Mediation Training By Lejla Mavris and Cameron Hunter Global Majority Promoting Peace through Dialogue: July 20 - August 3, 2008 By Lejla Mavris and Cameron

Mediation Training

By Lejla Mavris and Cameron HunterGlobal Majority

Promoting Peace through Dialogue:July 20 - August 3, 2008

Alternative Dispute Resolution (ADR)

NegotiationMediationArbitrationLitigation

ADR (cont’d)ADR (cont’d)

Negotiation 2 or more parties/people engage in

dialogue/discourse to protect or advance their respective interests.

Bilateral = 2 people or partiesMultilateral= 3 or more people or

partiesCan you do better through negotiation

or by pursuing other options?

Negotiation 2 or more parties/people engage in

dialogue/discourse to protect or advance their respective interests.

Bilateral = 2 people or partiesMultilateral= 3 or more people or

partiesCan you do better through negotiation

or by pursuing other options?

ADR (cont’d)ADR (cont’d)

MediationThird party neutral facilitates (helps)

the parties to negotiationMediator has NO decision-making

authorityProcess is VOLUNTARYObjective is to achieve a binding

agreement or contract

MediationThird party neutral facilitates (helps)

the parties to negotiationMediator has NO decision-making

authorityProcess is VOLUNTARYObjective is to achieve a binding

agreement or contract

Focus on MediationFocus on Mediation

GOAL OF MEDIATIONCreate Process that allows parties (disputants) to

participate in the creation of a settlement agreement

Process is voluntary, parties may leave if dissatisfiedObjective is to achieve a binding (contractual)

agreement that is enforceableBenefit: parties may be more willing to accept

agreement that includes their inputs (interests)Benefit: mediator can work with parties to win their

confidence in exploring possible options/solutions that they may not be prepared to share with adversary

GOAL OF MEDIATIONCreate Process that allows parties (disputants) to

participate in the creation of a settlement agreement

Process is voluntary, parties may leave if dissatisfiedObjective is to achieve a binding (contractual)

agreement that is enforceableBenefit: parties may be more willing to accept

agreement that includes their inputs (interests)Benefit: mediator can work with parties to win their

confidence in exploring possible options/solutions that they may not be prepared to share with adversary

Focus on Mediation Focus on Mediation

FOUR STAGES OF MEDIATION PROCESS1. Pre-mediation2. Mediation3. Agreement4. Implementation

FOUR STAGES OF MEDIATION PROCESS1. Pre-mediation2. Mediation3. Agreement4. Implementation

1. Pre-Mediation1. Pre-Mediation

Communication with parties Describe processSecure commitment that principal

(decision-maker) will be presentObtain pre-mediation briefs

ExchangeConfidentialHybrid – exchange and share further

confidential memo with mediator

Communication with parties Describe processSecure commitment that principal

(decision-maker) will be presentObtain pre-mediation briefs

ExchangeConfidentialHybrid – exchange and share further

confidential memo with mediator

Pre-Mediation (cont’d)Pre-Mediation (cont’d)

LogisticsDate, time, locationMeeting RoomCaucus roomsNecessities and Amenities

PhonesComputers/Internet AccessFood-coffee-refreshmentsSecurity

LogisticsDate, time, locationMeeting RoomCaucus roomsNecessities and Amenities

PhonesComputers/Internet AccessFood-coffee-refreshmentsSecurity


Pre-Mediation Briefs (statements)Brief statement of history of conflict/caseIdentify parties including decision-makers

(people with authority)Contested issuesLegal authorityPertinent documents (contracts, etc.)Settlement discussion history (past offers)Goals and Objectives

Exchange or confidential?

Pre-Mediation Briefs (statements)Brief statement of history of conflict/caseIdentify parties including decision-makers

(people with authority)Contested issuesLegal authorityPertinent documents (contracts, etc.)Settlement discussion history (past offers)Goals and Objectives

Exchange or confidential?


Pre-Mediation CommunicationsWritten

Notice of date, time, and location of mediation

Schedule for receipt of pre-mediation briefs

Copy of Mediation Agreement for review and signature(s)

Pre-Mediation CommunicationsWritten

Notice of date, time, and location of mediation

Schedule for receipt of pre-mediation briefs

Copy of Mediation Agreement for review and signature(s)

Pre-Mediation (cont’d)Pre-Mediation (cont’d)Oral

Phone contact with partiesInvite details in pre-mediation briefOffer assurances of neutralityExplain processPrepare parties for positive approach

to achieving settlement (compromise will be necessary)

OralPhone contact with partiesInvite details in pre-mediation briefOffer assurances of neutralityExplain processPrepare parties for positive approach

to achieving settlement (compromise will be necessary)


