City University of Hong Kong

Presentation Material

Mediation- Lecture1

christo@cityu.edu.hk
 Outline of the Presentation
 Introduction to conflict resolution
 Introduction to negotiation Video Clips
 What is mediation Video Clips
 Video on mediation Video
 Why does mediation affect me
 The mediation process
 Case Study – Group Exercise Harassment Case
 What makes a good mediator
 Qualifications and assessment criteria
 Mediation landscape of Hong Kong
 Conclusion
 Introductions
 Who am I ? Name
 What do I do? Work
 Where was I brought up? Hong Kong?
Or elsewhere?
 Are you a people person? Do your
colleagues think highly of you?
 What do you not like?
 Are you happy?
 What motivates you?
Conflict Resolution
Commercial Negotiation and Mediation
 How to solve a problem!
The Steps
• List out what you will do to solve a
problem say if
– your office was flooded due a failure of the fire
sprinkler
– you missed your flight to an important meeting
– your boss wants you to walk her dog and you
are terrified of dogs Video Clip
– There was a man holding a knife at the throat
of a person who know in the train station
 Definition of a Dispute
The New Shorter Oxford English Dictionary 1993 defines it as
 “A logical argument” or
 “An oral or written discussion of a subject in which
arguments for and against are put forward and
examined” or
 “An instance of disputing or arguing against
something or someone, argument, a controversy” or
 “A heated contention, a disagreement in which
opposing views are strongly held” or
 “The act of disputing or arguing against something
or someone; controversy, debate” or
 “A fight, a struggle”
 Ways to Resolve Disputes
 Negotiation
 Mediation and Conciliation
 Adjudication
 Arbitration
 Litigation
 Avoidance
 Violence
BATNA
• Best
• Alternative
• To a
• Negotiated
• Agreement
WATNA
• Worst
• Alternative
• To a
• Negotiated
• Agreement
 What is Conflict Resolution?
There are several elements exist in the situation
of a Conflict:-
• Interdependent
– Each person needs something from the other and they
are vulnerable if they don’t get it.
• Blaming each other
– Find fault with each other for causing the problem.
• Angry
– Feel emotionally upset.
• The behaviour is causing a business problem
– Each one’s productivity and job performance is
affected by their lack of cooperation.
What is Conflict Resolution?
Don’t get confused with indecision,
disagreement, stress or other common
experiences that may cause, or be caused
by conflict.

By definition, conflict only occurs between

parties who need each other and who
cannot simply leave the relationship with
no negative consequences.
 What is Conflict Resolution?
Six parts of Conflict structure:-

1. Interdependency
– How much do the parties need each other to act cooperatively? If interdependency is high,
then the costs of not resolving it are also likely to be high.
2. Number of interested parties
– How many distinct parties have an interest in how the conflict is resolved? As the number
and size of parties increase, there are more people to please and the difficulty of resolving
the conflict increases.
3. Constituent representation
– Do the parties represent the interests of other people who are not personally and directly
involved in the process of resolving the conflict? Reaching an agreement that is
acceptable to everyone who is affected by how the issue is resolved, especially those who
are not personally involved, is more difficult.
4. Negotiator authority
– If the negotiator authority is high, then resolution is easier, otherwise the process will take
longer and will be more difficult.
5. Critical urgency
– Is it absolutely necessary that a solution be found in the very near future? The greater the
critical urgency, the less likely a consensual solution.
6. Communication channels
– Same-time-same-place dialogue nearly always produces far better solutions than lesser
communication channels.
What if there is a Conflict?
Being in Conflict is no fun. It’s stressful,
unpleasant, distracting, intrusive and
annoying. What’s more…
 What if there is a Conflict?
 Costs: Money down the Drain
 Wasted Time
 Bad Decisions
 Lost Employees
 Unnecessary Restructuring
 Sabotage, Theft and Damage
 Lowered Job Motivation
 Lost Work Time
 Health Costs
How to resolve any Conflict?

Five Conflict Strategies:-

• Integrating
• Compromising
• Competing
• Smoothing
• Avoiding
 How to resolve any Conflict?
• Integrating
Integrating produces a
solution that
incorporates both A’s
and B’s goals. In Stage
2 of Integrating, the
goals of each party in
Stage 1 are refocused
into one mutually
satisfying outcome.
 How to resolve any Conflict?
• Integrating

 Focuses on meeting the needs and goals of both parties in the final
situation. It is solution-oriented and based on an open exchange of
information.
 Able to produce a solution which is mutually beneficial to the parties
involved.
 Useful when conflict is complex and involves multiple layers.
 Effective when parties to the conflict must work together in the future.

