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 FUNDAMENTALS OF
MEDIATION
Module 3 : Part 1

Ms. Vilmi Sanchez-Quipit

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 SESSION OBJECTIVES
• Explain the concepts and features of mediation (VSQ)
• Differentiate position and interest (RFQ)
• Describe interest-based mediation
• Understand the purpose and benefits of Singapore (RFQ)
• Convention and UNCITRAL Mediation Rules

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 Mediation Dictum:

“Let your speech be always full of

grace, seasoned with salt so that you
may know how to answer everyone.”
Colossians 4:6

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 SESSION OBJECTIVES
Explain the concepts and features of mediation

• Differentiate position and interest

• Describe interest-based mediation
• Understand the purpose and benefits of Singapore Convention and UNCITRL Mediation
Rules

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APPROACHES TO CONFLICT

• Rights-Based
• Values-Based
• Interest-Based

Ojelabi and Sourdin, Using a Values-Based Approach in Mediation

Bush & Folger, The Transformative Approach to Conflict

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 CONCEPT OF
MEDIATION
Mediation is ‘the intervention in a
negotiation or a conflict of an
acceptable third party who has
limited or no authoritative decision-
making power but who assists the
involved parties in voluntarily
reaching a mutually acceptable
settlement of issues in dispute.’

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 A voluntary process in which a
mediator, selected by the disputing
parties, facilitates communication and
negotiation, and assists the parties in
reaching a voluntary agreement
regarding a dispute.
— MEDIATION, DEFINED

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STYLES OF MEDIATION
• Facilitative Mediation
• Evaluative Mediation
• Transformative Mediation

Zumeta, Styles of Mediation: Facilitative,

Evaluative,Transformative Mediation

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STYLES OF MEDIATION
Facilitative Mediation
In facilitative mediation, the mediator structures a process to assist the
parties in reaching a mutually agreeable resolution. The mediator asks
questions; validates and normalizes parties’ points of view; searches for
interests underneath the positions taken by parties; and assists the
parties in finding and analyzing options for resolution. It means that the
mediator should listen actively.

The facilitative mediator does not make recommendations to the parties,

give his or her own advice or opinion as to the outcome of the case, or
predict what a court would do in the case. The mediator is in charge of the
process, while the parties are in charge of the outcome.

Reference: Zumeta, Styles of Mediation: Facilitative, Evaluative,Transformative Mediation

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STYLES OF MEDIATION
Evaluative Mediation
Evaluative mediation is a process modeled on settlement conferences
held by judges. An evaluative mediator assists the parties in reaching
resolution by pointing out the weaknesses of their cases, and predicting
what a judge or jury would be likely to do.

An evaluative mediator might make formal or informal recommendations

to the parties as to the outcome of the issues. Evaluative mediators are
concerned with the legal rights of the parties rather than needs and
interests, and evaluate based on legal concepts of fairness.

Reference: Zumeta, Styles of Mediation: Facilitative, Evaluative,Transformative Mediation

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STYLES OF MEDIATION
Transformative Mediation*
Transformative mediation is based on the values of “empowerment” of
each of the parties as much as possible, and “recognition” by each of the
parties of the other parties’ needs, interests, values and points of view.

The potential for transformative mediation is that any or all parties or

their relationships may be transformed during the mediation.
Transformative mediators meet with parties together, since only they can
give each other “recognition”.

* Newest concept and coined from “THE PROMISE OF MEDIATION” by Folger and Bush in
1994

Reference: Zumeta, Styles of Mediation: Facilitative, Evaluative,Transformative Mediation

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 MASTERING THE
CONCEPT
• Intervention in
negotiation/conflict
• Acceptable third-party (mediator)
• Mediator assists, not decides
• Assistance towards mutually-
acceptable agreement

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 MEDIATOR

MEDIATION

A B

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 BENEFITS/ADVANTAGES
OF MEDIATION
• Less expensive
• Faster settlement
• Understanding parties’ interests
• Greater satisfaction with
agreements
• More concerns addressed
• Direct party participation
• Preservation of relationships
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 WHY ARE MEDIATED
AGREEMENTS BETTER THAN
LITIGATED OUTCOMES?
• Mediated agreements address what are really
important to the parties
• Negotiated outcomes are generally more durable
• In case of breach, mediated outcomes more easily
enforced
• Mediation is far cheaper that litigation

