mediation: multi-party considerations cross-cultural disputing by professor john barkai

7/28/2019 Mediation: Multi-Party Considerations Cross-Cultural Disputing by Professor John Barkai

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Mediation

Multi-PartyConsiderations

Cross-Cultural

Disputing


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The Hawaii Mediation Model"Applying the Hawaiian Mediation Model to Disputes and Conflicts"

11 Interspectives 40 (1992)Professor John Barkai

Introduction

In its simplest form, mediation is a conflict resolution method in which a mediatorhelps two people negotiate a voluntary solution to their dispute. What makesmediation different from other third-party dispute resolution processes is that the

mediator does not have the power to decide who "wins" the dispute or what the solutionshould be.

The mediator is neutral and provides nonjudgmental management of thenegotiation process. Even though the mediator has no power to decide, mediation is apowerful and successful dispute resolution process. The majority of mediated conflictsresult in negotiated solutions that are satisfactory to all the disputants. Statistics frommediation centers indicate that approximately 85 percent of the mediations end in

agreements. Even if there is no mediated solution, the disputants are no worse off thanbefore the mediation.

A Basic Model of Mediation

The basic mediation process can be most clearly identified in its purest form bylooking at the mediation of minor disputes. Mediators of minor disputes devote theirattention to managing the mediation process and using techniques which allow the

disputants to 1) identify, clarify, and communicate the issues and interests in dispute,2) effectively negotiate with each other, and 3) structure a settlement that is fair andworkable from their perspectives.


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The Core Process

The core process of mediation is designed around two central tasks: 1) definingthe problem the Forum Phase, and 2) negotiating solutions the NegotiationPhase. Each phase is divided into three stages.

The Forum includes: 1) the mediator's opening statement, 2) the disputants'statements, and 3) private meetings called "caucuses" with each disputant to discoverall the issues and interests important to a fair, workable solution. The Negotiationincludes: 1) a second round of private caucuses with each disputant to define options

and begin the bargaining, 2) a joint session with all disputants to negotiate the generalterms of the agreement, and 3) a drafting session that results in a specific, writtenagreement. Such a mediation process can be diagramed as two triangles, each withthree layers, as seen below.

The Mediation Process

Phases Conceptual Model Stages

ForumMediator's Opening

Disputants' Statements

First Caucuses

NegotiationSecond Caucuses


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each disputant is asked to make a short statement about their view of the conflict andthe other disputant is asked to not interrupt. Finally, the mediation moves into a series

of confidential caucuses with just the mediator and one of the disputants present. Asthe mediator process moves to the caucus stage, the upper triangle has its widest part,signifying the increasing amount of information that becomes available to the mediatorand the disputants as issues, positions, interest, feelings, and hidden agendas arediscussed and clarified in the caucuses.

The full development of facts and feelings in the Forum phase offers the greatestopportunity to create in the Negotiation phase a cooperative, integrative solution - what

some people refer to as a "win-win" solution. As the mediator uses this Forum phase tolearn the history of the conflict, the disputants often focus on just the facts whichsupport their view of the conflict. In both joint meetings and especially in thecaucuses, the mediator probes beyond the apparent facts to learn the disputants'underlying interests and feelings about the conflict. During the Forum, the time focus ison the past and the present.

B. The Negotiation Phase

In the Negotiation phase, represented by the second, inverted triangle, themediator shifts the focus to the future and assists the disputants to negotiate solutionsbased upon their interests. The Negotiation usually begins with another series ofcaucuses. The caucuses are used to move the disputants off their current negotiatingpositions by asking them to brainstorm possible solutions to the problem. Mediatorscan use a number of techniques to narrow the differences between the disputants andallow them to save face. Common mediator tactics are to review the good parts of the

prior relationship, create doubts, stress the consequences of no agreement, providereality testing about proposed solutions, and emphasize the progress that has beenmade. Several caucuses may be necessary.

Wh th di t t d t b i ff ti l f t f th


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C. A Communication Focus

Throughout the entire mediation process, Hawaiian mediators use facilitative

communication techniques. During the Forum, the mediators try to get the disputantsto reveal and clarify their interests and express their feelings by using variouscommunication techniques such as open-ended questions, clarifying questions, andactive listening. Mediators often summarize to acknowledge what the disputants havesaid, to prevent repetitive accounts, and to check their understanding of what thedisputants mean. They use active listening to acknowledge the disputants' feelingsbecause feelings can be as important to a solution as the facts. Mediators also"reframe" the disputants' language to eliminate blame and the attribution of motives.

