Mediation Fundamentals: Always Facilitate, Never Advocate

1
Always & Never in Mediation for ‘kon gres
Margaret Halsmith
Principal Mediator, Halsmith Dispute Resolution | Chair, Resolution Institute |
© Halsmith Consulting Pty Ltd 2014

Mediation
@HalsmithDisRes
• Mediation is parties’ participation in the facilitated shift
– from competitive entitlement and authority
– to cooperative problem-solving.
– from a power struggle and clash of rights
– to a melding of interests.
– from self interest
– to joint interests in order to meet self interests.

Always
• As mediators, what always occurs in your
mediations?

Never
• As mediators, what never occurs in your
mediations?

Consistently
• As mediators, which interventions are
consistently associated with mediation?
WASF

Rarely
• As mediators, which interventions are rarely
associated with mediation?
WASF

As a mediator …
• what is it, that for you, if it were missing,
would mean that you were not mediating?
WASF

As a mediator…
• what is it, that for you, if it were to occur
would mean that you were not mediating?
WASF

As a mediator…
• what is it that for you, is essential for you to
regard yourself as mediating?
WASF

As a mediator…
• what is it, that for you cannot occur for you to
regard yourself as mediating?
WASF

As a mediator…
• to what extent would you expect two or more
mediations that you conduct to be similar?
WASF

As a participant…
• What is it, that for you, if it were missing
would mean that you were not participating in
a mediation?
WASF

As a participant…
• What is it, that for you if it were to occur
would mean that you were not participating in
a mediation?
WASF

As a participant…
• What is it, that for you, is essential to regard
yourself as participating in mediation?
WASF

As a participant…
• What is it, that for you, cannot occur, for you
to regard yourself as participating in a
mediation?
WASF

As a participant…
• To what extent would you expect your
experience of participating in two or more
mediations by the same practitioner to be
consistent?
WASF

As a participant…
• To what extent would you expect your
experience of participating in mediation by
two or more different mediators to be
consistent?
WASF

© Halsmith Consulting Pty Ltd 2004 18
Principles of equality
• Negotiation & fairness
• Welcoming behaviour
• Respect
• Trust & support
• Shared responsibility
• Mutual decision making
• Partnership
• Honesty & accountability
adapted from Duluth Domestic Abuse Intervention Project

WASF

© Halsmith Consulting Pty Ltd 2015 20
Principles of mediation
• Interests focused
• Value creating
• Voluntary, consensual
• Flexibility
• Participatory
• Informal
• Norm creating
• Collaborative
• Inclusive
• Integrative outcome
• Solution focused
• Authenticity
• Expert in self
• Situational, individualised
• Person-centred
• Relationship oriented
• Future focussed
• Peer-based
• Private, confidential
• Network
• Process focussed
• Self-determination
• Participants’ reality
• Relationship network
• Inductive reasoning
• Mutual satisfaction
after Boulle 2005

Always never
• MSB new approval standards and practice
standards regarding what is good/required
mediation practice
WASF © Halsmith Consulting Pty Ltd
2014

Conflict:
What are you thinking? feeling? doing?
• Participants are problem
solvers
• The goal is durable, workable
outcome
• Separate the people from the
problem
• Be soft on the people and hard
on the problem
• Proceed independently of
trust
• Focus on interests
• Explore interests
• Avoid a bottom line
• Invent options for mutual gain
• Develop multiple options for
mutual gain
• Expect to feel confident
• Agreement that will be
explainable later
• Use agreed standards
• Reason your way to
agreement
October 2011 Adapted from ‘Getting to Yes’ 22

23
Use mh diags
20 June 2012
MARGARET HALSMITH

Who, what, when, why, where, how
always
• A separate slide for each of
the title points
• That covers principles,
process and practice
• point of view
– competency of mediator:
awareness
– experience of participants
both during and after the
mediation: ethics
– Complaints proof
never
• Conscious/unconsc
knowing/un
• Work thru bloom
• Lou/soc YES!
• Always/never per stage
WASF

Chairperson Training: Supervision © Legal Aid WA & 25
Aspects of Awareness
• Self … environment
• Self … other
• Behaviour … thoughts … emotions …

Chairperson Training: Supervision © Legal Aid WA & 26
Levels of Awareness
• Hyper vigilance
• Meta self awareness
• Self awareness
– Private
– Public
• Consciousness
• Unconsciousness

Margaret Halsmith Feb2002
Women’s Convention 27
Perspectives on difference
• Interactionist: positive and necessary
• Human relations: natural and inevitable
• Functional: some functional/some
dysfunctional
• Traditional: harmful

Predictable differences
• Goals/objectives
• Information/data
• Communication
• Resources
• Structural
• Relationship/emotional
• Values/principles Boulle 1996

Resolving differences
• Power
• Rights
• Interests

• Is always the polar opposite of never?
• The question really is: other fundamentals of
mediation and how does a mediator ensuring
that each participant experiences the
fundamentals?
• Could go through skill by skill see SCRAM ppt
WASF

