals and groups might deal with disputes by

avoiding or ignoring them, or by discussing the conflict among themselves. An alternative is to rely on

others to help resolve disputes. In this regard, some turn to counseling, relying on the expertise of church

or health professionals to help them deal with their issues. Through the legal process, third party neutrals

like judges and juries are involved in the resolution of the dispute. A legal venue may be beneficial in

cases where large differences in power exist, or when issues of fear, intimidation, and violence would

prevent individuals from addressing the issues effectively themselves. The legal process is inherently

adversarial, with each side fighting to defend their interests. Although this process results in “winners”

and “losers” and provides a legal end to the conflict, it typically remains unresolved from an emotional

perspective. Other drawbacks of the legal process include large legal fees, loss of personal autonomy,

significant expenditure of time, energy, and resources, and increased acrimony among conflicting

disputants resulting from a one-sided verdict that ultimately may not reflect the needs of any of the

parties.

These drawbacks to the legal process constitute a primary reason why many turn to mediation to resolve

conflict. Mediation allows the disputants to control the resolution of the dispute by making them active

participants in the process of developing and evaluating possible solutions. Mediation also offers an

opportunity to minimize the damage done to the disputants and others by providing a safe, confidential

setting with neutral mediators to facilitate productive and future-focused communication between all

disputants.

1.2.3 Dynamics of Conflict

In order to effectively guide disputants toward a resolution of their problem(s), it is essential that

mediators understand the dynamics of conflict and the reasons people maintain conflicts.

How People Become Invested in a Conflict: Consider the following list developed by mediator and author

Ken Cloke to explain why people choose to remain in a state of conflict: 15

“Conflict defines us and gives our lives meaning; Conflict gives us energy; Conflict

ennobles our misery; Conflict safeguards our personal space; Conflict creates intimacy;

Conflict camouflages our weaknesses; Conflict powerfully communicates what we

honestly feel; Conflict gets results; Conflict makes us feel righteous; Conflict prompts

change.”

Conflict may accomplish one or more of these goals for some people, and anger may help a person in

conflict feel less helpless or passive. However, when conflict is not effectively addressed and the

underlying issues remain unresolved, negative consequences can develop and/or escalate (see below).

Mediators help disputants recognize the benefits of letting go of past conflict so that they can direct their

energies toward building a better future.

Handbook, p. 10-11 (discussing the “Conflict Core” and distinguishing between an isolated dispute and a

conflict, which is a “more serious, ongoing situation”), p. 12-13 (discussing the “Conflict Spiral”), and p.

14-15 (examining the “Conflict Triangle”). 15

Ken Cloke, “Ten Reasons We Get Stuck In Conflict”, from Into the Heart of Conflict Janis Publ. 2006,

p. 6-9. This article can be found online at:

http://www.directionservice.org/cadre/conf2005/session.cfm?seriesid=4&trackid=5

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The “Snowball Effect” of Conflict: A conflict, when fueled by high tensions and emotions, can take on a

life of its own. Many factors can escalate a conflict. For example, others (friends, family members, co-

workers) may become involved, increasing the scope of the tension as well as the stakes in the conflict.

As more people become involved in a conflict, it becomes harder to back down. Individuals in conflict

may become more competitive or aggressive, even to the point of intimidation or violence.

Communication can break down, or disintegrate into accusations, insinuations, and negative

generalizations. As a conflict escalates, the level of damage it can inflict on participants (and others)

increases and the chances for dialogue and reasonable resolution diminish.

Mediation provides disputants with a safe place to examine and evaluate their conflict. Mediators are

aware of the dynamics and signals of conflict escalation; they effectively diffuse an escalating situation

before the mediation environment becomes unstable or unsafe for disputants. De-escalation can occur in

a variety of ways. Mediators can use open body language and soothing tones of voice to address the

disputants. Mediators can speak softly so that parties with raised voices have to stop yelling to hear their

words. Mediators can take a break or utilize separate sessions, or troubleshoot the process with each

other to develop alternative strategies. Sometimes, it helps disputants to move from volatile issues to

simpler ones where common ground is more likely; they may be more open to resolving more serious

issues in a cooperative way after making noticeable progress in other areas. By identifying common

interests, mediators can work to improve communication. Sometimes, it is prudent to continue the

session to another day, after disputants have had a chance to calm down and process the conversation.

If a conflict cannot be effectively de-escalated, the mediators terminate the session before tensions

reach a point where any of the disputants or mediators are in danger.

1.2.4 Barriers to Communication and Collaboration

Communication breakdowns are a common cause of conflict. Mediators remain on the lookout for such

barriers so that they can promote clear, effective communication. Below are a few examples of

communication barriers that may arise in mediation. What can you think of to add to this list?

You Think Funny: No two people share identical beliefs, values, and experiences; every individual

perceives the world through his/her own personal filter. Accordingly, each party to a conflict brings a

distinct perspective on its instigation, perpetuation, and effects to the table. When these different views

collide, conflict results unless the disputants are willing to make an effort to see where the other is coming

from. By promoting clear communication, mediators facilitate a perspective shift that empowers

disputants to view each other in a new light.

Not My Fault: Individuals in conflict can be resistant to assuming responsibility for their own role in

causing or perpetuating the problem. Each person may see himself/herself as being “right” and the other

as being “wrong.” He or she has a strong sense of where the blame lies - with the other person. A person

who is firmly entrenched in his own view of a conflict can be highly resistant to acknowledging the

validity, or even the existence, of the other person’s perspective. Until disputants allow themselves to

listen to the other ‘side’ of the issue, they will see no reason to begin a problem-solving dialogue.

Acknowledging personal responsibility and sharing in the blame are often important elements of conflict

resolution because they free people from their one-sided view of the conflict and allow them to explore

ways they could help to resolve it.

I’m Still Mad: Disputants in conflict may be unable to communicate with or listen to each other because

of strong hostilities over past actions. Letting go of animosity over perceived wrongs can be a difficult

process, particularly if the hostilities are long-standing.16

However, people cannot look to the future

hopefully or creatively until they recognize that building a better future is more important than holding

onto old grudges.

16

For interesting reading, see, e.g., Mark Bennett and Michele Hermann, The Art of Mediation, p 109

(discussing the “holy war” dynamic in conflict wherein each side “demonizes” the other, justifying their

own negative behavior as a “righteous and necessary” way to deal with an “enemy”).

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Talk to the Hand: People can effectively communicate a great deal without saying a word, either

intentionally or unintentionally. Hostile or uncooperative body language, such as clenched fists,

narrowed eyes, facial expressions, crossed arms and legs and turned body/head can pose a significant

barrier to open communication among disputants because it sends the message “I’m not listening” or “I

don’t care.” Mediators are conscious of the body language of the disputants (as well as their own body

language) throughout the mediation process (see chapter on “Mediator’s Toolbox”, below, for more on

body language).

What Was That?: People may be unable or unwilling to listen to each other for many reasons. Perhaps

they are simply not paying attention because they think they already know what the other person is going

to say, or because they are trying to plan what they are going to say next. They may be distracted by

myriad competing interests and responsibilities in their lives. Feelings of anger rage, physical pain or

emotional stress may prevent effective listening. Some people simply cannot stop talking long enough

for the other party to effectively express itself. Significant cultural, educational, or language differences

may present barriers to listening and communication. Good listening is a fundamental ground-rule of

conflict resolution; until disputants feel that they are being heard they will lack the trust and rapport

necessary for serious evaluation of the issues. Mediators are trained in a variety of active listening

techniques to help facilitate understanding among disputants.

I Know You: Disputants, particularly those who have been acquainted for a long time, often have an

accurate sense of the buttons, triggers, and sore spots that can elicit strong emotional responses from each

other. When people in conflict understand each other’s vulnerabilities, they can use that knowledge as

weapons, further inflaming hostilities, increasing distrust, and presenting a barrier to meaningful

mediation. To overcome this potential barrier, mediators use the disputants’ ongoing relationship as a

starting point for finding common goals and interests.

You’re a Stranger: Other potential barriers to conflict resolution include class, race, age, gender,

disability, or any other factor that can be used to categorize people as “other”. Mediators address these

potential barriers by identifying common goals and interests that help shift the disputants’ from their

“other-based” perspective. Mediators also use active listening skills to facilitate open communication

among disputants, striving to break through stereotypes or preconceptions that disputants have regarding

one another so that they can resolve their issues in an honest, meaningful way.

1.2.5 Conflict Management Styles

An individual can approach a particular conflict in many different ways. Understanding how the

disputants have been approaching their conflict can offer mediators valuable insight on how to guide them

through the process and help them re-examine their perspectives. How a person responds to a conflict

may depend upon the setting (work, family, etc.) AND the severity of the particular conflict.

(Are you in calm or crisis mode?) It can be helpful to examine you own responses to conflict in

various settings to get an understanding of how the disputants have traditionally responded to conflict

with each other and how they may be behaving in the mediation room. Use the scale below to identify

how you deal with conflict in each of the various settings. See how many of these patterns are

familiar to you.

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How I Respond To Conflict

1. Never 2. Sometimes 3. Usually 4. Always

Work Family Community Category

1. Avoid the person.

2. Change the subject.

3. Say I’m wrong when I’m not.

4. Give in.

5. Pretend to agree.

6. Whine or complain until I get my way.

7. Pretend there is no conflict.

8. Try to find common ground on which to

base a resolution.

9. Try to understand the other person’s point

of view.

10. Try to find a solution both of us will find

acceptable.

11. Be persistent and wear down the other

person.

12. Use my authority.

13. Use sarcasm or ridicule.

14. Act defensive.

15. Use power to win.

16. Acknowledge the conflict and work for

consensus.

17. Try to manipulate to win.

18. Try to fix it before the other person is even

aware there is a conflict.

19. Apologize and admit wrongdoing.

20. Follow someone else’s advice.

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Because disputants may have adopted different conflict styles from each other, it is also important to

consider the ways these styles are interacting with each other in a particular case. Conflict Styles can be

divided into five general categories, each of which can be useful in certain circumstances:

1. Avoidance: Another form of addressing conflict involves not dealing with it—through withdrawal.

Sometimes individuals prefer to lose the personal relationship rather then address the issue. Other

times, people perceive that attempting to resolve a conflict will actually harm a relationship, or that

the issues are so trivial that resolution is not worth the effort. In cases like these, individuals create a

lose-lose situation; by refusing to acknowledge the existence of a problem, they do not give the other

person(s) the opportunity to discuss or remedy the situation, thereby preventing everyone’s needs

from being met.

The Turtle: Turtles try to avoid conflict entirely. They don't attempt to satisfy their needs or the

needs of others.

I would rather live in a shell than ever confront someone else.

I avoid people and situations where there might be conflict.

My needs and goals don't matter if it causes disagreement.

Conflict can never be resolved, so why get involved?

It's a whole lot easier to avoid conflict than to face it.

2. Accommodation: This style is used when individuals wish to preserve the peace and prevent the

escalation of a conflict more than they want to defend their own needs and interests. Individuals

who accommodate do not perceive the possibility that a conflict can end in a win-win situation, so

they let the other party “win” to avoid anger and hostility. While this conflict management style

often preserves relationships, the needs of the accommodator—since they remain unexpressed—will

also remain unmet, and the accommodator may harbor lasting resentment toward the other party.

The Teddy Bear: Teddy bears try to smooth over conflict and avoid confronting issues. The needs

of others are more important than solving the conflict.

My goals don't matter at all if it means that conflict will hurt my relationship with the other

person.

The most important thing to me is to be accepted and liked by others.

I avoid conflict at all cost.

If I have a disagreement, I will avoid dealing with it because I don't want to damage my

relationship with the other person.

3. Competition: Sometimes, individuals manage conflicts through competition. They perceive a

situation as “win-lose”, and strive to avoid being on the losing end. They focus on achieving goals

rather than preserving personal relationships, and are often unyielding and aggressive. This

approach protects the competitor from feeling helpless and can be useful when collaboration is

impractical for solving the problem (e.g., when time constraints do not allow for extended

discussion). However, it can alienate others, fail to resolve underlying issues, and further aggravate

existing hostilities.

The Shark: Sharks tend to use force in order to get the other person to give in. They believe

conflict is a win/lose situation. The outcome of the conflict is more important than the feelings and

needs of all those involved.

My way is the right way.

Because I know I am right, I need to get my way. Therefore, the means always justify the ends.

When it comes to a decision or a task, my relationship with others is less important than getting

it done.

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There are winners and losers in conflict-I want to be the winner.

It's okay to use intimidation, power, and control to be a winner.

