Community Mediation: Theory and Practice

Community Mediation: Theory and Practice
PACS6928 Postgraduate Peace and Conflict Studies Summer School, 2010
COURSE MANUAL
STAFF Abe Quadan (Coordinator) Kathleen Dan VENUE Eastern Avenue Seminar Rooms 405, 406 and 407
The University of Sydney CentreforPeaceandConflictStudies

Mackie Building K01 NSW 2006 Australia Email: arts.cpacs@sydney.edu.au http:// sydney.edu.au/arts/cpacs Tel: + 61 (2) 9351 7686 Fax: + 61 (2) 9660 0862
Community Mediation
The University of Sydney

22-26 February 2010
Course Co-ordinators Abe Quadan & Kathleen Dan
1 Community Mediation
University of Sydney
CONTENTS
Page 1. INTRODUCTION Welcome The course co-ordinators Workshop outline Role play guidelines Giving feedback 2. ACCREDIATION Approval standards 3. ASSESSMENT Assessment requirements Essay questions Reading List Assessment criteria Codes of practice & policy 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 Fishbowl The mediation process Stage 1: Pre-mediation Pre-mediation Stage 2: The opening statement The opening statement Stage 3: Story telling Story telling 5 6 7-11 12 13
15-20
22 23 24-26 27 28-29
31 32 33 34 35 36-37 38 39 40 41 42-43 44 45-46 47 48
Page The mediation process Stage 4: Summaries The Summaries Stage 5: Agenda setting Listing items for discussion Reframing Common agenda items Reframing Reframing Skills practice: reframing Stage 6: Exploration Exploration Stage 7: Private sessions Private sessions Encouraging resolution Stage 8: Negotiation Negotiation Listening & summarising Tracking progress Stage 9:Agreement Agreement Stage 10: Closure Closure Mediator skills Questioning Helpful questions Skills practice: questioning Debriefing Ethics Ethical practice Ethical Standards for mediations
49 50 51 52 53 54 55 56 57 58 59-61 62 63-64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79-80 81-85
6. ROLE PLAYS The Will The Partnership The Marriage The Baby The Fence
87 88 89 90 91
Page The Job The Flatmates The Renovation 92 93 94
7. COACHING Feedback on mediation simulation
96-102
Introduction
WELCOME
Welcome to Community Mediation. This unit of study will focus on the theory and practical application of facilitation, communication and conflict resolution skills in a community mediation context. You will learn about various models of community mediation and will become skilled in the stages of community mediation through role plays and simulation exercises. Successful completion of this unit of study will equip you for possible accreditation as a community mediator in Australia, as well as providing 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 session and manage the various stages of the process competently. You will also be aware of the skills and strategies required for all stages of the process. The course also provides an excellent conceptual framework and general skills for people engaged in work related to mediation without necessarily playing the formal role 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 by experienced mediators who are trained to supervise role plays and provide constructive feedback. Their role is to support and coach you as you develop new skills. To learn effectively however, you need to be able to take risks. In order to do this it will be important to demonstrate: respect for each others views and opinions willingness to participate along with a right to pass openness to feedback. Overall, relax and enjoy the learning experience.
THE COURSE CO-ORDINATORS

6 Community Mediation University of Sydney
ABE QUADAN
Abe has been an ADR practitioner for over 25 years. He has a Master of Dispute Resolution and an Associate Diploma in Welfare Work. Abe is an accredited mediator, mentor and trainer as well as an accredited Transformative Justice practitioner. Abe has extensive management experience with the Department of Community Services with whom he still works. In addition to this he delivers mediation skills workshops to organisations such as the 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 Sydney Peace Foundation.
KATHLEEN DAN
Kathleen has a number of years experience as a social worker and manager in educational and child protection settings. She holds graduate and postgraduate qualifications in social work, adult education and theatre studies. She is a nationally accredited mediator and has over 18 years experience in facilitating and coaching in both the private and public sectors. In her consultancy role Kathleen facilitates programs in: mediation, management development, negotiation, communication and career development. She also conducts mediations and 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 (DoCS), Catholic Education Office, Westpac Corporation and MBF.
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 FOUNDATION BLOCKS OF MEDIATION
What is mediation Other forms of ADR The mediation process The role of the mediator LUNCH
THE PROCESS IN PRACTICE
Fishbowl mediation demonstration (part 1)
AFTERNOON TEA THE PROCESS IN PRACTICE Fishbowl mediation demonstration (part 2) Debrief
STAGE 2 Theory and practice
The opening statement
Day 2
Session
9.00 am REVIEW OF DAY 1
STAGES 3, 4 & 5 Theory
Parties opening statements Summarising Agenda setting MORNING TEA
STAGES 3, 4 & 5 Practice
Scenario 1 (a) small groups Small group debrief Large group debrief
STAGE 6 Theory STAGE 6 Practice
Exploration
Scenario 1 (b) small groups Small group debrief Large group debrief LUNCH
STAGE 7 Theory
Private Sessions
STAGE 7 Practice
Scenario 1 (c) small groups Small group debrief Large group debrief AFTERNOON TEA
STAGE 8 & 9 Theory STAGE 8 & 9 Practice 5.00 pm 9 Community Mediation
Joint negotiation session & agreement
Scenario 1 (d) small groups Small group debrief Large group debrief University of Sydney
Day 3
Session
REVIEW OF DAY 2 9.00 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
Day 4
Session
REVIEW OF DAY 2 9.00 am
ETHICAL CONSIDERATIONS REVIEWING THE MEDIATION PROCESS
Professional practice for mediators
What is the mediator doing at each stage of the process? What is the impact on the parties when this stage 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 5.00 pm Debrief Feedback from coaches
Day 5
Session
COACHES INTRODUCTION 8.30 am
SOLO MEDIATION
Scenario 6 small groups Small group debrief with coach MORNING TEA
SOLO MEDIATION
Scenario 7 small groups Small group debrief with coach LUNCH
SOLO MEDIATION
Scenario 8 small groups Small group debrief with coach
AFTERNOON TEA DEBRIEF 5.00 pm Debrief Feedback from coaches Wrap up Evaluations
ROLE PLAY GUIDELINES

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 hour mediation 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 the course 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 Facts for 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 Jeffers says, feel the fear and do it anyway.
GIVING FEEDBACK
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 the person] Base feedback on direct observations rather than inferences Use concrete behavioural descriptions not judgements to describe both positives and 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 be given [overload]
Accreditation
MEDIATOR APPROVAL STANDARDS

