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Mediation Training
By Lejla Mavris and Cameron HunterGlobal Majority
Promoting Peace through Dialogue:July 20 - August 3, 2008
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Alternative Dispute Resolution (ADR)
NegotiationMediationArbitrationLitigation
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ADR (cont’d)ADR (cont’d)
Negotiation 2 or more parties/people engage in
dialogue/discourse to protect or advance their respective interests.
Bilateral = 2 people or partiesMultilateral= 3 or more people or
partiesCan you do better through negotiation
or by pursuing other options?
Negotiation 2 or more parties/people engage in
dialogue/discourse to protect or advance their respective interests.
Bilateral = 2 people or partiesMultilateral= 3 or more people or
partiesCan you do better through negotiation
or by pursuing other options?
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ADR (cont’d)ADR (cont’d)
MediationThird party neutral facilitates (helps)
the parties to negotiationMediator has NO decision-making
authorityProcess is VOLUNTARYObjective is to achieve a binding
agreement or contract
MediationThird party neutral facilitates (helps)
the parties to negotiationMediator has NO decision-making
authorityProcess is VOLUNTARYObjective is to achieve a binding
agreement or contract
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Focus on MediationFocus on Mediation
GOAL OF MEDIATIONCreate Process that allows parties (disputants) to
participate in the creation of a settlement agreement
Process is voluntary, parties may leave if dissatisfiedObjective is to achieve a binding (contractual)
agreement that is enforceableBenefit: parties may be more willing to accept
agreement that includes their inputs (interests)Benefit: mediator can work with parties to win their
confidence in exploring possible options/solutions that they may not be prepared to share with adversary
GOAL OF MEDIATIONCreate Process that allows parties (disputants) to
participate in the creation of a settlement agreement
Process is voluntary, parties may leave if dissatisfiedObjective is to achieve a binding (contractual)
agreement that is enforceableBenefit: parties may be more willing to accept
agreement that includes their inputs (interests)Benefit: mediator can work with parties to win their
confidence in exploring possible options/solutions that they may not be prepared to share with adversary
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Focus on Mediation Focus on Mediation
FOUR STAGES OF MEDIATION PROCESS1. Pre-mediation2. Mediation3. Agreement4. Implementation
FOUR STAGES OF MEDIATION PROCESS1. Pre-mediation2. Mediation3. Agreement4. Implementation
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1. Pre-Mediation1. Pre-Mediation
Communication with parties Describe processSecure commitment that principal
(decision-maker) will be presentObtain pre-mediation briefs
ExchangeConfidentialHybrid – exchange and share further
confidential memo with mediator
Communication with parties Describe processSecure commitment that principal
(decision-maker) will be presentObtain pre-mediation briefs
ExchangeConfidentialHybrid – exchange and share further
confidential memo with mediator
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Pre-Mediation (cont’d)Pre-Mediation (cont’d)
LogisticsDate, time, locationMeeting RoomCaucus roomsNecessities and Amenities
PhonesComputers/Internet AccessFood-coffee-refreshmentsSecurity
LogisticsDate, time, locationMeeting RoomCaucus roomsNecessities and Amenities
PhonesComputers/Internet AccessFood-coffee-refreshmentsSecurity
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Pre-Mediation (cont’d)Pre-Mediation (cont’d)
Pre-Mediation Briefs (statements)Brief statement of history of conflict/caseIdentify parties including decision-makers
(people with authority)Contested issuesLegal authorityPertinent documents (contracts, etc.)Settlement discussion history (past offers)Goals and Objectives
Exchange or confidential?
Pre-Mediation Briefs (statements)Brief statement of history of conflict/caseIdentify parties including decision-makers
(people with authority)Contested issuesLegal authorityPertinent documents (contracts, etc.)Settlement discussion history (past offers)Goals and Objectives
Exchange or confidential?