The Mediation Agreement (secure BEFORE actual mediation session begins!!!). Elements:

Identify parties and their authority to settleIdentify mediatorExplain voluntary nature of processExplain that mediator has NO DECISION-MAKING

AUTHORITYExplain use of CAUCUS MEETINGS and presumption

of CONFIDENTIALITY unless mediator authorized to share information

Explain CONFIDENTIALITY of process Explain Mediator immunityHave parties sign the Mediation Agreement

The Mediation Agreement (secure BEFORE actual mediation session begins!!!). Elements:

Identify parties and their authority to settleIdentify mediatorExplain voluntary nature of processExplain that mediator has NO DECISION-MAKING

AUTHORITYExplain use of CAUCUS MEETINGS and presumption

of CONFIDENTIALITY unless mediator authorized to share information

Explain CONFIDENTIALITY of process Explain Mediator immunityHave parties sign the Mediation Agreement

2. Mediation2. Mediation

Mediator’s Initial Opening StatementWelcome-informal-orient parties to

premises, caucus rooms, phones, etc.TAKE CHARGE OF THE MEDIATIONEstablish your and their authorityDescribe your role: not a decision-makerReview elements of Mediation AgreementSET HIGH ASPIRATION/GOALS

Mediator’s Initial Opening StatementWelcome-informal-orient parties to

premises, caucus rooms, phones, etc.TAKE CHARGE OF THE MEDIATIONEstablish your and their authorityDescribe your role: not a decision-makerReview elements of Mediation AgreementSET HIGH ASPIRATION/GOALS

Mediation (cont’d)Mediation (cont’d)

Mediator’s “official” Opening StatementUse of caucuses (confidentiality)Breaks as neededGoals: to achieve an agreement/settlement

ProceduralSubstantive

Time limits/no interruptionsVentingQuestions?

Mediator’s “official” Opening StatementUse of caucuses (confidentiality)Breaks as neededGoals: to achieve an agreement/settlement

ProceduralSubstantive

Time limits/no interruptionsVentingQuestions?


Parties’ Opening StatementsIdentify Parties’ Interests, Concerns,

Goals, Preferred Outcome

Create atmosphere for brainstorming Options

Promote use of objective criteria/ precedent decisions/what is fair

Parties’ Opening StatementsIdentify Parties’ Interests, Concerns,

Goals, Preferred Outcome

Create atmosphere for brainstorming Options

Promote use of objective criteria/ precedent decisions/what is fair


Encourage use of Single-text Documents

Emphasize positive developmentsUse caucuses to:

Explore BATNASExplore options by asking “What if…?”Identify other parties’ interests and

needs

Encourage use of Single-text Documents

Emphasize positive developmentsUse caucuses to:

Explore BATNASExplore options by asking “What if…?”Identify other parties’ interests and

needs


Prepare Interim Agreements reached during mediation (one-paragraph/page)Procedural agreementsSubstantive agreementsSingle text proceduresObtain signatures/initials on each

agreement reached

Prepare Interim Agreements reached during mediation (one-paragraph/page)Procedural agreementsSubstantive agreementsSingle text proceduresObtain signatures/initials on each

agreement reached

3. Agreement3. Agreement

Use title that highlights key achievements of negotiations

Identify parties, their authority, position, official title

Date and locationSummarize results in a preamble

Use title that highlights key achievements of negotiations

Identify parties, their authority, position, official title

Date and locationSummarize results in a preamble

Agreement (cont’d)Agreement (cont’d)

Be as specific/detailed as possibleOutline substantive and procedural

agreementsInclude timeline for implementationAre provisions conditional?What is expected/required of each

party

Be as specific/detailed as possibleOutline substantive and procedural

agreementsInclude timeline for implementationAre provisions conditional?What is expected/required of each

party


What happens if agreement is broken?Written notice of breachReconvene with mediator?ArbitrationLitigationSanctions/penaltiesOther?

What happens if agreement is broken?Written notice of breachReconvene with mediator?ArbitrationLitigationSanctions/penaltiesOther?


Include signatures of the partiesWitness signaturesTranslator/interpreter declarations

Consider a signing ceremony to celebrate, publicize, and fortify the agreement

Include signatures of the partiesWitness signaturesTranslator/interpreter declarations

Consider a signing ceremony to celebrate, publicize, and fortify the agreement

The MediatorThe Mediator

Develop your reputation as a mediator:Respect for confidentialityAvoid media if so agreedAlways use fair standardsAvoid conflicts of interestsWork hard on implementing

agreement

Develop your reputation as a mediator:Respect for confidentialityAvoid media if so agreedAlways use fair standardsAvoid conflicts of interestsWork hard on implementing

agreement