4. Compromise: Some people want to end a conflict quickly through bargaining. Compromisers

manage conflicts, but do not necessarily resolve conflicts or achieve goals. Personal relationships

do not necessarily grow because compromising disputants each give up part of what they want rather

than attempt to actually understand the needs and interests of each other.

The Fox: Foxes compromise and bargain. They look for ways for each side of a conflict to gain and

lose equally. With this style, the needs and interests of each person are only partially met.

I'm not always sure that others appreciate how I get my way.

It's okay to compromise, sometimes.

I'll give a little if you give a little too.

When it's really important to find a solution, I will budge from my position.

5. Collaboration: Through collaboration, disputants listen to each other and work together to address

the issues. They think creatively to develop a plan that meets the needs of everyone involved.

Mediators foster collaboration among disputants so that they are empowered to work together to

develop their own solution to their shared problem. Through the collaborative lens, conflict is

viewed as a win-win situation: in addition to creating solutions that are mutually beneficial and

resolve key issues, relationships can be strengthened through constructive communication and

problem-solving.

The Owl: Owls use problem-solving techniques that allow both sides to have their needs met.

Everyone wins and everyone's perspectives about the conflict are recognized.

My goals and the relationships I have with others are important to me.

When there is conflict, I look for solutions that get both my and the other person's needs met.

I think that conflict can improve relationships between people.

Dealing with conflict reduces tension.

It is important to note that conflict management differs from conflict resolution. Resolving a conflict

generally requires that disputants clearly communicate their viewpoints and needs and work together to

develop a mutually agreeable solution. Managing a conflict prevents it from escalating or erupting,

although the underlying issues remain unresolved. Managing a conflict can be easier than resolving it.

For example, it is often difficult for people in conflict to accept responsibility for their own actions, listen

to each other, or openly discuss their feelings and perspectives. In some cases, particularly when one

party feels threatened or intimidated, or when one party is unwilling to engage in a dialogue regarding the

conflict, conflict management techniques may provide useful coping mechanisms. However, if

individuals truly want to work out their issues in a way that benefits both sides and strengthens the

underlying relationship(s), they can turn to collaborative conflict resolution techniques, tools, and

resources such as mediation.

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CONFLICT MANGEMENT STYLES

Relationship…

matters a lot

Relationship…

doesn’t matter

Outcome…

doesn’t matter

Outcome…

matters a lot

One day we must come to see that peace is

not merely a distant goal we seek, but that it

is a means by which we arrive at that goal.

We must pursue peaceful ends through

peaceful means.

- Martin Luther King, Jr.

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CHAPTER 2. THE MEDIATOR’S TOOLBOX

Mediators use a variety of techniques and skills to facilitate clear communication and empower disputants

to collaborate. These tools can help to organize a complicated discussion, diffuse escalating tensions,

create a perspective shift among disputants, and create an atmosphere of trust and respect during a

mediation session.

2.1 ACTIVE LISTENING

When people are in a dispute, they often feel that the other party is not hearing what they have to say. As

a result, disputants perceive the need to repeat themselves, often several times, becoming increasingly

frustrated as their words fall on seemingly deaf ears. To address this issue, mediators engage in active

listening throughout the mediation process. Active listening, which includes a variety of techniques,

involves 1) listening fully to what a disputant communicates by words, actions, and demeanor; 2)

providing feedback by repeating what a disputant has said; AND 3) checking with that person to ensure

that the disputant has been heard correctly.

Active listening techniques help disputants feel that they have been ‘heard’ by both the mediators and the

other party. Active listening enables the speaker to re-examine (and possibly reconsider) what they have

just said and provides the mediator the opportunity to neutralize or mutualize statements so they are

more accessible to the other disputant. Mediators engage in active listening at all steps of the mediation

process to ensure that each participant has a chance to be fully heard and fully understands the other

party’s perspective. Active listening also allows mediators to verify their understanding of what a party

has said, thereby preventing miscommunication or misunderstanding among the disputants and the

mediators. In the following sections, several of the most useful active listening techniques are discussed.

2.1.1 Restating

Restating involves summarizing the relevant portions of a disputant’s words and presenting them back to

check his/her understanding. By restating what a disputant has just said, the mediators can also restate the

context of the discussion, connecting what is being discussed to the broader context of the situation. This

helps the disputants shift perspective and become more focused and organized in their thinking.

2.1.2 Reframing

Reframing is a technique in which the mediator changes a portion of the speaker’s message in a deliberate

way. Mark Bennett and Michele Hermann of the National Institute for Trial Advocacy write:

“Reframing is often called for when one party makes a statement that is likely to be

received by another party as domineering, bullying, unconditionally demanding, or

otherwise unproductive. Reframing is possible because every message is subject to

interpretation. The mediators choose a positive interpretation and ascertain whether the

sender and those hearing the message will accept their interpretation.”17

When mediators use reframing to neutralize statements that may be particularly offensive to the other

party, they help both disputants see the situation from a less adversarial perspective. For example:

Disputant says: Tom is impossible to work with. I never even know if we are on

schedule or not because he is such a terrible communicator.

Mediator reframes: So I’m hearing you say that you would be more satisfied with his

performance if he took more steps to keep you informed of progress and delays, is that

correct?

17

Bennett & Hermann, The Art of Mediation, p.87.

12

Disputant says: Anna is the most unreasonable person I have ever met. She never listens,

and she always yells to get what she wants.

Mediator reframes: So, it sounds like good communication is important to you.

This tool can also be used to mutualize statements in order to demonstrate common interests and goals of

the disputants. For example:

Disputant: “I am a busy man, and I don’t have time to baby-sit everyone in the office. If

an employee doesn’t do a task right, then that’s their problem, and they’ll just have to

face the consequences.”

Mediator reframes: “It sounds like you and your employees all want clear

understandings of each person’s responsibility, so that things run smoothly in the office.

Can you think of any steps you could take to ensure they understand the nature and scope

of their tasks?”

…

Sarah: “Kids need structure and consistency. You can’t just let Tara do whatever she

wants. You always let her get away with anything, and that isn’t good for her. She has to

understand the importance of rules.”

Richard: “And you can’t keep smothering her all the time. She needs room to grow and

make mistakes. How else is she going to learn to make her own decisions?”

Mediator reframes: “So, it sounds like Tara’s emotional development is important to

you both, and that you have different approaches to helping her succeed. Is that correct?”

Disputants often have difficulty letting go of past conflicts and looking to the future. In such cases,

reframing is an important tool in shifting focus to a more productive future-oriented, problem-solving

mode. Mediators can reframe to help disputants move away from positions and accusations and toward

the underlying interests and needs. In family cases, for example, substantial common ground often

exists: building a good life for the child, improving communication between the parents, making a

positive transition to being co-parents, creating quality parenting time, reducing cross-household and

extended family drama, reducing opportunities for the child to play the parents against each other,

supporting their children at a difficult time, creating consistency/stability/predictability for the child’s life

in both homes, building respect for different parenting styles, maintaining control over family decisions,

being able to customize the parenting plan themselves, and staying out of court. Once interests and needs

have been identified and understood, the particular tasks of the mediation become clearer. For example:

Disputant: “There is no way I am going to let him just walk away without paying the last

three months’ rent. He’s a worthless tenant. I am trying to run a business here. If I let all

my tenants get away with not paying rent, I would go bankrupt in no time. I’ve got my

own family to worry about.”

Mediator reframes: “So, resolving the back rent (the task) is an important issue for you

because you need to protect your business and your family. Am I hearing you right?”

2.1.3 Summarizing

A summary is a statement “distilling the essence of what is important from a discussion while giving

people direction and impetus to keep going.”18

Mediators can summarize at any point in the mediation

process to review progress that has been made or to organize the information under discussion. This tool

helps the mediators focus the conversation, control the process, and guide disputants through the steps of

18

Bennett & Hermann, The Art of Mediation, p. 85.

13

mediation. Summarizing a disputant’s viewpoint helps him to feel heard, checks the mediator’s

understanding of the information he has provided, and presents an additional opportunity to emphasize

the key aspects of the viewpoint to the other party. A mediator can summarize information and progress

as a way to transition between steps, thereby reinforcing the structure of the mediation.

2.1.4 Clarifying

Mediators continually seek to clarify issues, positions, and options throughout the mediation process.

Mediators strive for clarity in the messages they send, and facilitate clear, productive communication

among the disputants. For example:

Discussions laced with vague terms like “I’m tired of all your negativity” are unproductive

because they do not contain enough substance for the disputants to work with. Mediators

encourage the disputants to identify specific examples of the “negative” behavior instead.

Specific, concrete examples like “It bothered me when you criticized my housecleaning last

week” can be discussed and analyzed in ways that unsupported accusations of “negativity”

cannot.

I Statements: Disputants in conflict may express themselves in ways that make each other

defensive. Mediators can counter this tendency by encouraging them to speak from an “I”

perspective, rather than a “you” perspective. For example, one party might tell another “You

aren’t making sense” or “You aren’t telling the truth.” The effects of those statements are

quite different from “I am having trouble understanding what you just said” and “I remember

that event differently.” When disputants speak from an “I” perspective, they take

responsibility for their feelings and present their viewpoint in a less hostile and

confrontational way.

2.1.5 Questioning

One of a mediator’s most useful tools is questioning. Asking disputants questions about their viewpoint,

narratives, statements, and ideas shows them that the mediator is interested and attentive. Questions give

the mediator a chance to clear up confusion on their part, elicit further needed information, and bring out

pointed information from one party that the other party might need to hear. Questioning can be organized

into four general categories:

Closed questions merely require a yes/no answer; this is generally the least fruitful line of

questioning because it limits discussion, fails to engage the disputant, and has the potential to put

him on the defensive. Closed questions tend to be most useful at the beginning of the mediation

(“Do you have any questions?”; “Do you have any time constraints?”; “Are you willing to sign

the Agreement to Mediate?”) and near the end of the mediation (when final terms of the

agreement are being confirmed).

Narrow questions (aka: clarifying questions) elicit specific information to help mediators clarify

something confusing. Mediators ask who, what, where, how, and when. However, mediators

rarely ask why, because of the potential of that word to put a disputant on the defensive.

Open-ended questions (aka: probing questions) invite the disputant to open up on a particular

topic (“Can you help me understand what you just said?”; “Can you tell me more about X”).

Open-ended questions are highly useful in promoting discussion among participants.

Joint questions are directed at all participants. Mediators ask them to set a more conversational

tone to the discussion and increase opportunities for cooperative dialog (“What would you two

like to do about this situation?”).

2.1.6 Body language

Body language may contribute to the tone of the mediation in subtle ways, and can provide valuable cues

to the mediator. Accordingly, mediators always remain conscious of body language of the disputants, as

14

well as their own body language. Mediators model (display) open body language to encourage disputants

to speak openly. Mediators can also gain insight into the dynamics of a conflict by watching the body

language of the disputants. Body language can give mediators cues to possible intimidation or rising

emotions. Mediators are attentive to these cues so that they can effectively identify and address these

concerns before the conflict escalate. The closed, defensive body language of a disputant (e.g., leaning

back in a chair, facing away from the other party, crossing arms and legs, expressions of anger) clearly

sends the message (to mediators as well as other disputants) that the individual is not yet engaged in the

process. Mediators often address this dynamic by asking the disputants to face each other and speak to

each other directly. Mediators can also subtly mirror the body language of a disputant to further engage

them in the discussion (e.g., leaning forward when the disputant moves forward), as long as their

expressions are not ‘mocking’. Mediators attempt to avoid nodding their heads too often, to lessen the

perceptions of bias. If the mediators decide to address body language with a disputant more directly, they

ask for a separate session with that disputant (rather than discussing one disputant’s body language in

front of the other party).

A mediator also maintains eye contact with the disputants so both parties know that they are being heard.

Direct eye contact is considered offensive in some cultures, so mediators rely on cues from the disputants.

Eye contact may help a party become more engaged in the process, thereby allowing a mediator to better

evaluate his/her response to what the other party is saying.

2.1.7 Silence

Silence is another effective mediation tool, and mediators must become comfortable with the presence of

silence in the mediation room. Silence can serve various functions:

Silence can be used when the disputants become frustrated to remind them that the

responsibility remains with them to develop their ideas and build their own agreement.

Silence can be an appropriate response to inappropriate attempts by disputants to draw a

mediator into their dispute.

Silence gives an emotional party a few moments to collect their thoughts and regain

composure.

Silence allows parties to reflect on what has just occurred and prepare to respond.

Silence gives a mediator the chance to observe body language of the disputants, and to note

which party breaks the silence first (this could indicate which person is more willing to

engage in the mediation process).