A fundamental hypothesis of Hawaii community mediation model is that thedisputants are in charge of their own dispute. Hence, during the Negotiation phase thedisputants are expected and encouraged to create their own solutions to the conflict.

Acting under the assumption that disputants are more likely to move from theirentrenched negotiation positions towards mutually acceptable solutions if the basis ofthe solutions comes from a disputant's own mouth rather than if suggested by someoneelse, mediators are taught to refrain from giving advice. Hence, rather that make direct

suggestions to the disputants, mediators ask well crafted questions that are intended tostimulate the creative thinking of the disputants.

The Neighborhood Justice Center

The basic mediation model described in this article is used in many differenttypes of disputes in Hawaii, including complex, multi-party construction cases in court,bitterly contested divorce proceedings, minor neighbor-neighbor disputes, and for

playground conflicts mediated by grade school children. When the mediation is doneat the Neighborhood Justice Center, the mediators are community volunteers from awide variety of backgrounds and professions, who mediate without compensation. Allsuch mediators have gone through at least 40 hours of training using role plays and


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A Community Mediation Model


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FACILITATIVE & EVALUATIVEMEDIATION STYLES

Two very different mediation styles are the facilitative and evaluative styles. Thefollowing article explains more about the two mediation styles. Community mediatorstend to use the facilitative style; commercial mediators tend to use the evaluative style

MEDIATOR ORIENTATIONS, STRATEGIES AND TECHNIQUES

12 Alternatives to High Cost Litig. 111 (Sept. 1994)Leonard L. Riskin

THE MEDIATOR'S ROLE

The evaluative mediator assumes that the participants want and need the mediatorto provide some direction as to the appropriate grounds for settlement--based on law,industry practice or technology. She also assumes that the mediator is qualified to give

such direction by virtue of her experience, training and objectivity.

The facilitative mediator assumes the parties are intelligent, able to work with theircounterparts, and capable of understanding their situations better than either theirlawyers or the mediator. So the parties may develop better solutions than any that themediator might create. For these reasons, the facilitative mediator assumes that hisprincipal mission is to enhance and clarify communications between the parties in orderto help them decide what to do.

The facilitative mediator believes it is inappropriate for the mediator to give hisopinion, for at least two reasons. First, such opinions might impair the appearance ofimpartiality and thereby interfere with the mediator's ability to function. Second, the


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regulations (as in a regulatory negotiation), they might wish to retain a mediator whounderstands administrative law and procedure.

In contrast, to the extent that the parties feel capable of understanding their

circumstances and developing potential solutions--singly, jointly or with assistance fromoutside experts--they might prefer a mediator with great skill in the mediation process,even if she lacks subject-matter expertise. In such circumstances, the mediator needonly have a rough understanding of the relevant law, customs and technology. In fact,too much subject-matter expertise could incline some mediators toward a moreevaluative role, and could thereby interfere with developing creative solutions.

Mediation of International Crises

Like many disputes, international crises may be marked by profound disagreements as well asmutual mistrust and resentment. International crises mediation also has its own vocabulary,classifying mediation as:

1. Facilitation or communication (essentially the Facilitive style)2. Formulation, (essentially the Evaluative style) and3. Manipulation. (the mediator with clout political power or influence)

A facilitative mediator may simply provide the physical space for negotiation (called goodoffices), organize the logistics, collect information, set the agenda, help understand the messagesbetween the parties, and serve as a conduit when face-to-face communication is not possible ordesired. Although the facilitator may try to get the parties to see the problem in a new light and to

view each other more empathetically, this type of mediator clearly make no specific suggestionsregarding potential solutions. They make no substantive contribution to the negotiation. Thefacilitative mediator in the international crises is quite similar to the facilitative mediator incommunity or commercial mediation


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Styles in the Context of Mechanisms and Tactics

