community mediation: theory and practice

7/30/2019 Community Mediation: Theory and Practice

1/105

Community Mediation:

Theory and Practice

PACS6928Postgraduate Peace and Conflict Studies

Summer School, 2010

COURSE MANUAL

STAFFAbe Quadan (Coordinator)

Kathleen Dan

VENUEEastern Avenue Seminar Rooms 405, 406 and 407


2/105

Community Mediation

The University of Sydney

22-26 February 2010


3/105

1. INTRODUCTION

Welcome

The course co-ordinators

Workshop outlineRole play guidelines

Giving feedback

Page

5

6

7-1112

13

2. ACCREDIATION

Approval standards 15-20

3. ASSESSMENTAssessment requirements

Essay questions

Reading List

Assessment criteria

Codes of practice & policy

22

23

24-26

27

28-29

4. COMMUNITY MEDIATION

The Foundation Blocks of Mediation

Conflict

What is mediation?

Interest based mediations

Positions vs. Interests

What is the role of the mediator?Procedural types of mediation

The mediation process an overview

Stages of mediation

Mediation in action

31

32

33

34

3536-37

38

39


4/105

The mediation process

Stage 4: Summaries

The Summaries

Stage 5: Agenda setting

Listing items for discussion

ReframingCommon agenda items

Reframing

Reframing

Skills practice: reframing

Stage 6: Exploration

ExplorationStage 7: Private sessions

Private sessions

Encouraging resolution

Stage 8: Negotiation

Negotiation

Listening & summarising

Tracking progressStage 9:Agreement

Agreement

Stage 10: Closure

Closure

Mediator skills

Questioning

Helpful questions

Skills practice: questioning

Debriefing

Ethics

Ethical practice

Page

49

50

51

52

5354

55

56

57

58

59-6162

63-64

65

66

67

68

6970

71

72

73

74

75

76

77

78

79-80


5/105

The Job

The Flatmates

The Renovation

Page

92

93

94

7. COACHING

Feedback on mediation simulation 96-102


6/105

Introduction


7/105

Welcome to Community Mediation. This unit of study will focus on the theory andpractical application of facilitation, communication and conflict resolution skills in acommunity mediation context. You will learn about various models of communitymediation and will become skilled in the stages of community mediation through roleplays and simulation exercises. Successful completion of this unit of study will equipyou for possible accreditation as a community mediator in Australia, as well asproviding you with transferable skills and knowledge about mediation.

This 5-day course in Community Mediation will provide you with: a structure for conducting mediations the ability to adopt an impartial role as mediator a framework on which to build further skills.

At the end of this course you should be able to plan and set up a mediation sessionand manage the various stages of the process competently. You will also be awareof the skills and strategies required for all stages of the process.

The course also provides an excellent conceptual framework and general skills forpeople engaged in work related to mediation without necessarily playing the formalrole of mediator.

The learning approach

This course is designed to be experiential and interactive. It includes:

formal presentations and demonstrations group discussion and debriefing structured exercises simulated role plays coaching and feedback

As part of this unit you will have the opportunity to be individually coached byexperienced mediators who are trained to supervise role plays and provideconstructive feedback. Their role is to support and coach you as you develop newskills


8/105

ABE QUADAN

Centre for Peace and Conflict Studies (CPACS), University of Sydney.

Abe is a member of the CPACS Council and is an Executive Member of the SydneyPeace Foundation.

KATHLEEN DAN

negotiation, communication and career development. She also conducts mediationsand provides coaching in conflict management.

Companies that have retained her services include: University of Western Sydney,University of Sydney Charles Darwin University Department of Community Services

Kathleen has a number of years experience as asocial worker and manager in educational and childprotection settings. She holds graduate and post-

graduate qualifications in social work, adulteducation and theatre studies. She is a nationallyaccredited mediator and has over 18 yearsexperience in facilitating and coaching in both theprivate and public sectors.

In her consultancy role Kathleen facilitatesprograms in: mediation, management development,

Abe has been an ADR practitioner for over 25years. He has a Master of Dispute Resolution andan Associate Diploma in Welfare Work. Abe is anaccredited mediator, mentor and trainer as well asan accredited Transformative Justice practitioner.

Abe has extensive management experience with theDepartment of Community Services with whom hestill works. In addition to this he delivers mediationskills workshops to organisations such as the


9/105

Day 1

Session

INTRODUCTION Group introductions Course outline Course requirements re: assessments Accreditation standards

THE FOUNDATION

BLOCKS OF MEDIATION

Interest based negotiations

Negotiations styles

MORNING TEA

THE FOUNDATIONBLOCKS OF MEDIATION

What is mediation Other forms of ADR The mediation process The role of the mediator

LUNCH

THE PROCESS INPRACTICE

Fishbowl mediation demonstration (part 1)

AFTERNOON TEA

THE PROCESS INPRACTICE

Fishbowl mediation demonstration (part 2) Debrief

STAGE 2 The opening statement


10/105

Day 2

Session

9.00 am

REVIEW OF DAY 1

STAGES 3, 4 & 5Theory

Parties opening statements Summarising Agenda setting

MORNING TEA

STAGES 3, 4 & 5Practice

Scenario 1 (a) small groups Small group debrief Large group debrief

STAGE 6Theory

Exploration

STAGE 6Practice

Scenario 1 (b) small groups Small group debrief Large group debrief

LUNCH

STAGE 7Theory

Private Sessions

STAGE Scenario 1 (c) small groups


11/105

Day 3

Session

REVIEW OF DAY 29.00 am

MEDIATOR SKILLS Reframing Questioning

Reality testing Option generating Dealing with impasses

MORNING TEA

CO-MEDIATION The roles of co mediators

Scenario 2 small groups Small group debrief Large group debrief

LUNCH

CO-MEDIATION Scenario 3 small groups Small group debrief

Large group debrief

AFTERNOON TEA

STAGE 1 Pre-mediation the preliminary conference


12/105

Day 4

Session

REVIEW OF DAY 29.00 am

ETHICALCONSIDERATIONS

Professional practice for mediators

REVIEWING THEMEDIATION PROCESS

What is the mediator doing at each stage of theprocess?

What is the impact on the parties when thisstage is being done way?

MORNING TEA

CO-MEDIATION Scenario 4 small groups Small group debrief with coach

LUNCH

CO-MEDIATION Scenario 5 small groups Small group debrief with coach

AFTERNOON TEA

DEBRIEF Debrief Feedback from coaches


13/105

Day 5

Session

COACHESINTRODUCTION8.30 am

SOLO MEDIATION Scenario 6 small groups Small group debrief with coach

MORNING TEA


LUNCH


AFTERNOON TEA

DEBRIEF

5.00 pm

Debrief Feedback from coaches Wrap up Evaluations


14/105

As part of your assessment requirements you need to participate in at least 9 role

plays and in at least 3 of these you are required to take the role of mediator. In the

others you will take on the role of a party.

On both Day 4 and Day 5 you will have the opportunity to conduct a1.5 hourmediation one where you will be a co-mediator and the other a solo mediator.

During these mediations you will receive detailed written feedback from a coach who

is an accredited mediator. Again, you will also play the role of a party in the other

mediations during these 2 days. This role is also an important learning experience

and needs committed participation.

Most people find the role play component one of the most useful aspects of thecourse even though for many people it can be unnerving. To help make the role play

aspect of the course as beneficial as possible please consider the following pointers:

Prepare for the role be it the mediator or the party, as much as you can. You

will be given information about each mediation including Common Facts, known

to all parties, and Individual Factsfor the party you are playing.

Allow the thespian in you to emerge. The more real you are in the party role,the easier the role play becomes. Feel free to improvise to an extent that is

consistent with the character.