2.1.8 Acknowledgment of Feelings

As disputants relate their viewpoints and evaluate possible solutions, they will likely express a

combination of facts, perceptions, and personal feelings. Often, a person’s view of events or a situation is

strongly impacted by his/her feelings, and conflicts can escalate, or at least remain unresolved, if the

underlying feelings go unaddressed. Emotions that are not effectively recognized and addressed as they

surface will continue to present barriers to effective communication between the parties. Once a party’s

emotional state has been recognized, they can move forward toward a more meaningful discussion.

As feelings are expressed, mediators openly acknowledge them so they can be effectively addressed, and

their accuracy checked with the disputants. Acknowledgment draws the party’s attention to the feeling

and demonstrates to the party that he/she has been heard. This tool also helps build trust between the

party and the mediators, reduces the intensity of a disputant’s feelings, and brings feelings into the

discussion as they relate to the problem or conflict.

Acknowledgement of feelings occurs separately from reframing or restating so the disputant can focus

specifically on the emotion rather than the circumstances. For example:

“It sounds like you were very sad/hurt/upset. Is that right?” (as opposed to: “It sounds

15

like you were sad/hurt/upset when _____ happened. Is that right?”).

“I gather that you are feeling (excitement, apprehension, protective, etc). Is that

accurate?”

While feelings are often expressed directly, they can also be conveyed indirectly, through body language

(rolling eyes, grimacing, leaning back, crossing the arms, or other posture changes), vocal tone, or

deduction. Mediators strive to be conscious of unspoken feelings as well as those that have been

verbalized. Mediators also use analysis or empathy, or ask open-ended questions to uncover feelings,.

For example:

“What sort of feelings are/were you having?”

“How did that make you feel?”

When a party uses phrases like “I feel that. . .” or “I feel like. . .”, mediators understand that they are not

expressing pure feelings, although they ARE trying to communicate their emotions. In such cases,

mediators do not mirror what the person has said, but instead try to identify the underlying emotion and

check it with the party. For example:

“So, are you saying that you feel uncomfortable?”

“Would it be accurate to say that you feel optimistic?”

Mediators must maintain neutrality, even though they may empathize with the emotions of a particular

party. Acknowledging feelings provides support to the disputants while protecting neutrality; a mediator

do not express agreement with the emotion, but acknowledges the feeling and its impact on the situation.

Identifying general emotions, such as ‘happy’, ‘sad’, and ‘angry’ does not typically describe what an

individual is experiencing. Any of a wide array of intense emotions (Table 1) can underlie these basic

emotions, and an individual may be experiencing more than one emotion at a time.

2.1.9 Pitfalls to Avoid

When acknowledging feelings, mediators should avoid common pitfalls. A mediator does not attempt

mind reading or suggest emotions without evidence that the disputants are actually experiencing those

feelings. It is not the job of a mediator to put words in a party’s mouth or to suggest that he/she know

how the party feels. It is also inappropriate for a mediator to moralize or pass judgment on the emotions

a party expresses, or try to reason a party out of a particular feeling. Such actions could alienate the party

and negatively impact the mediation process. While emotions can be characterized as “positive” and

“negative” (Table 1), they are neither “good” nor “bad”; they are internal reactions to external

circumstances. Mediators must also avoid praising or questioning the feelings of a party in a way that

could alienate either or both disputants. Mediators must bear in mind that feelings are not necessarily

attached to an objective “truth.” For example, a person can feel afraid without a tangible reason;

however, the fear itself is real and has a tangible impact on that person’s perspective. Similarly, a person

may feel betrayed even though the circumstances of the situation may not appear to warrant such an

emotion. Regardless, the feeling of betrayal is real to the party. As such, it poses significant obstacles to

resolving the conflict if left unacknowledged and unaddressed. Mediators should also avoid saying “I

understand” when referencing a disputant’s feelings; the disputant being discussed could easily view that

comment as presumptuous, while the other disputant could interpret it as evidence of bias.

2.2 FOCUSING ON THE FUTURE

Mediation is a future-focused process. Disputes arise from actions and events that took place in the past,

so disputants naturally tend to focus their attention there. In fact, they often have great difficulty

discussing anything else. If this “backward-looking” tendency is not kept in careful check by the

mediators, the discussion is not likely to progress further. To some extent, it is necessary to address past

actions and behaviors to find the roots of the conflict; however, mediation offers the disputants the chance

of working together to build a better future, and one of the essential duties of a mediator is to help them

16

stay future-focused. Mediators can direct the conversation to the future in several ways:

2.2.1 Task Statement

By crafting a neutral Task Statement based on common interests and goals, a mediator can appropriately

direct the conversation that will follow toward finding solutions for the future. Developing this Task

Statement is a job for the mediators, not the disputants, although the mediators confirm with both parties

that the Task Statement effectively encompasses their concerns and goals. Otherwise, a mediators faces

the danger of alienating one or more disputants from the outset of the process.

2.2.2 Possible Future-Focusing Scripts

“It sounds like that was a stressful situation for you both. When you look to the future, what

kinds of things would you like to do differently?”

“What specific things can you do differently in the future to help make sure this problem does

not happen again?”

“It sounds like you are unsatisfied with how things have been working. What about this

situation would you like to change?”

“Neither of you can change the past. However, you both have control of your futures. What

do you want your future to look like?

17

Table 1. Underlying positive and negative emotions important to acknowledgement of feelings.

Positive Emotions

Affectionate Enthusiastic Jolly Safe

Assured Entitled Joyful Satisfied

Blessed Excited Jubilant Secure

Calm Exuberant Light-hearted Silly

Caring Expectant Loving Soothed

Certain Focused Optimistic Strong

Cheerful Full Peaceful Sweet

Chipper Generous Pleased Tender

Cool Giddy Powerful Tranquil

Comfortable Glad Protective Triumphant

Confident Happy Proud Valuable

Curious Healthy Reassured Valued

Delighted Helpful Relieved Wanted

Desirous Honored Relaxed Warm

Ecstatic Hopeful Responsible Worthwhile

Elated Important Rested

Negative Emotions

Abandoned Disheartened Hurt Puzzled

Absurd Dispirited Impatient Regretful

Afraid Disoriented Impotent Rejected

Aggravated Down Inadequate Resentful

Aggressive Enraged Indifferent Restless

Agitated Embarrassed Irritated Sad

Angry Empty Jealous Scared

Anxious Envious Jittery Shaky

Apprehensive Exasperated Lonely Shocked

Arrogant Exhausted Lost Stubborn

Bashful Fearful Miserable Suspicious

Blue Feeble Melancholy Threatened

Bored Foolish Nauseous Tired

Cautious Frightened Needy Uncomfortable

Cold Frustrated Numb Unneeded

Confused Gloomy Obstinate Unstable

Concerned Guarded Out of control Weak

Dejected Guilty Outraged Worried

Depressed Helpless Pathetic

Disappointed Hopeless Pessimistic

Disgusted Hostile Pressured

18

2.3 VISUAL AIDES

Much of the mediation process consists of listening and discussing. However, visual elements also

constitute an essential component of the process. Mediators can use visual aids in several ways.

2.3.1 To Invoke Others

Many conflicts that come to mediation have consequences that reach beyond the participants in the

session. Even though these third parties are not participants, mediators may decide to invoke them

through visual representation. For example, mediators can use empty chairs to represent individuals who

are not parties to the mediation but will still be affected by the outcome.

2.3.2 Records of Progress

As mediators and disputants move through the mediation process, a visual record of progress is

maintained. This visual aid important for several reasons: 1) to reassure the disputants that progress is

being made; 2) to keep track of ideas that are on the table for discussion; and 3) to record decisions that

could ultimately be incorporated into the final agreement. Should either or both of the disputants become

frustrated with the process, the mediators can point to these visual records to remind them of how far they

have already come.

The Agreement to Mediate: Before a mediator schedules a mediation with clients, it is important to

draft a document for all parties to sign before the session begins. This document should establish the

confidentiality of the mediation session, set out the groundrules that parties are expected to follow, and

emphasize the voluntary nature of mediation. CMC provides copies of the CMC Agreement to Mediate

Form in every mediation packet. When the disputants initially sign the Agreement to Mediate Form,

mediators can congratulate them on reaching their first agreement. Agreeing to sit together and attempt to

mediate their dispute is often a difficult step for people who are experiencing conflict, and the document

represents the beginning of the problem-solving process. The Agreement to Mediate Form is left in the

center of the table as a visual reminder to the disputants of their first agreement, and all parties should

leave mediation with a copy of this form for their personal records, to document their participation.

The Writing on the Wall: Before beginning any mediation, mediators can post large sheets of paper on

the wall where both disputants can see them, or place a writing board or flip chart in a position where it is

visible to both parties. The Target Statement will generally be the first thing that the mediators write on

the wall. Since the disputants must both agree on the Task Statement before the mediation can move

forward, its approval is another marker of progress – the parties have agreed on the issues they wish to

discuss and have identified their mutual interests in solving the problem. As the mediation process moves

through the brainstorming exercise associated with generating potential solutions, each participant’s

ideas are recorded on the board or flipchart, thereby providing a visual reminder that their ideas and

input are being incorporated into the process. In occasional cases, it may be necessary to sort out a

complicated set of relationships, events, or facts, in which case mediators make appropriate notes on the

board or on flipcharts for the benefit of all parties. A good rule of thumb: if you, the mediator, are having

difficulty keeping things straight, the parties are likely experiencing the same frustration, and some form

of visual aid that helps the participants sort out important relationships or facts may be necessary.

However, be careful to stick to the role of mediator and not become a fact-finder.

During the evaluation of options, common ground is documented as it is uncovered. If frustration

levels rise, the mediators can point to all the things on which the disputants have already agreed and again

congratulate them on their progress.19

19

Even if the mediation does not resolve every issue between the parties, the mediators can use this visual

record to write up a partial agreement.

19

2.4 CAUCUSING

The facilitative mediation model calls for most of the work to be done in joint sessions with all disputants

present; however, it may be helpful for mediators to meet with individual parties in separate sessions,

which are referred to as caucuses. All CMC family cases begin with an initial separate session with each

party, and the need for a subsequent caucus may arise in a variety of circumstances. For example, a

caucus may be useful if one party so dominates the other that the latter is unable to participate effectively

in the mediation. Mediators use caucusing to diffuse tensions in situations where the discussion has

become highly heated or unproductive, and when they need to give a ‘reality check’ to one party outside

the presence of the other.20

Mediators are not obligated to give their reasons for conducting them.

Mediators often leave disputants with questions to ponder while they wait to be called back into the room.

Sometimes disputants themselves will ask for separate sessions because they wish to speak with the

mediators privately. Because a goal of mediation is joint resolution of the dispute by the disputants

themselves, separate sessions are ordinarily limited in time. For the sake of neutrality, mediators strive to

spend approximately the same amount of time with each party.

2.5 BREAKING BREAD

Food and beverages can be welcome additions to a mediation session. Disputants can be seriously

distracted by hunger or thirst, particularly during long sessions. Sharing food can also create a cozier,

more inviting atmosphere.

20

For example, if a participant has told you privately that he absolutely cannot afford a payment plan

involving more than $50.00 a month, and in joint session he suddenly offers to pay $200.00 a month, you

may want to address the workability of his offer in another private conversation.

20

CHAPTER 3. ROLES OF MEDIATION PARTICIPANTS

3.1 THE ROLE OF THE MEDIATOR

3.1.1 Function and Scope

Mediators are neutral third parties who guide disputants through the mediation process in a way that

empowers them to reach their own agreement. Components of a successful mediation include party

autonomy, careful evaluation of the issues, and voluntary participation by all disputants.

3.1.2 Goals and Duties of a Mediator

To Provide Structure and Flexibility:21

A mediator is in charge of the mediation session. Accordingly,

he/she must be comfortable exercising formal authority in controlling the process and enforcing ground-

rules. At the same time, the mediator understands that mediation may not be appropriate for every

dispute, and that a resolution cannot be forced. Within the framework of the collaborative facilitative

model, the mediator’s primary duties are to maintain the structure of the process while exercising

flexibility in the face of unique and ever-changing circumstances. In so doing, the mediator achieves a

difficult balance: exercising control over the process while giving up all control over the outcome (which

belongs to the disputants).

To Motivate the Disputants: People in conflict often bring longstanding frustrations to the mediation;

many also have serious reservations about the possibility of a mutually satisfactory resolution. The

mediator motivates the parties to engage in a future-focused discussion so that they can effectively work

together to resolve the dispute. The mediator’s job is not to try to make the disputants happy, but to help

them look creatively to the possibilities for the future.