FOR MEDIATORS SEEKING APPROVAL UNDER THE NATIONAL MEDIATOR ACCREDITATION 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 be accredited under the National Mediator Accreditation System (the system) to act as a 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 who act 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 the voluntary national accreditation system; and b) define minimum qualifications and training; and c) 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 Practice Standards and seek re-approval in accordance with these Approval Standards every two years. These Approval Standards should be read in conjunction with the Practice Standards 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. Mediation may be used where there is conflict or may be used to support future decision making. Mediators are drawn from diverse backgrounds and disciplines. Mediation may take place as a result of Court or Tribunal referral, pre-litigation schemes, through industry schemes, community-based schemes as well as through private referral, agency, self or other referral. These Approval Standards set out minimum voluntary accreditation requirements and recognise that some mediators who practice in particular areas, and/or with particular models, may choose to develop or comply with additional standards or requirements. Mediators may practice as solo mediators or may co-mediate with another mediator. 2 Description of a Mediation Process 1) A mediation process is a process in which the participants, with the support of a mediator, identifies issues, develop options, consider alternatives and make decisions 16 Community Mediation University of Sydney
about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision. 2) The mediator[s] may assist the participants to: a) communicate with each other; and b) identify, clarify and explore disputed issues; and c) generate and evaluate options; and d) consider alternative processes for bringing any dispute or conflict to a conclusion; and e) reach an agreement or make a decision about how to move forward and/or enhance their communication in a way that addresses participants mutual needs with respect to their individual interests based upon the principle of self determination. 3) Mediation processes are primarily facilitative processes. The mediator provides assistance in managing a process which supports the participants to make decisions about future actions and outcomes. 4) Some mediators may also use a blended process that involves mediation and incorporates an advisory component, or a process that involves the provision of expert information and advice, where it enhances the decision-making of the participants 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 to have 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 for participants to obtain individual legal or other expert advice and support. Mediation processes 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 own decision 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 mediator to provide the following: a) evidence of good character (see Section 3(2) below); and b) an undertaking to comply with ongoing practice standards and compliance with any legislative and approval requirements (see Section 3(3) below); and c) evidence of relevant insurance, statutory indemnity or employee status (see Section 3(4) below); and d) evidence of membership or a relationship with an appropriate association or organisation that has appropriate and relevant ethical requirements, complaints and disciplinary processes as well as ongoing professional support
(see Section 3(5) below); this may be the RMAB itself but may also include other relevant memberships or relationships; and e) evidence of mediator competence by reference to education, training and experience (see Section 4 below). 2) RMABs require mediators who apply to be accredited to provide evidence of good character. 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, social and work experience, for example, by seeking references from two members of their community who have known them for more than three years; and b) show that they can meet the requirements of a police check in the State or States or Territory or Territories in which they practise; and c) show that they are without any serious conviction or impairment that could influence their capacity to discharge their obligations in a competent, honest and appropriate manner; and d) show that they are accredited with an existing scheme that has existing good character requirements that they comply with (for example, by referring to existing Law Institute, Law Society, Bar or Family Dispute Resolution Practitioner accreditation where relevant); and e) satisfy the RMAB that they do not come into the category of a prohibited person (or its equivalent) as defined in a particular jurisdiction and also not be disqualified to practice by another professional association relating to any other profession (for example, a Law Society or a Medical Association) or must explain to the RMAB the circumstances under which they have previously been removed or suspended from acting as a mediator under these 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, the mediator must provide the RMAB with evidence of their current status. This may be provided in a range of ways, for example, by a letter setting out any relevant employee status, or by showing how indemnity applies, or by showing proof of membership that incorporates insurance status, or by the mediator naming their insurer, providing an insurance policy number and its expiry date or, through some other relevant document. If a mediator wishes to practice using a blended model and in an advisory manner, the mediator must hold additional insurance relating to the provision of expert advice or must indicate how existing insurance, statutory or other immunities apply. 5) An RMAB must have the following characteristics: a) more than ten mediator members accredited under the National Mediator Accreditation System; and
b) provision of a range of member services such as, an ability to provide access to or refer mediators to ongoing professional development workshops, seminars and other programs and debriefing, or mentoring programs; and c) a complaints system that either meets Benchmarks for Industry-based Customer Dispute Resolution or be able to refer a complaint to a Scheme that has been established by Statute; and, d) sound governance structures, financial viability and appropriate administrative resources; and, e) sound record-keeping in respect of the approval of practitioners and the approval of any in-house, outsourced or relevant educational courses; and, f) the capacity and expertise to assess training and education that may be offered by a range of training providers in respect of the training and education requirements set out in these Standards. An RMAB can be a professional body, a mediation agency or Centre, a Court or Tribunal, or some other entity. 4 Training and Education 1) Mediators must demonstrate to an RMAB that they have appropriate competence by reference to applicable practice standards, their qualifications, training and experience. It is not necessary for the RMAB to provide education and training to individual mediators (see Section 5 below). Training and education may be provided by organisations other than RMABs, such as, industry training providers, universities and 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. A mediator who uses a blended process and provides information or advice in the context of a blended process must be competent to do so and possess the appropriate skills, knowledge and expertise. 5 Threshold Training and Education Requirements 1) Unless experience qualified (see Section 5 (3) below), from 1 January 2008, a mediator must have completed a mediation education and training course that: a) is conducted by a training team comprised of a at least two instructors where the principal instructor[s] has more than three years experience as a mediator and has complied with the continuing accreditation requirements set out in Section 6 below for that period and has at least three years experience as an instructor; and b) has assistant instructors or coaches with a ratio of one instructor or coach for every three course participants in the final coached simulation part of the training and where all coaches and instructors are accredited; and c) is a program of a minimum of 38 hours in duration (which may be constituted by more than one mediation workshop provided not more than nine months has passed between workshops), excluding the assessment process referred to in Section 5(2) below; and
d) involves each course participant in at least nine simulated mediation sessions and in at least three simulations each course participant performs the role of mediator;and e) provides written, debriefing coaching feedback in respect of two simulated mediations to each course participant by different members of the training team. 2) Unless experience qualified (see Section 5(3) below), from 1 January 2008, a mediator must also have completed to a competent standard. a written skills assessment of mediator competence that has been undertaken in addition to the 38hour training workshop referred to above, where mediator competence in at least one1.5 hour simulation has been undertaken by either a different member of the training team or a person who is independent of the training team. The written assessment must reflect the core competency areas referred to in the Practice Standards. The final skills assessment mediation simulation may be undertaken in the form of a video or DVD assessment with role players, or as an assessed exercise with role players. The written report must detail: a) the outcome of the skills assessment (in terms of competent or not yet competent); and b) relevant strengths and how they were evidenced; and c) relevant weaknesses and how they were evidenced; and d) 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 competencies expressed in the Practice Standards. An experience qualified mediator must either: a) be resident in a linguistically and culturally diverse community for which specialised skills and knowledge are needed and/or from a rural/or remote community where there is difficulty in attending a mediation course or attaining tertiary or similar qualifications; or b) have worked as a mediator prior to 1 January 2008 and have experience, training, and education that satisfies an RMAB that the mediator is equipped with the skills, knowledge and understandings set out in the core competencies referred to in the Practice Standards, and who has met the continuing accreditation requirements set out in Section 6 below in the 24 months prior to making an application. 4) Practitioners who seek to offer advice through the use of a blended process such as conciliation or advisory or evaluative mediation must also provide evidence to the RMAB of: a) their continuing registration, membership or equivalent within the professional area in which advice is to be given, and b) completion of an appropriate degree, or equivalent qualification in the area of their expertise from a university or former college of advanced education, of at least four years equivalent full-time duration, or a VET-approved organisation to a National Framework Level 6 standards; and
c) a minimum of five years experience in the professional field in which they seek to provide advice.
6 Continuing Accreditation Requirements 1) Mediators who seek to be reaccredited must satisfy their RMAB that they continue to meet the approval requirements set out in Section 3 of this document. In addition mediators 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 qualified mediators); a focus on work undertaken as a dispute manager, facilitator, conflict coach or related area; a family, career or study break; illness or injury, an RMAB may require the mediator to have completed no less than 10 hours of mediation, co mediation or conciliation work per two-year cycle and may require that the mediator attends top up training or reassessment; and, b) have completed at least 20 hours of continuing professional development in every 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 related skill areas as referred to in the competencies (see the Practice Standards) (up to 20 hours); ii) external supervision or auditing of their clinical practice (up to 15 hours); iii) presentations at mediation or ADR seminars or workshops including two hours of preparation time for each hour delivered (up to 16 hours); iv) representing clients in four mediations (up to a maximum of 8 hours); v) coaching, instructing or mentoring of trainee and/or less experienced mediators (up to 10 hours); vi) role playing for trainee mediators and candidates for mediation assessment or observing mediations (up to 8 hours); vii) mentoring of less experienced mediators and enabling observational opportunities (up to 10 hours). 2) Ongoing accreditation as a mediator requires the mediator to meet the practice standards and competencies described in the Practice Standards. An RMAB has discretion to remove or suspend a mediator in circumstances where it believes, on the balance of probabilities, that there has been non compliance with the Practice Standards, other relevant ethical guidelines or professional requirements, or these 21 Community Mediation University of Sydney
Approval Standards. In relation to any removal or suspension, a mediator must be informed 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 to deal with removal and suspension or must be able to provide access to a process where such decisions can be made in a procedurally fair manner.
Assessment
ASSESSMENT REQUIREMENTS
1. 2. 3. 4. Course participation, Reflective Journal 25% Role plays 25% 3000 words assignment on one of the 8 topics listed on the next page 50%. 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 coordinators, or choose from the assignment list. Your assignment should demonstrate that you have reflected upon what you have learned about mediation skills in the course, integrating that understanding with the literature on mediation practice. Note that you are expected to read and research for this assignment in the same way as for a research assignment. Formal referencing of sources AND provision of a bibliography are essential.
ASSIGNMENT LIST
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.
NB: (i) Further details regarding referencing styles, presentation and submission of assignments may be found in the CPACS Assignment Presentation and Submission Guidelines. Most importantly, students are required to attach an Assignment Cover Sheet to all assignments and to sign the plagiarism compliance statement before work can be marked. (ii) Students must complete all three sections of the assessment (role play, journal, and essay) for successful completion of the course. Failure to attend at least 80% of classes without reasonable cause is grounds for failure.
READING LIST
1. Hilary Astor and Christine Chinkin Dispute Resolution in Australia 2nd edition, Butterworths, Sydney, 2002. This recommended text is not a skills book, but a scholarly treatment of dispute resolution in general. See chapter one on theory issues and chapter 5 on mediation especially. A good research resource see the extensive bibliography. 2. Laurence Boulle Mediation : Principles, Process, Practice 2nd edition, Butterworths 2005 Not a skills book but a scholarly treatment of dispute resolution mostly about mediation. 3. David Spencer and Tom Altobelli Dispute Resolution in Australia: Cases, Commentary and Materials Lawbook Co., 2005. As the name implies this is a collection of materials on a range of dispute resolution 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 4th edition, ed. Carolyn Schrock-Shenk, MCS, Akron, Pennsylvania, 2000. (see www.mcc.org) A skills manual. The Mennonites, like the Quakers, have an extensive reputation in dispute resolution. A copy is in the library. 2. Christopher Moore The Mediation Process: Practical Strategies for Resolving Conflict 3rd ed, Jossey Bass, San Francisco. One of the most respected US texts on mediation, now in its third edition. Note the Jossey Bass website for many more US texts on mediation and ADR. 3. Bernard Mayer The Dynamics of Conflict Resolution: A Practitioner's Guide Jossey-Bass, San Francisco, 2000. Another good US skills book thoughtful and well written.
4. Peter Condliffe Conflict Management: A Practical Guide 2nd ed, Lexis Nexis Butterworths, Sydney, 2002 A quirky combination of skills and theory from an Australian mediator.
5. Ruth Charlton Dispute Resolution Guidebook Law Book Co, Sydney, 2000. An Australian book that goes beyond basic skills and considers ADR in specific areas of application. Includes a significant section on facilitation. 6. Gregory Tillett and Brendan French Resolving Conflict: A Practical Approach 3rd edition 2006 Oxford UP, Melbourne. A good Australian text with strong analysis of the nature of conflict and much material 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, Transformative Justice 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 disputes and the prevention of conflict. The book helps the reader in finding more skilful ways to resolve conflicts. 11. Mosten F: Mediation Career Guide A Strategic Approach to Building a Successful Practice, Jossey-Bass, San Fransisco A helpful book if you are thinking about starting your own consultancy in mediation.
12. Ury W: Getting Past No, Random House, Sydney 1999 27 Community Mediation University of Sydney
Riding on the coat tails of Getting to Yes this book provides techniques for dealing with difficult parties. Particular approaches to mediation 1. Linda Fisher and Mieke Brandon Mediating with Families: Making the Difference Prentice Hall, Sydney, 2002. An Australian practitioners book on family mediation. 2. John Haynes and Stephanie Charlesworth The Fundamentals of Family Mediation 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 to Conflict Resolution Jossey 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: The Transformative Approach to Conflict, Revised Edition, October 2004, JosseyBass. The textbook on transformative mediation. Useful web resource A most useful web site can be found by going to the law school library web site. Click Law Web Resources, Web Resources by topic, Dispute Resolution. Or go to http://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.
ASSESSMENT CRITERIA
Fail (Below 50%): Doesnt answer the question. Work may fail for any or all of the following reasons: Few or no identifiable arguments. No original research. Content that is inappropriate or irrelevant because the student has not attempted to 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. Content and structure is well organised in support of the argument. Demonstrates extensive research supporting a well documented argument. Generally well expressed and free from errors. High Distinction (85% +): Completely answers the question in an original or unanticipated way. Contains striking originality of approach or analysis. Demonstrates exhaustive or innovative research. Exceptionally well written. Is otherwise exceptional in some way.
A1. University of Sydney Handbook 2010 The handbook is an essential guide for every student who studies at the University of Sydney. 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 Behaviour Students will be expected to adhere to the Universitys Student Code of Conduct in and outside of classrooms. Basic courtesy will be expected, including having mobile phones turned off, arriving punctually and treating the teacher and other students with 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 to sign their name and provide their student identification number, especially when sending emails. A3. (Grievances) Appeals You may consider that a decision affecting your candidature for a degree or other activities 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 particular decisions; 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 decisions is available at the Student Centre, at the SRC, and on the Universitys policy online website: 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 Material Lectures are literary works subject to copyright. Students have a limited licence to make use of these lectures by taking notes and making a limited number of copies for their research and study. That licence does not extend to making multiple copies of these notes, publishing them, electronically transmitting them or making them available online in any form. Lectures may not be taped without express personal permission from the lecturer. A5. Policy on Harassment and Discrimination The University has a policy prohibiting harassment and discrimination, and a procedure for handling inquiries and complaints about these. These policies and procedures can be found at the Staff and Student Equal Opportunity Units page on the universitys website: http://www.usyd.edu.au/su/eeo/ or for further details, please refer to the Facultys Teaching Handbook.
CODES OF PRACTICE & POLICY
A6. Plagiarism and Academic Dishonesty University practice on plagiarism and academic dishonesty is governed by the Academic Board Resolutions, Academic Honesty in Coursework, 14 November 2002, last amended 5 April 2006. This document is available online. Students are encouraged 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&-find For further explanation of this policy, see: http://www.chs.usyd.edu.au/PG/honesty.html University practice on Plagiarism is also governed by the Vice Chancellors Policy Student Plagiarism Course Work: Policy and Procedure, of 15 February 2005. A copy of which is available from: http://www.usyd.edu.au/senate/policies/Plagiarism.pdf Please note that the Policy requires students to submit a signed statement of compliance with all work submitted for assessment. Therefore, all students must submit their essay with the Assignment Coversheet (see http://www.law.usyd.edu.au/cstudent/coursework/forms.shtml for the form) and must give the Declaration on Plagiarism set out on the Assignment Coversheet. Students who are found to have engaged in academic dishonesty will be reported to the Pro-dean (Teaching Programs) and will be required to attend a formal meeting to discuss 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 could result 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
Mediation: principles & practice
CONFLICT
Without censoring your thoughts, write down words you think of when you think of conflict. Stop when you have a list of eight words.
WHAT IS MEDIATION?
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.
INTEREST BASED MEDIATION