Pace the information you reveal. As a party avoid giving out all your

information at once. Allow the mediator to ask questions and create opportunities

for you to explore whats important for you.

Manage your expectations. You do not need to reach a signed agreement nor

is that expected. Mediation in real life generally take several hours so be realistic

about what you might achieve in an hour and a half.

Relax & enjoy. Remember that this is a learning experience. If you feel a little

apprehension be assured you are in good company its very normal. As Susan

J ff f l th f d d it


15/105

Throughout the course you will have the opportunity to provide feedback at the end

of each role play. Your feedback is a gift and therefore needs to be delivered in the

best possible way. Constructive feedback will help others develop in their role as

mediator. Positive feedback without detailed examples can be easily interpreted as

platitudes.

Refer to the behaviour specifically not the person [focus on behaviour not theperson]

Base feedback on direct observations rather than inferences

Use concrete behavioural descriptions not judgements to describe both positivesand negatives.

Use graduations, not "all", "none, never"

Speak in here and now

Share ideas rather than giving advice

Give feedback that is useful to the receiver and about things they can change,rather than getting everything off your own chest

Give the amount of information that can be used not the amount that can begiven [overload]


16/105

Accreditation


17/105

FOR MEDIATORS SEEKING APPROVAL UNDER THE NATIONAL MEDIATORACCREDITATION SYSTEM

http://www.ama.asn.au/Final_Approval_Standards_200907.pdf

Approval Standards

1 Application

1) These Approval Standards apply to any person who voluntarily seeks to beaccredited under the National Mediator Accreditation System (the system) to act asa mediator and assist two or more participants to manage, settle or resolve disputes

or to form a future plan of action through a process of mediation. Practitioners whoact in these roles are referred to in these Approval Standards as mediators.

2) The Approval Standards:a) specify requirements for mediators seeking to obtain approval under thevoluntary national accreditation system; andb) define minimum qualifications and training; andc) assist in informing participants, prospective participants and others what

qualifications and competencies can be expected of mediators.

3) As a condition of ongoing approval, mediators must comply with the PracticeStandards and seek re-approval in accordance with these Approval Standards everytwo years. These Approval Standards should be read in conjunction with the PracticeStandards that apply to mediators.

4) Mediation can take place in all areas where decisions are made. For example,mediation is used in relation to commercial, community, workplace, environmental,construction, family, building, health and educational decision making. Mediationmay be used where there is conflict or may be used to support future decisionmaking. Mediators are drawn from diverse backgrounds and disciplines. Mediationmay take place as a result of Court or Tribunal referral, pre-litigation schemes,


18/105

about future actions and outcomes. The mediator acts as a third party to supportparticipants to reach their own decision.

2) The mediator[s] may assist the participants to:a) communicate with each other; andb) identify, clarify and explore disputed issues; andc) generate and evaluate options; andd) consider alternative processes for bringing any dispute or conflict to aconclusion; ande) reach an agreement or make a decision about how to move forward and/or

enhance their communication in a way that addresses participants mutualneeds with respect to their individual interests based upon the principle of selfdetermination.

3) Mediation processes are primarily facilitative processes. The mediator providesassistance in managing a process which supports the participants to make decisionsabout future actions and outcomes.

4) Some mediators may also use a blended process that involves mediation andincorporates an advisory component, or a process that involves the provision ofexpert information and advice, where it enhances the decision-making of theparticipants provided that the participants agree that such advice can be provided.Such processes may be defined as conciliation or evaluative mediation.Practitioners who manage such processes and provide expert advice are required tohave appropriate expertise (see Section 5 (4) below) and obtain clear consent from

the participants in respect of undertaking any blended advisory process.

5) Mediation processes are a complement to, not a substitute for, the need forparticipants to obtain individual legal or other expert advice and support. Mediationprocesses may not be appropriate for all individuals or all circumstances.

3 Approval Requirements for Mediators

1) A mediator manages processes aimed at maximising the participants owndecision making. The mediator must have personal qualities and appropriate life,social and work experience to conduct the process independently and professionally.

To be accredited, the Recognised Mediation Accreditation Body (RMAB) requires a


19/105

(see Section 3(5) below); this may be the RMAB itself but may also includeother relevant memberships or relationships; and

e) evidence of mediator competence by reference to education, training andexperience (see Section 4 below).

2) RMABs require mediators who apply to be accredited to provide evidence of goodcharacter. With respect to the requirement to be of good character, RMABs may,for example, request mediators to:

a) provide evidence that they are regarded as honest and fair, and that they

are regarded as suited to practice mediation by reference to their life, socialand work experience, for example, by seeking references from two membersof their community who have known them for more than three years; andb) show that they can meet the requirements of a police check in the State orStates or Territory or Territories in which they practise; andc) show that they are without any serious conviction or impairment that couldinfluence their capacity to discharge their obligations in a competent, honest

and appropriate manner; andd) show that they are accredited with an existing scheme that has existinggood character requirements that they comply with (for example, by referringto existing Law Institute, Law Society, Bar or Family Dispute ResolutionPractitioner accreditation where relevant); ande) satisfy the RMAB that they do not come into the category of a prohibitedperson (or its equivalent) as defined in a particular jurisdiction and also not bedisqualified to practice by another professional association relating to any

other profession (for example, a Law Society or a Medical Association) ormust explain to the RMAB the circumstances under which they havepreviously been removed or suspended from acting as a mediator underthese standards.

3) The mediator must undertake to the RMAB to comply with any relevant legislation,these Practice and Approval Standards and any other approval requirements that

may relate to particular schemes.

4) In respect of the insurance, indemnity or employed status requirements, themediator must provide the RMAB with evidence of their current status. This may beprovided in a range of ways, for example, by a letter setting out any relevantemployee status, or by showing how indemnity applies, or by showing proof of


20/105

b) provision of a range of member services such as, an ability to provideaccess to or refer mediators to ongoing professional development workshops,

seminars and other programs and debriefing, or mentoring programs; andc) a complaints system that either meets Benchmarks for Industry-basedCustomer Dispute Resolution or be able to refer a complaint to a Scheme thathas been established by Statute; and,d) sound governance structures, financial viability and appropriateadministrative resources; and,e) sound record-keeping in respect of the approval of practitioners and theapproval of any in-house, outsourced or relevant educational courses; and,

f) the capacity and expertise to assess training and education that may beoffered by a range of training providers in respect of the training andeducation requirements set out in these Standards.

An RMAB can be a professional body, a mediation agency or Centre, a Court orTribunal, or some other entity.

4 Training and Education

1) Mediators must demonstrate to an RMAB that they have appropriate competenceby reference to applicable practice standards, their qualifications, training andexperience. It is not necessary for the RMAB to provide education and training toindividual mediators (see Section 5 below). Training and education may be providedby organisations other than RMABs, such as, industry training providers, universitiesand other training providers.

2) A mediator is required to meet the threshold approval requirements detailed below(see Section 5 below), as well as ongoing professional education requirements. Amediator who uses a blended process and provides information or advice in thecontext of a blended process must be competent to do so and possess theappropriate skills, knowledge and expertise.

5 Threshold Training and Education Requirements

1) Unless experience qualified (see Section 5 (3) below), from 1 January 2008, amediator must have completed a mediation education and training course that:

a) is conducted by a training team comprised of a at least two instructors


21/105

d) involves each course participant in at least nine simulated mediationsessions and in at least three simulations each course participant performs

the role of mediator;ande) provides written, debriefing coaching feedback in respect of two simulatedmediations to each course participant by different members of the trainingteam.