To Communicate Effectively: People communicate and process information in different ways, so

mediators utilize a variety of forms of written and oral communication and empower the disputants. Core

skills include: active listening; speaking and writing clearly; acknowledging feelings of disputants; asking

probing and clarifying questions; promoting open communication, and using clear, accessible language to

communicate with disputants and to draft agreements.

To Be Neutral and Impartial: Mediators are neutral third parties who guide disputants through the

mediation process. A mediator maintains neutrality at all times in order to ensure a fair and productive

process for all participants. Despite his or her own personal opinions, a mediator treats each party with

dignity and respect and without bias. Mediators must avoid even the appearance of impropriety22

or

bias.23

This requires a mediator to avoid many actions that would ordinarily promote positive human

relationships. For example, the mediator could jeopardize neutrality by sharing personal experiences,

expressing personal views, or engaging in casual conversation with one of the disputants. Such

21

Rule 31, Appendix A, Section 1(c): A dispute resolution proceeding. . .is based on principles of

communication, negotiation, facilitation, and problem-solving that emphasize: . . .(3) procedural

flexibility”. 22

Rule 31, Section 9(a): Rule 31 neutrals shall avoid the appearance of impropriety. 23

Rule 31, Appendix A, Section 6(a): Neutral shall be impartial and advise all parties of any

circumstances bearing on possible bias, prejudice, or impartiality. Impartiality means freedom from

favoritism in word, action, and appearance. Impartiality implies a commitment to aid all parties. . . (1) A

Neutral shall maintain impartiality while raising questions for the parties to consider as to the reality,

fairness, equity, and feasibility of proposed options for settlement. (2) A Neutral shall withdraw from the

Rule 31 ADR Proceeding if the Neutral believes that he or she can no longer be impartial. (3) A Neutral

shall not give or accept a gift, request, favor, loan, or any other item of value to or from a party, attorney,

or any other person involved in and arising from any Rule 31 process.

21

actions could indicate to one party that the mediator favors the other party. Likewise, mediators do not

attempt to build trust by agreeing with the views of one party, touching either party, or expressing

sympathy for either of them. Mediators maintain these boundaries even when they interact with each

party separately by avoiding the expression of judgments of any kind. If one participant believes that the

mediators are taking his/her side, the mediation process has been compromised.

Mediators, as human beings, naturally bring their own personal biases to the table. A mediator’s bias

toward a disputant can result from differences in personal background, such as family, education, religion,

culture, race or ethnicity, physical and mental conditions, current life situation, and individual experience.

Mediators remain critically aware of their own personal biases so they do not violate neutrality and distort

the mediation process. A mediator can also privately ask his co-mediator for help in protecting the

process from bias. Self-awareness, combined with input from your co-mediator, can often successfully

keep your existing biases in check during a mediation session.

If a participant in the mediation accuses a mediator of bias, that mediator apologizes, assures both clients

that no bias exists, and discusses whether that participant’s concerns have been satisfied. If so, then the

mediation continues. If not, then the mediation is terminated. Sometimes mediators are unable to offset a

powerful personal bias that strongly impairs their judgment or stirs their emotions. In such a case, it is

better to terminate the mediation than to allow the process to become unbalanced.

To Fully Disclose Potential Conflicts of Interest:24

In addition to remaining impartial throughout the

mediation process, a mediator is vigilant for potential conflicts of interest that may arise. Mediators fully

disclose any known relationships (personal, professional, pecuniary) to all disputants. A mediator

withdraws from the case if, in his/her judgment, the mediation cannot continue in a fair and impartial

manner. If the mediator believes that his/her conflict will not affect neutrality, the mediation can continue

upon agreement of all participants.

To Protect Confidentiality:25

One of the most crucial responsibilities of a mediator is to protect the

confidentiality of the mediation. Confidentiality is often a fundamental attraction of mediation as a

conflict resolution forum. Disputants’ fears that their words and admissions could later come back to

haunt them (either in their personal life or in court) can be a major barrier to open dialogue. Disputants

must feel free to express their thoughts, opinions, and versions of events and actions openly in order to

reach a meaningful resolution. All parties to the mediation, observers, and attorneys, as well as the

mediators themselves, are bound to confidentiality. Mediators cannot testify in court about what

happened in mediation. During orientation, clients are asked to sign an “Agreement to Mediate” form that

specifically discusses the scope of confidentiality.

24

Rule 31, Appendix A, Section 6(b)(1): A Neutral must disclose any current, past, or possible future

representation or consulting relationship with any party or attorney involved in the Rule 31 proceeding.

Disclosure must also be made of any pertinent pecuniary interest. Such disclosures shall be made as soon

as practical after the Neutral becomes aware of the interest or the relationship; Section 6(b)(2): A Neutral

must disclose to the parties or to the court involved any close relationship or other circumstance, in

addition to those specifically mentioned earlier in these standards, which might reasonably raise a

question as to the mediator’s impartiality. All such disclosures shall be made as soon as practical after the

Neutral becomes aware of his or her candidacy as a Rule 31 Neutral in a given proceeding or becomes

aware of the interest or relationship; Section 6(b)(3): The burden of disclosure rests on the Neutral. After

appropriate discloser, the Neutral may serve if all parties so desire. If the Neutral believes or perceives

that there is a clear conflict of interest, he or she should withdraw, irrespective of the expressed desires of

the parties. 25

Rule 31, Appendix A Section 7(a): “A Neutral shall preserve and maintain the confidentiality of all

dispute resolution proceedings except where required by law to disclose information.”

22

Confidentiality in Separate Sessions:26

In separate sessions, mediators can assist disputants in finding

ways to express their emotions and ideas. Any information that a disputant imparts to the mediators

during a separate session cannot be repeated or revealed to the other party. A mediator advises both

parties of this additional layer of confidentiality, and reminds them that they have the responsibility to

speak for themselves when they return to the joint session. In joint sessions, mediators can use the

information from the separate sessions to ask open-ended questions to provide the disputant with the

opportunity (and choice) to share an idea, thought, or concern. Mediators cannot speak for either party –

the must speak for themselves.

Exceptions to Confidentiality: There are few exceptions to the general rule of confidentiality, which are

made clear to the disputants during the mediation orientation. Mediators have a legal responsibility to

report abuse of children, handicapped persons, or the elderly. Mediators also report threats of harm that

are made during the mediation session. If such information is revealed in a mediation session, CMC

mediators relay relevant information to CMC staff, who will initiate appropriate reporting action. CMC

mediators can discuss any aspect of a particular case with CMC staff members, who are also bound to

confidentiality. If a mediator wants to discuss a particular case with other mediators, names and other

identifying information about the parties must be kept private.

To Work Effectively as Co-Mediators: Mediations at the CMC are conducted by co-mediators (two

mediators working together as equals). When you work with another mediator, straight, full, and open

communication between the co-mediators during and outside the mediation session is critical to the

success of the mediation. Good co-mediators discuss their own needs, styles, and ideas with each other

prior to the mediation so they can more effectively work together to address disputant questions or

problems. Likewise, the team discusses in advance how to make particular moves such as announcing a

separate session, or terminating the mediation. At the end of each mediation, co-mediators de-brief about

the dynamics of the session.

Co-mediation provides mediators, as well as disputants, with many useful benefits. For example:

By working together, two mediators can complete tasks more efficiently than can a single

mediator. Co-mediators work as a team, supporting each other’s directions and lines of inquiry; if

one co-mediator pursues a particular line of thought or questioning, the other assists in clarifying

and expanding in that same direction, rather than trying to redirect the subject. When one

mediator is talking, the other is listening and watching. When one mediator writes, the other

watches and talks.

Mediators working as a team can consult one another about the progress of mediation, problems

that arise, and possible strategies to use to move the process forward.

Co-mediation also benefits the disputants, who witness the co-mediators implementing a

cooperative, productive working relationship. If one mediator dominates the process, the co-

mediators present an imbalanced and ineffective model of problem-solving. Accordingly, neither

mediator leads or dominates the work of the mediation (summarizing, writing on the board,

interacting with each disputant), nor places an undue burden on the other by failing to assume a

reasonable share of mediation responsibilities.

Each mediator brings his own unique perceptions, perspective, and strengths to the process,

which benefits both disputants and mediators. To the greatest extent possible, co-mediators are

paired with a goal of diversity of experience in mediation, legal education, gender, ethnicity,

personal style, and other dimensions that promote effective mediation.

Co-mediators are able to learn different approaches and strategies from each other as they handle

situations together.

26

Rule 31, Appendix A Section 7(b): “A Neutral shall keep confidential from the other parties any

information obtained in individual caucuses unless the party to the caucus permits disclosure.”

23

Mediators present a unified front to the disputants, often using the term “we” rather than “I”.

Accordingly, each mediator’s comments are further legitimized in the eyes of the disputants, who

witness (and hopefully internalize) this cooperative behavior.

Minor miscommunications or disagreements between mediators, when handled respectfully and

transparently, can provide opportunities to model good listening and communication skills for the

disputants. However, if a co-mediator develops serious reservations or questions about the actions or

directions of the other mediator, he/she calls a break and addresses this reservation privately with the

other mediator, outside the presence of the disputants.

To Balance Power:27

Power imbalances can come from many sources, such as differences in actual

authority, economic resources, mental capacity, educational background, access to legal resources, and

possession of information, to name a few.28

Mediators maintain awareness of the dynamics in a

mediation session, staying alert for imbalances of power. Is one disputant doing all the talking? Is one

disputant remaining silent? Is one disputant using the mediation as a tool to intimidate the other party? Is

one party quickly agreeing to whatever the other wants? In cases where power is not balanced, mediators

find a way to create a more equitable atmosphere or terminate the mediation.

In balancing power, mediators are careful not to violate neutrality. Providing special assistance to a

disadvantaged participant is essential to his/her empowerment and full participation; however, the other

participant will likely perceive any differences in treatment as disadvantageous to him.29

Mediators

engage in power balancing in a variety of creative ways.30

For example:

Mediators can invite a response from the quieter party (e.g., “Robert, we have heard what

Anna thinks about this issue. What are your thoughts?”).

Mediators can call separate sessions, which could benefit both disputants. The dominating

party could have a chance to vent his/her frustration, and the mediators could also help that

party re-focus attention on the future. The mediators could work with the silent party to assist

him/her in finding ways to verbalize his/her thoughts more effectively, as well as checking

for intimidation and fear.

Mediators could conduct the mediation entirely through separate sessions to minimize the

impact of the dominating party. This process is known as shuttle mediation. Shuttle

mediation can be highly useful and appropriate in situations where power imbalances would

27

Rule 31, Appendix A, Section 5(d): A Neutral shall promote a balanced process in Mediation and shall

encourage the parties to conduct the mediation in a nonadversarial manner. 28

See, e.g., Bennett & Hermann, The Art of Mediation, p. 118-119 (listing authority, sanction,

information, association, characteristics, resources, status quo, reward, and procedure as possible

contributors to power imbalance). See also Isabelle Gunning, Know Justice, Know Peace, 5 Cardozo J.

Conflict Resol. 87 (Spring, 2004), p. 92-93 (remarking that mediators, who have no prior experience with

the parties, may not automatically pick up on power imbalances from the parties’ statements, and that a

mediator who, “through self-education and appropriate training, is aware of the kinds of power

relationships that are a typical and complicated part of the larger society in which all mediation

participants operate” should raise these power issues “of her own accord”). 29

For further reading, see Isabelle Gunning, Know Justice, Know Peace, 5 Cardozo J. Conflict Resol. 87

(Spring, 2004) p 93 (discussing the need for mediators to ensure fairness, and, while acknowledging that

“using an intervening technique could certainly create the appearance of bias to one party or another”, a

mediator’s silence and inaction could also be taken as a form of bias: “The real issue is how does the

mediator’s concern for justice in the outcome interact and intersect with the mediator’s concern for the

parties’ self-determination? When a mediator considers intervening to prevent bullying, stop lying, or

provide information in order to increase the chances of a just outcome, it is not at all clear that such

interventions violate party self-determination.”). 30

For further reading, see, e.g., Bennett & Hermann, The Art of Mediation p 120 (discussing a variety of

power-balancing strategies).

24

make a facilitative session inappropriate or unsafe. Facilitative mediators use shuttle

mediation as a last resort because of its inherent barriers to communication and listening

among the disputants. Also, when mediators engage in shuttle mediation, they must be

careful not to violate their duty of neutrality as they carry communications from one room to

another (thereby acting as a ‘representative’ of sorts). As a general rule, CMC does not

mediate cases where parties refuse (or are somehow unable) to mediate in the same

room.