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.
Procedural
Substantive
Psychological
Substantive interests refer to what needs to be negotiated and are often the central focus of negotiations. They often include tangible things such as money, physical resources, time, etc Procedural interests refer to how the process of mediation is conducted. They relate to matters such as having a fair say and to the process occurring in an orderly, timely and balanced manner. Psychological interests refer to the emotional and relationship needs of parties both during and as a result of mediation. They include things such as perceptions of trust, fairness, desire for participation, respect, etc.
INTERESTS VS POSITIONS
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.
Most obvious, what you are told.
Position:
Things you say you want, demands, things you say you will and wont do.
What you often dont hear but will drive behaviour & if not met can affect the outcome of the mediation
Interests:
Underlying motivations Needs & concerns Fears & hopes
WHAT IS THE ROLE OF THE MEDIATOR?
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 Mediate signed 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).
PROCEDURAL TYPES OF MEDIATION

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 Opportunity to model communication, team work Opportunity for gender balance & gender role modelling Disadvantages Principally when co mediation is not done well o messages conveyed re: Communication Teamwork o Trust o Confidence in mediators o Process disrupted o Credibility in process 38 Community Mediation University of Sydney
PROCEDURAL TYPES OF MEDIATION

SHUTTLE MEDIATION
Purpose To maintain the safety needs (physical and psychological) of one or both of the parties. 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 the message 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 Provide a forum to resolve conflict outside a face-to-face mediation Disadvantages Unable to observe non verbal language between parties Unable to utilise non verbal communication between mediators Unable to share visuals e.g. whiteboard Perceived impartiality on part of mediators
THE MEDIATION PROCESS
1. Pre-mediation Past
2. Opening statement 3. Parties opening comments (story telling)
Understanding and exploration
4. Reflection and summary 5. Agenda setting identifying items for discussion
6. Issue exploration
7. Private sessions
8. Joint negotiation
[9. Agreement]
Problem Solving Resolution
10. Closure
Future
STAGES OF MEDIATION
STAGES 14 PAST FOCUS Identification and definition of the issues
56
TRANSITION STAGE FROM PAST TO FUTURE Co-operative approach, joint ownership of the conflict/issues
7 10
FUTURE FOCUS Problem resolving, option generating and agreement
FISHBOWL
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?
What might have been more effectively?
STAGE 1: PRE-MEDIATION
Purpose
1. To assess the suitability of the dispute and identify participants/parties and their 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
Party and mediators introduced to each other Roles explained Process outlined Mediators authority to mediate confirmed Partys willingness/readiness to mediate established Participants identified Expert advice , if required, discussed Timelines set OH&S issues identified Special needs identified Agreement to mediate provided and discussed Any conflict of interest identified
PRE-MEDIATION
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? All written material submitted or used in the mediation by one party may be made available to the other party. Solutions or options Expected realistic outcomes Consider the needs and/or obtain consent from parties not present at the mediation Have obtained or access to expert advice if required
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
STAGE 2: OPENING STATEMENT

Purpose
To explain the process and ground rules for the session, the role of the mediators and to establish rapport between the parties and the mediators.
Checklist
Welcome/Introduction Forms of address/names established Housekeeping i.e. toilets, breaks, parking, timelines etc Special needs identified Goal of mediation described Principles explained Confidentiality Voluntary Flexible Roles explained Mediator Parties Support people 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 1. 2. 3. 4. 5. 6. 7. 8. 9. Communication Ability to engage parties Putting parties at ease Ability to create a safe/inviting environment Working as a team (co-mediation model) ........................................................................ ........................................................................ ......................................................................... ..........................................................................
OPENING STATEMENT
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 to discuss their concerns, if any, with the mediator prior to making a decision to leave. 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 parties without the consent of all parties present here. All notes taken by the mediator will be destroyed after the session. A copy of the agreement will be kept by the mediator for future reference. Should the parties choose to proceed with legal action, the mediator cant be called to give evidence in court as per the indemnity clause in the Agreement to Mediate. Any disclosure of a serious crime, under the crimes Act, committed or about to be committed will be communicated to the relevant authorities by the mediator. Breaks Just let us know if you would like to take a break, to go to the bathroom, medicine, call the kids, consult with partner/solicitor etc.
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 you wish 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 new issues/concerns are added at this point. Parties are reminded that any other issues 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 to discuss the items directly with each other. Private Sessions the mediator will have a brief private session with each party individually while the other party takes a break outside the mediation room. Private Sessions are completely confidential and nothing will be disclosed by the mediator to either party. Options and possible outcomes are discussed in private sessions. Post private sessions a look at the future and formulating an agreement if an agreement is reached. Agreement can be written or verbal. Not legally binding but can be made legal by taking t to the court and seek Orders by Consent. Any questions.
STAGE 3: STORY TELLING
Purpose
To enable parties to state their concerns and feelings and listen to each other without interruption in a safe and inviting environment.
Checklist
Parties concerns and feelings are expressed uninterrupted Active listening maintained Parties are supported Ground rules are maintained Similar times allowed for parties stories Neutral body language maintained i.e. refrain from nodding in agreement Impartiality maintained
Key Skills
1. Active listening 2. Note taking 3. Questioning i.e. to clarify events, dates, times, persons etc 4. .............................................. 5. .............................................. 6. .............................................. 7. ..............................................
STORY TELLING
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 the conflict. 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 the story Repeat the above a number of times should the interruption continues. Remind the interrupting party that if this continues, the mediation will take much longer to finalise. Have a private session with the interrupting party to find out their reasons for interrupting and of their ability to hold back until the other party had finished telling his/her story. If all failed, inform the interrupting party that they may be asked to leave the room for that part of the mediation.
STAGE 4: SUMMARIES
Purpose
To identify the parties main points of concern, to check that they have been heard accurately, and to lay the foundation for a joint list of items for discussion.
Checklist
Parties stories summarised accurately Parties key words quoted where appropriate Positive events highlighted Active listening maintained Impartiality maintained Reframing avoided Parties feelings noted and acknowledged Common ground (between parties) emphasised
Key Skills
1. Listening 2. Note taking 3. Interpreting body language 4. .............................................. 5. ................................................ 6. ................................................. Listen for what is not said as well as to the spoken word.
THE SUMMARIES
Summaries are commonly read back one at a time after both parties have given their opening 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 summaries are being read. No addition of new issues is allowed at this point. Parties can correct the mediator of certain facts if the mediator didnt get note the parties points correctly. 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 acceptable behaviours 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 they used 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
STAGE 5: AGENDA SETTING
Purpose
To assist participants in having a visible direction and to give legitimacy to parties concerns and issues.
Checklist
Neutral language used Topics reframed to be Inclusive, neutral and mutual Whiteboard used appropriately Objectivity maintained List is agreed to by parties Flexible and simplicity of list is ensured
Key Skills
1. Communication 2. Analysis 3. Reframing 4. Grouping the issues 5. ........................................................ 6. ........................................................
LISTING THE ITEMS FOR DISCUSSION

The list of items for discussion is a list that captures the major concerns of all parties to 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 the parties feel that their issues are acknowledged and listed. It gives the parties the ownership of the issues and empowering them to actively participate in the discussion. The list is not set in stone. It can and should be amended if there is a need to include or exclude any parts of it. This will further enforce the notion that parties own the content. The items are listed in logical order where appropriate and possible. For example a fence dispute should list the state or the condition of the fence before quotes for new fence. The list should use friendly and non-blaming language. For example the issue of Party 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, and appropriate to the parties and the events. It is important to remember that the mediation session from this point onwards is structured around and on the list of issues. The list of issues will be referred to continuously from now on.
REFRAMING
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. Possible agenda item ..................................................................................................................................
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. Possible agenda item ..................................................................................................................................
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. Possible agenda item ..................................................................................................................................
COMMON AGENDA ITEMS
Relationship Communication Reputation Recognition Property Quality Privacy Safety
Wishes Needs Agreement Respect Sound Future Impact
Other:
......................................................................... ......................................................................... ........................................................................ ......................................................................... .......................................................................... ............................................................................. ............................................................................ ........................................................................... ........................................................................... ...........................................................................
REFRAMING
Moving parties from Generalities to Specifics
Example 1 Party: Mediator: He always comes in late. 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: Mediator: Hes got a real attitude problem; he thinks hes better than the rest of us. Tell me about a situation in which you felt this way, or give me a specific example.
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 feel about him/her/them that way. Example 4 Party: Hes a racist.
Mediator: Explain what you mean by that. Tell me what he does that you are unhappy with. Give me an example...
REFRAMING
Negatives to Positives Example 1 Party: Shes impossible to work with in a group setting. She dominates conversations and gets very upset if she doesnt get her way. I just cant work with her anymore.
Mediator: So youre very frustrated with her response in group discussions, and at this 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 work together on the project. But I wont attend public meetings with her. I just cant 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 shouting at me like an idiot! I never came near his house!
Mediator: So you disagree strongly with his account. Your memory is that he came to your house and the argument took place there, not at his place.
SKILLS PRACTICE: REFRAMING