2) Unless experience qualified (see Section 5(3) below), from 1 January 2008, amediator must also have completed to a competent standard. a written skillsassessment of mediator competence that has been undertaken in addition to the 38-

hour training workshop referred to above, where mediator competence in at leastone1.5 hour simulation has been undertaken by either a different member of thetraining team or a person who is independent of the training team. The writtenassessment must reflect the core competency areas referred to in the PracticeStandards. The final skills assessment mediation simulation may be undertaken inthe form of a video or DVD assessment with role players, or as an assessedexercise with role players. The written report must detail:

a) the outcome of the skills assessment (in terms of competent or not yetcompetent); andb) relevant strengths and how they were evidenced; andc) relevant weaknesses and how they were evidenced; andd) relevant recommendations for further training and skills development.

3) Experience qualified practitioners are those who have been assessed by an

RMAB as demonstrating a level of competence by reference to the competenciesexpressed in the Practice Standards. An experience qualified mediator must either:

a) be resident in a linguistically and culturally diverse community for whichspecialised skills and knowledge are needed and/or from a rural/or remotecommunity where there is difficulty in attending a mediation course orattaining tertiary or similar qualifications; orb) have worked as a mediator prior to 1 January 2008 and have experience,training, and education that satisfies an RMAB that the mediator is equippedwith the skills, knowledge and understandings set out in the corecompetencies referred to in the Practice Standards, and who has met thecontinuing accreditation requirements set out in Section 6 below in the 24months prior to making an application.


22/105

c) a minimum of five years experience in the professional field in which theyseek to provide advice.

6 Continuing Accreditation Requirements

1) Mediators who seek to be reaccredited must satisfy their RMAB that they continueto meet the approval requirements set out in Section 3 of this document. In additionmediators seeking re accreditation must, within each two-year cycle, provide

evidence to the RMAB that they have:

a) sufficient practice experience by showing that they have either:

i) conducted at least 25 hours of mediation, co-mediation or conciliation(in total duration) within the two-year cycle; or,ii) where a mediator is unable to provide such evidence for reasons

such as, a lack of work opportunities (in respect of newly qualifiedmediators); a focus on work undertaken as a dispute manager,facilitator, conflict coach or related area; a family, career or studybreak; illness or injury, an RMAB may require the mediator to havecompleted no less than 10 hours of mediation, co mediation orconciliation work per two-year cycle and may require that themediator attends top up training or reassessment;

and,

b) have completed at least 20 hours of continuing professional development inevery two-year cycle that can be made up as follows:

i) attendance at continuing professional development courses,educational programs, seminars or workshops on mediation or relatedskill areas as referred to in the competencies (see the PracticeStandards) (up to 20 hours);ii) external supervision or auditing of their clinical practice (up to 15hours);iii) presentations at mediation or ADR seminars or workshops includingtwo hours of preparation time for each hour delivered (up to 16 hours);iv) representing clients in four mediations (up to a maximum of 8hours);


23/105

Approval Standards. In relation to any removal or suspension, a mediator must beinformed within 14 days of the concerns of the RMAB and provided with an

opportunity to respond to the RMAB. The RMAB must have a process in place todeal with removal and suspension or must be able to provide access to a processwhere such decisions can be made in a procedurally fair manner.


24/105

Assessment


25/105

1. Course participation, Reflective Journal 25%2. Role plays 25%3. 3000 words assignment on one of the 8 topics listed on the next page 50%.4. The assignment is due on 26 March 2010

Course participation, Reflective Journal 25%

You should keep a Reflective Journal during the course which should include your

reflections on what you have learned from the various skills exercises and what you

would do differently if you could try that exercise again. The journal does not need to

be extensive, nor should it take a great deal of your time to complete. It helps your

learning if you think consciously about the skills you are acquiring and how you might

improve them (both during and after the course.) You may be able to integrate some

of these reflections into your assignment. Please note this journal is not a formal

dairy. The Journal is a formal assessment piece and part of the formal assessment

to the course The Journal is formative assessment and is part of the summative

assessment for the course.

Role-plays 25%

For course participation marks we will look for regular attendance; an honest effort in

the role-plays; evidence of reflection about the exercises and improvement in skill

levels; evidence that you have read the relevant materials; application of your

reading to class discussion.

Research Assignment 50%:

You may choose your own assignment topic, after consultation with the course co-

ordinators, or choose from the assignment list. Your assignment should


26/105

Topic of your choice, or one of the following topics:

1. Court ordered mediation. Mediation is a voluntary process. Reconcile these 2

statements.

2. An impartial mediator: fact or fiction?

3. Discuss the role of confidentiality and apply the discussion to 3 types of

mediation e.g. workplace, court ordered etc

4. Compare and contrast interest based, transformative and narrative mediation.

5. Discuss the skills common to both mediation and counselling and where

mediation and counselling diverge.

6. Discuss the ethical considerations in the mediation process and strategies the

mediator can utilise to ensure ethical practice.

7. Explore the role of the mediator in managing the power dynamics in mediation.

8. Critically analyse the advantages and disadvantages of applying the diamond

mediation model to the management of mediation for both the parties and the

mediator/s.


27/105

1. Hilary Astor and Christine Chinkin Dispute Resolution in Australia2nd edition,Butterworths, Sydney, 2002.

This recommended text is not a skills book, but a scholarly treatment of disputeresolution in general. See chapter one on theory issues and chapter 5 on mediationespecially. A good research resource see the extensive bibliography.

2. Laurence Boulle Mediation : Principles, Process, Practice 2ndedition,Butterworths 2005

Not a skills book but a scholarly treatment of dispute resolution mostly aboutmediation.

3. David Spencer and Tom Altobelli Dispute Resolution in Australia: Cases,Commentary and MaterialsLawbook Co., 2005.

As the name implies this is a collection of materials on a range of disputeresolution methods.

Mediation books with skills content

(search for these titles via Library catalogue search, unless stated otherwise)

1. Menonite Conciliation Service Mediation and Facilitation Training Manual 4thedition, ed. Carolyn Schrock-Shenk, MCS, Akron, Pennsylvania, 2000. (seewww.mcc.org)

A skills manual. The Mennonites, like the Quakers, have an extensive reputation indispute resolution. A copy is in the library.

2. Christopher Moore The Mediation Process: Practical Strategies for ResolvingConflict3rd ed, Jossey Bass, San Francisco.

One of the most respected US texts on mediation, now in its third edition.


28/105

4. Peter Condliffe Conflict Management: A Practical Guide2nd ed,Lexis NexisButterworths, Sydney, 2002

A quirky combination of skills and theory from an Australian mediator.

5. Ruth Charlton Dispute Resolution GuidebookLaw Book Co, Sydney, 2000.

An Australian book that goes beyond basic skills and considers ADR in specificareas of application. Includes a significant section on facilitation.

6. Gregory Tillett and Brendan French Resolving Conflict: A Practical Approach3rdedition 2006 Oxford UP, Melbourne.

A good Australian text with strong analysis of the nature of conflict and muchmaterial relevant to conflict in organisations and workplace conflict.

7. Fisher, Patton & Ury 1999: Getting to Yes, Random House, Sydney

A classic book on negotiation advocating the win/win approach.

8. Allan Parker: The Negotiators Toolkit, Peak Performance, Darlinghurst, Sydney

A hands on practical approach to negotiation filled will ideas to develop your toolkit.

9. David B. Moore and John M. McDonald: Transforming Conflict, TransformativeJustice Australia Pty Ltd.

This book examines a process for dealing with conflict in a constructive manner.

It looks at community conferencing as a means of a healing process for victims of

crime as much as for perpetrators of crimes. The book introduces the core

principles of conflict transformation.

10. Mayer B: The Dynamics of Conflict Resolution, Jossey-Bass San Fransisco

The author presents a particularly unique perspective on the resolution of


29/105

Riding on the coat tails of Getting to Yesthis book provides techniques for dealing

with difficult parties.

Particular approaches to mediation

1. Linda Fisher and Mieke Brandon Mediating with Families: Making the DifferencePrentice Hall, Sydney, 2002.

An Australian practitioners book on family mediation.