Mediators could continue (to another time) the mediation until the ‘weaker’ party can seek

legal advice or obtain other needed resources or information.

Mediators could allow the disadvantaged party to bring a support person or translator to the

joint session. This is particularly appropriate when one party is facing language barriers, has

a low literacy level, or a physical impairment.

To Empower Disputants: Mediators empower disputants to brainstorm and evaluate their own solutions to

their conflict. In fulfilling this role, mediators must control their own impulses to direct the content of the

mediation. For example, a mediator should not direct the process by inappropriately limiting the scope of

the discussion, by steering disputants toward a particular type of solution, or by expressing judgments.

When a mediator becomes “directive”, he/she takes the power out of the disputants’ hands and ignores

communication and empowerment opportunities. A facilitative mediator does not suggest his/her own

solutions to disputants. In many cases, a mediator may not have expertise in the particular subject matter

of the dispute; without such expertise, suggestions and judgments by the mediator are likely to be ill-

informed, and will not provide a sound basis for decision-making by the disputants or for process

guidance by the mediators.31

Also, these suggestions/judgments can interfere with neutrality (or

perceptions of neutrality), and can negatively impact empowerment levels of the participants. Even if a

mediator is an expert in the subject matter, it would be inappropriate to blur his/her role in this way.

3.1.3 Values and Attitudes of a Mediator

Mediators serve people in conflict through neutrality and effective communication during the mediation

process. Although people who become mediators have diverse backgrounds and belief systems, they are

generally united by a set of common values. For example, mediators typically value self-awareness and a

cooperative approach to life. Mediators are self-aware of their own attitudes, perceptions, and emotions

throughout the process to provide them with insight about the disputants and to protect the participants

and the process from the encroachment of mediator judgment. Being a mediator also requires creativity,

patience, and self-restraint. Mediators must be “comfortable with high emotion, arguments, interruptions,

tears”32

and silence.

The mediator’s basic attitude toward the disputants’ worlds is humility. Mediators must be able to interact

naturally and honestly with the parties without judgment or condescension. The mediator must remember

that he or she does not and cannot know what is best for any party involved, even when it appears to the

mediator that a particular path is clearly appropriate. This humility is reinforced by the mediator’s

knowledge that the mediation process enables disputants to pursue their own interests and needs.

3.1.4 Threats to a Mediator’s Role

As professionals, mediators faithfully maintain their role throughout the mediation process. Mediators,

even attorney mediators, do not give legal advice in mediation.33

If disputants need legal advice, they

31

Rule 31, Appendix A Section 8(a): A Neutral shall not provide information the Neutral is not qualified

by training or experience to provide. 32

Jennifer Beer and Eileen Stief, The Mediator’s Handbook, p. 23. 33

According to TN Rule 31, Section 10(b)(3): During Rule 31 ADR Proceedings, Rule 31 Neutrals shall:

(3) Refrain from giving legal advice to the parties to the Rule 31 ADR Proceeding in which the Neutral is

participating. . . However, while a Rule 31 Neutral should not offer a firm opinion as to how the court in

25

should be referred to their attorneys.34

Likewise, mediation is neither therapy nor counseling. It is,

instead, devoted to planning for the future.35

While some disputants may need legal or therapeutic

services, it is not the function of a mediator to provide them. When a disputant requires assistance

from other agencies, CMC mediators inform CMC staff, who can make appropriate referrals.

The mediator is also not a judge or a fact-finder, and mediation is not a trial. If one disputant tries to

present evidence to the mediators, the mediators should gracefully refer it to the other participants. This

procedure facilitates communication between disputants while keeping the role of the mediator clear.

Mediators focus their attention and comments on observable facts, not on personal opinions and

speculations about why someone did something. Because the goal is client empowerment, mediators do

not judge either the parties or the possible solutions they have developed. They also refrain from

evaluating the dispute except to determine if the dispute is mediable and to exercise necessary technical

judgments about the mediation process.

There are a number of ways that disputants can threaten the mediator’s role:

1. Disputants may intentionally try to win favor with mediators by complimenting them, thanking them,

or noting similarities between themselves and the mediators. Tactics include:

The mediator reminds disputants that personal characteristics of the mediator are irrelevant to

the process, and that the mediation session is about the disputants themselves.

The mediators re-emphasize the function of neutrality in the process, and remind the parties

that neutrality is a benefit to both of them.

2. Disputants may try to get mediators to agree with them, or to decide issues of contested fact.

Because of the fundamental importance of neutrality to the mediation process, it is essential that

mediators avoid falling into this trap. Tactics include:

Reflect: “I gather that your view is that . . . . Do I have it right?” or “So what I am hearing

you say is that . . .”

Remain neutral and shift responsibility back to the disputants: “I am not a party to your

dispute, so what I think doesn’t matter. What’s important here are your ideas (knowledge,

experience, values) for solving the problem, not mine.”

3. Disputants might also ask the mediators to make suggestions or express judgments about the

situation (usually in an attempt to get the mediators to agree with them). Because the goal is party

empowerment, and because the disputants themselves are most well suited to develop their own

course of action, mediators avoid making suggestions that will dictate the course of the mediation.

Tactics include:

"We can only help you resolve the problem for yourselves."

“You are the ones who will have to live with this agreement, and you are the ones who

understand your own situation best. We don’t know either of you, so we couldn’t say what

would work best for your circumstances.”

which a case has been filed will resolve the case, a Rule 31 Neutral may point out possible outcomes of

the case and may indicate a personal view of the persuasiveness of a particular claim or defense. 34

Rule 31, Appendix A, Section 8(b): When a Neutral believes a party does not understand or appreciate

how an argument may adversely affect legal rights or obligations, the Neutral shall advise the participants

to seek independent counsel. 35

Rule 31, Appendix A, Section 6(b)(4): A Neutral shall not provide counseling or therapy to either party

during the dispute resolution proceeding.

26

"We're here to help you decide what you want to do. You make the decisions, and you can be

as creative as you need to be in order to come up with an arrangement that works for both of

you."

"When we've got a few more possible options, we can move on to figuring out which will

work for you."

4. Some disputants may even arrive at the mediation claiming that they have already resolved the

conflict by themselves, and they just need the mediators to sign off on their agreement. In such cases,

there is a substantial risk that the dominant person has dictated a solution to the weaker person.

Mediators cannot let themselves be relegated to a mere clerk to the disputants in that way. If

the mediators do not follow the model, it is likely that such domination will go unrecognized and the

needs of all participants will go unmet. Tactics include:

“We appreciate the fact that you’ve been working on solving the problem. Since you’ve

agreed that you want to resolve the case in mediation, we will go on now into the stages of

work that we described to you in the introduction.”

“The court does not permit us to write up your agreement without doing our job as mediators.

We’ll be able to build on what you’ve already talked about as we go through the steps of our

model.”

“Even though you have worked out an agreement, there may be more issues that the court

needs you to address, or issues that you haven’t thought of yet. Therefore, it is important to

go through all the steps of the model.”

3.2 ROLES OF OTHER PARTICIPANTS IN THE MEDIATION

3.2.1 Disputants

The disputants in mediation are expected to follow the ground-rules and engage in an honest, reflective,

future-focused discussion of issues and potential solutions. The disputants are solely responsible for their

agreement, and for generating and evaluating the ideas that go into it. Their participation is at all times

voluntary.

3.2.2 Attorneys

Attorneys routinely participate in mediations. All disputants are invited to bring their attorneys so that

they will have ready access to legal advice at any step of the mediation process; 36

CMC addresses this

with clients during pre-mediation intake. CMC requires advance notice of the attorney’s attendance so

that staff can: 1) prepare the attorney for our mediation model; 2) take that attorney’s schedule into

account during scheduling; and 3) let the other disputant know whether or not to expect an opposing

attorney. The right to counsel is re-iterated by the mediators when reading the “Agreement to Mediate”.

In any mediation involving attorneys, the mediators should clearly explain the role of attorneys as

advisors during the orientation (i.e., Step 1, see Chapter 4).37

The mediators will inform all participants of

their right to: 1) take a break at any time to consult with their attorney in a separate room; 2) take a break

to contact their attorney if that attorney is not present; or 3) reschedule the mediation for a later time so

that an unrepresented party has the opportunity to seek legal advice.

36

Rule 31, Section 6: Attorneys may appear with clients during alternative dispute resolution

proceedings. 37

For an interesting discussion of the role of attorneys in mediation, and an argument that attorneys

should take on an active problem-solving role in mediations, see Harold Abramson, Problem-Solving

Advocacy in Mediations: A Model of Client Representation. 10 Harv. Negotiation L. Rev. 103 (Spring

2005).

27

An attorney always has an ethical duty to advocate zealously on behalf of his/her client. While those

duties remain the same whether the client is in court or in mediation, the attorney’s role in mediation

differs from that in the courtroom. In court, the attorneys are the active players, making arguments,

presenting evidence, and acting as advocates for their client. Because a fundamental goal of mediation is

to empower the disputants to speak for themselves in developing and evaluating their own workable

solutions, the parties in the mediation are expected to take the active role. The attorney is available solely

to provide appropriate legal advice to his/her client if such advice is sought at any point in the mediation

process. To reinforce the attorneys’ role as consultants/advisors, many mediators ask the attorneys to take

a seat behind his/her clients, rather than beside them at the mediation table. CMC’s Attorney’s Guide to

Mediation” handout can help an attorney better understand their role in the process. In addition, CMC

provides information through local and state bar associations to educate attorneys on the importance of

embracing the role of "counsel" (rather than "spokesperson") in mediation.

Helpful, cooperative input from attorneys is generally welcome, as long as the attorneys allow their

clients to speak for themselves. Many attorneys who are familiar with mediation recognize the benefits it

offers to their clients and embrace the collaborative goals. Attorneys can enhance the mediation process

in a variety of ways. For example:

The attorney is available to provide appropriate legal advice to his/her client if such advice is

sought at any point in the mediation process.

Attorneys can help to keep their clients focused, calm, and organized, during the mediation

session as well as during a private caucus.

Attorneys can provide the mediator with a Statement of the Case prior to mediation, complete

with case history, goals, and concerns so that the mediator can be familiar with the case before

sitting down with the disputants.

Attorneys can assist clients and mediators to review and fine-tune drafts of the Mediated

Agreement.

Attorneys can help their clients to recognize the benefits of reaching a mediated agreement and

provide beneficial reality checks for them. Prior to mediation, attorneys have hopefully discussed

the Best Alternative To a Mediated Agreement (BATMA) and the Worst Alternative To a

Mediated Agreement (WATMA) with their clients, so that the clients will have a legal frame of

reference that the mediators cannot ethically provide.

Occasionally, the mediators will encounter an attorney who attempts to disrupt the mediation process.

Examples include: 1) attorneys having difficulty allowing their clients to speak for themselves; 2)

attorneys failing to respect the mediators’ need to control the process; and 3) attorneys approaching the

mediation with an adversarial or uncooperative attitude, which their clients then internalize. Each

mediator, through training and practical experience, will learn to handle these obstacles without violating

their ethical duty to remain neutral. For example, mediators might call a separate session with that

attorney and his client to address the disruptive behavior outside the presence of the other disputant. In

these breakout sessions, the mediators stress their need to hear from the disputants, not the attorneys. The

attorney is reminded of his/her appropriate role in mediation. When attorneys will be present at

mediation, mediators might head off potential disruptions by spending more time in the orientation on the

relevant ground-rules (e.g., speaking for one’s self, allowing others to speak uninterrupted) and explicitly

discussing the roles of all participants, including attorneys.

Problems may also arise if legal advice is not available during the mediation, particularly in cases where

one or more of the disputants are not well informed. Often, when a disputant decides to attend the

mediation without his/her attorney, that disputant will ask the attorney to be “on call” (easily reachable by

cell phone) for the duration of the mediation. However, some do not. According to the Tennessee

Standards of Professional Conduct for Rule 31 Mediators, Appendix A, Section 8(b): “When a Neutral

believes a party does not understand or appreciate how an agreement may adversely affect legal rights or

28

obligations, the Neutral shall advise the participants to seek independent legal counsel.” If that party

declines to seek legal counsel, the mediators must decide whether or not they are comfortable proceeding

with the mediation.

3.2.3 Support Persons

Disputants entering mediation may be intimidated by the lack of familiarity with the process and the

prospect of addressing a difficult and painful conflict. CMC has a general policy that the only parties who

sit at the mediation table are the ones directly in the conflict. However, it can be appropriate (although

unusual) for disputants to have a support person in a mediation session; this is arranged by CMC staff in

advance. This support person, often a spouse or significant other, can participate in a separate session but

not in the joint session, unless some particular disability or situation requires their presence to assist the

participant. Otherwise, a party in mediation may take a break during the joint session to privately consult

with his/her support person.