 Difficult to apply in complex situations.

 Time-consuming approach to resolving conflict.
 How to resolve any Conflict?
• Compromising
Compromising
consists of giving in
on one need in order to
get another satisfied.
In Stage 2, both party
A and B have moved
towards each other’s
goal but stopped at the
earliest point of
agreement.
 How to resolve any Conflict?
• Compromising

 Giving in on one need or goal in order to satisfy another.

 Achieved when a solution is reached that involves the least amount
of individual loss.
 When enough give and take has occurred, a solution is reached.
 Can be effective when parties to a conflict are having difficulty
moving forward.
 Can bring some satisfaction to each party, but in the long run
Integrating will achieve the optimal results.

 Will not satisfy the parties’ original goals but should produce an
outcome that both parties can live with.
 Not aiming at achieving the best overall solution for everyone
involved.
 How to resolve any Conflict?
• Competing
Competing produces a
win-lose situation. In
Stage 2, A’s goals are
met and B’s goals are
not satisfied.
 How to resolve any Conflict?
• Competing

 This strategy produces a win-lose situation.

 A forceful way of interacting with each others in order to ensure
achievement of your goals.
 Can be useful if time is an issue or the conflict is trivial or when
there is no long term relationship involved.

 Disregard the needs and goals of the other party and moves forward
with only your goal in mind.
 Results can be negative for either party to the conflict.
 If you win, the other party may harbour resentment and bear a
grudge that will damage future interactions.
 If you don’t win, you may lose the chance of trying to satisfy your
goal at another time.
 How to resolve any Conflict?
• Smoothing
Smoothing involves
giving in to the other
party and ignoring
one’s own goals. In
Sage 2 of Smoothing,
B puts aside his/her
goals so that A’s goals
can be achieved.
 How to resolve any Conflict?
• Smoothing
 Involves giving in to the other party and ignoring one’s own goals.
 High emphasis on allowing the other party to achieve his/her goals.
 By giving in to the other party, you can give up one thing in hope of
getting something else at a later date.
 Appropriate when an issue is of much greater importance to the other
party than it is to you.

 By choosing this strategy you might give the impression that you can
be easily persuaded.
 Loss the possibility of achieving your goal because your focus is on
the other’s party’s needs.
 Could lead others to ignore your input because they feel that you are
more interested in pleasing them than you are in solving a problem.
 How to resolve any Conflict?
• Avoiding
Avoiding is staying
away from or
withdrawing from a
conflict. In Stage 2, A
has not altered course,
but B has removed
himself/herself from
the situation.
 How to resolve any Conflict?
• Avoiding
 This strategy is often referred to as withdrawing.
 Can be used in conflict situations that can reasonably be
expected to work themselves out over time.
 Sometimes, this strategy can prevent escalation to an even
worse conflict.

 Not only ignores his/her own needs but ignores the needs of
the other party.
 If you avoid conflict too much you may become complacent
on the job and no longer a resource to the organization.
 Negotiation
Communication between two or more
parties to determine the nature of future
behaviour.

Cross-cultural Negotations…
Even though there are many similarities
in terms of negotiation styles and
customs around the world, there are
also some fundamental differences. It is
easy to be misled if you do not know
the customs.
 Negotiation
For example…

• In Brazil, it is typical for your

negotiating counterpart to give an
immediate response of no, no matter
what you are requesting.
• In Japan, on the other hand, the answer
to any question is almost yes. It is
communicated with a nod, a bow, a
smile or a flat-out “yes”.
 Scenario
You and Henry have worked in the same
department for a little over six months. Henry
is the type of person who will do whatever
work is assigned to him, but he rarely takes
the initiative to seek out tasks on his own.

Henry’s lack of initiative has bothered you,

but you have let it go because you felt your
supervisor knew who was doing what work,
and you felt you were being properly
compensated.
 Scenario
Recently, however, your company has
decided to institute a bonus system to reward
high-performing groups. Everyone in your
group will receive an equal bonus.