2. John Haynes and Stephanie Charlesworth The Fundamentals of FamilyMediation Federation Press, Sydney, 1996.

A family mediation skills book co-written by a US and an Australian author.

3. John Winslade and Gerald Monk Narrative Mediation : A New Approach toConflict ResolutionJossey Bass, San Francisco, 2001.

A skills book that describes a particular approach to mediation

4. Robert A. Baruch Bush, Joseph P. Folger The Promise of Mediation: TheTransformative Approach to Conflict, Revised Edition, October 2004, Jossey-Bass.

The textbook on transformative mediation.

Useful web resourceA most useful web site can be found by going to the law school library web site. ClickLaw Web Resources, Web Resources by topic, Dispute Resolution. Or go tohttp://www.weblaw.edu.au/weblaw/display_page.phtml?WebLaw_Page=Dispute+Re

solution

This site will provide you with links to a wide range of useful DR web sites.


30/105

Fail (Below 50%): Doesnt answer the question. Work may fail for any or all ofthe following reasons: Few or no identifiable arguments. No original research.

Content that is inappropriate or irrelevant because the student has not attemptedto answer the question. Plagiarism, inappropriate use of other student work, including recycling all or a

significant part of a paper which has already been given credit in another course. Difficult or impossible to understand through poor grammar, expression or

structure. Significant or numerous errors.

Pass (50-64%): Attempts to answer the question. Offers descriptive summary of material relevant to the question. Attempts to answer the question, but does not follow through with a reasoned

argument. Displays no real engagement with the issues. Superficial use of material, tendency to paraphrase. Shows no evidence of in-depth research.

Some important errors. Adequate expression.

Credit (65-74%): Mostly answers the question. Contains no significant errors and covers main issues fairly well. Attempts a critical approach to the issues. Demonstrates independent research appropriate to addressing the main issues. Only minor errors if any.

Has a clear structure and reasonably clear expression.

Distinction (75-84%): Completely answers the question.

Has a clear structure and is well articulated. Achieves a critical and evaluative approach to the issues.


31/105

A1. University of Sydney Handbook 2010The handbook is an essential guide for every student who studies at the University ofSydney. It is an important source of enrolment information, examination procedures,assessment policies and useful contacts. An online copy is available at:

http://www.usyd.edu.au/handbooks/

A2. Student BehaviourStudents will be expected to adhere to the Universitys Student Code of Conduct inand outside of classrooms. Basic courtesy will be expected, including having mobilephones turned off, arriving punctually and treating the teacher and other studentswith respect. A copy of the Universitys Student Code of Conduct is available at

http://www.usyd.edu.au/ab/policies/Student_code_conduct.pdf

With regards to correspondence with academic staff, students should remember tosign their name and provide their student identification number, especially whensending emails.A3. (Grievances) AppealsYou may consider that a decision affecting your candidature for a degree or otheractivities at the University has not taken into account all relevant matters.

In some cases the by-laws or resolutions of the Senate (see the University Calendar:http://www.usyd.edu.au/calendar/) provide for a right of appeal against particulardecisions; for example, there is provision for appeal against academic decisions,disciplinary decisions and exclusion after failure.A document outlining the current procedures for appeals against academic decisionsis available at the Student Centre, at the SRC, and on the Universitys policy onlinewebsite:http://www.usyd.edu.au/policy (click on 'Study at the University', then click on'Appeals' - see the Academic Board and Senate resolutions).A4. Use of Lecture MaterialLectures are literary works subject to copyright. Students have a limited licence tomake use of these lectures by taking notes and making a limited number of copies


32/105

A6. Plagiarism and Academic DishonestyUniversity practice on plagiarism and academic dishonesty is governed by the

Academic Board Resolutions, Academic Honesty in Coursework, 14 November2002, last amended 5 April 2006. This document is available online. Students areencouraged to read this policy which can be accessed at:http://fmweb01.ucc.usyd.edu.au/pol/FMPro?-db=pol_main.fp5&-lay=www&-format=pol_summary.html&-error=pol_error.html&DocID=9&-findFor further explanation of this policy, see:http://www.chs.usyd.edu.au/PG/honesty.htmlUniversity practice on Plagiarism is also governed by the Vice Chancellors Policy

Student Plagiarism Course Work: Policy and Procedure, of 15 February 2005. Acopy of which is available from:http://www.usyd.edu.au/senate/policies/Plagiarism.pdfPlease note that the Policy requires students to submit a signed statement ofcompliance with all work submitted for assessment. Therefore, all studentsmust submit their essay with the Assignment Coversheet(see http://www.law.usyd.edu.au/cstudent/coursework/forms.shtml for the form) andmust give the Declaration on Plagiarism set out on the Assignment Coversheet.Students who are found to have engaged in academic dishonesty will be reported tothe Pro-dean (Teaching Programs) and will be required to attend a formal meeting todiscuss the possible outcomes, and a record is kept in relation to each instance.Serious cases and repeat cases will be referred to the University Registrar and couldresult in exclusion from the University.A guide on how to avoid plagiarism, cheating and copying is available at:http://www.usyd.edu.au/secretariat/students/plagiarism_index.shtml


33/105

Mediation:principles & practice


34/105

Without censoring your thoughts, write down words you think of when you think ofconflict. Stop when you have a list of eight words.


35/105

The Australian Standard and NADRAC describe mediation as follows:

Mediation is a process in which the parties to a dispute, with the assistance of

a dispute resolution practitioner (the Mediator), identify the disputed issues,

develop options, consider alternatives and endeavour to reach an agreement.

The mediator has no advisory or determinative role in regard to the content of

the dispute or the outcome of its resolution, but may advise on or determine

the process of mediation whereby resolution is attempted.

Golden Rule: The mediator owns the process and the parties own the content. The

mediators hand should never be seen in the content.


36/105

An interest-based mediation has the goal of finding mutually satisfactory outcomes

for all parties. This approach looks beyond the positions that parties may bring to

the mediation i.e. things that the parties say they want, or will or wont do. Interest

based mediations attempt to understand three interdependent interests that all

parties are seen to have: substantive, procedural and psychological. These three

elements are like a "three-legged" stool: unless all three areas are addressed, the

solution is less likely to be sustainable.

Substantive interests refer to what needs to be negotiated and are often the central

Psychological

Procedural

Substantive


37/105

In a positional dispute the parties often start with a proposal or a solution to the

problem which they then defend through arguments and evidence. There is little

exploration of the issues as parties trade offers & counter offers in an attempt to

reach a solution.

Interest based resolution involves uncovering a range of needs which underpin

positions rather than simply focussing on the solution. It explores why an issue is

important and allows the parties to engage in finding solutions that meet these

needs.

Position:Things you

say you want,demands,

things you sayyou will andwont do.

Most obvious,what you are told.


38/105

The mediator is the authority in control of the mediation process. This authority is

vested in his/her knowledge, skills, experience and is derived from the Agreement to

Mediatesigned by all parties prior to the mediation session.

The mediator is responsible for creating a positive, safe, supportive and inclusive

environment for the parties to allow an open and honest discussion of the disputed

issues. The success of the mediation is dependent on the parties understanding of

the disputed issues and of them being made aware of each others view.

Skills - The mediator possess a number of skills such as active listening, appropriate

assertiveness, communication, impartiality, teamwork etc.

Qualities: In addition to the skills above, the mediator also has certain qualities such

as empathy, neutrality, personal integrity, professional confidentiality and has high

professional ethical standards.

The mediator is not a judge and should always remain impartial throughout the

process and beyond. The mediator doesnt determine the outcome, parties do. The

mediator should not dwell on facts on the basis of personal curiosity. The role of the

mediator does not include suggesting solutions, counselling, providing therapy or

expert advice (unless it is an expert based mediation).