3.2.4 Third Parties

Disputants in mediation often find themselves planning for a future that directly involves other

individuals. Mediators cannot draw up a mediated agreement that relies on actions of a party not present

at the mediation, so it may be necessary to bring those additional people into the session. In such cases,

mediators work with the participants to develop an agreement to the extent possible, and then continue the

mediation to a time when the third party can be present to discuss their ideas and responsibilities and sign

off on the terms. The third party’s participation should be limited to only those matters that specifically

concern his/her role in the agreement. Any third party brought into the session signs the Agreement to

Mediate Form and is bound to confidentiality like all other participants.

3.2.5 Observers

CMC mediators who have recently been trained are required to observe several mediations before they

begin to co-mediate. Other mediators are welcome to observe mediations if they wish to learn about

types of mediations with which they are unfamiliar or to generally sharpen their skills. CMC staff may

also observe mediations in an evaluative capacity. The purposes of such observation are:

To familiarize the observer with the use of skills and techniques for different situations;

To give the mediators feedback on the dynamics of the session;

To evaluate the mediators’ performance for the purposes of helping them sharpen their

mediation skills and techniques.

If an observer is present at a mediation session, the mediators explain to the disputants that their role to

solely to observe the mediators, not the parties, and that the observer is bound to the same standards of

confidentiality as the mediators. Before the session, the observer avoids contact with the disputants.

During the session (while disputants are present) the observer watches without comment. The observer

may, however, openly and honestly participate in conversations with the mediators during breaks in the

session. Observers fill out an Observation Form and debrief with the mediators during breaks and after

the mediation.

There is something to be learned when you’re not in control of every situation.

- Counselor Deanna Troi to Riker, Star Trek: The Next Generation

29

CHAPTER 4. THE MEDIATION PROCESS

4.1. OVERVIEW

The facilitative mediation model discussed in this manual is designed to empower the disputants to work

together to evaluate their situations and discover their own solutions on an informed and voluntary basis.

This model focuses the mediators’ efforts on joint problem-solving to expand the domain of possible

solutions and reduce adversarial tension. The model assumes that parties involved in the dispute are best

equipped to understand their unique situation and determine which options will work. Mediators use a

variety of techniques to empower the parties to resolve the dispute for themselves (see Chapter 2). A

mediator’s success is judged by the quality of the mediation, not whether the disputants reach a

settlement.

Before beginning the mediation process, a mediator prepares the mediation space before greeting the

disputants. These pre-mediation preparations are discussed later in this chapter.

The facilitative 6-step model is a flexible process that you can adapt for your own use in private practice

to facilitate empowerment and problem-solving among disputants. Beginning with a careful and uniform

orientation to the process, viewpoints are presented and a statement of session objectives is developed.

Options for solutions to the conflict are then brainstormed and critically evaluated to maximize the

potential that the disputants arrive at a workable agreement before the mediation is concluded. The 6

steps are as follows:

Step 1 - Orientation – In this step, the mediator introduces the disputants to the mediation

process and the disputants make a voluntary, informed decision to sign the Agreement to

Mediate.

Step 2 - Presenting Viewpoints - Each disputant provides his/her opening statement, sharing

his/her viewpoint and perspective in narrative form.

Step 3 – Developing the Target Statement – Here, the mediator creates a “Target Statement”

that incorporates the issues and interests of both disputants and focuses the discussion on the

future.

Step 4 - Generating Options – This step involves the disputants brainstorming as many

solutions as possible to the conflict.

Step 5 - Evaluating Options - The disputants then evaluate the possible solutions thoroughly

with the guidance of the mediator.

Step 6 - Concluding the Mediation – If common ground has been reached, the mediator drafts

an agreement that incorporates what each party will do to resolve the dispute. The disputants

review and approve the text of the agreement before signing the document. The mediator

formally concludes the session by thanking and congratulating the participants and providing

them with copies of their agreement. If no agreement has been reached, the mediation is

terminated.

4.2 PREPARING TO MEDIATE

4.2.1 Discussions Between Co-Mediators

If conducted effectively, co-mediation can produce a highly effective dynamic in ensuring balance and

openness in the mediation process. Therefore, if you are working in a co-mediation team, it is important

for you and your co-mediator to develop open communication and a good understanding of each other’s

styles and needs. Co-mediators arrive at least fifteen minutes prior to the scheduled mediation start time

so they can meet and discuss how to work together most effectively. This begins with each mediator

discussing his/her techniques, strengths, weaknesses, time constraints, and any special needs they

30

might have. They then agree on how to divide the introductory topics so that the two of them have

similar levels of participation. They also identify any signals they might wish to use and memorize the

names of the clients and attorneys before they arrive.

4.2.2 Environmental Issues

Seating: The co-mediators discuss the best seating arrangement for the participants. Make sure that there

are enough chairs for everyone, and position the chairs in a strategic manner so that all participants can

see each other, the mediators, and the paper on the wall (see below). Many mediators prefer to seat

disputants on the same side of the table, rather than having them face each other (which could instill an

adversarial tone from the beginning), although this arrangement is not appropriate for situations where

there is concern about power imbalances or intimidation. Having mediators and disputants sit around a

circular table can set an inviting and cooperative tone for the mediation. If attorneys will be attending,

some mediators choose to position the attorney behind his or her client in order to reinforce the client’s

role as the active participant in the process. If other parties will be participating in the process, the

mediators evaluate the most productive layout for seating the group.

Supplies: Check to make sure that you have the supplies necessary to conduct the mediation. Generally,

the following will be needed:

Paper on the wall, board, or flipchart for Steps 3 – 5.

Markers for writing on the board or flipchart;

Scrap paper so that disputants, attorneys, or mediators can take notes;

Blue ink pens so that the original signatures on documents can be distinguished from

photocopies;

CMC supplies mediation packets containing all necessary forms and calendars. Prior to the

mediation, mediators should check the packets to make sure all necessary forms are available.

A resource manual; and

A calculator.

Greeting Disputants: Mediators greet the disputants as co-equals. Each mediator introduces him/herself to

the disputants instead of having one introduce the other, so that neither appears to be a “lead” mediator.

Let the disputants know the name you prefer to be called, and ask them how they prefer to be addressed.

If at this point, or any other point in the process, you discover a conflict of interest, or any sort of personal

or professional connection with any of the disputants or their attorneys, full disclosure to each party of the

nature of the conflict is required. If the mediators and disputants agree that the connection is not

problematic, the mediation can continue. If the mediator feels that he/she would be unable to be neutral,

even if the disputants consent, the mediator must recuse him/herself from the case. The session is then

postponed until another mediator can fill in.

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4.3 STEP ONE: ORIENTATION (INTRODUCING THE MEDIATION PROCESS)

4.3.1 Purpose

During the orientation the mediator introduces disputants to the mediation process, create a safe and

comfortable environment, and ensure that all participants understand their roles and the ground-rules, and

voluntarily sign the Agreement to Mediate.

4.3.2 Conducting an Orientation

Mediators first welcome the disputants to mediation. People in conflict arriving to mediation may be

nervous, uncomfortable, skeptical, or even volatile, so mediators attempt to put them at ease, and applaud

their willingness to attempt to mediate their dispute through mediation. The mediators inform them that

this process is about looking to the future and resolving conflicts, and ask them about any prior

experiences they may have had with mediation. Many participants will have had no such prior

experience; therefore, a careful orientation is essential in building trust in the mediation process, and

empowering the disputants to voluntarily participate. Disputants who have participated in mediations in

the past may have encountered a different model; mediators prepare them to participate in the facilitative

process by carefully explaining the different mediation steps.

Mediators appear calm and confident, and expresse faith in the mediation process. Mediators maintain

eye contact with the disputants and are aware of their own body language, as well as the body language of

the disputants. When you are co-mediating, model good cooperative behavior by working as equals to

explain the process. Neither co-mediator dominates; co-mediators divide the introductory topics evenly

so that they present themselves on equal footing.

A full and complete orientation is essential to empowering disputants to participate voluntarily and

successfully in the mediation process. The orientation takes place with both disputants in the mediation

room together. A participant may wish to begin by relating his/her side of the story during the orientation.

In controlling the process, the mediators explain that he/she cannot hear any details about the case until

the introduction is complete. Suggestions include:

Explain that all disputants must make an informed and voluntary decision to participate in the

mediation process, which requires going through the full introduction before any information

is divulged.

Explain that you do not want to begin the process before everyone has a chance to agree to the

ground-rules (by signing the Agreement to Mediate).

If the orientation is taking place in separate sessions, a mediator might explain: “In order to be

fair to each party, we must provide a uniform introduction to each of you. We need to

conduct the introduction without interruption so that we do not lose track of information that

we need to impart to you.”

Note that any details a disputant divulges at this point are protected by confidentiality even if the

disputant has not yet signed the Agreement to Mediate Form.

Inform all disputants that mediation is a voluntary process,38

and that the participants or the mediators

can terminate the mediation at any point, for any reason. Tell the disputants that at any point during the

mediation they can take a break or request a separate session. Inform the parties that mediation is a

confidential process, that a mediator cannot be called as a witness in any court proceedings, and that

none of the information presented during the mediation session can be revealed by any party, except as

related to abuse of children, handicapped persons, or the elderly. Make it clear that a ‘double

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Rule 31, Section 4(a): On commencement of the [mediation], a Neutral shall inform all parties that

settlements and compromises are dependent upon the consent of the parties, that the Neutral is an

impartial facilitator, and that the Neutral may not impose or force any settlement on the parties.

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confidentiality’ extends to separate sessions; what one party says to the mediator in private cannot be

revealed during the joint session to the other party. Make sure that the disputants understand that while

this confidentiality protects them from an unwelcome disclosure, it places the responsibility on each of

them to raise all relevant issues or ideas in the joint session.

Explain the roles of all participants, including the role of the mediators. Let the disputants know that

mediators are neutral third parties, rather than attorneys who can give legal advice or judges who can

decide the case. Inform the disputants that mediators do not collect evidence or make evaluate the

disputant’s positions. 39

Tell the participants that they are responsible for developing and evaluating their

own solutions; at all times, the disputants are in charge of their own agreement. Make sure that the

participants are aware of their right to bring an attorney to mediation.

The orientation is also the time to establish the ground-rules of the mediation session. Emphasize the

need for each party’s open and honest communication. Instruct the parties that interruptions are

inappropriate when one person is talking, and that scrap paper is available for them to make notes to

themselves if necessary.

Use of a detailed checklist (sample provided below) helps mediators to ensure uniformity in the

orientation process. A checklist also provides a quick reference so that no information critical to a

disputant’s ability to fully participate in the process is omitted.

After the process, roles of participants, and ground-rules have been fully discussed, the mediators read the

Agreement to Mediate to all participants. In the co-mediation model, mediators take turns reading the

paragraphs out loud. At this point, ask the disputants if they have any questions, and if they are willing to

agree to participate in the mediation. If the disputants are willing, all participants (including attorneys,

observers, and mediator) sign the Agreement to Mediate with blue ink pens. If any party is not willing,

the mediation is terminated.

4.3.3 Orientation Checklist

Welcome the disputants and introduce yourselves

Ask them if they have any time constraints

Ask them about prior experiences they may have had with mediation

Explain the voluntary and confidential nature of the mediation process

Note the benefits of problem-solving through mediation

o No court costs or attorney fees

o Saves time

o Allows the disputants to be in control of their own future and develop a plan that works

for their unique situation

o Gives disputants a chance to communicate with each other

Explain the roles of the mediators and all participants. Make sure disputants understand that

they have control over their own agreement.

Explain the six steps

o Orientation/Introduction

o Presentation of Viewpoints

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Rule 31, Section 5(a): A Neutral engaged in mediation shall assist the parties in reaching an informed

and voluntary settlement. Decisions are to be made voluntarily by the parties themselves; Rule 31,

Section 5(b): A Neutral shall not coerce or unfairly influence a party into a settlement agreement and shall

not make substantive decisions for any party to a [mediation].