Facilitative May contact with partiesGain the trust and confidence of the partiesArrange for interactions between the partiesIdentify underlying issues and interestsClarify the situationSupply missing informationTransmit messages between partiesFact findingOffer positive evaluationsAllow the interests of all parties to be discussed

Formulation

Evaluative

Control the pace informality of the meetingsEnsure the privacy of mediationHighlight common interestsControl timingHelp devise a framework for typical outcomeHelp parties save faceMake substantive suggestions and proposalsSuggest concessions parties could make

Manipulation

Clout

Keep parties at the tableChange parties' expectationsTake responsibility for concessionsMake parties aware of the costs of non- agreementSupply and filter informationHelp negotiators to undo a commitmentReward concessions made by parties

Press the parties to show flexibilityPromise resourcesThreaten withdrawal of resourcesOffer to verify compliance with the agreement


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Suggestions for Mediators

The following suggestions for mediators are from, Mediating International Crisis, JonathanWilkenfeld, Kathleen J. Young, David M. Quinn, and Victor Asal (2005) pp. 90-91. Thesesuggestions were offered to mediators involved in a simulated crisis negotiation, and they wouldprobably serve you well in a real-life situation. The suggestions are listed here as they move fromfacilitative to manipulative mediation.

Ask the parties to brainstorm.

Assist parties in understanding messages that are passed back and forth and the details of theconflict.

Ask each party what their fears and interests are, and promise not to share these with the otherparty unless such action is requested or was approved by the providing party. Point out that thesefears and concerns are legitimate.

"Feel the pain" of each side. In messages sent to the individual parties in private or both parties inpublic, point out that each side has legitimate concerns.

Ask which issues they want to discuss and let them determine the agenda in order in which issuesare discussed.

Reiterate how the negotiations have gone and what has been agreed upon, especially when theparties are at an impasse or when discussion has been completed on a specific topic.

Praise positive actions.

Constantly reiterate that compromise is the key, that each side will not be able to get all of whatthey want.

B d t t th l h l f i ti b t th ti if t d


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Raise costs of disagreement or offer rewards for agreement.

Push for preliminary agreement on side issues.

Ask each side what their bottom lines is, and tell them that you will not share this informationwith the other side. Find out what the agreement range includes based on the information theyprovide you.

Use flattery. Appeal to their egos.

Do not let them escalate the conflict.

Give them credit when they engage in confidence-building measures.

Provide carrots (additional resources if possible and useful).

Herding Cats: Multiparty Mediation in a Complex World (1999)Chester Crocker, Fen Osler Hampson, and Pamela Aall, eds.

This book talks about "multiparty mediation" in a completely different way. "Multi-party" in thisbook really means "more than one mediator." These mediators can enter a conflict in sequential,simultaneous or "composite" ways. This book is a series of case studies about third-partyinterventions in violent conflicts in the 1990s. It examines conflicts in Asia, Africa, Europe, Latin

and South America,


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WESTERN MEDIATION COMPARED TODISPUTE RESOLUTION IN OTHER CULTURES

CLASSIC WESTERN MEDIATION

NeutralFace-to-faceFacilitate communicationExplore interestsDetermine facts & perceptionsIdentify options

Assist in evaluation of optionsDocument the agreement

OLD FRIEND SYSTEM

(Lao peng you) - CHINESE

Trusted old friendMeets separately with the partiesExplores facts & interestsExplores interests in context of mutual

benefits & interdependencePreserves valuable relationshipsIdentifies options

Suggests resolutionSave face & give faceConvenes parties to confirm agreementPours tea & talks

KEIRETSU TRADING CIRCLEJAPANESE

Mutual business associate from anestablished trading circle

Meets separately with the partiesExplores facts, perceptions, interestsIdentifies options for mutual benefitsExplores obligations to accommodate for

the good of future relationshipSearches for consensusConvenes parties to confirm agreement

COUNCIL OF ELDERS(VILLAGE MODEL)

Circle of Elders

Joint meeting of parties with Circle of EldersSharing of cultural customs;

- prayer to divine spiritsExplores facts & perceptionsEncourages full expression of views &

optionsEvaluates options in context of group needsMakes suggestions for resolution

Acceptance and ceremony

HO'OPONOPONOHAWAIIAN

High status elder (haku) gathers disputing


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MEDIATORS FIND SOLUTIONSby

HELPING PARTIES NEGOTIATE

Uncover Interests

Prioritize Interests

Brainstorm Options

"What could they do...?"