39/105

SOLO MEDIATION

Advantages

Mediator able to run their own show Parties only need to focus on one mediator

Disadvantages

No opportunity to model communication, gender balance Difficulty maintaining eye contact and observing body language when taking

statements

Limited options if parties dont engage with mediator No feedback from external source based on direct experience No option of other professional perspectives Mediator assumes all responsibility for process No option to engage help Key information can be missed

No consultation to ensure impartiality & being true to the process

CO-MEDIATION

Advantages Eye contact can be maintained with parties Body language more easily observed Two perspectives Responsibilities are shared

Impartiality can be monitored Opportunity to debrief & provide feedback based on direct experience Decision making regarding the process is shared Ongoing flow of process as parties are continually engaged Less pressure on mediators

O t it t d l i ti t k


40/105

SHUTTLE MEDIATION

Purpose

To maintain the safety needs (physical and psychological) of one or both of theparties.

Advantages

Maintains physical and psychological safety of the parties Provides a forum for parties to resolve their conflict

Can limit the conflict escalating through the non emotional delivery of themessage by the mediator

Disadvantages

Unable to see the non verbal language between parties Unable to see the immediate impact of the message as intended by the party Impartiality of mediator is more difficult to maintain

Mediator may convey messages of intimidation or threat that they are unaware of Requires more time Potentially more taxing for parties & mediator both physically and psychologically

TELEPHONE MEDIATION

Purpose

To ensure safety of parties or bridge physical distance between parties.

Advantages


41/105

Understandingand exploration

2. Openingstatement

3. Partiesopening comments

(story telling)

4. Reflectionand summar

6. Issue exploration

8. Joint negotiation

[9 A t]

Past

5. Agenda setting -identifying items for discussion

1. Pre-mediation

7. Private sessions


42/105

STAGES

1 4 PAST FOCUSIdentification and definition of the issues

56 TRANSITION STAGE FROM PAST TO FUTURECo-operative approach, joint ownership of the

conflict/issues

7 10 FUTURE FOCUSProblem resolving, option generating and agreement


43/105

What stages did you observe?

What skills did the mediators use?

What was done that was effective?

What was the turning point in the mediation?


44/105

Purpose

1. To assess the suitability of the dispute and identify participants/parties andtheir readiness for mediation.

2. To prepare the parties so they get the most out of the mediation process,

3. Parties sign Agreement to Mediate.

Checklist

9 Party and mediators introduced to each other

9 Roles explained

9 Process outlined

9 Mediators authority to mediate confirmed

9 Partys willingness/readiness to mediate established

9 Participants identified

9 Expert advice , if required, discussed9 Timelines set

9 OH&S issues identified

9 Special needs identified

9 Agreement to mediate provided and discussed

9 Any conflict of interest identified


45/105

Who do you think should be at the mediation session?

Parties that are directly linked to the conflict. Parties who have the authority to mediate and make decisions.

Support people i.e. friends, family, experts

What information a mediator needs to know about the conflict and the parties?

Brief outline of the issues

Brief history of the conflict

Who the parties are in conflict with

Options pursued or may need to be considered

Expected outcomes

Timeframes

What other issues does the mediator need to consider?

Conflict of interest if any.

Is this a mediatable conflict?

Am I the right person to conduct this mediation?

Solo or co-mediation

Roles of the support persons (if any)

Parties personal needs i.e. disability access, safety issues

Suitability of the venue and the physical environment Ample time for the mediation session

What the parties need to prepare for or made aware of before the mediation?


46/105

What physical preparations are required?

Venue is booked

Mediator/s arrives 30 minutes prior to the start of the mediation.

Arrange the seats and the tables move away excess furniture Water jugs and cups provided

Pens and paper for each party

Whiteboard is clean and have working markers

Waiting rooms vacant and not in use


47/105

Purpose

To explain the process and ground rules for the session, the role of the mediatorsand to establish rapport between the parties and the mediators.

Checklist

Welcome/Introduction

9 Forms of address/names established

9 Housekeeping i.e. toilets, breaks, parking, timelines etc

9 Special needs identified

Goal of mediation described

Principles explained

9 Confidentiality

9 Voluntary

9 FlexibleRoles explained

9 Mediator

9 Parties9 Support people

9 Others

Process explained

Ground rules established

Authority of parties to settle established

Agreement to Mediate is signed

Key Skills

Mediators own the process, parties own the content


48/105

Introductions Mediator/s introduces him/herself and state his/her preferred way to be

addressed i.e. first name or surname. Mediator invites each party to introduce him/herself and their preferred way they

wish to be addressed.

Agreement to Mediate Parties are asked to sign copies of the Agreement to Mediate. Mediator and

parties each has a signed copy of the agreement to mediate.

Explain mediation Mediation is a problem-solving process and an opportunity to resolve issues on

your own. "We are here to help you communicate with each other. It is an

empowering process.

Voluntary Parties are attending on their own free will and are able to leave at any time for

whatever reason. They are encouraged to give the process a chance and todiscuss their concerns, if any, with the mediator prior to making a decision toleave.

Flexible The process is flexible and needs to work for you as the parties.

Mediators role Neutral, not judge; doesnt make decisions or recommendations, and doesnt give

advice.

Confidentiality Anything that you discuss here will remain confidential. It is expected that the

content of this session remain confidential and not be discussed with third partieswithout the consent of all parties present here. All notes taken by the mediatorwill be destroyed after the session. A copy of the agreement will be kept by the

di f f f Sh ld h i h d i h l l


49/105

Outcome If you reach agreement, you may choose to have it written or verbal. We suggest

that you write your agreement. Agreements reached here are not legally binding,however, you may wish to seek court order by consent to make it legal if youwish to.

Ground rules Courtesy, no interruptions and adhere to the process

Process Mediator gives a brief outline of the process Ask each party to briefly state their concerns while other party/s listens without

interruption. Mediator will be taking notes of the stated concerns to read them back later to

ensure that mediator have heard and noted them. Mediator reads back the concerns without interruptions from the parties unless

some facts/concerns were not correctly stated by the mediator. No newissues/concerns are added at this point. Parties are reminded that any otherissues could be added and discussed later.

Mediator makes a list of items for discussion and writes them on the whiteboard.The mediator explains the list and links each issue to the parties concerns.

Mediator obtains parties agreement on the list of issues. Parties are asked to discuss each item on the list. Parties are encouraged todiscuss the items directly with each other.

Private Sessions the mediator will have a brief private session with each partyindividually while the other party takes a break outside the mediation room.Private Sessions are completely confidential and nothing will be disclosed by themediator to either party. Options and possible outcomes are discussed in privatesessions.

Post private sessions a look at the future and formulating an agreement if anagreement is reached.

Agreement can be written or verbal. Not legally binding but can be made legalby taking t to the court and seek Orders by Consent.

Any questions.


50/105

Purpose

To enable parties to state their concerns and feelings and listen to each otherwithout interruption in a safe and inviting environment.

Checklist

9 Parties concerns and feelings are expressed uninterrupted

9 Active listening maintained

9Parties are supported

9 Ground rules are maintained

9 Similar times allowed for parties stories

9 Neutral body language maintained i.e. refrain from nodding in agreement

9 Impartiality maintained

Key Skills

1. Active listening

2. Note taking

3. Questioning i.e. to clarify events, dates, times, persons etc

4. ..............................................

5


51/105

One of the parties, usually the one who initiated the mediation, is asked to briefly

state his/her concerns and his/her expected outcomes.

Other party/s is reminded of listening to the concerns without interruptions.

He/she is encouraged to write down any issues come to mind on the piece of

paper provided. Second party is thanked for his/her patience and for not interrupting and invited to

state his/her concerns. He/she is reminded to state his/her concerns and not just

a response to the issues stated by the first party.