You think this decision is unfair. As far as you

are concerned, Henry will be rewarded for
your hard work. You’ve heard Henry say he
thinks this system is great. He’ll get more
money and he doesn’t have to work any
harder.
 Scenario
Because there is no assigned supervisor for
each departmental group, the only person you
can go to is the manager of your entire
department, and you know that she believes
strongly in the new reward system.

What strategy will you use to handle this

situation?
Option A: I choose Integration and
decide to…
Sit down with Henry and inform him of your views about his role
in the group with regard to the new bonus system. You will ask if
you or members of the department can do anything to help in his
transition to the equal sharing of responsibility required by the
new bonus system. Then together you will try to work out tasks
and responsibilities with which he would be comfortable and
that would increase his contributions to the group.

Result…
– Allows Henry to feel like someone is actually listening to his side of
things.
– Expose a problem he may have been having that has interfered with
his productivity.
– By giving Henry a chance to ask for help, you can make him feel part
of the larger process and motivate him to do his share.
Option B: I choose Compromising
and decide to…
Pull Henry aside and have a one-to-one discussion in
which you will tell him that you’re not happy with the
new bonus system because you feel he hasn’t put in
the same effort in his job as you have. Then you’ll
inform him that you are willing to set the past aside,
as long as he agrees to become a greater contributor
to the group.

Result…
– If Henry hasn’t changed his behaviour in the past when he thought a
raise might be determined by it, the odds are against him changing
now just because you say you are going to forgive him.
– Even if he agrees with your proposal, there is no reason for him to
stick to it.
Option C: I choose Competing and
decide to…
Speak to Henry and tell him that since this
new system has been adopted, he had better
start being more of a team player and take
some initiative, or you’ll do everything in your
power to get him replaced.

Result…
– The downside to this approach is that you could greatly harm
your own advancement possibilities because of your attitude.
– This behaviour is contagious, and if others in the
organization decide to behave in a similar manner, it will
create a human resources nightmare.
Option D: I choose Smoothing and
decide to…
Accept the new system publicly, do the
best job you know how to do, and hope
that you will eventually get noticed for
doing a superior job.

Result…
– By pretending that nothing is wrong, you choose
to ignore the problem.
– If everyone in your company decided to pretend
that there were no real problems when a conflict or
a problem arose, the organization would be
plagued with underlying conflict.
Option E: I choose Avoiding and
decide to…
Request that you be transferred to
another department where you know
there is a better, shared work effort.

Result…
– Requesting a transfer to another department would
not necessarily eliminate your conflict.
– You could just as easily encounter the same type
of person in your new department or transfer into a
situation that could be worse than your present
one.
 NOTE!
Conflict is present in all aspect of lives.
An individual’s personal, professional,
and emotional health is greatly affected
by how successfully he or she manages
conflict.
Negotiation
• Interests/Priorities
• Options
• Standards
• Constraints
• Alternatives to Agreement
Barriers to Negotiation
• Emotions
• Lack of Information
• Lack of Creativity
• Miscalculation
 Negotiation
Negotiation – the starting point
 It is the most common form of dispute resolution, carried out in many
forms every day in our daily life and in working environment by
everybody.
 Perhaps, it is the most important means of resolving disputes for 80%
of all cases (both national and international) that never reach lawyers
(or at least courts)
 Under the umbrella of ADR, negotiation is generally the first stage of
the dispute resolution.
 The general process of resolving dispute could be:
Negotiation – Mediation - Arbitration
 Negotiation
Negotiation – the starting point
 It is a process for dealing with differences using a range of techniques
from concession and compromise to coercion and confrontation.
 Parties often agree to settle the dispute on an “interest” basis rather
than on a “rights” basis, looking at fairness, long-term relations, costs
and importance of the case etc.
 Parties are not interested in a full legal assessment of the case, but in
reconciling legitimate interests in a pragmatic way acceptable to them.
 Negotiation
Definition of Negotiation
 A process through which parties move from their original conflicting
positions to point where an agreement can be reached;
 A consensual bargaining process to get something that parties would
not get by acting unilaterally;
 Many dispute resolution clauses in contracts require parties to
negotiate before resorting to arbitration or litigation.
 Example: “Parties shall use their best efforts in good faith to reach a
reasonable and equitable solution”.
 Negotiation
 Many national laws in Mainland China encourage the parties to resolve
their disputes by negotiation (“friendly consultation”).
 Examples:
In the Partnership Enterprise Law (2006)
(promulgated on 27th August 2006’ effective from 1st June 2007),
Article 103 states that:-
“Where there is any dispute between the partners over the execution of the partnership
agreement, the partners may settle it through negotiations or mediation…”