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 anyone else. ................................................................................................................................. ................................................................................................................................. This guy thinks hes some big shot and can push anyone he likes around. He thinks he owns this place. Well, hes not pushing me or my family around. Weve got rights, and we are going to do what needs to be done. If he causes anymore trouble, Im going to call my uncles and nephews and well show him whos boss. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. .................................................................................................................................
STAGE 6: EXPLORATION
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
Exploration open statement made Direct communication between parties is encouraged One issue dealt with at the time List of Items referred back to Ground rules adhered to Parties interaction is balanced Progress made is acknowledged Parties not pressured/encouraged to reach agreement Parties gain better understanding of needs, interests, perceptions, expectations and feelings All issues dealt with sufficiently before moving into private session
Key Skills
1. Team work (co-mediation) 2. Clarifying questions/reframing 3. Transition language 4. Overcoming impasse summaries, reflection, silence 5. ............................................
EXPLORATION
Exploration is a stage where the parties are encouraged to communicate directly with each other in a civil and respectful manner assisted by the mediator. The mediator introduces this stage by saying that they have the opportunity to discuss the items on the board directly with each other and to express their feeling about each others behaviour/actions. The mediator may choose one of the items as a starting point of discussion or leave it for the parties to decide. If the mediator makes the choice, they may choose a simple and not too controversial item as a starting point. This can facilitate the communication between the parties. Starting with an easy item can build on the parties trust in the mediator, in each other and in the mediation process. Allowing the parties to decide on the starting agenda item themselves is considered by some mediators as facilitating ownership of the content. There is no definitive right or wrong way to approach this and it is at the mediators discretion. The parties should be encouraged to ventilate, within reason, their emotions and feelings about the events/behaviours/actions that preceded the mediation. The mediators are to ensure that critical comments and key words are heard and responded to by the parties. For instance if party X didnt respond to an apology from party Y the mediator is to ask party X what he/she thinks of the apology or if he/she accepts it. If the parties are engaged and communicating directly with each other in a civil and respectful 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 understand the impact of a suggestion. For example if party X offers to fully pay for a new fence and 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. The exploration stage is the focus of the mediation process in which mediation skills are most required and practiced. This stage is a transition from the past to the future. It is also a transition from first position to third position. The following are some types of transitions: 1. Direct Transition this is useful for eliciting information. For example please tell John how often the rubbish is swept under the fence and why you feel angry when this happens
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 between the parties; however, he/she should not allow this apparent agreement short cut the process. The parties need to have the chance to discuss the underlying issues. Agreements last longer if the underlying issues have been fully explored and discussed. If offers are made early, hold onto them and reality test them by exploring 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 Picking up on Breakthrough: I wasnt aware of...... I wasnt there when..... I didnt think of it that way at the time.... I didnt know that you were hurt..... Sorry about...... May be we should ... I wish you had told me then... That explains it...
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.
STAGE 7: PRIVATE SESSIONS

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 of possible outcomes.
Checklist
Confidentiality maintained Purpose explained Ground rules reviewed Time equally distributed between parties Suitable arrangements made for party not in session Future focus maintained Possible outcomes (BATNA, WATNA) reality tested Mediators role (no expert advice) maintained List of items checked for coverage
Key Skills
1. Communication 2. Team work 3. Option generating 4. Questioning/reframing 5. Engaging 6. Reality testing 7. Summarising 64 Community Mediation University of Sydney
PRIVATE SESSIONS
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 outside Remind the parties that confidentiality may not be adhered to if a serious criminal act is disclosed. Ask the excluded party to think over his/her options while waiting outside Start the introduction to the session in a positive tone Ask the parties about their feeling about the session so far Acknowledge anger, frustration, distress as well as the positive aspects of the discussion so far
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?
ENCOURAGING RESOLUTION
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 of greater 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 Consider what parties have invested in the problem and the solution Provide opportunities for parties to step back emotionally If resolution can be found for both parties consider what other positive aspects the parties may take away from the mediation
Adapted from The Conflict Resolution Network P O Box 1016 Chatswood
STAGE 8: NEGOTIATION
Purpose
To move the parties into a principled negotiation (3rd position) and to focus on their future relationship.
Checklist
Confidentiality maintained Impartiality maintained Future focus maintained Options put forward and discussed All options considered and responded to Options and responses summarised Points of possible agreement noted Needs of each party attended to (inclusive) Parties decisions are owned
Key Skills
1. Communication 2. Summarising 3. Questioning 4. Reframing 5. Engaging 6. ....................................
NEGOTIATION
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
LISTENING & SUMMARISING
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 the way in which someone listened to you. What qualities in the listener made this experience positive?
TRACKING PROGRESS
Accept Paraphrase Acknowledge Clarify Reframe Validate Affirm Agree Expand Congratulate Above the line
Neutralise Deny Ignore Sidestep Disagree Ridicule Blame Invalidate Change timeframes Make wrong
STAGE 9: AGREEMENT
Purpose
To provide the parties with a detailed record of what they achieved with an identifiable outcome. It also gives the parties a sense of closure of the past with a future direction.
Checklist
Confidentiality and impartiality maintained List of items checked for coverage against the outcome Agreement written in a positive and non blaming/incriminating language Active participation of parties in drafting of the terms of the agreement Parties demonstrate ownership of the agreement Written agreement realistic with an emphasis on details Agreement signed by all parties Copies of agreement given to all parties Consent given by parties to copies of agreement provided to 3rd parties (if any).
Key skills
1. Communication 2. Reframing 3. Active listening 4. Writing 5. ....
AGREEMENT
TYPES OF AGREEMENTS Written All issues discussed and agreed upon are written down in great detail and signed by all parties present and the mediator. A written agreement, subject to parties approval, may include a section for items that remain unresolved, if any. This section notes down the item and each partys position 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 for misinterpretation) Clauses are number and issues flow in a logical order Contains a clause about what to do should a problem arises in the future between the parties.
STAGE 10: CLOSURE