First party is reminded to listen and not interrupt.

Mediator writes down issues of concern and feelings of each party using their

own words including swear words if any. Mediator thanks both parties for being courteous towards each other.

Mediator reads back the parties stories as told by the parties.

Dealing with interruptions

Let the parties know that they most likely will hear things that they dont agree

with, or make them angry etc. Let them know that this is part of resolving theconflict.

Remind the parties that they agreed to adhere to the process.

Remind the parties that this is the time when we all need to listen to each story

and understand each others issues/concerns.

Remind parties that they will have their turn to tell their side of the story.

Avoid eye contact with the other party who is interrupting.

Encourage the interrupting party to write down their thoughts, feelings, side of thestory

Repeat the above a number of times should the interruption continues.

Remind the interrupting party that if this continues, the mediation will take much


52/105

Purpose

To identify the parties main points of concern, to check that they have been heardaccurately, and to lay the foundation for a joint list of items for discussion.

Checklist

9 Parties stories summarised accurately

9 Parties key words quoted where appropriate

9 Positive events highlighted

9 Active listening maintained


9 Reframing avoided

9 Parties feelings noted and acknowledged

9 Common ground (between parties) emphasised

Key Skills

1. Listening

2. Note taking

3. Interpreting body language

4. ..............................................


53/105

Summaries are commonly read back one at a time after both parties have given theiropening statements starting with the first partys summary and then the second.

Parties are reminded that the summaries are just that. They are how the mediator

heard them from the parties. Parties are asked not to interrupt while the summariesare being read. No addition of new issues is allowed at this point. Parties cancorrect the mediator of certain facts if the mediator didnt get note the parties pointscorrectly.

Parties at times, are selective in what information they give when telling their stories.This practice allows the parties to show themselves in positive and acceptablebehaviours while it shows the other in negative and unacceptable behaviours. For

this reason, summaries should not be rephrased or reframed to make them neutral.

It is critical that the parties own words are repeated including feelings of anger,frustration, dismay etc. The parties would feel that they were heard by the mediator.Also, parties at times are shocked or surprised at hearing back the language theyused in describing the events, behaviours or the persons.

This is the only place that reframing and rephrasing are not used by the mediator.

Effective Summaries:

An effective summary is a summary that demonstrates the following:

1. Active Listening

2. Understanding of the issues and concerns

3. Recounting in the parties own language


54/105

Purpose

To assist participants in having a visible direction and to give legitimacy to partiesconcerns and issues.

Checklist

9 Neutral language used

9Topics reframed to be Inclusive, neutral and mutual

9 Whiteboard used appropriately

9 Objectivity maintained

9 List is agreed to by parties

9Flexible and simplicity of list is ensured

Key Skills

1. Communication

2. Analysis

3. Reframing

4. Grouping the issues


55/105

The list of items for discussion is a list that captures the major concerns of all partiesto the dispute based on the summaries of both stories.

The list provides the parties and the mediator a sense of direction for the mediation

session. Parties approval of the list is crucial. It is also very important that theparties feel that their issues are acknowledged and listed. It gives the parties theownership of the issues and empowering them to actively participate in thediscussion.

The list is not set in stone. It can and should be amended if there is a need toinclude or exclude any parts of it. This will further enforce the notion that parties ownthe content.

The items are listed in logical order where appropriate and possible. For example afence dispute should list the state or the condition of the fence before quotes fornew fence.

The list should use friendly and non-blaming language. For example the issue ofParty X damaging the fence, should be written as The Fence or damage to the

fence. It should reflect impartiality, non-judgemental, positive, clear and simple, andappropriate to the parties and the events.

It is important to remember that the mediation session from this point onwards isstructured around and on the list of issues. The list of issues will be referred tocontinuously from now on.


56/105

In the opening statement one party discusses the other party always being late for

work.

The other party mentions that getting to work on time is difficult because of child care

arrangements.

Possible agenda item

..................................................................................................................................

One party calls the other party a racist. The other party complains that the other

party spits on the pavement when they walk by.


..................................................................................................................................

One party complains that their deceased mothers would have wanted her to have a

share in the house. The other says that it was not in the will.


..................................................................................................................................

One party says that are sick of getting work that is substandard. The other party

complains that it is impossible to produced work to the ridiculously high standard

expected.


57/105

Relationship Wishes

Communication Needs

Reputation Agreement

Recognition Respect

Property Sound

Quality Future

Privacy Impact

Safety

Other:

......................................................................... .............................................................................

......................................................................... ............................................................................

........................................................................ ...........................................................................

......................................................................... ...........................................................................


58/105

Moving parties from Generalities to Specifics

Example 1

Party: He always comes in late.

Mediator: Can you give me an example of when he comes in late?What is he late for?What it feels like waiting for him to come home?

Example 2

Party: Hes got a real attitude problem; he thinks hes better than the rest of us.

Mediator: Tell me about a situation in which you felt this way, or give me a specificexample.

Example 3

Party: That whole bunch is an irresponsible lot.

Mediator: Who specifically do you mean by that?In what ways are they irresponsible?

What leads you feel that way?Give me an example of his/her/their behaviours that makes you feelabout him/her/them that way.

Example 4


59/105

Negatives to Positives

Example 1

Party: Shes impossible to work with in a group setting. She dominatesconversations and gets very upset if she doesnt get her way. I just cantwork with her anymore.

Mediator: So youre very frustrated with her response in group discussions, and atthis point youve given up on working with her.

Example 2

Party: Look, Im not saying I cant do anything with her. We can still do the worktogether on the project. But I wont attend public meetings with her. I justcant stand the constant battles.

Mediator: Youre prepared to work with her in most areas, but its the meetings

where youve become really discouraged about working together.

Example 3

Party: This guy is lying through his teeth! What hes saying is complete nonsense!He was the one who came to my house, woke me up, and started shoutingat me like an idiot! I never came near his house!

Mediator: So you disagree strongly with his account. Your memory is that he cameto your house and the argument took place there, not at his place.


60/105

Theyre just jealous, thats their problem.

.................................................................................................................................

.................................................................................................................................

This guy is totally irresponsible. He wouldnt know responsibility if he fell over it.

.................................................................................................................................

.................................................................................................................................

................................................................................................................................

She is impossible to work with. She doesnt get on with anyone.

.................................................................................................................................

.................................................................................................................................

People around here just look after themselves. They dont care about anyoneelse.

.................................................................................................................................

.................................................................................................................................

This guy thinks hes some big shot and can push anyone he likes around. Hethinks he owns this place. Well, hes not pushing me or my family around. Wevegot rights, and we are going to do what needs to be done. If he causes anymoretrouble, Im going to call my uncles and nephews and well show him whos boss.


61/105

Purpose

1. To establish a direct and constructive communication between the parties.

2. To demystify the conflict and to assist parties shift from 1st

to 2nd

position

Checklist

9 Exploration open statement made

9 Direct communication between parties is encouraged

9 One issue dealt with at the time

9 List of Items referred back to

9 Ground rules adhered to

9 Parties interaction is balanced

9 Progress made is acknowledged

9 Parties not pressured/encouraged to reach agreement

9 Parties gain better understanding of needs, interests, perceptions,expectations and feelings

9 All issues dealt with sufficiently before moving into private session


62/105

Exploration is a stage where the parties are encouraged to communicate directlywith each other in a civil and respectful manner assisted by the mediator.

The mediator introduces this stage by saying that they have the opportunity todiscuss the items on the board directly with each other and to express their feelingabout each others behaviour/actions.

The mediator may choose one of the items as a starting point of discussion or leaveit for the parties to decide. If the mediator makes the choice, they may choose asimple and not too controversial item as a starting point. This can facilitate thecommunication between the parties. Starting with an easy item can build on theparties trust in the mediator, in each other and in the mediation process.