"What could you do...?"

Establish criteria

Create Doubts

Review the Relationship

Engage in contingent bargaining

"If they were to , what could you do?"

"For you to , what would you expect them to do?"

Narrow the differences

Save Face


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PRACTICE MEDIATOR LINES

FORUM PHASE - DEALING WITH THE PAST AND THE PRESENT

Can we agree that as a ground rule, we will ...Remember, you both agreed not interrupt. You will get your uninterrupted

time too.Tell me more about that.When did this happen?So what you are saying is ...

Wait. Let me be sure I understand correctly. You're saying ...So, as far as you are concerned ...What else is important?Could you say more about that?How do you feel about what happened?What do you mean by that?Is there anything else you want to add?

Let's move to the issue of ...Can you tell me more about ...?What additional information do you have on that?Of all that you have talked about, what is most important to you now?

NEGOTIATION PHASE - DEALING WITH THE FUTURE

What could X do to help you solve this problem?"What can you do to help solve this problem?Do you have any other ideas for solving this problem?What do you think will happen if you can't negotiate a solution?


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Using Cultural Dimension Interests in Negotiation

Prof. John Barkai

High Context Communication Low Context Communication

NEGOTIATING

WITH THEM

Read between the lines

Ask them to be more direct

Pay close attention to context & non-verbals

Don't take them literally; gather "clues"

Draw out their full ideas with questionsFace is very important

Don't challenge them; they may lose face

Explain that you do not fully understand; ask for further clarification

Take time to build a good relationship

Communicate clearly and explicitly. Be "upfront"

Ask direct questions; share frank observations

Say "no" if you mean "no"

Take their words at face value

No need to read between the linesWhat you hear, is what you get

Avoid ambiguous expressions

Reframe their directness as helpful information

(not rudeness)

Listen & active listen

Be ready to negotiate at the first meeting

Handle some business over the phone or internet

High Power Distance Low Power Distance

NEGOTIATING

WITH THEM

Understand & defer to their hierarchy

Use titles (don't be informal) & respect authority

Prepare by learning about the position of each person on

their team

Match eagles with eagles

Exchange business cards early (Japanese meishi)

Treat them with respect

Don't be intimidated by their status

Demonstrate your rank

Privileges are expected by superiors

Blame subordinates

Remember that everyone has their place

Better to be too respectful than to lack it

Don't insist on everyone's input

Expect highly centralized decision making Authority may

be limited

"Just call me John;" be less formal

Address questions to the whole group

Treat them all as equals

Use teamwork

Acknowledge experience & expertise, not status

Respect individuality

Respect subordinates

Ask for opinions from their subordinates


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Individualism Collectivism

NEGOTIATING

WITH THEM

Expect low context communication and extroverted

behavior

They will have personal goals distinct from group goals

Stress personal gains & individual goals

Use a "What's in it for me" approach

Recognize their individuality; they value individual rights

They will want some personal time and privacy

Expect them to think and act individually

Seek their personal opinions

Talk of "Me" and "I"

Individualists are the minority of the world

Expect your proposals to be received by a larger group

Expect high context communication and introverted behavior

Expect a team

Dont expect immediate action; they must consult others

Everything will take longer

Consider the collective goals and interests

Individual rights are less important Insiders are treated differently than outsiders

Expect them to think and act collectively

Give them face

Harmony may be more important than honesty

Talk of "We"

They are the majority of the world

Using Cultural Dimension Interests in Negotiation

Long Term Orientation Short Term Orientation

NEGOTIATING

WITH THEM

Expect "slow going

Expect strong perseverance

Have a future focus

Expect future negotiation opportunities

Build long-term relationships

Demonstrate your long-term focus

Expect a strong work ethic

Have great respect for tradition

Work with their extensive personal networks - "guanxi"

Help them understand the current situation

Focus on today & the short term

Incorporate their immediate needs

Make it happen "right now"

Expect quick changes

Help them examine the "long run" and the consequences of a

"quick win"

mediation: multi-party considerations cross-cultural disputing by professor john barkai

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