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o Develop the Task Statement

o Generating Options (Brainstorming)

o Evaluating Options

o Concluding the Mediation

Describe the possible resolution options

o Continuation

o Temporary Agreement

o Permanent Agreement

o Partial Agreement

Establish the ground rules of the process:

o Discuss the need for honesty and open dialogue

o Explain that disputants are not permitted to interrupt, name-call, or otherwise insult each

other

o Let the disputants know that they can, at any point, terminate the process, ask to take a

break, request a separate session, confer with their attorney (either by phone or in another

room), or request a continuation at any point

Take turns reading sections of the Agreement to Mediate out loud to disputants, and then ask

them if they are willing to proceed

4.4 STEP TWO: PRESENTING VIEWPOINTS

4.4.1 Purpose

Once the disputants have formally agreed to participate in mediation, the mediators ask them to present

their perspectives on the conflict. The mediators’ goals in this step are:

to learn more about the disputants themselves, including their vocabularies and attitudes;

to gather information on the nature and scope of their dispute; to clarify the mediators’

understanding of the needs, concerns, and interests of the disputants;

to continue modeling cooperative behavior and good communication skills. to help the

disputants feel that they have been heard;

to help the disputants verbalize and organize their goals for the future; and,

to become familiar with the vocabulary and attitudes of the disputants.

4.4.2 The Narratives

Mediators generally begin by asking one of the disputants “Tell us what brought you to mediation” or

“Explain to us why you are here.” If both disputants are in the room, mediators can either ask the person

who brought the case (generally the plaintiff or petitioner) to start, or choose one person to begin.

4.4.3 Utilizing Mediation Skills

As each party relates his/her story, the mediators utilize active listening techniques (from the Mediator’s

Toolbox, see Chapter 2 of this manual) to help them feel heard and to elicit needed information.

Mediators acknowledge client feelings and ask open-ended questions to clarify issues and encourage

participants to look at their conflict from alternative angles. Each mediator is equally engaged in the

process, and co-mediators are conscious about interacting equally with each disputant. Co-mediators

support each other’s lines of inquiry.

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Mediators work to identify positions, interests, and needs as participants present their viewpoints.

People in conflict are generally positional—they possess a one-sided viewpoint and a stubborn desire to

win the conflict in a certain way. The positions are what the disputants say they want, and they often

come to mediation with initial positions that are mutually exclusive. Participants who are positional are

not prepared to view their situation from alternate angles or to work with the other party toward a

mutually-beneficial agreement. Mediators address this dynamic by uncovering the interests and needs of

the disputants. Mediators strive to find common needs and interests that help the clients see the situation

in a new light. These common interests may lie in the conflict itself, or the disputants may have common

interests and needs beyond the domain of the case. For example, common interests among disputants

might include maintaining a continuing relationship (family, friend, co-workers, neighbors, church

members, etc.) and avoiding the cost and aggravation of an extended court battle. In a parenting case,

both sides may yearn for an end to a damaging family conflict, and the best interests of their child(ren)

can be a compelling common interest.

4.4.4 Controlling the Process

As co-mediators guide disputants through the presentation of viewpoints, possible threats to the process

include:

Interruptions: One disputant might interrupt the other’s narrative (generally to object to a statement or

characterization of an event, or to insert their own perspective into the conversation). In response, a

mediator can: 1) remind the disputants of the ground-rule (covered in the Orientation) that each

participant must listen when other participants are speaking; 2) assure the interrupting party that he/she

will have a chance to give his/her side of the story next, and note that he/she will have equal uninterrupted

time; 3) encourage the disputants to trust the process, and to trust the mediators to lead the process.

Body Language: One or both disputants might be displaying hostile or “closed” body language, which

impedes listening and communication. For example, they might cross their arms, turn their heads, make

angry facial expressions, and even turn their chairs away from each other. In response, mediators

continue to model open body language for the disputants. A mediator might ask the parties to turn their

chairs toward each other, to face each other, or to speak directly to each other, instead of to the mediators.

Mediators might also consider (privately) drawing attention to a disputant’s body language in a separate

session to help that disputant identify ways that they might communicate more effectively. If a mediator

believes that one of the disputant’s body language indicates fear or intimidation, it is appropriate to

call separate sessions to explore this dynamic further.

Power Imbalances: Power disparities may present themselves as barriers to communication at this or any

other step of the process. One party might be much quieter or more vociferous than the other. One

might be reluctant to share his/her narrative in front of the other. One might have a better grasp of

language or have a more informed legal understanding of the case than the other. In response, mediators

are conscious of the power dynamics in the room at all times, and use techniques from the Toolbox

(discussed in Chapter 2 of this manual) to balance power and engage the quieter person. If a mediator

concludes that power cannot be effectively balanced, then it is appropriate to terminate the mediation.

The mediation could also be continued to another date so that an unrepresented disputant can meet with

an attorney, or so that a translator can be located in cases where language barriers are an issue.

Capacity Issues: Once the disputants begin relating their narratives and goals, a mediator might develop

concerns about the capacity of one or both disputants to mediate. For example, one disputant might

appear intoxicated (slurred speech, dilated pupils), or might fail to demonstrate the ability to understand

the consequences of his/her actions/decisions. In response, mediators can attempt to engage the

individual to determine capacity, generally through a separate session. If a mediator determines that a

disputant’s capacity is affected by intoxication, the mediator discusses their concern with that individual

and terminates the session, keeping open the option of rescheduling the mediation for another time. If

capacity is impacted on a more permanent basis (senility, mental illness or deficiency), the case has

shown itself to be inappropriate for mediation and the session is terminated.

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4.5 STEP THREE: DEVELOPING THE TARGET STATEMENT

4.5.1 Purpose

On entering Step 3, the disputants have shared their versions of the conflict, and the mediator has begun

to re-focus their attention on the possibilities for the future. The Target Statement is a powerful tool to

engage the disputants and get them into a problem-solving mode. During this step, the mediator identifies

common interests of the disputants and to develop a neutral, future-focused Target Statement that

establishes the goal of the mediation process and incorporates the needs and concerns of all

participants. The Target Statement gives the disputants a place to start their brainstorming by showing

them that they do, in fact, have common interests.

4.5.2 Crafting a Target Statement

An effective Target Statement is open-ended enough to provide a framework for a variety of possible

solutions. It mutualizes goals, uses neutral wording, and is free of emotionally-loaded terms. Mediators

often use a variation on the following:

“How can we resolve [X, the conflict from the past] so that [Y, things will be better in the

future]. “

In crafting the Target Statement, it is important to ensure that it applies equally to both disputants and that

neither disputant’s interests are marginalized. Distinguish between surface issues and the underlying

problems at the heart of the conflict so that the Target Statement will be an effective problem-solving

tool.

4.5.3 Some Examples

How can Landlord and Tenant resolve the issues of back rent and security deposit so that

they will both be satisfied and won’t have to go to court? This target statement is

purposefully vague. Note that the common ground here is merely that they both want closure

and resolution of the issue so that they can move on with their lives and avoid court.

How can Dave and Dan create a plan so that they can both feel comfortable in their shared

work-space? The common ground here is that each man wants to be comfortable while he is

at his job.

How can Tom and Maria develop a parenting plan meets the needs of their children? This

statement builds on the parents’ mutual desire to do what is best for their children.

4.5.4 Presenting the Target Statement

Write the Target Statement on a board or flipchart so that it is visible to both disputants throughout the

process. Once it has been drafted, present the Target Statement to the disputants for their approval and

revise it, as necessary. Once the disputants have agreed on the Target Statement, congratulate them on

reaching this agreement and remind them that they are making progress – they have agreed to mediate,

they have listened and shared, and they have now agreed on how to focus the upcoming discussion.

4.6 STEP FOUR: GENERATING OPTIONS (BRAINSTORMING)

4.6.1 Purpose

Now that the framework for the discussion has been set, it is time to engage the disputants in a

brainstorming process to generate as many potential, meaningful solutions as possible. During this step,

mediators open up the parties’ thinking on the dispute, encourage them to evaluate the problem from

different angles, and shake them loose from any fixed positions they might have by opening up new lines

of discussion.

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4.6.2 Brainstorming

Focus the Brainstorming: Use the Target Statement to elicit future-focused, constructive ideas. As ideas

are proposed, you may need to find ways to organize them by topic (possibly by leaving spaces under

each idea for further suggestions in that area, or putting ideas on different topics on different boards or

pages). If the disputants need to discuss several different issues, the mediators can ask them to brainstorm

on each issue separately.

Developing Options: Use active listening techniques to reflect each suggestion back to the party who

proposed it. Write each idea or suggestion on the board without evaluating, judging or commenting on it.

This procedure serves three primary purposes:

1) to ensure that the mediators understand the suggestion correctly;

2) to help the disputant know that he/she is being heard; and

3) to ensure that the other disputant heard the suggestion as well. You might need to ask

questions to clarify a vague suggestion.

Facilitating Creative Brainstorming: Use active listening to help disputants think creatively when their

brainstorming hits a standstill. Mediators often encounter rigid, positional thinking at this point in the

process. At least one disputant may simply state his/her position and then sit silently. It is a mediator’s

job to open up the discussion and help both disputants look at their situation from different angles. For

example, you might ask some of the following questions:

How has this problem affected your life? (probe and clarify)

What are some things that X could do to help you resolve this issue? (shift perspective)

What are some things that you could do to help resolve this issue?

Do you know anyone else who has been in a similar situation? How did they resolve it?

Who else is affected by this agreement? What might they suggest? What might they

need? What might help them? (invoke others)

What steps could X take to build trust with you? (move from the abstract to the concrete)

What does this item represent to you? (look to underlying needs)

All that happened in the past, and we cannot change the past. We can only look to the

future. How would you like things to change in the future? (shift focus to the future)

What would be your best possible outcome to this mediation?

What would be the worst possible outcome to this mediation? What are you most

worried will happen?

How do you want things to be between you in the future (find hope)

Turning “Negatives” into “Positives”: Some people become so overwhelmed by mistrust or fear of

change that they cannot even envision a possible solution. Mediators (in a private session) can work with

a disputant to “turn negatives into positives”. In one column, list the concerns. Underlying these concerns

are needs and interests, and therein lie possibilities. In the next column, identify and list the needs

associated with each concern. A disputant may find it much easier to brainstorm once the focus is shifted

to his/her needs instead of obstacles. In the third column, list the disputant’s suggestions for how each

need could be met. Once meaningful suggestions have been developed, the disputant can return to the

joint session with ideas that are focused, helpful, and concrete.

Controlling the Process: The disputants are asked not to comment on any of the suggestions being

generated at this point. Many disputant have difficulty with this role. As a mediator, you must exercise

control over the process and make sure that participants clearly understand the task (i.e., generating

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options) and what is expected of them. If one or both disputants are disruptive anyway, remind them that

1) they are only creating a list of ideas to discuss, and 2) the appropriate response is to make suggestions

of their own. Remind them that once all suggestions are on the board, each will be evaluated, and the

mediators will ensure that everyone has an adequate chance to speak on each topic. Possible interactions

include:

Disputant: Absolutely not. He knows that there is no way I would ever agree to

something like that. How can he even suggest that?

Possible Mediator Response: We are just developing a list of ideas right now. The

more ideas the two of you develop, the more you will have to talk about when we begin

evaluating.

Possible Mediator Response: You will both have a chance to evaluate all of these ideas

in the next step. We will take you both through the list and make sure that you each get

to express all your thoughts and concerns on each topic. Right now, we are just

exploring options to talk about in the next part of the mediation.

Possible Mediator Response: We are taking all possible ideas from each of you.

Instead of commenting on what he has said, now is the time to come up with suggestions

of your own. We will write your ideas down just like we are writing down his.

Balancing Power: Continue to balance the power between parties as they develop their list of possible

solutions. This list provides a framework for the rest of the mediation, and it is essential that it reflect the

ideas, goals, and needs of BOTH disputants. If you allow one party to dominate the brainstorming

session, the rest of the discussion will be unbalanced and the other party will lose faith in the neutrality

and efficacy of the mediation. In Step 4, participation from the disputants should consistently be

comparable. You should not allow one party to present a long list of ideas before the other party has a

chance to make any suggestions, as it create an unbalanced dynamic that may leave the second party

frustrated or defensive. If one party begins to dominate the brainstorming process, you can respond by

specifically eliciting ideas from the other party. Here are several examples:

Mediator: We have heard several ideas from Tom. Sara, it is your turn.

Mediator: Richard, it is important that we have your ideas and suggestions on the board

as well.

Mediator: Anne, how do you think that the payment plan should work? What would

make sense for your budget?

If one party still appears unable to express ideas, explore the reasons in a separate session with that party.

Remember, if you take a separate session with one party, neutrality requires you to spend roughly the

same amount of time with the other party. A person may be unable (or disinclined) to express ideas for

many reasons. For example:

This may be the first time that that person has had a forum in which to express his wishes, and

he may not know how to start. You can use separate sessions to help disputants organize their

thoughts and develop constructive ways to present ideas.