In the Contract Law (1999), Article 128 states that:-

“The parties may settle contract disputes through consultations or mediation…”
 Negotiation can be learned
 Negotiation is a combination of common sense, experience and
politics. However it can be learned in a systematic way.
 The Harvard Negotiation Project (HNP) is a research project at
Harvard University that works on negotiation problems and develops
theory and improved methods of negotiation and mediation in practice.
 Negotiation is also used as supporting method in many other
techniques of dispute settlement, especially in mediation / conciliation.
 Family, commercial, community, even international issues can be
negotiated.
Basic assumptions for negotiation

 Existence of mutual / common interests – otherwise negotiation shall

be doomed to fail; negotiation is to find out the options to match these
mutual interest
 Existence of disagreement / dispute – otherwise no negotiation is
required
 Let’s begin with negotiation…

 Getting to Yes, by Roger Fisher, William Ury & Bruce

Patton
 First in series out of Harvard Negotiation Project published
in 1981
 Strategic Approaches
Soft, hard, or principled?
 SOFT – participants are friends or have good working
relationship
 Goal is to agree or settle
 Concessions to cultivate relationship
 Trust, flexible, lots of offers, disclosure
 Avoid contests of will
 Yield to pressure
 Strategic Approaches
Soft, hard, or principled?
 HARD – adversarial – want Victory – bad relationship
between participants
 Called “positional” bargaining
 Demand concessions, threaten
 Don’t trust other side – no disclosure
 Insist on your position, win the contest
 Apply pressure on the other side
 Strategic Approaches
Soft, hard, or principled?
 Neither hard nor soft: change the game to “negotiation on
the merits” or “principled negotiation”
 Interest-based, co-operative, collaborative, problem-
solving
 The most effective negotiations will have a wide range of
negotiation skills, both positional and principled, and will
mix together for a particular issue under a particular
circumstance. (Contingency approach)
 4 Points of
Principled Negotiation

1. Separate the people from the problem

2. Focus on interests, not positions
(Don’t bargain over positions!)
3. Create options for mutual gain (win-win) and choose one
4. Use objective standard (external criteria) to select options
 In principled negotiation…

 Participants are problem solvers

 Goal – wise outcome, efficient, amicable
 Soft on people, hard on problem
 Proceed independent of trust
 Explore interests; invent options
 Objective criteria
 Be open to reason
 Positional v. Principled

 Competitive (hard) or compromise (soft) v. Interest-based,

co-operative, collaborative
 Claim value v. Create value
 Negotiations may be about the past – Resolving some past
problem or conflict (Dispute negotiation)
 Or the future – Planning agreement on future rights,
responsibilities & roles and avoiding conflict later
(Transaction negotiation)
 Positional bargaining
 Manipulative approach designed to intimidate and
pressurise the other side
 High opening demands, threats
 “Bending the truth”
 Sticking on position
 Inflexible
 Competitive, desire for clear victory
 Good agreement is “better than fair” (only for me! In my
favour!)
 Positional Characteristics

 Extreme opening positions

 Emphasis that “I have the rights…”
 Aggressive
 Predictable negotiating positions
 Inflexible
 Positional assumptions
 Interests seem mutually exclusive:-
“I win & you lose”
“I want to get more; you want to pay less”
“If you get a bigger piece of cake, mine will be smaller”
 Limited resources to be divided in my favour.
 Short-term – today’s deal is the focus, not tomorrow’s
relationship
(Assumption of zero-sum game! No synergy!)
 Risks of Positional Bargaining
 Damage to relationship
 Less likelihood of reaching satisfactory settlement
 Confrontation leads to rigidity: “in the box” thinking
with limited analysis, mutual gain, development of
alternative solutions
 Likely to have impasse (standstill) & increased time and
costs
 Unpredictable outcome due to unpredictable response
from the other side
 Principled bargaining

 Collaborative, joint problem-solving approach

 “enlightened self interest”
 Your gains not necessarily my losses
 Not necessarily zero-sum game
 Win-win possibilities
 Principled assumptions
 We must have some common grounds
 Full discussion of our interests and perspective will help
 Intelligence and creativity are useful in resolving situations
in a complex and integrated world
 Risks of Principled Negotiation

