MEDIATION
Sokhivah, M.Si
MEDIATION
01 02 03
Dispute The Role of the The Mediation
Resolution Mediator Process: Step by
Step
Mediation
• Mediation is one alternative to what is called dispute resolution.
• A dispute is defined as “a conflict that has reached a point where
the parties are unable to resolve the issue by themselves due to
a breakdown in communication, and normal relations are
unlikely until the dispute is resolved.” Not all conflicts are alike.
Conflicts become disputes when participants experience a
communication barrier, preventing normal relations. The parties
seek help from a third party because they cannot resolve the
issues by themselves
Alternatives to Dispute Resolution
Alternatives to dispute resolution (ADRs) exist:
• Arbitration: a neutral third party considers both sides of a dispute and
makes a decision, which is more binding than that of a judge in the legal
system if both parties have agreed in advance to abide by the decision (no
appeal).
• Adjudication: a neutral judge and jury in the legal system hear attorneys
who prosecute or defend people and decide a case, which either party may
later appeal.
Cont Alternatives to Dispute Resolution
• Ombudsperson: one who cuts through the red tape on behalf of individuals who
feel abused by the larger system (often governmental agencies) in which they
work, study, or seek support.
• Conciliation: a neutral third-party practices “shuttle diplomacy” by traveling back
and forth between conflicting parties who are unable to meet together for any one
of a variety of reasons.
• Mediation: a neutral third party facilitates communication between the conflicting
parties so that they may work out their own mutually acceptable agreement.
The Value of Mediation
Many studies have found that mediation produces superior results to adjudication.
It is less costly than other ADRs. Mediation conducted well reduces the likelihood
that either of the disputants will seek legal remedy. Most importantly, it also has
unique advantages that appeal to communication scholars:
1. Mediation restores communication and helps to normalize relations.
2. Mediation allows for full participation by the conflicting parties.
3. Mediation has a high success rate. It is estimated that “once the disputants have
agreed to mediate, at least 80% of the time they are able to work out an
agreement that is acceptable to both of them.”
The Role of the Mediator
• The mediator is defined as a neutral third party who has no decision‐making
power regarding the outcome of the mediation. Some mediations have two
people who serve as co‐mediators.
• Presence of mediators enables them to encourage cooperation rather than
competition, strive for reasonable decisions that meet social concerns, and create
and enforce rules to guide the interaction.
• Mediators attempt to create a nonthreatening and constructive environment to
encourage the disputants to communicate, cooperate, and work out their own
mutually satisfying solution.
Mediator Skills
Mediators are expected to be neutral. This means that mediators are
unbiased, and there is no reason for them to take one party’s side against the
other.
• First, not only should the mediator not have a personal connection to either
disputant, but she or he should also make an effort to suspend judgment
during the negotiation.
• Second, because mediation offers the disputants an opportunity to openly
talk to each other about their feelings, needs, goals, and reasons for
behaving as they do, mediators must maintain confidentiality.
Cont Mediator Skills
• Third, the mediators are competent in communication. In your role as mediator,
you must manifest these effective communication behaviors:
➢ Be descriptive rather than judgmental. For example, you might say, “It seems like you
are raising your voice,” rather than “It sounds like you are angry.”
➢ Be specific. For example, “You have mentioned how bothered you are by your
colleague’s work habits. What specific habit bothers you the most?”
➢ Focus on behaviors that one can change.
➢ Give feedback when it is requested.
➢ Give timely feedback making it as close as possible to the behavior being discussed.
➢ Speak only for yourself. (“I understand you to say . . .”, “I take it that you feel . . .”, “I want
you both to . . .”, “I prefer to keep my opinions to myself.”)
➢ Check what you see or hear with the other parties.
Cont Mediator Skills
• Fourth, mediators are trained to facilitate communication by encouraging
cooperation and discouraging competition between the parties. Essentially, a
mediator’s objective is to create a safe and constructive environment for the
parties to discuss emotional and substantive issues and reach agreement. The
process of mediation is successful to the extent that it moves from a competitive
to a cooperative orientation because competition creates a defensive
communication .climate and cooperation creates a supportive atmosphere.
• Fifth, mediators are open minded. They accept and support whatever resolution
the parties agree to because mediators have no decision‐making power with
respect to the outcome of the mediation. Initially, the conflicting parties often
expect mediators to solve their problems. Mediators must resist the temptation to
function like a judge or jury and need to inform the parties that they have no
authoritative decision‐making power.
Mediators as Communication Rules
Enforcers
As communication rules enforcers, mediators establish and enforce the rules
by which participants interact. Some common rules that are useful for
directing the communication process toward positive outcomes are as
follows:
• taking turns to talk without interruptions
• talking without expressing hostility to one another
• creating a positive climate with no put‐downs
• focusing on the future (what the parties will do) rather than the past (what
was done)
Cont Mediators as Communication …
• striving for a win–win solution with no one feeling dissatisfied or agreeing
to something unacceptable
• striving to solve the problem rather than attacking or blaming the other
person
• being honest and sharing your thoughts and feelings without fear of
criticism or publicity
• adhering to time constraints set by mediator
• agreeing to abide by additional rules as announced by the mediators during
the session
The Mediation Process: Step by Step
Once the conflicting parties realize that a dispute exists, the following steps are
taken:
a. One or both disputants seek mediation, or a mediator talks them into it (the
intake process).