Allowing the parties to decide on the starting agenda item themselves is consideredby some mediators as facilitating ownership of the content. There is no definitiveright or wrong way to approach this and it is at the mediators discretion.

The parties should be encouraged to ventilate, within reason, their emotions andfeelings about the events/behaviours/actions that preceded the mediation.

The mediators are to ensure that critical comments and key words are heard andresponded to by the parties. For instance if party X didnt respond to an apologyfrom party Y the mediator is to ask party X what he/she thinks of the apology or ifhe/she accepts it.

If the parties are engaged and communicating directly with each other in a civil andrespectful manner, there is no need for an intervention by the mediator.

The mediators are agents of reality and their role is to assist the parties understandthe impact of a suggestion. For example if party X offers to fully pay for a new fenceand party Y accepts the offer, the mediator needs to clarify what type of fence,colour, height etc and asks party Y if that is acceptable to him/her.


63/105

2. Clarifying Transition this is to seek clarification of some aspects of the

issues. For example which part of Peters response is it that you dont

understand?

3. Helpful Transition .....you were saying.....? what are your views about this

issue?

4. Impasse Transition this is used to refocus on the issues and bring in a new

direction. For example the main issue here is the cost of replacing the fence,

what other quotes have you had? or Peter, could you tell John what

timeframes you have in mind when you are ready to replace the fence?

5. Empathetic Transition it is about recognition of the importance of the issues

and the concerns of the parties. For example what worries you about this

suggestion?

Early agreements

The mediator should acknowledge and take notes of points of agreement betweenthe parties; however, he/she should not allow this apparent agreement short cut theprocess. The parties need to have the chance to discuss the underlying issues.Agreements last longer if the underlying issues have been fully explored anddiscussed. If offers are made early, hold onto them and reality test them byexploring the underlying issues.

Language and Communication styles:

Use reporting speech style

Open questions to elicit more information

Closed questions to end repetitiveness and/or to elicit specific response

Active listening

Language to allow a structured/focused discussion between the parties

Picking up on breakthrough


64/105

Examples of Reframing:

All I am asking for is a space that I call home just like it was before he started

having late night parties every friggin day.

o Reframed to, You want your home to feel like it used to be You are nothing but a lazy bum. You make me feel Im here just to cook,

clean and make you feel comfortable.o Reframed to, You sound distressed and feel that you dont have time

for yourself because you of the house chores. I dont give a damn about your family and I wont make them welcome in my

home. Why should I when they abuse me all the time and you do nothing

about it.

o Reframed to: You sound angry because you feel you are not

supported by X.

Golden Rule:

Before asking the question, ask yourself who needs to know and for what purpose.


65/105

Purpose

1. To enable the parties to speak freely about options in a safe environment, and

in confidence

2. To allow the mediators to play the devils advocate by reality testing ofpossible outcomes.

Checklist

9 Confidentiality maintained

9 Purpose explained

9 Ground rules reviewed

9 Time equally distributed between parties

9 Suitable arrangements made for party not in session

9 Future focus maintained

9 Possible outcomes (BATNA, WATNA) reality tested

9 Mediators role (no expert advice) maintained

9 List of items checked for coverage

Key Skills


66/105

When?

All/most list of items discussed between the parties Parties not moving forward

Impasse Parties need to explore options in private Points of agreement established One party or both threatening to walk out One party or both feeling angry and frustrated with each other and unable to

focus on the issues One or both parties are hesitant to engage in the process or discussion

One party has special needs that need attending to in private Support people overstepping their role

Rules applicable for Private Sessions:

Confidentiality Neutrality of the mediator Mediator can play the devils advocate to reality test options

No counselling and no expert advice No influencing or favouring particular direction against partys wishes Mediator is a sounding board Parties make their own decision and they are the ones who will announce

them in the post private sessions Ask questions for the partys benefit only Create relaxed environment but remain professional

How?

Start with the party who started telling the story second Be mindful at all times of the needs of the excluded party who is waiting


67/105

Introduce the session by explaining the purpose of it with emphasis on

Confidentiality

Timeframe i.e. 10-15 minutes

Ownership of the proposals

No advice, expert or otherwise, will be given

Future direction

Able to clarify past actions/behaviours, but not to dwell on them or

repeat the discussion from the exploration stage.

Able to talk about feelings and concerns

Sample Questions:

How is the mediation going for you?

What would work for you in this situation?

What would it take to resolve this issue today?

How does it feel living next door to X?

How changes would you like to see happen to make life easier for both of

you?

Is there anything you could do?

Whats your thinking about believing the court would rule in your favour?

What happens if you dont resolve the issues today? What would it be like going home with/out an agreement?

Your partner is not here with you, what would he/she think if you dis/agree?


68/105

Discuss the benefits of resolving the situation

Consider increased harmony, reduced stress, lower costs, greater productivity

and effectiveness

Explore the cost of not resolving the issue

Explore blockers to further discussion

Is the other party backed into a corner? What can be done to save face?

Identify areas of misinterpretation expectations, motives, points of view,

feelings, values, needs, concerns etc

Consider the relationship with the other person. Could a relationship ofgreater trust be developed, independent of solving the problem?

Divide the conflict resolution process into smaller steps

Define the issue clearly

Explore each partys needs & concerns

Identify common ground

Clarify the outcome to which both parties are aiming

Explore each part of the conflict

Is power being used appropriately?

Is there evidence of empathy? Have perspectives, needs and concerns be clearly communicated?

Explore multiple resolutions to the problem


69/105

Purpose

To move the parties into a principled negotiation (3rd position) and to focus on theirfuture relationship.

Checklist

9 Confidentiality maintained


9 Future focus maintained

9 Options put forward and discussed

9 All options considered and responded to

9 Options and responses summarised

9 Points of possible agreement noted

9 Needs of each party attended to (inclusive)

9 Parties decisions are owned

Key Skills

1. Communication

2. Summarising

3 Q ti i


70/105

Introduction

Reflect on earlier stages

Highlight positives and common grounds

Highlight the future focus

Repeat the confidentiality of the private sessions rules

Invite offers and counter offers from the parties

Strategies

Maintain high level of creativity

Keep the parties engaged with each other and with the mediator

Encourage direct communication between the parties

Keep parties focused on the issues and common interests

Provide ongoing summaries of options

Prompt parties with open/clarifying questions

Use the whiteboard to write down points of dis/agreement

Use the list of items to show progress Reframe parties positions

What if


71/105

Exercise 1

Partner A: Share a personal story/work/other of a specific event with a partner for

about 2 minutes.

Partner B: Listen to your partner without interrupting. When they have finished give

them a summary of what you heard.

Partner A: Give the listener a feedback on the extent to which he/she has captured

the main issue/s.

Exercise 2

In your pairs share a story of a time when you felt not only heard but uplifted by theway in which someone listened to you. What qualities in the listener made this

experience positive?


72/105

Accept

Paraphrase

Acknowledge

Clarify

Reframe

Validate

Affirm AgreeExpand

Congratulate

Above the line

Neutralise

Deny

Ignore

Sidestep

Disagree


73/105

Purpose

To provide the parties with a detailed record of what they achieved with anidentifiable outcome. It also gives the parties a sense of closure of the past with a

future direction.

Checklist

9 Confidentiality and impartiality maintained

9 List of items checked for coverage against the outcome

9 Agreement written in a positive and non blaming/incriminating language

9 Active participation of parties in drafting of the terms of the agreement

9 Parties demonstrate ownership of the agreement

9 Written agreement realistic with an emphasis on details

9 Agreement signed by all parties

9 Copies of agreement given to all parties

9 Consent given by parties to copies of agreement provided to 3rd parties (if

any).