 Importance of agreement may “force” me to yield or co-

operate against my interests
 If we can’t agree, I’ve failed
 I may give you my information and you may use them
against me
 Principled negotiation
 It may take longer and more effort-Underlying interests are
explored and a number of options generated, sifted,
amended, discarded, and combined
 It looks more costly at the outset, but will be set off by
lasting and liveable agreement
 Negotiation Power
 Ability to influence the behaviour of another

Negotiation Preparation
 Framework of negotiation questions
 Stages in Negotiation
 Analysis – information gathering, diagnosis of the situation
& the people in it
 Planning – priorities, objectives, options, criteria
 Discussion – argument & persuasion, search for options/
alternative solutions, concession-making
 Crisis & emergence, contingency plan
 Resolution – agreement / final breakdown
 Six essentials of negotiation
 Positive attitude
 Good communication skills
 Knowledge of negotiation process
 Understanding human behaviour
 Creativity for problem-solving
 Knowledge on the subject matter
 Good negotiators know
 BATNA
 Best
 Alternative
 To
 Negotiated
 Agreement
Neutral can help parties find BATNAs
 The downside risk!

 WATNA
 Worst
 Alternative
 To
 Negotiated
 Agreement
 Assessing the PANTA:

 Probable
 Alternative
 To
 Negotiated
 Agreement
 Negotiation
Factors to be considered

 Outcome (hard)
 Relationship (soft)
 Time restraint
 Transaction cost
 Negotiation Outcomes

 Win-win (time consuming)