Purpose
To formally conclude the mediation session and for the parties to have a sense of closure.
Checklist
Parties congratulated on the outcome (if agreement) Positive aspects of the mediation highlighted (agreement or not) Philosophy of mediation summarised Parties reminded of their ownership of the outcome Confidentiality of the mediation reaffirmed Parties informed of future mediation if the need arises Parties safety is considered when leaving the venue Parties special needs are attended to, if any.
Key skills
1. Communication 2. Summarising 3. Motivation 4. Reframing
CLOSURE
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
MEDIATOR SKILLS
Situation 1 After listing the issues on the board, you invite the parties to talk about the issues. Party A sits there and remains silent. He doesnt respond to your open questions and invitations to respond to Party Bs statements. Party B gets annoyed at Party Bs silence and about him staring at him all the time. Party B threatens to walk out. Party A remains unmoved and un-phased by Party Bs threats. A. How will you manage the situation? B. How would you manage the situation if Party B does walks out? C. What skills are required?
Situation 2 During the story telling stage, Party B keeps interrupting Party A. You asked him a number of times to stop and listen to Party As story. Party B complies for a minute or two and then interrupts again and again. A. What should you do in this situation? B. What skills are required?
Situation 3 Party A is highly emotional and keeps crying every time Party B speaks about divorce and settlement. Party B gets frustrated and says he is getting nowhere in discussing the issues he is there to discuss. A. What should you do in this situation? B. What skills are required?
QUESTIONING
Effective questions will: clarify and verify information help you get more information show people that you are listening to them allow you time to process information help reframe resistance in others
Some hints for asking effective questions
Try asking open ended questions when you want to gather more information. For example questions starting with How or What ... What will it take resolve this situation? Open questions are essential in the exploration stage. Use closed questions - questions which require a yes no or short answer when you want to confirm information. For example: Is my understanding right on this...? These questions are useful when you are finalising the agreement and in the closure stages. Try asking your questions in an open positive way particularly when you are faced with rigid statements. For example: o We couldnt do that... o Question: What would it take to make it possible? Avoid using why questions. What and How will get a better response without implying blame.
HELPFUL QUESTIONS
EXPLORE Clarify Details Its too expensive Too many/much/few I want the best Find Options You cant do that around here He/she would never They always Weve tried that already This is the only way to do it
Compared to what? Compared to what? What would be best for you?
What would happen if we did? How can we find ways for it to happen? Are there any times they dont? What was the outcome? Yes, thats an option.
REDIRECT Move to the positive It will never work I wont Its a failure Its disastrous S/hes useless Its impossible I cant I dont want to What would it take to make it work? What would make you willing? How could it work? What would make it better? What is s/he doing that is acceptable? What would it take to make it possible? You cant see a way at the moment? What would you like?
Go back to Legitimate Needs and Concerns You fool How dare you do such a thing It should be done my way What do we need to do to sort this out What do you dislike about it? What makes that seem the best option
Adapted from The Conflict Resolution Network P O Box 1016 Chatswood
SKILLS PRACTICE: QUESTIONING

Write possible questions in response to the following statements:
I want whats rightfully mine ....................................................................................................................................... .......................................................................................................................................
That idea is ridiculous ....................................................................................................................................... .......................................................................................................................................
You cant do that! ....................................................................................................................................... .......................................................................................................................................
Thats typical of you coming up with options that are totally unrealistic ....................................................................................................................................... .......................................................................................................................................
DEBRIEFING
Purpose
To allow mediator/s to reflect on their performance, skills, teamwork, positive/negative issues, effectiveness and improvement if any.
Checklist
Discussed all/some aspects of the session in an open, professional and honest manner Discussed the issues and behaviours not the person Identified strengths and weaknesses Discussed areas in need of improvement, if any Evaluated the suitability of the venue What else?
ETHICAL PRACTICE
Situation 1 The Family Court refers Joanne and John for mediation in relation to property and custody of the children. The mediator interviews both parties and both agree to attend a mediation session. During the exploration stage, Joanne keeps looking at Johns face and gradually she starts to withdraw from the discussion and nodding her head in agreement with everything John says. The parties reach an agreement without a full discussion of the issues and the session ends with a summary, by John, 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 prior to the mediation session. During the mediation session, one party starts to tell the other party the role a third party played in this dispute. The third party in question is known to you personally. A. What are the ethical considerations? B. What should you do? How will you do it?
Situation 3 During the private session, one party says I am very angry and not happy about this whole thing because I know this guy pretty well. The party says that there has been something bothering her for a long time but she wont tell you about it unless you promise her not to tell anybody about it. A. What are the ethical considerations? B. How should the mediator respond? Why?
Situation 4 You are co-mediating a building dispute. You notice that your co-mediator is paying extra special attention to party A and at times responded to party B statements instead of allowing party A to respond. At one point during the mediation the comediator says to Party B and says, I work in this field as a building inspector. I dont believe this is appropriate for you to do as you dont have enough supports for the wall that you propose to build...
A. What are the ethical considerations? B. What should you do in this situation? How and why?
ETHICAL STANDARDS FOR MEDIATORS