• Principles + Process = Practice
• Looking for the always and never
• Ethics
• Aim to generate knowledge
• aim to make decisions
• Expectations of mediator ie principles
• Expectations of one party by another
• What did the competencies look like when they
are not done
2014

© Contents copyright Halsmith Consulting 2010
Communication Blockers
• Stacking questions
• criticising
• name calling
• diagnosing
• ordering
• threatening
• Understanding
• Isolating
• Using privilege
• Withholding information
• moralising
• advising
• patronising
• interrupting
• asking closed questions
• finishing their sentences
• stereotyping
• Sarcasm
• Dismissing
• Minimising

Overview
always
• Competencies
• Skills
• Process
• Language
never
2014

Pathways to resolving conflict
Rights Power
WASF

35WASF © Halsmith Consulting Pty Ltd
2014
Overview
What is Mediation?
Issues: confidentiality & authority
The scope of mediation
Suitability for mediation
Tips for managing conflict
Sport & Active Recreation State Dispute Resolution Service

2014
What is Mediation?

Clayton Utz 37
Mediation is not
• Assisted negotiation
– A third party ‘brokers’ a deal, often a compromise
• Conciliation
– A third party facilitates and provides substantive
advice to parties so they can reach agreement
• Case appraisal
• Early neutral evaluation

How do you know you are at a mediation?
• Soft on the people; hard on the problem
• Negotiate on interests; not on positions
• Create options; not offers
• Use objective standards; not arbitrary ones
• Goal: fair outcome for all
• Yield to agreed principles
• Proceed independently of trust
2014

How do you know you are not at a mediation?
• Hard on the people; hard on the problem
• Negotiate from positions; not on interests
• Create offers; not options
• Use created standards; not objective ones
• Goal: to win or for TOS to acquiesce
• Apply pressure or concede to pressure
• Distrust others or rely on trust
2014

What is not mediation?
Party A v Party B
2014

What is mediation?
Party A + Party B v issues
2014

Mediation or not?
• Non-zero sum negotiation
• Party A + Party B v issues
2014
• Zero sum negotiation
• Party A v Party B

2014
The Mediation process

Mediation Stages
• Separate sessions [SS]
• Welcome
• Mediator’s opening
• Participants’ openings
• Mediator summaries
• Agenda
• Clarify & Explore
• Option generation
• Separate sessions
• Option reality testing
• Negotiation
• Recording decisions
• Closure
SS
SS SS
SS
2014

Purpose of the stages of mediation
• Separate sessions:
– to assess for suitability and safety; to prepare including analyse and
diagnose
• Mediator’s opening:
– to develop participants’ confidence; to maintain transparency
• Participants’ openings:
– to hear participants’ concerns, each equally significant
• Mediator’s summary:
– to acknowledge participants; parties to hear themselves and each
other
• Agenda:
– to provide structure and focus
2014

Purpose of the stages of mediation
• Clarification and information gathering:
– to broaden parties’ understanding of the issues: to frame the issues in
terms of interests
• Private sessions:
– to check on participants’ experiences of mediation; to prepare for next
phase
• Option generation:
– to identify broad range of potential components of an agreement
• Option reality testing:
– to test options for practicality
• Agreement:
– to confirm and document agreement if any, as appropriate
• Closure:
– to ensure loose ends are addressed
2014

Q: How do you know you are at a mediation?
A: Principled process
• Interests focused
• Inclusive
• Value creating
• Voluntary, consensual
• Flexibility
• Participatory
• Informal
• Norm creating
• Cooperative
• Situational, individualised
• Person-centred
• Relationship oriented
• Future focussed
• Peer-based
• Private, confidential
• Network
• Process focussed
• Parties as decision makers
after Boulle 2005
2014

Q: How do you know you are not at mediation?
A: Strategies and tactics
• Ambit claim
• Low balling
• Split the difference
• Delay
• Deadline
• Attrition
• Persistence
• Shift focus
• Act inconsistently
• Boredom
• Laughing
• Playing to the gallery
• Refuse to negotiate
• Take it or leave it
• Overload
• Lock in
• Walk out
2014

Clayton Utz 49
What do I always do?
• Put the principles into practice
• Follow the process
• Use a whiteboard
• Use open questions
• Repeat only interests
• Hypothesise only
• Analyse dispute
• Analyse the conflict

Clayton Utz 50
What do I never do?
• Repeat a party’s position
• Say “obviously”
• Work toward a compromise
• Pick up on parties’ inconsistencies
• Say “happy”
• Say “we”
• Assume I know which is the most powerful
party

BBV 51
What do I always do?
• Put the principles into practice
• Follow the process
• Use a whiteboard
• Use open questions
• Repeat only interests
• Hypothesise only
• Analyse dispute
• Analyse the conflict

BBV 52
What do I never do?
• Repeat a party’s position
• Say “obviously”
• Work toward a compromise
• Pick up on parties’ inconsistencies
• Say “happy”
• Say “we”
• Assume I know which is the most powerful
party

2014
Thanks to Felicita Sala for the use of her
illustration throughout this presentation.
http://felicitasala.blogspot.com.au/

Mediation Fundamentals: Always Facilitate, Never Advocate

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