Key skills

1. Communication

2 Reframing


74/105

TYPES OF AGREEMENTS

Written

All issues discussed and agreed upon are written down in great detail and signed byall parties present and the mediator.

A written agreement, subject to parties approval, may include a section for itemsthat remain unresolved, if any. This section notes down the item and each partysposition on the item. Parties may wish to revisit those items in the future.

Verbal

If the parties choose not to have the agreement in writing, the mediator informs the

parties of the items discussed and the terms of agreement verbally before ending the

session. The mediator may, with the permission of the parties, keep a written copy

of the terms of agreement should it is needed by the parties in the future.

What is a Good Agreement

Written in the parties own words

Attention paid to all the details

Covered all/majority of items listed

Parties feel satisfied to take home

Written in a positive non-blaming language

Free from jargon

Easy to read and conveys one message to both parties (no room formisinterpretation)

Clauses are number and issues flow in a logical order

Contains a clause about what to do should a problem arises in the future


75/105

Purpose

To formally conclude the mediation session and for the parties to have a sense ofclosure.

Checklist

9 Parties congratulated on the outcome (if agreement)

9 Positive aspects of the mediation highlighted (agreement or not)

9 Philosophy of mediation summarised

9 Parties reminded of their ownership of the outcome

9 Confidentiality of the mediation reaffirmed

9 Parties informed of future mediation if the need arises

9 Parties safety is considered when leaving the venue

9 Parties special needs are attended to, if any.

Key skills

1. Communication

2. Summarising

3. Motivation


76/105

Congratulate the parties on reaching an agreement and on their joint work in

making it happen

Reaffirm the confidentiality of the mediation

Formally close the session

Things to be mindful of:

Dont allow any further discussion of the issues

Keep focused on the agreement

When saying goodbye, dont stay behind with one party for whatever reason,

except safety considerations

Dont go into debriefing with the co-mediator (if co-mediation) until the parties

have fully exited the venue


77/105


78/105


79/105

EXPLORE

Clarify DetailsIts too expensive Compared to what?Too many/much/few Compared to what?I want the best What would be best for you?

Find OptionsYou cant do that aroundhere

What would happen if we did?

He/she would never How can we find ways for it tohappen?

They always Are there any times they dont?Weve tried that already What was the outcome?

This is the only way to do it Yes, thats an option.

REDIRECT Move to the positive

It will never work What would it take to make itwork?

I wont What would make you willing?Its a failure How could it work?Its disastrous What would make it better?S/hes useless What is s/he doing that is

acceptable?Its impossible What would it take to make it

possible?I cant You cant see a way at the

moment?I dont want to What would you like?


80/105


81/105

Purpose

To allow mediator/s to reflect on their performance, skills, teamwork,positive/negative issues, effectiveness and improvement if any.

Checklist

9 Discussed all/some aspects of the session in an open, professional and

honest manner

9 Discussed the issues and behaviours not the person

9 Identified strengths and weaknesses

9 Discussed areas in need of improvement, if any

9 Evaluated the suitability of the venue

9 What else?


82/105

Situation 1

The Family Court refers Joanne and John for mediation in relation to property andcustody of the children. The mediator interviews both parties and both agree to

attend a mediation session. During the exploration stage, Joanne keeps looking atJohns face and gradually she starts to withdraw from the discussion and noddingher head in agreement with everything John says. The parties reach an agreementwithout a full discussion of the issues and the session ends with a summary, byJohn, of the points they have agreed on.

A. What are the ethical considerations?

B. How should the mediator manage the situation?

C. What skills are required?

Situation 2

You are mediating a dispute between 2 parties that you had no relationship with priorto the mediation session. During the mediation session, one party starts to tell theother party the role a third party played in this dispute. The third party in question isknown to you personally.


83/105


84/105

Note: The following statement is extracted from the Law Council of Australia'sstatement for ethics in the practice of ADR.

Introductory note:

The Law Council of Australia has developed these standards to serve as a generalethical and practical framework for the practice of mediation. The standards areintended to apply to all types of mediation. Particular professional and other bodiesmay have different requirements. It is expected that the standards will be reviewedfrom time to time.

The standards of conduct for mediators are intended to perform three major

functions: to serve as a guide for the conduct of mediators; to inform the mediatingparties; and to promote public confidence in mediation as a process for resolvingdisputes. The standards draw on existing codes of conduct for mediators and takeinto account issues and problems that have surfaced in mediation practice. They areoffered in the hope that they will serve an educational function and provideassistance to individuals, organisations and institutions involved in mediation.

1. Definition

Mediation is a process in which an impartial third party - a mediator facilitates theresolution of a dispute by promoting uncoerced agreement by the parties to thedispute. A mediator facilitates communication, promotes understanding, assists theparties to identify their needs and interests, and uses creative problem solvingtechniques to enable the parties to reach their own agreement.

Comments(a) The mediator should provide information about the process, and help the partiesidentify their real concerns and all their options. The primary role of the mediator is tofacilitate voluntary resolution of disputes by the parties themselves.(b) A di t t ll th t h t h d f ll i f d

(i) partiality or prejudice; and(ii) conduct that gives any appearance of partiality or prejudice.


85/105

Comments(a) Whatever their own views and standards mediators should not only not be partialor prejudiced but should avoid the appearance of partiality or prejudice by reason ofsuch matters as the parties' personal characteristics, background or conduct at themediation.

(b) Mediators should seek to avoid behaviour which, however innocent, may beinterpreted as indicating partiality or prejudice, such as spending more time with one

party than another without good reason, socialising with a party and adoptingdifferent modes of address.

(c) Even if all the disputants agree that they would like the mediator to express anopinion on the merits, there is a substantial risk in giving such an opinion that themediator may no longer appear to be impartial. As a result the mediator may beobliged to withdraw

3. Conflicts of Interest

Before the mediation begins, the mediator must disclose all actual and potentialconflicts of interest known to the mediator. Disclosure must also be made if conflictsarise during the mediation. After making disclosure the mediator may proceed withthe mediation if all parties agree and the mediator is satisfied that the conflict will notpreclude the proper discharge of the mediator's duties. After the mediation a

mediator must not act in such a manner as to raise legitimate questions about theintegrity of the mediation process.

Comments(a) Conflicts of interest may arise in recommending the services of others. It may bepreferable to recommend referral services or associations which maintain rosters ofqualified persons.

(b) External pressures should never influence the mediator. The mediator'scommitment should be to the parties and the process.

(c) Interests which should be disclosed include any association with a party or


86/105

of the parties is likely to destroy the integrity of the mediation process.

(g) Under appropriate circumstances, researchers may be permitted to obtain access

i i l d


87/105

to statistical data.

(h) With the permission of all of the parties, researchers may be permitted access toindividual case files, to observe mediations, and to interview participants.

(i) A mediator should render anonymous all identifying information. When materialsemanating from mediation are used for research, supervision, or training purposes,the mediator should remove all identifying information from them.

6. Quality of the Process

A mediator must prepare for and conduct the mediation diligently, and with dueregard to the fact that an agreed outcome requires the uncoerced consent of theparties.

CommentA mediator's conduct should not be influenced by a desire to achieve a highsettlement rate. If the mediator believes that further negotiations may, subject to theparties' right to terminate the mediation, lead to a settlement, he or she mayencourage the parties to continue to negotiate even when they seem unable toagree.

7. Termination of Mediation

A mediator may terminate the mediation if the mediator considers that:(i) any party is abusing the process; or(ii) there is no reasonable prospect of settlement.

8. Recording Settlement

If the mediation results in a settlement between the parties, the mediator shouldencourage the parties to record those terms of settlement in writing.

CommentN ll d h f l h ld b d i


88/105

community mediation: theory and practice

Documents