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Pre-Mediation (cont’d)Pre-Mediation (cont’d)
Pre-Mediation CommunicationsWritten
Notice of date, time, and location of mediation
Schedule for receipt of pre-mediation briefs
Copy of Mediation Agreement for review and signature(s)
Pre-Mediation CommunicationsWritten
Notice of date, time, and location of mediation
Schedule for receipt of pre-mediation briefs
Copy of Mediation Agreement for review and signature(s)
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Pre-Mediation (cont’d)Pre-Mediation (cont’d)Oral
Phone contact with partiesInvite details in pre-mediation briefOffer assurances of neutralityExplain processPrepare parties for positive approach
to achieving settlement (compromise will be necessary)
OralPhone contact with partiesInvite details in pre-mediation briefOffer assurances of neutralityExplain processPrepare parties for positive approach
to achieving settlement (compromise will be necessary)
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Pre-Mediation (cont’d)Pre-Mediation (cont’d)
The Mediation Agreement (secure BEFORE actual mediation session begins!!!). Elements:
Identify parties and their authority to settleIdentify mediatorExplain voluntary nature of processExplain that mediator has NO DECISION-MAKING
AUTHORITYExplain use of CAUCUS MEETINGS and presumption
of CONFIDENTIALITY unless mediator authorized to share information
Explain CONFIDENTIALITY of process Explain Mediator immunityHave parties sign the Mediation Agreement
The Mediation Agreement (secure BEFORE actual mediation session begins!!!). Elements:
Identify parties and their authority to settleIdentify mediatorExplain voluntary nature of processExplain that mediator has NO DECISION-MAKING
AUTHORITYExplain use of CAUCUS MEETINGS and presumption
of CONFIDENTIALITY unless mediator authorized to share information
Explain CONFIDENTIALITY of process Explain Mediator immunityHave parties sign the Mediation Agreement
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2. Mediation2. Mediation
Mediator’s Initial Opening StatementWelcome-informal-orient parties to
premises, caucus rooms, phones, etc.TAKE CHARGE OF THE MEDIATIONEstablish your and their authorityDescribe your role: not a decision-makerReview elements of Mediation AgreementSET HIGH ASPIRATION/GOALS
Mediator’s Initial Opening StatementWelcome-informal-orient parties to
premises, caucus rooms, phones, etc.TAKE CHARGE OF THE MEDIATIONEstablish your and their authorityDescribe your role: not a decision-makerReview elements of Mediation AgreementSET HIGH ASPIRATION/GOALS
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Mediation (cont’d)Mediation (cont’d)
Mediator’s “official” Opening StatementUse of caucuses (confidentiality)Breaks as neededGoals: to achieve an agreement/settlement
ProceduralSubstantive
Time limits/no interruptionsVentingQuestions?
Mediator’s “official” Opening StatementUse of caucuses (confidentiality)Breaks as neededGoals: to achieve an agreement/settlement
ProceduralSubstantive
Time limits/no interruptionsVentingQuestions?
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Mediation (cont’d)Mediation (cont’d)
Parties’ Opening StatementsIdentify Parties’ Interests, Concerns,
Goals, Preferred Outcome
Create atmosphere for brainstorming Options
Promote use of objective criteria/ precedent decisions/what is fair
Parties’ Opening StatementsIdentify Parties’ Interests, Concerns,
Goals, Preferred Outcome
Create atmosphere for brainstorming Options
Promote use of objective criteria/ precedent decisions/what is fair
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Mediation (cont’d)Mediation (cont’d)
Encourage use of Single-text Documents
Emphasize positive developmentsUse caucuses to:
Explore BATNASExplore options by asking “What if…?”Identify other parties’ interests and
needs
Encourage use of Single-text Documents
Emphasize positive developmentsUse caucuses to:
Explore BATNASExplore options by asking “What if…?”Identify other parties’ interests and
needs
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Mediation (cont’d)Mediation (cont’d)
Prepare Interim Agreements reached during mediation (one-paragraph/page)Procedural agreementsSubstantive agreementsSingle text proceduresObtain signatures/initials on each
agreement reached
Prepare Interim Agreements reached during mediation (one-paragraph/page)Procedural agreementsSubstantive agreementsSingle text proceduresObtain signatures/initials on each
agreement reached
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3. Agreement3. Agreement
Use title that highlights key achievements of negotiations
Identify parties, their authority, position, official title
Date and locationSummarize results in a preamble
Use title that highlights key achievements of negotiations
Identify parties, their authority, position, official title
Date and locationSummarize results in a preamble
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Agreement (cont’d)Agreement (cont’d)
Be as specific/detailed as possibleOutline substantive and procedural
agreementsInclude timeline for implementationAre provisions conditional?What is expected/required of each
party
Be as specific/detailed as possibleOutline substantive and procedural
agreementsInclude timeline for implementationAre provisions conditional?What is expected/required of each
party
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Agreement (cont’d)Agreement (cont’d)
What happens if agreement is broken?Written notice of breachReconvene with mediator?ArbitrationLitigationSanctions/penaltiesOther?
What happens if agreement is broken?Written notice of breachReconvene with mediator?ArbitrationLitigationSanctions/penaltiesOther?
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Agreement (cont’d)Agreement (cont’d)
Include signatures of the partiesWitness signaturesTranslator/interpreter declarations
Consider a signing ceremony to celebrate, publicize, and fortify the agreement
Include signatures of the partiesWitness signaturesTranslator/interpreter declarations
Consider a signing ceremony to celebrate, publicize, and fortify the agreement
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The MediatorThe Mediator
Develop your reputation as a mediator:Respect for confidentialityAvoid media if so agreedAlways use fair standardsAvoid conflicts of interestsWork hard on implementing
agreement
Develop your reputation as a mediator:Respect for confidentialityAvoid media if so agreedAlways use fair standardsAvoid conflicts of interestsWork hard on implementing
agreement