Note: The following statement is extracted from the Law Council of Australia's statement for ethics in the practice of ADR. Introductory note: The Law Council of Australia has developed these standards to serve as a general ethical and practical framework for the practice of mediation. The standards are intended to apply to all types of mediation. Particular professional and other bodies may have different requirements. It is expected that the standards will be reviewed from 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 mediating parties; and to promote public confidence in mediation as a process for resolving disputes. The standards draw on existing codes of conduct for mediators and take into account issues and problems that have surfaced in mediation practice. They are offered in the hope that they will serve an educational function and provide assistance to individuals, organisations and institutions involved in mediation. 1. Definition Mediation is a process in which an impartial third party - a mediator facilitates the resolution of a dispute by promoting uncoerced agreement by the parties to the dispute. A mediator facilitates communication, promotes understanding, assists the parties to identify their needs and interests, and uses creative problem solving techniques to enable the parties to reach their own agreement. Comments (a) The mediator should provide information about the process, and help the parties identify their real concerns and all their options. The primary role of the mediator is to facilitate voluntary resolution of disputes by the parties themselves. (b) A mediator cannot personally ensure that each party has made a fully informed decision when reaching an agreement to resolve a dispute, but it is good practice for the mediator to make the parties aware of the importance of consulting other professionals, where appropriate, to help them make informed decisions. 2. Impartiality A mediator may mediate only those matters in which the mediator can remain impartial and even handed. If at any time the mediator is unable to conduct the process in an impartial manner the mediator may withdraw. Accordingly, a mediator must avoid:
(i) partiality or prejudice; and (ii) conduct that gives any appearance of partiality or prejudice. Comments (a) Whatever their own views and standards mediators should not only not be partial or prejudiced but should avoid the appearance of partiality or prejudice by reason of such matters as the parties' personal characteristics, background or conduct at the mediation. (b) Mediators should seek to avoid behaviour which, however innocent, may be interpreted as indicating partiality or prejudice, such as spending more time with one party than another without good reason, socialising with a party and adopting different modes of address. (c) Even if all the disputants agree that they would like the mediator to express an opinion on the merits, there is a substantial risk in giving such an opinion that the mediator may no longer appear to be impartial. As a result the mediator may be obliged to withdraw 3. Conflicts of Interest Before the mediation begins, the mediator must disclose all actual and potential conflicts of interest known to the mediator. Disclosure must also be made if conflicts arise during the mediation. After making disclosure the mediator may proceed with the mediation if all parties agree and the mediator is satisfied that the conflict will not preclude 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 the integrity of the mediation process. Comments (a) Conflicts of interest may arise in recommending the services of others. It may be preferable to recommend referral services or associations which maintain rosters of qualified persons. (b) External pressures should never influence the mediator. The mediator's commitment should be to the parties and the process. (c) Interests which should be disclosed include any association with a party or adviser or representative of a party, which could reasonably be seen to affect the impartiality of the mediator. (d) The mediator should disclose to the participants any circumstances which may cause, or have tendency to cause, a conflict of interest. In particular a mediator who is a partner or an associate of any representative retained by either of the parties should not act as mediator without the fully informed consent of all the parties. (e) The mediator should not establish a professional relationship with one of the parties in relation to the same dispute.
4. Competence A mediator must not mediate unless the mediator has the necessary competence to do so and to satisfy the reasonable expectations of the parties. A person who agrees to act as a mediator holds out to the parties and the public that she or he has the competence to mediate effectively. Comments (a) Competence comprises appropriate knowledge and skills which would normally be acquired through training, education, and experience. (b) Mediators should have available for the parties information regarding their training, education and experience. (c) When a person is appointed or nominated to a panel or list of mediators, the appointing court, tribunal, institution, or agency should ensure that the mediator has through training, education and experience acquired the necessary knowledge and skill for inclusion on the particular panel or list. (d) The qualifications for inclusion on a list of mediators should be made public and available to interested persons. 5. Confidentiality Subject to the requirements of the law a mediator must maintain the confidentiality required by the parties. Comments (a) As the parties' expectations regarding confidentiality are important; the mediator should discuss those expectations with the parties and endeavour to meet them. (b) The parties' expectations of confidentiality depend on the circumstances of the mediation and any agreements they, and any other persons present at the mediation, and the mediator may make. (c) A mediator should not disclose any matter that a party requires to be kept confidential (including information about how the parties acted in the mediation process, the merits of the case, or settlement offers) unless: the mediator is given permission to do so by all persons in attendance at the mediation with an interest in the preservation of the confidence; or o the mediator is required by law to do so.
o
(d)The parties and the mediator may make rules with respect to confidentiality. (e) If the mediator intends to hold private sessions with a party, the mediator should before such sessions discuss with the parties the confidentiality attaching to them. (f) Any reporting which requires a subjective judgment by the mediator of the conduct 85 Community Mediation University of Sydney
of the parties is likely to destroy the integrity of the mediation process. (g) Under appropriate circumstances, researchers may be permitted to obtain access to statistical data. (h) With the permission of all of the parties, researchers may be permitted access to individual case files, to observe mediations, and to interview participants. (i) A mediator should render anonymous all identifying information. When materials emanating 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 due regard to the fact that an agreed outcome requires the uncoerced consent of the parties. Comment A mediator's conduct should not be influenced by a desire to achieve a high settlement rate. If the mediator believes that further negotiations may, subject to the parties' right to terminate the mediation, lead to a settlement, he or she may encourage the parties to continue to negotiate even when they seem unable to agree. 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 should encourage the parties to record those terms of settlement in writing. Comment Normally agreement to record the terms of any settlement should be made prior to the commencement of the mediation. The mediator ought to be cautious about direct involvement in drafting the terms of agreement, as their involvement in drafting may be construed as providing legal advice. 9. Publicity and Advertising A mediator must not engage in misleading or deceptive publicity or advertising. A mediator must not make any false or misleading statement including statements or claims as to the mediation process, its costs and benefits, or the mediator's role, skills, or competence.
10. Fees A mediator must fully disclose his or her fees to the parties. Comment As early as practicable, and before the mediation session begins, a mediator should obtain the agreement of the parties regarding all fees and other expenses to be charged for the mediation and by whom and when the fees and expenses are to be paid. The better practice is to record in writing the arrangements in respect of fees and costs. A mediator should not agree to a fee which is contingent upon the result of the mediation or amount of settlement.
Role Plays
THE WILL
Common Facts Michael Younis died suddenly in July 2009. He had survived his wife Doris by 4 years. They had one daughter Maria, who is now 24 years old. Maria has 1 child and lives with her husband on the lower North Shore in Sydney. Twelve months prior to his death Michael told Maria that he had a child from a relationship hed had a university. He had established contact with this child Geoff, now 26, and told Maria that he felt obligated to provide financially for him in some way. Michael said that he intended to make arrangements which would not affect the existing will. Michael paid Geoff $600 per month for 10 months prior to his death and $5000 towards first year university fees. Upon Michaels death his entire estate was left to Maria. This included 2 properties however; there is a significant mortgage ($300,000) on the more valuable of the 2 as a result of an unsuccessful business venture. The remaining property is a 3 bedroom unit in Rockdale. It had an estimated value of $550,000 when the market was at its peak but it is questionable if this is still accurate. The property also requires renovation. Geoff has contacted Maria through his legal representative indicating that he intends to contest the will and seek equal shares in the balance of the estate. The application has not yet been lodged and it has been recommended that the parties attempt to mediate the dispute prior to taking any further action.
THE PARTNERSHIP
Common Facts Lindsay and Colby have been partners in a training company for 9 years. The partnership works particularly well: Lindsay is the creative, big picture person and Colby has more attention to detail. Colby established the company, Learning Unlimited, 11 years ago and was working as a sole trader. This meant generating the business, writing programs and delivering the training. When the business grew Lindsay came on board and was a real asset. Lindsay was much better in the training room and had a seemingly limitless ability to come up with new ideas. They became joint partners 7 years ago and things worked extremely well for a good 5 6 years. In the last 18 months however, there has been tension between Lindsay and Colby over the direction the partnership in moving in. Lindsay has wanted to take on more staff, expand and move into e-learning and virtual classrooms. Colby on the other hand is happy with the way the business is going: they have a strong & loyal client base and the yearly turnover is very healthy. Despite the company only having 2 people both Lindsay and Colby are very well respected and have a reputation for professionalism and reliability. About 2 months ago Lindsay suggested that they dissolve the partnership. The discussion wasnt at all productive and ended badly but with no resolution. No agreement has been reached despite a couple of attempts to talk it through. It is not clear if the partnership will be dissolved but it is clear that there will be a lot of argument about partnership assets: they own the freehold on the terrace they use as an office, a range of equipment and there is the question of the intellectual rights to the training material they have jointly developed. Then of course there is the name, the goodwill and the customers. A mutual friend suggested that they try mediation given that they havent been able to work it out on their own.