 Win-lose (no relationship; zero-sum game)
 Lose-win (relationship is more than outcome; common in
Chinese community)
 Lose-lose (time restraint)
 Obstacles to Agreement
 Failed communication:
misinformation / lack of information
 Emotional baggage
 Tunnel vision / narrow mind
 Blame / insult
 Bad attitude – relational breakdown
 Negotiating impasse… Enter Mediator…
Introduction to Civil Justice Reform
• Civil Justice Reform
• major Judiciary initiative to improve the
existing system
• Main aims:
• improve cost effectiveness
• reduce delays and complexity
• promote just resolution of disputes
 Introduction
Key elements Civil Justice Reform
– Simplifying procedures, less steps and
getting more done at one hearing
– Setting and enforcing timetables
– Dealing with more matters on paper to avoid
hearings
– Penalise unnecessary applications that may
delay trials
Key elements of the Civil Justice
Reform
– Less elaborate pleadings, witness statements
– Restricted right to appeal to CoA on interlocutory
matters
– Promote greater openness between parties
– Encourage parties to consider settlement of
disputes
– Requiring parties to consider alternative dispute
resolution if appropriate
 Development of Civil Justice
Reform
– Feb 2000: CJR Working Party appointed by CJ
– Nov 2001: Working Party introduced 80 proposals
for possible reform in its Interim Report
– April 2007: Bill to amend primary and secondary
legislations introduced
– June 2008: Amended primary and secondary
legislations gazetted
– 2 April 2009: Proposed implementation
 Underlying Objectives
 In exercising its powers and interpreting
rules or practice directions, the Court is
required to have regard to the following
underlying objectives in O.1A
 What are the underlying objectives?
– increased cost-effectiveness in the Court’s
practice and procedures;
– ensure that the case is dealt with as
expeditiously as is reasonably practicable;
 Underlying objectives
 Promote a sense of reasonable proportion and
procedural economy in the conduct of
proceedings;
 Ensure fairness between the parties;
 Facilitate settlement of disputes;
 Ensure that the resources of the Court are
distributed fairly
 Underlying objectives
 In giving effect to the underlying
objectives, the primary aim of the Court is
to secure the just resolution of disputes in
accordance with the substantive rights of
the parties
 O1A, r.3 imposes a duty on the parties
and their legal representative to assist the
Court to further the underlying objectives
 Underlying objectives
O.1A, r.4(1) imposes a duty on the Court to
actively manage cases
Active case management includes:
– encouraging the parties to co-operate
– identify the issues at an early stages;
– deciding promptly which issues need full
investigation and trial and disposing summarily of
the others;
– deciding the order in which the issues are to be
resolved;
 Underlying objectives
Active case management (cont.)
– encouraging parties to use alternative dispute
resolution procedures;
– helping the parties to settle;
– fixing timetables or otherwise controlling the
progress of the case;
– considering whether the likely benefits of taking a
particular step justify the cost of taking it;
– dealing with as many aspects of the case as
practicable on the same occasion;
 Underlying objectives
• Active case management (cont.)
– dealing with the case without the parties
needing to attend Court;
– making use of technology; and
– giving directions to ensure that the trial of a
case proceeds quickly and efficiently
 What is Mediation
Mediation is one means of approaching
conflict. Regardless of how it may be
defined, mediation is only that: one
approach which may be more or less
effective in facilitating the resolution of
some conflicts with some people under
some circumstances.
Tillet (1990)
 Defining Mediation
Mediation is a consensual process in
which a third party ( or third parties), works
with the disputing parties to help them
explore, and if appropriate, reach a
mutually acceptable resolution of some or
all of the issues in dispute.
 Defining Mediation
There is no single process which can definitively
claim to be mediation. There are many variables
involved in the process, with many approaches to
them. The adoption of a particular approach to
the variables of a model of mediation does not
change the basic definition but it does affect,
amongst other things:
 The perception of mediator roles;
 The approach to the disputants’ roles and
 The perception of successful outcomes.
 Why Mediation Works ?
 Facilities communication and separates the people
from the problem
 Helps overcome deadlock and emotional blockages
 Restores the negotiation process
 Identifies and focuses on the real issues and needs of
the Parties
 Gets the right people and the right information to the
table
 Helps Parties to reassess their case
 Increase the options for resolution
 Keeps ownership of the problem and the settlement
with the Parties
 Restores and safeguards relationships
 Mediation is Not
 Mediation is not toothless
 Mediation is not just compromise
 Mediation is not a bar to litigation or arbitration
 Mediation is not what lawyers or managers do ‘all the
time’
 Mediations is not a waste of time and money if it fails
 Mediation is not yet another cost to the unfortunate Parties
 Mediation is not a sign of weakness or for wimps
 Mediation need not prevent Parties having their day in
Court
 Mediation need not disclose your hand
 Mediation need not be risky
 Mediation is not counseling
 Advantages of Mediation
 It can take place quickly and often with relatively
little expense in contrast to talking the dispute to
a court or a tribunal
 It focuses on the parties’ real commercial,
emotional and psychological needs and not just
on their legal rights
 It gives the parties an opportunity to participate
directly and informally in resolving their own
dispute
 Advantages of Mediation
 It gives the parties control over the process itself
and the outcome
 It produces outcomes which are likely to endure
because the parties themselves have chosen
them
 It eliminates the conflict and hostility that nearly
always accompany the compulsory decision of
the dispute by a court or tribunal
 It can improve understandings between parties
with an ongoing relationship
 Stages of Mediation
Introduce Process
Gather Information
Develop Options
Build Agreements
Close
 Introduce Process
 Purpose
 Explain the process
 Set tone
 Gain parties’ trust
 Mediator’s role
 Introductions
 Explain role of mediator
Power to decide case
Help parties to reach their own agreement
 Tell parties what to expect
 Joint and separate sessions
 Confidentially
 Opportunity to be heard
 Role of principals and lawyers
Gather Information
 Elicit general facts and positions
 Elicit sensitive facts and identify interests in separate
sessions
 Listen actively
 Allow parties to vent
 Ask open-ended questions
 Use Silence
 Show empathy
 Translate and clarify
 Develop Options

Joint or separate sessions

Ask parties for their ideas first
Create before evaluating
Communicate suggestions
hypothetically
 Build Agreements
 Become more active
 Transit information
 Communicate possible settlements hypothetically
 Narrow options
 Assess alternatives to agreement
 Question parties’ positions
 Use subtle persuasion
 Use impasse-breaking techniques if necessary
 Close

