LIA4004

ALTERNATIVE DISPUTE RESOLUTION

Week 6 Lecture
- mediation (continue) -
HOUSEKEEPING

 Upcoming schedule for ADR course:

 Classes – NO CLASSES the next 3 weeks

 Tutorials / Roleplay Assessment (50%) – Week 9 onwards

 Reflective Essay (20%) – due on 24 November 2023

 ADR Group Assignment (30%) – 6 to 8 students per group

 Record Attendance on Spectrum

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MEDIATION

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LAST WEEK:

 Definition of Mediation
 Key characteristics of Mediation
 3 models of Mediation:
 Evaluative Mediation
 Transformative Mediation
 Facilitative Mediation

 Basic process/stages of mediation

 Role and function of Mediators in a Facilitative Mediation Model
 Mediator’s skills

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QUICK RECAP –
EVALUATIVE AND FACILITATIVE MEDIATION
Evaluative Mediation:
 primary focus is on legal rights and positions
 mediators assist parties to evaluate the merits of their legal positions
 will offer advice and recommendations
 when issue in dispute involves questions of fact and law, and legal precedents
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Facilitative Mediation:
 primary focus is to uncover underlying interests
 mediators do not offer any advice and recommendations
 mediators facilitate the mediation process
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THE FACILITATIVE MEDIATION PROCESS MODEL
1. Pre-mediation Meeting

2. Mediator’s Statement

3. Parties’ Opening Statements

& Summary

 What happens at each stage?

4. Identifying Issues & Agenda Listing

5. Clarification & Exploration of Issues

6. Private Session (Caucus)

7. Joint Negotiation Session

8. Agreement

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1. PRE-MEDIATION MEETING / CONFERENCE

 Contact with disputing parties separately before the mediation

 Brief explanation of role of the mediator, features of mediation,
mediation process
 Agreement to mediate?
 Set date, venue, and timetable for mediation

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 2. MEDIATOR’S OPENING STATEMENT
Mediator gives an Opening Statement:
- No fixed way, Use simple language
Purpose:
 Identify role of the mediator and parties
 Explain the mediation process
 Build rapport and confidence with parties
 Establish Mediator’s control of the
process
PROCESS:
 Introductions
 Explain role of mediator:
 Neutral and impartial facilitator -no power to decide
 Parties own the issues and decide outcome
 No solutions or advice given
 Explain features of mediation:
 Voluntary, Confidential, Flexible
 Explain brief structure of process
 Explain ground rules
 Check if the Agreement to mediate has been signed
 Logistics
 Confirm commitment to proceed 8
3. PARTIES’ OPENING STATEMENTS & SUMMARY

Purpose of Parties’ Opening Statements:

 Gather Information
 Learn about facts and parties’ feelings
 To note the positions and concerns of parties
 To encourage parties to actively participate
 Give parties opportunity to tell their stories

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3. PARTIES’ OPENING STATEMENTS & SUMMARY

PROCESS:
 Mediator may suggest a party or ask the parties who would like to begin
 Tell me your story - what brought you here today?

 The other party listens, maybe for the first time, without interrupting.
 Mediator listens:
 I see; Go on…; Uh-huh
 Takes notes (not verbatim)
 Maintain proper eye contact & body language

 Mediator seeks clarification:

 Use open follow-up questions if parties statement stops abruptly/too short
 What else can you tell me about…?
 Why do you say that?
 How did it happen?
 Ask parties what they would like to happen - what outcome they would like from this mediation 10
3. PARTIES’ OPENING STATEMENTS & SUMMARY

 When should a mediator intervene/interrupt?

 Interruptions and discussions discouraged
 But intervene if parties are repetitive / to manage interaction between parties

 Mediator summarizes at end of each opening statement + check accuracy of summary

with parties
 Demonstrate understanding of the facts / both parties’ perspectives
 Acknowledge parties needs, concerns, feelings and emotions
 To tell parties they have been heard
 Gain trust

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 4. IDENTIFYING ISSUES & AGENDA LISTING
Purpose of Identifying Issues & Agenda
setting:
 To show parties mediator understands
the problem
 Identify issues which both parties see as
a problem
 Identify issues which one side sees as a
problem
 Make the dispute manageable by
breaking it into segments
 Focus on problem and not people
 Set the scene for mutual discussion and
joint problem solving
PROCESS:
Mediator lists the issues raised by parties during the
opening statements
Mediator frames the issues in a neutral and mutual
tone as much as possible, using simple language:
“the room is dirty” – cleanliness
“he is always late!” – timing / punctuality
“she owes me RM1000” – money
Mediator together with parties will select which
issue to jointly discuss first
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5. CLARIFICATION & EXPLORATION OF ISSUES