THE MARRIAGE
Common Facts Stephanie and George were married for 10 years. They have one child, Tim, aged 6. They bought a house 9 years ago for $250,000. They borrowed $200,000 from the bank. Stephanie paid $50,000 she got from her father as a wedding gift. The house is now worth about $500,000 with $150,000 still owing to the bank. Georges parents gave their son $25,000 to help him buy furniture when they bought the house. Stephanie continued to work in the first 3 years of marriage and she earned similar salary to George. Stephanie stopped work when she fell pregnant as it was a difficult pregnancy. Stephanie didnt go back to work after the birth of the baby until Tim started school last year. Stephanie found a part time job locally that allows her time in the morning to drop Tim off at the school and pick him at 3 pm. Stephanie is good with money and she was responsible for taking care of the family budget. George allowed her and he trusted her skills in managing their finances. The relationship started to deteriorate because George wasnt putting enough time and effort in maintaining the house i.e. normal house chores, taking Tim to sports in the weekends, paying the bills etc. About 8 months ago, Stephanie went to work but had to leave early because she wasnt feeling well. She arrived home and noticed Georges car in the driveway. She walked into the house to find George and another woman naked in bed. Stephanie was furious and left the house. She went to her parents and stayed there for 2 days. George apologised and promised not to do ever again. The in-laws intervened and the couple reconciled their relationship and Stephanie went back home with her child. Two months ago, Stephanie found hair on Georges coat that matches the colour of the woman she caught him with in bed 8 months ago. Stephanie confronted him and he denied but Stephanie wasnt satisfied with his response and left the home with her child. Stephanie sought a legal advice from the Legal Aid telephone line and they advised her to seek mediation as first option as it is faster and less costly.
THE BABY
Common Facts Kevin and Cathy worked together at a property development company in Perth for 3 years. Kevin had been in a long term relationship with Michelle for 18 months but just prior to Christmas the relationship faltered and they decided to separate. Kevin and Cathy had one night stand at the office Christmas party. A relationship between the two never developed. Kevin left the company 2 months later and moved to Sydney. He didnt maintained direct contact with Cathy but 13 months later heard through a mutual friend that Cathy had given birth to a baby boy, Josh. Kevin contacted Cathy who verified that the child was his. Despite naming Kevin as the father on the birth certificate she told him that she did not want him involved in the childs life in anyway. Kevin made several attempts to contact Cathy with a view to establishing a relationship with the child. Cathy was living with her parents who were totally against this (particularly given that Kevin was Aboriginal) and there were a number of terse exchanges both via phone and email. Cathys parents changed both the phone number and the email address to ensure that Kevin was unable to contact Cathy. Kevin has made an application to the Family Court for contact rights with the child. He has been told that mediation needs to be attempted before the matter can proceed in court. Cathy has agreed to mediation. A telephone mediation was offered given the distance between the two parties however, Kevin has arranged to travel to Perth for the mediation. He informed the mediator that hes parents still reside in Perth and that the mediation may have more chance of success if it is faceto-face.
THE FENCE
Common Facts John Smith and his wife, Susan, are middle aged couple with two children aged 10 and 12. Cameron Taylor and his wife, Vivian, are also middle aged couple with two children aged 11 and 13. Susan and Vivian know each other from primary school days and were friends but lost contact after going to high schools. They met again when they happen to purchase home land package in the same estate at the same time. They got together again and renewed their friendship. Both families had a healthy relationship when they moved into their respective new homes some 15 years ago. They used to visit each other often, go out for dinners and spent holidays together. John and his wife love nature and planted few trees in their backyard alongside the fences with the assistance of Cameron. The Smiths bought a family business 5 years ago and devoted their entire time in running it. They relied on the Taylors to mind the children while they were out developing the business. The two families kept on going out for the occasional dinner but not as often as it used to. The Smiths, due to the nature of their business, established new friendships and relationships. They are now having dinners for and with their new business friends. Business was booming and proved very successful. They improved their home and bought new furniture, new car, a swimming pool etc. Three years ago, one of Johns children was playing in Camerons home and hurt himself. Since then the Smiths stopped sending the boys to play with Camerons children and hired a babysitter to mind the children when they are out and about. The Taylors approached the local Council and made a complaint about the noise coming from next door, about the tree hanging over the fence and blocking their downpipes, and about the nude parties that goes on all night. The local Council suggested mediation as an option at this point in time.
THE JOB
Common Facts Karen and Abigail are colleagues working for a big department store. Abigail is acting manager and Karen is a sales person. They have known each other for over 5 years and got on well with each other. Karen is well connected with management personnel. A staff member made a complaint about Abigail accusing her of sexual harassment. The staff member alleged that Abigail asked him out and suggested that they go home together for some bedtime fun. The staff member further alleged that this was not the first time. Abigail is a single woman and has no partner. She has been on her own since she broke up with her husband some 3 years ago. Management stood Abigail down and appointed Karen in her place. The case went to court and Abigail was cleared and the allegations were dismissed. Abigail asked for her job back and management said no as Karen was doing excellent job. Management reminded Abigail that she was acting in the position and that her substantive position is sales person. Abigail accepted going back as a sales person and being supervised by Karen. Karen made a number of changes to the staff roster and to lunch breaks. Abigail asked if she could choose her own starting and finishing time and Karen said no and that she has to fit in like the rest of the staff. Abigail wasnt happy about this. She walked out and filed a Workers Compensation claim on the grounds of unfair treatment. The Human Resource manager suggested mediation between Abigail and Karen as a way of resolving the dispute. Both have agreed to attend a mediation session.
THE FLATMATES
Common Facts Sandra and Rebecca are flatmates and in a casual relationship. They drift in and out of sexual relationship with each other but have always maintained a strong friendship. They have known each other for 10 years and have shared accommodation ever since. Four months ago, they moved into a 2 bedroom unit because it was close to their office and the bus stopped just outside the door. They decided to advertise for a 3rd flatmate to help them pay the higher rent. They both decided to lease the 2nd bedroom to a male, Robert, their age. They both liked him and thought he would fit in well with them. For the past 3 months Sandra noticed that Rebecca and Robert spend more time with each other than with her. She also noticed that they go out often leaving her home alone. There were times when both of them sat in Roberts bedroom for hours with the door shut. Sandra questioned Rebecca about this and Rebecca told her there is nothing to worry about. Sandra wasnt happy with this response and demanded to know whats going on between them. This escalated to a shouting match between them and they stopped talking to each other. Two weeks ago, Sandra told Rebecca that she was moving out and that she has found another place to live in. Rebecca told Sandra that she couldnt do that because her name is on the lease. Rebecca also told Sandra that she couldnt take any of the furniture because Rebecca had no money to buy new furniture to replace what Sandra would take. Sandra threatened to go to court to get her furniture as she needs it for her new room. Rebecca threatened to tell Sandras parents about their sexual relationship. Robert suggested that they both go for mediation to sort things out between them without the court. They both agreed to go for mediation about the furniture and the lease.
THE RENOVATION
Common Facts Bronwyn & Greg Moore engaged the services of Jacques Renovations to put a plaster skim on all the walls and ceilings of the Moores 1930s inner city 2 bedroom apartment. Jacques was recommended by a friend of Bronwyns, Tom who suggested that Jacques could move into the apartment for the 2 months that Bronwyn and Greg were overseas which would reduce the cost of the renovation. Jacques was a one man operation and was between accommodations and this arrangement seemed to be beneficial to both parties. Bronwyn & Greg met with Jacques who told the Moores that he was also able to do the painting of the unit and the work would be completed by the time they returned from their holiday. The painting included the walls, skirting boards and picture rails. Greg had already stripped the paint back on the picture rails and was half way through the skirting boards. Greg suggested that he leave the heat gun for Jacques to make stripping the paint easier, which he declined. It was agreed that Jacques could stay in the unit for the 2 months and complete the work at his leisure during this time. The cost of the work would be $7,000 with $1000 being paid upfront and the remainder being paid upon completion. The Moores returned to find the work completed but not to the standard they had expected. Jacques disagreed that the work was not to industry standard and demanded the outstanding fee. The Moores have refused to pay. The matter is before the court however, the magistrate has referred the matter to mediation in the hope that the matter can be resolved outside legal proceedings. Both parties have agreed to mediation. Greg (Bronwyn) and Jacques will be present at the mediation.
Coaching
Feedback on mediation simulation

