Third Pacific Regional Mediation ForumJune 2012

Mediator Strategies & Interventions

Michael Wall & Chuan NgFederal Court of Australia

Mediator Strategies & Interventions

Architecture of the SessionKeeping the Flame of Mediation Alive by:• Customising the mediation process to the case (not a

cookie cutter approach)• Flexible use of joint sessions and the caucus:

establishing mediator authority, building rapport and managing communication

• Adopting strategies for overcoming psychological & cognitive Barriers

• Addressing merits barriers

Mediator Strategies & Interventions

Mediator’s Overriding Goals :

• Facilitate effective communication

• Shift thinking/ perceptions

• Narrow gap

• Generate movement

• Resolve differences

• Achieve consensus

Structure the Mediation

• Fit the Forum to the Fuss: Aligning the Mediation structure/ process to the issues/ parties.

• Pre Mediation? • Joint (open) session: A meeting of all

participants in the mediation• private (caucus) session. A private (and usually

confidential) meeting outside the larger group

Joint Session : Opportunity

• For mediators– Gain insight – Demonstrate leadership– Set tone– Be transparent– Impartiality?

• For lawyers– Demonstrate skill– Access decision maker

• For parties– Be heard– Listen– Exist party-to-party– Gain understanding– Evaluate

Caucus : Respite

• For mediators– Reality testing– Coaching– Fixing mistakes– When the issue is not the

issue?– Mutual partiality?

• For lawyers– Real advice– Strategize

• For parties– Respite from joint– Reactive devaluation– Explore

Setting the Tone & ‘Conditioning’ the Parties

§ Use specific skills to temper the potential negative aspects of competitive bargaining – e.g.

§ Educating about how offers may be perceived § Educating about the timing of offers § Assisting with packaging and presenting offers § Helping parties reflect on patterns of concession making § Softening the negative impact of hard-ball tactics

§ Return to a focus on ‘needs and interests’ to deal with impasses in negotiations

§ Creating a ‘seize the day’ approach§ Establish deadlines; create sense of urgency § Persuasion through ‘conversation’ not ‘preaching’

Interventions to Facilitate & Promote Communication and Movement

§ Model interest based communication during the process by:

§ Talking about ‘issues’ rather than attributing blame § Providing positive feedback § Seeking clarification rather than assuming intentions § Exploring reasons for actions § Being future focused§ mediator as a calming influence§ mediator sends signals of flexibility§ mediator discloses interests and floats ideas

Cognitive & Merits Barriers

• Advocacy Bias• Partisan (selective) perception• Overconfidence/ over optimism (exaggerated over

confidence)• Over investment (sunken cost)• Mis wanting / Loss Aversion• Reactive devaluation • Zero sum bias

Cognitive Barriers

Mediator Interventions

Reframing

• “The Map is not the Territory”

• Perceptions & Understanding filtered by

Experience, Values and Expectations

No one sees things from all points of view

Organisational Life Perceived & Experienced Differently by Individual Members

The six blind men

Mediator Strategies to address cognitive barriers

- Third Position Questioning & Role Reversal

– Questions rather than statements

– Unbiased summarising

– Mutualising

– Bringing the other into the room

– Hear & acknowledge before a challenge or request

– The mediator’s dance

– Talking about what is ‘achievable’ rather than what’s ‘reasonable’

– Focus on the issue rather than the behaviour

– Reframing

– Expansion of information exchange

– Broaden the party's perspective

– ‘Expand the pie’: look for additional issues

Mediator Interventions Role Reversals and Perceptual Positions

Cognitive Barriers

• Reframing can shift focus from:

- power/ problems to interests. - positions/outcomes to interests- attacks on people to solving problems- accusations into issues- general to specific and specific to general - negative to positive- destructive to constructive- past to future- differences to common interests- offer to option

Merits Barriers – interventions

• Mediator Strategies for responding to merit barriers

- Case Analysis/ risk assessment

- Decision Tree (Analysis)

- BATNA (test is not ‘fair’ or ‘reasonable’)

- Goal Setting / Risk Analysis

- Reality Testing & Doubt Creation

Psychological Barriers Strong Emotions

SilenceSilence ViolenceViolence

Masking(sarcasm; sugar coating etc)

ControllingCoercing others; dominating conversation; cutting others off; speaking in absolutes; changing subjects;

AvoidingSteering away from sensitive topics

LabellingStereotyping people or their ideas; criticising their style or their demeaning their ideas

WithdrawingExit the conversation or exit the room

AttackingBelittling and threatening; challenge competence or expertise. Threaten to walk: no deal.

Psychological Barriers Strong emotions

Mediator Interventions to balance emotions and reason include:

- “Go to the Balcony”- Interruption- Naming (the behaviour)- Questioning - Clarifying- Summarising- Acknowledging- Mirroring- Correcting- Diverting- Priming (suggest/ hypothetical)- "What If"/ Suppose that- Role Reversal- Perceptual Positioning (move to second person)- Reframing- Make decisions based on risk assessment and not moral judgment

Generating Movement Through Persuasion

Mediator to constantly re-assess the best way of generating movement:

• Face to face Discussions and negotiations• Caucused negotiations• Shuttle diplomacy (Mediator as carrier pigeon?)• Blended or mixed mediation formats