BASIC MEDIATION AS A METHOD OF

ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution
(ADR)
Alternative Dispute Resolution
(ADR)

ADR uses a variety of voluntary techniques to

resolve disputes rather than traditional
adversarial methods, like litigation.
ADR Techniques
 Mediation
 Facilitation
 Fact Finding
 Early Neutral Evaluation
 Ombudsmen
 Settlement Conferences
 Mini Trials
 Peer Review
 Combination of Techniques
Alternative Dispute Resolution
(ADR)

 Regulations require agencies to establish or make

available an ADR program for both:
 The pre-complaint process; and
 The formal complaint process.
Core Principles of ADR
 Voluntary
 Neutral
 Confidential
 Enforceable
Core Principles of ADR
 Voluntary

 Both parties must agree to participate in ADR.

 A settlement agreement must be acceptable to both
parties.
 The parties may end ADR at any time.
Core Principles of ADR
 Neutral

 An objective, impartial third party who has been

trained in ADR techniques and EEO law.
 The neutral has no power to decide the dispute.
Core Principles of ADR
 Confidential

 Confidentiality in any ADR proceeding must be

maintained by the parties and the neutral.
 The terms of the settlement agreement will not be
confidential unless the agreement contains a
confidentiality provision.
Core Principles of ADR
 Enforceable

 The settlement agreement must be in writing and signed

by both parties.
 Settlement agreements are enforceable by the EEOC.
Mediation Defined

Mediation is a process in which an impartial third

party assists disputants in finding a mutually
acceptable solution to their dispute.

Mediation is both voluntary and confidential.

Third Party Assistance
 Mediator as a Facilitator of Process
 Mediator as Neutral
 No stake in outcome
 No position on issues
Mutually Acceptable Solution

What would satisfy the parties?

How can their needs be met?

The Process is Voluntary

No obligation to mediate.

No obligation to reach an agreement.

Confidentiality

Parties sign confidentiality agreements.

Why is confidentiality so important?

Mediator bound by confidentiality.

Factors Favoring Mediation

Desire to avoid adverse precedent.

No need to establish precedent.

Need to avoid publicity or need for confidentiality

or privacy.

Desire for speedy resolution; need to avoid delay.

Factors Favoring Mediation

Need to preserve continuing relationship.

Recognition that emotions or hostilities may bar a settlement.

Desire to minimize risk of imposed outcome.

Need to reduce high cost of litigation.

Existence of collateral issues that may enhance resolution in a

mediation forum.
Position Based
vs.
Interests Based
Position vs. Interests
A Definition

 POSITIONS are what a party feels, believes or

wants. They are proposed solutions for the party's
issues.

 INTERESTS are why a party feels, believes or wants

a certain thing. They describe what is important
about the issue. They may or may not have solutions
yet, but they are open to possibilities.
Questions to Determine a Party’s Interests

 What is important to you about this issue/ this

action/ this party?
 What bothers you about this situation?
 How does the other party/ the action affect you?
 Could you explain why this issue/action means so
much to you?
Stages of Mediation
Stages of Mediation
 Stage I
 Pre-Mediation & Opening the Session
 Stage II
 Identification of Issues
 Stage III
 Generating Options and Problem-Solving
 Stage IV
 Agreement Writing and Post-Mediation
Stage I
“Setting the Tone”

This is the most important phase in the mediation

process. It provides you with the opportunity to make
a good “first impression.” How the mediator(s)
performs during this phase will impact either
positively or negatively on the remaining mediation
process.
Stage II
Identification of Issues
With mediator’s assistance, parties will:

 Identify issues in their disputes

 Express their views and perspectives
 Identify areas of agreement and disagreement
on the issues
 Identify common ground

Note: this stage does not include reaching agreement or

selecting options to resolve disputes.
Elements of Stage II
Joint Session
In opening, mediator will:
 Explain what will happen at
Stage II
 Remind parties they will have
time to present their
perspectives
 Establish ground rules
Mediation Ground Rules
 Established by mediator
 Whoever is speaking has floor, no interruptions
 Take notes and bring point up later
 Any party can stop process for break at any time or request
a caucus
 Negotiate in good faith; our common goal is to resolve
dispute
 Listen
 Follow ground rules and direction of mediator
 Other ground rules requested by parties
 Ask parties to commit to ground rules
Elements of Stage II
Joint Session (continued)
 Complainant presents views
 Mediator paraphrases what s/he heard complainant say
 Respondent/Agency presents views
 Mediator paraphrases what s/he heard Respondent/Agency
say
 Mediator asks parties to “add or clarify, not respond”
 Continue back and forth until parties feel they have expressed
their views
 Mediator summarizes common ground
Elements of Stage II
Individual Sessions
 Individual Caucuses with each party

 Agenda setting for new Joint Session; What can be

shared with other party?
Elements of Stage II
Joint Session
 Return to Joint Session

 Repeat Elements of Stage II as needed

Caucuses
 Used by mediator to:
 Gain control of mediation
 Allow party to vent or share information

 Ensure party heard/understood what was said

 Move beyond impasse

 Provide an opportunity for each party to explore

strengths/weaknesses of case
Caucuses
(continued)
 Used by mediator to:
 Provide an opportunity for party to explore
strengths/weaknesses of other party’s case
 Find out more on party’s interests

 Reinforce confidentiality

 Encourage information sharing

 Set agenda for next joint session

 Identify information that can be shared in joint sessions

Validation
 Mediator acknowledges party’s views and feelings
on the issue, while remaining neutral.
 “I understand you feel hurt and upset about…”
 “I understand your feelings in this matter.”

 “I can empathize with your concerns about what

happened.”
Open-Ended Questions
 To facilitate discussion, the mediator asks open-
ended questions.
 “Help me understand what you meant by…”
 “Can you be more specific?”

 “What do you mean by that?”

 “What’s important to you?”

 “Why is that important to you?”

Paraphrasing
 Paraphrasing is critical to the mediation process.
 Mediator re-states what was said in his/her own words
 Not verbatim, instead provide a shorthand summary which
includes all-points made
 Ensures everyone heard what party intended to convey

 Parties may correct mediator’s paraphrasing

Paraphrasing
(continued)
 Buildstrust, demonstrates mediator was listening and
understood what was said
 Coming from neutral mediator, facilitates understanding
by other party
 Provides “breather” as parties go back and forth
expressing views
Stage III
Generating Options
&
Problem-Solving
Generating Options
 In individual sessions clarify what are the parties’
bottom line.
 Mediator may offer a solution not as an answer, but
as an idea to think about.
 Ask parties “what if” questions.
Generating Options
 Brain Storming Techniques
 May be used by the parties to develop options.
 The parties throw out ideas.

 After the ideas are on the table, the parties discuss.

 Hopefully this discussion of ideas will lead to an

agreement.
Generating Options

 Reality Testing
 Technique used by the Mediator to assist the individual
party in evaluating the practicality and feasibility of
their goals.
 Mediator enters evaluative mode. Discuss strength and
weakness of individual Party’s case.

 Feedback
 Validate what party expressed through use of verbal or
non-verbal response.
 Paraphrase re-state what party said in your own words.
Stage IV
Agreement Writing
&
Post-Mediation
Thank You