The party may not have come to mediation with concrete ideas on how to resolve the

problem, and may need time to reflect; a break or a continuation may be appropriate to give

that party an opportunity to gather his thoughts or research options so that he can fully

participate in the process.

The party may be feeling intimidated by the presence of the other party. As discussed in

Chapter 1 of this manual, if one party is being silenced because of fear (whether or not the

fear appears to be warranted), the case may not be appropriate for mediation.

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4.7 STEP FIVE: EVALUATING OPTIONS

4.7.1 Purpose

This step is where much of the work is done in mediation, as the disputants carefully evaluate all possible

solutions to their problem. Each potential solution is explored thoroughly and ‘reality tested’ to determine

if it is both mutually satisfactory and practical.

4.7.2 Evaluating Potential Solutions

Continue to use active listening skills to facilitate positive and productive communication between/among

the disputants. By asking key questions, mediators can guide disputants through this evaluation process.

Solutions are examined with care for practical details. You might ask questions like:

If you are willing to do this, would it be possible considering . . . (e.g., a person’s schedule,

transportation limitations, finances, other commitments, existing hostilities)?

How would doing this help solve the problem?

What problems can you see arising from this course of action?

How will this solution affect the other people impacted by this situation?

What happens if something comes up at the last minute and you need to contact X?

What happens if a payment is late?

All aspects, impacts, and contingencies of each solution are considered. As disputants find workable

solutions, these are recorded on the wall/board so everyone can see progress that has been made.

4.7.3 Addressing Common Obstacles

During Step 5, several factors can impede a party’s ability to participate fully in the evaluation process.

One party might become too upset, emotional, belligerent, or silent to interact constructively. Continue to

balance the power between/among the disputants, taking breaks and using separate sessions as needed.

At this point in the mediation session, disputants often want to argue and rehash past issues, engage in

posturing, and assert demands and ultimatums. To address this issue, mediators have a number of

potential responses:

Remind the disputants that any agreement reached must be workable to each party.

Refocus the discussion on the future, reminding the disputants that while the past cannot be

changed, they have control over their futures.

Revisit the Task Statement, which they both agreed on, to emphasize their common interests

in resolving the dispute.

Review the benefits of a mediated agreement, and the reality that each of them will lose all

decision-making power if the case goes to court. Although all their demands may not be met

through a mediated agreement, mediating their dispute gives them an opportunity to develop

a plan that best meets their needs.

Invite a disputant to suggest changes to a particular proposal that would make it more

workable for him/her.

Inquire whether either disputant can think of any options that are not yet on the table.

4.7.4 Dealing with Impasse

During the evaluation of options in Step 5, the disputants’ progress may come to a standstill. Neither will

move from their positions, and they have exhausted all the options they developed during Step 4

brainstorming. They may be tempted to bargain or negotiate; however, the mediator’s job in this

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situation is to open the parties to new possibility for solutions, not rehash tired options or push

disputants toward uncomfortable compromises or accommodations. The following techniques can be

useful for mediators who wish to encourage participants to take a fresh look at their situation:

Take a break to give disputants time to consider their options;

Review progress that has already been made;

Remain silent; this reminds the disputants that the resolution to their conflict ultimately lies

with them;

Propose unusual or off-the-wall suggestions designed to surprise the disputants into seeing

the situation from a different angle;

Ask the disputants what they might propose if their positions were reversed;

Ask the disputants if they know people who have encountered a similar situation, and, if so,

ask how those people handled their problem;

Acknowledge feelings again, and try to identify other emotions and needs so that the

disputants can take a more comprehensive view of their problem;

Help the disputants (in separate sessions) examine how their stated positions are internally

inconsistent;

Remind disputants that they may not get everything they want in mediation, but that

mediation affords them the opportunity to create a unique agreement that will work for both

of them.

Ask the parties to prioritize their needs and wants, thereby helping them focus on the things

that are most important to them;

Seek agreement on broad principles to identify common ground, then re-focus on details from

that direction;

Restate the situation, and re-emphasize common ground;

Switch to another issue if possible, and let the clients know that they can return to the

problematic issue later, but that it is not necessary for them to resolve every point of

disagreement;

Remind the disputants that even if they are not able to agree on everything, they can still

accomplish a lot with a partial agreement.

When disputants express doubt that the other party will follow the terms of the agreement,

mediators should remind them of the binding nature of a mediated agreement—once a judge

approves the agreement, it will have the same force as a court order;

Continue the mediation to another day and give the disputants homework to do (information

to gather, people to consult);

Ask the disputants how the people they look to for moral guidance might suggest that they

resolve the dispute;

Take a separate session and do a reality check with the disputants

Suggest that the disputants re-focus their efforts on developing a temporary agreement. A

straightforward short-term agreement can provide people with a much-needed trust-building

experience. If the disputants each fulfill his/her responsibilities, when they return to

mediation they may be more likely to cooperate with each other in finding a permanent

solution. However, it is important to remember that failure on the part of one or both of the

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disputants to adhere to the terms of a temporary agreement will likely result in increased

animosity and distrust.

Ask the disputants to discuss their Best Alternative To A Mediated Agreement (BATMA)

and Worst Alternative To A Mediated Agreement (WATMA). This technique gives the

disputants reference points that they can compare with options on the table in mediation. In

guiding these discussions, you could ask the disputants:

o Who will be affected if you don’t reach an agreement?

o How will this dispute affect you if you don’t reach an agreement?

o What will you do if you don’t reach an agreement?

o What are the effects of this dispute on your relationships and feelings?

o What are the effects of this dispute on your time and energy?

o What are the financial effects of this dispute on you and those you care about?

o How does this conflict square with your ethical and moral standards?

4.8 STEP SIX: CONCLUDING THE MEDIATION

4.8.1 Terminating the Mediation

Termination by a Disputant: Mediation is a voluntary process, and a party to the mediation can terminate

the session at any time. If a disputant declares his/her intention to terminate the mediation, ask for a

private session with each party before officially ending the mediation. In private, discuss the disputant’s

motivations for ending the session. If a disputant believes that their needs are not being met, this

conversation provides the mediators an opportunity to better understand why he/she is frustrated with the

process. If you are able to re-establish trust with that person and address his/her concerns, he/she may be

willing to continue the mediation. You might again remind that disputant of the alternatives to reaching a

mediated agreement. If the disputant is unwilling to continue the mediation, the mediation is terminated

(termination procedures discussed below).

Termination by the Mediator: As mediator, you can terminate the mediation for any reason. For example,

if you determine that the disputants have reached an insurmountable impasse, that power between

the disputants cannot be balanced, that the case is not actually mediable, that either party lacks the

capacity to mediate, or that the cases cannot be properly mediated for any other reason, you have a

responsibility to terminate the mediation even if the clients wish to continue. The mediator controls the

process and does not need to justify his/her decision to the disputants. In fact, if the decision to terminate

is based on information received from one of the disputants in private, revealing their reasons could

violate ethical duties of neutrality and confidentiality. When you properly terminate a mediation that

should not continue, you will have met your responsibility to yourself and the disputants.

Safely Terminating Mediation: If either mediator believes that the mediation should be terminated,

he/she asks for a break to consult with his/her co-mediator about the appropriate course of action. At all

times, mediators conduct the mediation process with safety in mind. If you have concerns about the anger

level of one or both disputants, ask the disputants to wait in separate rooms or areas and end the

mediation. Suggested tactics include:

Mediators return to the session and announce the termination. As explanation, the mediators

might say something like: “Occasionally we conclude that we are not able to mediate a case

further. We have reached this conclusion in your case. We appreciate your willingness to

mediate and the time and effort you have put into mediating with us.” Mediators then ask

one participant to leave first; then when that person has had time to exit the area,

mediators release the other party. This safety mechanism prevents high emotions in

mediation from escalating into a confrontation outside the mediation room.

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Alternatively, you could terminate the mediation in separate sessions with each party. This

tactic should always be used if evidence of intimidation is the determining factor in

termination. First, ask for a separate session with the perceived victim, discuss the

concerning dynamics, and inform that party of the termination. Then, advise that party to

leave the premises as soon as the other party is taken into the mediation room. This provides

the victim the opportunity for a safe exit, without fear of harassment, violence, or intimidation

from the aggressor. Leave sufficient time for the victim to leave the premises before

informing the aggressor that the mediation is being terminated.

4.8.2 When An Agreement Is Reached

If the disputants have found common ground, the mediators draft an agreement that incorporates what

each party has agreed to do. Ethically, the parties’ words and intent must control the form and substance

of the mediation agreement. Because mediators (even if they have legal training) are not acting as

attorneys, special care must be taken to remain ethical during the drafting. Mediators act as “scribes”,

handwriting or typing the agreement for the parties. Mediators also help parties clarify their intent and

agree on appropriate phrasing and organization. Stay as true as possible to the parties’ own words, so the

disputants will feel fully involved in the process, while ensuring that the responsibilities of each party are

clearly defined.

The mediators’ job includes helping parties evaluate the workability of their agreement and identify

possible obstacles that need further attention. Make sure that the agreement covers all points that are

necessary to implement the agreement and provides for foreseeable contingencies. The agreement

establishes a road map for the parties to follow: WHO does WHAT to or for WHOM, WHERE, WHEN,

and IN WHAT WAY, and WHAT HAPPENS if there is a problem.

Drafting Mediated Agreements:

Use clear, simple English that all parties can understand. Avoid legalese or complicated

sentences.

Use complete sentences.

Organize terms of the agreement into sections. Make itemized/numbered lists for easy

reference.

Write terms of the agreement in the active voice; sentences should express responsibilities of

the parties: “Anna shall.”

Do not insert or use the phrase “by agreement of the parties” without describing clearly what

the agreement will be. For example:

“Return of the lawn mower shall be by agreement of the parties,” is not clear enough to put in

a mediated agreement. If the parties are not sure exactly what will be the logistics or timing

of a term of the agreement, they should designate a date certain by which the performance

must occur, or in some way make it clear when or how they will determine that the other

party has breached the agreement. A proper agreement might read:

“Jim shall return the lawn mower to Uncle Steve no later than August 14 at 9pm. Jim will

call Steve to arrange an exact time and place for return of the mower no later than July 31.”

Do not include in the agreement any actions that must be conducted by third parties not

present in the mediation and therefore not able to sign the agreement. If performance of a

third party is necessary, the mediation should be continued until a time when that party can be

present.

Include reciprocal and mutual responsibilities; agreements should not be one-sided or

significantly unbalanced. Each party’s responsibilities should be clear.

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If anything in the agreement is crossed out or changed, the disputants must initial beside the

alterations.

If restitution is involved, take into account how payments will be made, where they will be

sent, the appropriate form (cash, check, money order), and what happens if only partial

payment is made.

Avoid words that may cause confusion, that could be subject to alternative interpretation, or

that are difficult to quantify (such as quickly, as soon as possible, respectful, reasonable,

appropriate), because they can cause post-agreement conflict between the parties.

If third parties are included in the agreement, make sure that they are properly identified by

name in the agreement.

Always offer the suggestion that the parties can agree to come back to mediation if they find

that their ability to work together using the agreement has faltered or failed. Point out that

they can use mediation as a “first resort” without giving up their right to go back to court.

Post-Drafting:

Signing the Mediated Agreement: After the agreement has been drafted, the mediators read it out loud

to disputants to ensure that it is complete and accurately reflects their agreement. All participants and

mediators sign the agreement. Mediators photocopy the Mediated Agreement as well as the Agreement to

Mediate; each disputant and attorney gets a copy of each document, and mediators leave an extra

photocopy of each document along with the originals in the mediation packet for CMC staff. Mediators

congratulate the disputants on their accomplishment, and the disputants leave the building with copies of

the Agreement to Mediate and the Mediated Agreement.

Mediator Activity Report: Mediators complete a Mediator Activity Report (MAR) reflecting the

outcome of the mediation, including any notes that would be helpful or necessary to CMC staff

understanding the completed mediation process. If the mediation is continued to another date, or if the

agreement is temporary, the return date AND the time that the next session will be held are noted on the

MAR. If applicable, any action that staff needs to take before the next session should be clearly

explained. Any peculiar circumstances in the mediation that the mediators feel CMC staff should be

aware of should be noted.

Debriefing and Evaluation: The mediators debrief after the mediation. Co-mediators (and observers, if

any are present) discuss issues such as what could have been done differently, what was done well, any

turning points during the session, effectiveness of communication, levels of empowerment, usefulness of

particular techniques, and the dynamics among disputants and mediators. Any worthy insights are

recorded on the back of the MAR.