 Clarify agreement; or
 Acknowledge no agreement; or
 Clarify any remaining issues in dispute; or
 Consider other processes as appropriate.
 Why is a Mediator Needed ?
 To assist the parties to negotiate successfully when
negotiations alone have proved difficult or impossible
 To enable effective communications and mutual
education of each other’s position
 To provide a priority focus on resolving the dispute
 Parties are unable to narrow gap between the
expectations of one group and the inflexibility of the
other group.
 Too many issues are open and the parties are unable
to get movement going
 Parties work with the mediator to explore and narrow
the differences between them
 Why is a Mediator Needed ?
 The desire to resolve a problem mutually and end a
dispute amicably
 To furnish the parties with a realistic look at the
demands and possibility of meeting their demands
 To give the parties some idea of how their positions
look to an impartial person
 Parties wish a mediator to be used as a conduit,
through which private, confidential disclosures may
be made without jeopardising their original positions.
 To avoid negative consequences such as legal
proceedings
 The Mediator’s Role
 a Manager of the process, providing firm but sensitive
control, conveying confidence that it is all worthwhile, and
giving momentum and a sense of purpose and progress
 a Facilitator, helping the Parties to overcome deadlock
and to find a way of working co-operatively towards a
settlement that is mutually acceptable
 an Information-gather, absorbing, and shuffling data, and
identifying common ground, shared goals and zones of
agreement
 a Reality-tester, helping Parties take a private, realistic
view of the dispute, rather than the public posturing and
muscle-flexing
 The Mediator’s Role
 a Problem-solver, bring a clear head and creative
mind to help the Parties construct an outcome that
best meets their needs, when compared with the
alternatives of non-agreement or an imposed
decision by Arbitrator, judge or jury
 a ‘Sponge’ that soaks up the Parties’ feelings and
frustrations and helps them to channel their energy
into positive approaches to the issues
 a Scribe who writes or assists in the writing of the
agreement, ensuring that all issues are covered and
that all terms of the agreement are clear
 The Mediator’s Role

 a Settlement Supervisor, checking that settlement

agreements have worked and being available if
further problems occur
 a Settlement Prompter who, if no agreement is
reached at the mediation, will help Parties to keep
the momentum towards settlement.
 What Do Mediators Do ?

 Create a positive tone

 Establish behavioral guidelines
 Educate the parties on the process
 Control the proceedings and the flow of
communication between the parties
 Understand all parties’ points of view concerning the
issues, underlying circumstances, facts, positions,
appraisals
 Assist in the improvement of the parties’ attitudes
and understanding toward one another
 What Do Mediators Do ?
 Improve communication, so that issues may be
clarified and allow ventilation by the parties.
 Encourage development of options and
suggestions.
 Test the validity of proposed solutions, advanced
by the parties.
 Narrow differences between the parties.
 Assist in reducing the number of decisions to be
made and make decisions easier to make.
 Record and reflect what is said and proposed.
 Create new ideas to be discussed and different
ways in which to look at a problem.
 What Do Mediators Do ?

 Summarise to encourage progression.

 Facilitate a written statement.
 Leave the door open, when there is no
settlement, for a time when mediation may be
more appropriate or another impasse resolution
procedure, such as arbitration, can be used.
 Personal Qualities of a Mediator
 Listening skills
 Patience
 Common sense
 Ability to close
 Ability to summarise
 Analytical skills
 Ability to keep confidences
 Ability to recognise the issues
 Lateral thinking
 Neutrality
 Persuasive ability
 Persistence
 Creativity
The Corner-Stones of Mediation

 Confidentiality
 Ownership by the Parties
 Neutrality and impartiality
 Avoiding assumptions
 Respect, empathy and
genuineness
 Open and honest
 Flexibility
 The DO’S and DON’TS
 Do not make a non-negotiable demand in the joint session
and walk out (or threaten to) if your needs are not met
 Do not insult the opposing lawyer in the joint session
 Do not insult your opposing party
 Prepare
 Bring crucial documents
 Provide legal support
 Bring a businessperson with authority to settle
 Factor in other benefits which may result from a settlement
 Trust the mediator
 Stop, look, and listen
 Iron Laws of Mediating

 No one will make a difficult decision

if there is any possible way to avoid
it.
 All specific disputes have to end
sometime
 No settlement is entered into without
some doubt and some trust
 Code of Practice
 Pre-Mediation Process
 Mediation
 Goal of Process and Responsibilities of the Parties and the Mediator
 Ensuring Fair Mediation
 Duties regarding Information, Disclosure and Advice
 Duties regarding Impartiality
 Duties regarding Neutrality
 Duties regarding Confidentiality, Privileges and Release of Information
 Duties regarding Inter-Professional Relations
 Duties regarding Settlement or Termination
 Ancillary Matters
 Duties regarding Training and Education
 Duties regarding Advertising and Promotional Activities
 Duties regarding Insurance
 Duties in relation to Administration of cases
Ethical Issues and Guidelines
As mediation moves towards becoming a profession, it will
become increasingly important that standards are developed to
establish minimum acceptable practices and that ethical limits be
formulated regarding inappropriate mediator behaviour.