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GOAL OF THE PROCESS

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 GOALS OF PROCESS OF
MEDIATION
1. Facilitated communication
2. Assisted negotiation
3. Creation of structured and
safe environment

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 GOAL: FACILITATED COMMUNICATION
“The participants' capacity to hear and
understand, and not their propensity to build
their position by tearing down their opponent's,
permits agreement to emerge in an interest-
based process. Communication is not defined as Gary Smith, Unwilling Actors:
Why Voluntary Mediation
much by what is said as by what is received. The Works, Why Mandatory
meaning of any discourse lies primarily in the Mediation Might Not
ability of the recipient to decode the message,
and in the interpretation that is subsequently
given to it. ...”

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 GOAL: FACILITATED COMMUNICATION
“...Mediation promotes communication and
increases the chance that the message will
come through clearly, with the same meaning
for both parties. This is due to the openness
Gary Smith, Unwilling Actors:
of the communication environment and its Why Voluntary Mediation
basis in the underlying interests, rather than Works, Why Mandatory
Mediation Might Not
the parties‘ adopted positions, which might
otherwise obscure their real motivations.’’

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 GOAL: ASSISTED NEGOTIATION
‘The mediator ‘works to reconcile the
competing interests of the two parties. The
mediator's task is to assist the parties in
examining their interests and needs and in Christopher Moore,
The Mediation
negotiating an exchange of promises and the Process
definition of a relationship that will be
mutually satisfactory and will meet the
parties’ standards of fairness.’

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 NEGOTIATION: WHEN NOT ASSISTED
o Disputing parties will:
• Attack each other personally
• Withhold information from each
other
• Be suspicious of each other
• Go directly to bargaining without
understanding exactly why they take a
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 GOAL: CREATE A STRUCTURED AND SAFE
ENVIRONMENT

To increase honest communication

To make the parties arrive at a mutually
acceptable terms Christopher Moore,
To arrive at a solution to solve the conflict The Mediation
Process
To build parties’ confidence in handling
conflict
To possibly help parties improve future
relations
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GOAL OF THE PROCESS

Facilitated Impose of solutions

Communication
Make parties reconcile
(but great if they do!)
Assisted Negotiation
Determine who is right

NOT THE GOAL

Creation of or wrong
Structured and Safe
Environment

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 EFFECT WHEN THE GOALS OF THE
PROCESS OF MEDIATION WAS OBSERVED

To make To build
To arrive at a To possibly
parties arrive parties’
solution to help parties
at a mutually confidence in
solve the improve future
acceptable handling
conflict relations
solution conflict

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CORE VALUES OF MEDIATION

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 CORE VALUES
OF MEDIATION
1. Party self-determination
2. Neutrality
3. Impartiality
4. Confidentiality
5. Voluntariness
6. Creativity

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 PARTY SELF-DETERMINATION
• Focus: enabling and empowering
parties to take control of their dispute
and to reach an outcome of their own
determination
• The process provides parties with the
ultimate power to decide how to
resolve their dispute
• Key factor that distinguishes
mediation from other dispute
resolution processes
• Primary objective and core value of
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NEUTRALITY

• No power or authority to impose a

decision on the disputants
• Being neutral as to the content and
the outcome of mediation
• No conflict of interest

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IMPARTIALITY

• Absence of bias in relation to either

party
• In word or deed, free from
favoritism or bias
• Impartial in fact and in perception
• Does not mean that third party is a
stranger to the parties in dispute

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CONFIDENTIALITY

• Information obtained kept in utmost

confidence
• Communications are not disclosed
or made public
• Creation of a safe space
• Promotion of candor

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VOLUNTARINESS

• On choice of process
• On choice of third party
• On choice to reach an agreement

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CREATIVITY

• Thinking ahead
• Thinking outside of the box

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Quiz: Yes or No answer

1. Mediation is an assisted negotiation where the Mediator has all the power to
make decisions for the parties what he/she thinks is best to resolve the
parties’ conflict.

2. The parties are empowered by the Mediator to express themselves in a

respectful manner in order to elicit from them the underlying interests that
might help in the resolution of their conflict.