Purpose of Clarification and Exploration of Issues:

 Further information gathering
 Explore and uncover needs and interests
 Discuss facts and perceptions
 Discuss feelings
 Facilitate direct communication between parties

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 5. CLARIFICATION & EXPLORATION OF ISSUES
PROCESS:
 Mediator guides parties to explore the issues listed one at a time
 Asks open questions:
 “What else can you tell me about the cleanliness of the room?”
 Encourages and facilitates direct communication:
 “Sheila, would it help if you told Peter why is the cleanliness of the room bothering you?”
 “Would you like to tell Peter what you would like him to do about this issue?”
 Encourages parties to express their interests, needs, concerns and aspirations:
 “Why is this important to you?”
 “How will your proposal meet your needs?”
 Summarises what has been said progressively and at the end of the session after all issues have been explored
 Takes notes of any options / proposed solutions which may arise
 Explains confidentiality of ensuing caucus session
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 6. PRIVATE SESSION (CAUCUS)
Purpose of Private Sessions (Caucus):
 Complete discussion of issues/explore issues in even more detail
 Opportunity for parties to air views privately without
embarrassment in front of another
 Opportunity for parties to express emotions without risk of
offending the other party
 Discuss sensitive topics which party may not want to share in joint
session
 Identify and uncover underlying needs and interests
 Opportunity for mediator to confront a party about difficult
behaviour in earlier joint session – why were you reluctant to agree
with her earlier?
 Help parties generate options, evaluate options, evaluate the
consequences if no agreement reached
 Impasse breaker 15
 6. PRIVATE SESSION (CAUCUS)
PROCESS:
 Agree on who to start
 Private session held with each party in turn – shuttle mediation
 At commencement – mediator reminds on confidentiality
 Mediator guide parties to explore issues in depth / complete unfinished business from joint session
 “You did not say much in the earlier session when we spoke about this issue, do you want to elaborate now?”

 Encourage parties to vent feelings and emotions and continue to unravel underlying needs and interest
 Assist parties to generate options
 Ask open-ended questions
 Ask probing questions & Practice Reality Testing
 To assist parties to evaluate their own and other parties’ concerns, interests, needs and goals
 To assist parties to evaluate strengths and weaknesses of the options generated / proposed
 To explore with parties the realistic result of a position they have taken and its advantages or disadvantages of
adhering to a position
 To play the devil’s advocate 16
 6. PRIVATE SESSION (CAUCUS)
PROCESS:
EXAMPLE Probing/Reality Testing:
 “Is this offer based on the market value of the property?”
 “If you were in Jane’s shoes do you think asking for a share in the business is reasonable as she played a major role in setting it up?”
 “What would happen if he stops paying you maintenance?”
 “How certain are you of winning?”
 “What are your chances of succeeding in court? Have you checked with your lawyers about this?”
 “What do you think are the other side’s chances of succeeding on a scale of one to ten?”
 “What if you lose? How would you be able to cope financially?”
 “Do you think what you are asking for is fair?”
 “What is your best alternative?”
 “What will happen if you don’t settle today?”
 “Given what Peter has said earlier, what do you think will be acceptable to him? If you were him, would you accept your proposal?”
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 6. PRIVATE SESSION (CAUCUS)
PROCESS:

 At the end– mediator to summarise progress and reiterate on confidentiality

 Check what matters / which proposal may be revealed to other party
 Mediator will take that proposal to the other side for the other party’s consideration and response
 Encourage parties to communicate options or offers to the other party in next joint session

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 7. JOINT NEGOTIATION SESSION
Purpose of Joint Negotiation Session:
 Table and clarify options generated
 Evaluate options
 Reality test durability of agreement
 Finalise negotiations
 Draft final agreement
PROCESS:
Encourage parties to negotiate directly
Assist parties to look at all options and evaluate the options
before finally deciding – is this an arrangement you can live
with?
Ask open and probing questions to assist parties
Focus on joint interests and needs
Help parties generate more options by brainstorming (if still
necessary)
Discuss details for implementation
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8. AGREEMENT

PROCESS:

 Check that all issues on the agenda have been dealt with
 Summarise points of agreement
 Lawyers to prepare/draft the agreement
 If no lawyers, then mediator will prepare the agreement
 All parties will sign the agreement, mediator will sign as witness
 *If no agreement is reached – terminate mediation or schedule another day to attempt
mediation/private caucus.
 Mediator destroys notes

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