b. The mediator brings the disputants together, provides a list of rules that govern
the mediation, and makes an opening statement.
c. Following the mediator's opening statement, each person is asked to take a few
minutes to describe the dispute from his or her point of view without
interruption.
d. The mediator finds common ground on which to build agreement.
e. The mediator writes up the final agreement.
f. The mediator ends the mediation.
a. Intake
The decision to include a third party to mediate the conflict is an important
one and involves the realization that such a person is necessary and that the
partie must pick an appropriate person for the role. Both disputants may
seek help from a third person, who becomes the mediator. If only one seeks
help, the third person may contact the other disputant to see if she or he is
agreeable to mediating the dispute. If neither disputant seeks help, a third
person who is aware of the dispute may contact the disputants to see if they
are agreeable to mediating the dispute. Asking to intervene in the conflict of
others, however, should be done carefully. Uninvited mediation may seem
like meddling rather than help.
b. Opening statement
At the first session or meeting, mediators make the following clear to the
disputants:
• That their participation in mediation is voluntary and the mediator or conflicting
parties may terminate it at any time.
• That the mediator is unbiased (impartial toward either disputant) and will keep the
mediation confidential.
• That the goal is a written agreement with which both parties are satisfied or at
least comfortable.
• That the disputants are to try to work out a mutual agreement between them with
the help of the mediator, who facilitates discussion, and does not make decisions
for the disputants (not a judge or jury).
c. The Conflicting Parties’ Views of the Dispute
• Mediators usually begin with the person who initiated the complaint against the
other. This person describes the problem from his or her point of view, explaining
what happened and how she or he feels about it. The other person listening must
not interrupt the speaker, but must hear out the speaker in his or her entirety. As
soon as the first party finishes the opening statement, mediators ask the other
party to explain what happened from her or his point of view, again without
interruption. After each opening statement, mediators summarize back to the
disputant the issues raised and how the mediators believe that the disputant feels
about them. Mediators ask for confirmation of their summary from that disputant,
and sometimes ask disputants to summarize what they heard from the other
party.
Cont The Conflicting Parties’…
• Sometimes it is useful for mediators to caucus, in which the mediator steps
aside with one disputant for a private discussion. This may be done to
overcome an impasse in the mediation or to call attention to something
one of the parties does that is problematic or to request the disclosure of
information that the disputant doesn’t want to make in the presence of the
other. In the private meeting, the mediator may help one of the parties to
better understand how to contribute more positively to the discussion. To
maintain an unbiased position, it is important that the mediator meets with
both parties, separately of course, for about the same amount of time.
Mediators should ask permission in private from each party before
introducing into the discussion something disclosed in the caucus.
d. Common Ground
• Common ground is similar to “seeking commonalities”. Mediators highlight
common ground, which consists of attitudes, values, behaviors,
expectations, and goals the parties share and can serve as a basis for an
agreement. In addition, they may use fractionation, framing, and
reframing.
• The mediators begin with the easiest issues to resolve, leaving the most
difficult for last. In fractionation. You may recall that we said that this
technique involves breaking down complex issues into smaller, more
manageable ones. After separating issues into their smallest components,
the mediators can ask the disputants to deal with each issue one at a time,
which builds a feeling of success on small issues, until the larger issues are
successfully resolved.
Cont Common Ground
• Framing, where mediators ask neutral or friendly questions that avoid blame or passing
judgment and summarize issues.
• As soon as it seems appropriate, the mediators ask the parties what they want as an outcome
of the dispute.
• The mediators also reframe the disputants’ statements and positions. The mediators do
this by helping the parties restate their comments in less offensive language and reword
their utterances as proposals.
• As the discussion progresses, the mediators request proposals or solutions to the problem
that would satisfy the interests and needs of both parties. The mediators also help the
parties brainstorm alternative proposals.
• Throughout the discussion, mediators identify, highlight, and reinforce points of
agreement, encourage positive contributions, and show attentiveness by responding
verbally or nonverbally to comments by both parties. This positive feedback encourages
the parties to continue the mediation and work toward agreement.
e. Final Agreement
• the mediator keeps track of areas of agreement as the mediation progresses, so
that eventually she or he has a rough draft of all points of consensus.
• Mediators attempt to keep the agreement simple. They use clear, specific details
(spelling out who, what, where, when, how). It helps to think of the agreement as
a list of behavioral commitments because it enumerates the specific observable
actions each party needs to take to fulfill the agreement.
• In developing the agreement, mediators should strive for balance or “something
for everyone.” The agreement also needs to address questions of feasibility and
practicality because the parties should find the agreement workable.
• Finally, the culminating step occurs when the mediators ask both parties to sign
the agreement.
f. Ending the Mediation
• The mediators give each disputant a copy of the handwritten, signed agreement.
The parties are more likely to live up the terms of an agreement if it exists in
writing and has been signed by everyone. Whenever possible, the mediators set
up a date for reviewing and evaluating the agreement. Knowing that the
agreement won't be stuffed in a drawer somewhere and forgotten, the parties feel
a stronger obligation to adhere to it. The mediator should thank the parties for
using mediation and wish them well.
Reference
• Dudley D. Cahn, Ruth Anna Abigail, Managing conflict through communication.
5th ed. 2014, by Pearson Education, Inc