3. What makes mediation unique as a mode of resolving conflict or dispute?

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6 Happy are those who long to be just and good, for they
shall be completely satisfied. 7 Happy are the kind and
merciful, for they shall be shown mercy. 8 Happy are
those whose hearts are pure, for they shall see God. 9
Happy are those who strive for peace - they shall be
called the children of God.
Matthew 5:6-9

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 ACTIVE LISTENING

Active listening is a conscious effort to

understand what the other person is really
saying without the listener talking.
It is trying to comprehend from the
perspective of the speaker the complete
message being communicated by him to you
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It is listening to the words as well as the
content of the words being spoken by the
person and his non-verbal gestures.

It means listening to the words, action

and expression of the one talking.

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It is intentional!

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Active listening is a dynamic participation of
the Mediator in deeply paying attention to
what and how the parties are relating their
stories during the mediation session.

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It is a kind gesture of the Mediator expressed
in front of the parties in order to make
comfortable the atmosphere inside the
mediation room, thus making the ambiance
pleasant for a smooth flow of the
discussion/negotiation.

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It is a graceful expression of the Mediator in
making the parties feel comfortable as they
relate their unpleasant experiences to
him/her without feeling condemned and
judged or not being believed.

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Active listening is an unseen ability of the
Mediator to ease the parties in order for the
mediation discussion to flow smoothly, for the
parties to trust the process, and eventually trust
the Mediator.

It is felt by the parties that you, as Mediator, are

interested in helping them resolve their conflict.

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 Active listening is the ability to show
genuine interest in what the parties
are saying.

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Active listening is a very valuable mediation tool
which can propel the Mediator to many
successful encounters even with the very
difficult parties.

For some, it is innate; for some it may be difficult

but can be learnt!

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Reframing is a “rewording’ technique
that assists the mediator in identifying
the underlying interest (concerns,
hopes, expectations, priorities, fears,
and values) of the person making the
positional statements or is angry or
hostile.

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Reframing helps you identify the
positive intention of the speaker.

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Reframing involves taking negative statement
or a concern by trying to understand the
positive intention of the person speaking.
The goal is that as the mediator reframes the
negative statement to understand its positive
intention, the contending party listening is
being helped to objectively assess the
situation from a different perspective.
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Successful reframing:

1. Eliminates blaming and accusations;

2. Shifts a person from the negative to a more
positive goal;
3. Identifies interests - priorities or values - held by
another person;
4. Emphasizes the use of neutral and objective
statements; and
5. Diffuses tension.

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Sample statements:

1. My brother is extremely hardheaded and stubborn. He is so argumentative and does not

know how to listen.

What NOT to say:

So, your brother is really a difficult person to deal with; and is very opinionated and not a
good listener?

How to reframe it rightly -

So you value a brother who is easy to deal with where you can freely discuss back and forth,
and would understand your side of the story?

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FORMULA STATEMENTS IN REFRAMING:

Sounds like ________ is important to you.

So you value ______________________.

______________ is important to you.

______________ is something you value.

You want to be perceived as ____________.

You were bothered by ______________. 18-Oct-22 Med v.2022-2

 Exercise Sheet

Sample statement:

1. These professors are unproductive and unprepared to adapt

to the modern way of teaching the students online? Parang
bigla silang nagiging bobo!

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Reframe:
Sounds like you are concerned that the professors
are equipped to adapt to the new method of
teaching so they will become confident, creative
and productive.
Or

So it is important to you that these professors will

undergo appropriate trainings so they will excel in
this new method of teaching and be an
encouragement to the students.
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 Reframing Exercises

1. He is so dishonest and arrogant and believes in himself so much. How in the world can
we help him change for good? Spbra pa naan yang hardheaded!

2. I want to annihilate this person in order to remove the problem in the office. Marami ng
nanghahawa kasi yong masamang ugali nya.

3. Sa palagay ko bina-bribe nya ang boss namin lalo na mukhang pera pa naman din
yong boss namin.

4. Duda ko pareho silang corrupt kasi yong bag na daladala nita ay sobrang mamahalin at
pinagmamayabang pa sa mga estudyante.

5. Ang baba ng moral ng mga empleyado ngayon dahil pangit ang attitude ng
management.

6. He is so incompetent; and why is he there in that position supervising us?

7. I am so bitter with how unfairly treated the rank and files are.

8. She is so tsismosa and she has ruined so many lives. But the sad thing is that my boss
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Explain how you understand the meaning of each word:

1. What is active listening?

2. What is reframing?

3. What are involved in active listening?

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 “Don’t quarrel with anyone. Be
at peace with everyone, just as
much as possible.”
Romans 12:18 (LB)

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