Ethical guidelines should reflect and support the practice of

mediation as a discipline in its own right, with its own values and
goals. Many of the ethical dilemmas faced by mediators may stem
from the conflict of attempting to apply ethical codes pertaining to
a mediator’s “home” profession which may not be applicable in
the context of mediation.

Therefore it is necessary to identify core ethical principles which

ought to inform all mediation practice,notwithstanding variations in
the actual process developed in response to the particular dispute
or setting.
 Mediation Landscape in
Hong Kong
 Construction Mediation
 80% disputes settled by either negotiation or
mediation
 Mediation Scheme – Voluntary Mediation for
cases in the Construction and Arbitration List
–September 2006
 Adverse costs order – unreasonably failed to
mediate – even if successful in trial
 Mediation Landscape in
Hong Kong
 Family Mediation
 A three-year pilot scheme on Family
Mediation (2000-2003)
 458 cases underwent mediation (May 2000-
November 2001)
 71.4% reached full agreement
 8.5% reached partial agreement
 Mediation Landscape in
Hong Kong
 Lands Tribunal – Mediation Scheme for
Building Management Cases
 Formal scheme on 1 January 2009
 The parties are required to file a statement
covering
 Whether it has attempted to resolve the dispute
by mediation;
 Whether it is willing to attempt mediation and
 If it considers the case unsuitable for mediation,
brief reasons for such conclusion
 Mediation Landscape in
Hong Kong
 Mediation Practice Direction 31
 Effective from 1 January 2010
 High Court Construction List and Personal Injuries List
under separate Practice Directions became effective on 2
April 2009
 February 2010 – Report by Working Group on Mediation
 February 2010 – Consultation – Investor Education Council
and a Financial Dispute Resolution Centre
 12 July 2010- Joint Mediation Helpline Office
 http://mediation.judiciary.gov.hk/en/practice_directions.html
 www.hkiac.org
 Conclusion
 There is no single process which can claim to be
mediation. Mediation is a developing field involving
many variables.
 Mediators need to recognise the distinction between
mediation and the imposed decisions of other
processes.
 How the mediator approaches the elements of
mediation will depend on the values on which the
process is premised, of the cultural expectations of the
process, and the goals of the process.
 Mediators are subjected to a number of ethical
dilemmas covering issues such as confidentiality,
conflict of interest, impartiality of mediators, and values.
 Mediation requires ethical guidelines which reflect and
support practice of mediations a distinct practice, rather
than ethics which derive from other professional codes.
 Co-mediation has proven to be effective, particularly in
the areas of gender balance, ethnicity and age.
 Conclusion
 Mediation demands of the parties that they undertake negotiations with
each other in good faith. This requires that participants in mediation
each perceive themselves as having sufficient power to negotiate with
the other party or parties and as having something to gain from
engaging in the process.
 It is essential that mediators have the diagnostic skills to assess
whether mediation is appropriate in the particular circumstances and at
the particular time.
 Mediation is most likely to be successful when the parties are actually
seeking a mutually agreeable solution.
 There is a compelling need for several tasks to be undertaken before
embarking upon mediation, including the exchange of information , an
assessment of the appropriateness of mediation, the design of a
suitable process and the securing of commitment.
 Conclusion
 Not all mediators are suited to all cases.
 At the close of a mediation session it is important to record
the terms of any agreement reached.
 The outcome may be recorded as a set of understandings.
A binding agreement may need to be referred to
independent legal advisors.
 The document which records the outcome should be signed
by both parties and the mediator(s), as a safeguard against
future misunderstanding.
 A Quote
“World Peace, like community peace, does not
require that each man love his neighbor – it
requires only that they live together with mutual
tolerance, submitting their disputes to a just and
peaceful settlement.”

By John F. Kennedy
 Another Quote
“Discourage litigation. Persuade your
neighbors to compromise whenever you
can. As a peacemaker the lawyer has a
superior opportunity of being a good
man. There will still be business
enough.”

By Abraham Lincoln
Thank You