Name 1 Not evident 2 Area for development 3 Good 4 Very good 5 Excellent N Not applicable in this simulation Simulation Coach
OPENING STATEMENT Welcome/Introduction Forms of address/names established Housekeeping i.e. toilets, breaks, parking, timelines etc Positive tone set Special needs identified Goal of mediation described Principles explained Confidentiality Voluntary Flexible Roles explained Mediator - impartial Parties Others Process explained Ground rules established Authority of parties to settle established Agreement to Mediate is signed
Comments
PARTIES OPENING STATEMENTS Story telling Consideration of who should begin Appropriate non verbal language Eye contact maintained where possible Appropriate time allowed for statements Ground rules maintained Uninterrupted Encouraged to listen respectfully Process adhered to Each parties statement heard before summaries Encourage Party 2 to make their own statement rather than respond to Party 1 Active listening SUMMARIES Parties stories summarised accurately Parties own words used where possible Reframing avoided Impartiality maintained Checks with parties for accuracy Additional comments
Comments
AGENDA SETTING Commonalities identified Items both mutual and neutral Items simply stated Checks for agreement & approval Appropriate use of whiteboard EXPLORATION Introductory statement made explaining stage Parties encouraged to communicate directly with each other One issue dealt with at the time Ground rules adhered to Parties not pressured/encouraged to reach agreement All or the majority of issues explored sufficiently Interaction between parties is balanced Appropriate level of intervention by mediator Transition to private session handled appropriately Additional comments
Comments
PRIVATE SESSIONS Suitable arrangements made for party not in session Purpose explained Confidentiality explained Party asked to comment on how they are going Future focus maintained Possible options explored Reality tested possible outcomes (BATNA, WATNA) Impartiality maintained Time equal allowed for both parties NEGOTIATION Confidentiality maintained Impartiality maintained Parties encouraged to communicate directly with each other Focus on future maintained Constructive facilitation of problem solving and option generation Options are reality tested Additional comments
Comments
AGREEMENT List of items checked against the outcome Agreement written in a positive and non blaming/incriminating language Parties actively participated in the drafting of the terms of the agreement Written agreement is realistic with an emphasis on details Agreement signed by all parties Copies of agreement given to all parties CLOSURE Parties congratulated on the outcome (if agreement) Positive aspects of the mediation highlighted (agreement or not) Philosophy of mediation summarised Confidentiality of the mediation reaffirmed Additional comments
Comments
SKILLS SUMMARY Active listening Reframing Questioning Summarising Building rapport Analysis (of issues) Option generation Appropriate body language Reality testing Doubt creation Acknowledgement Teamwork (co-mediation) Whiteboard use Additional comments
Comments
DEBRIEF 1. What did the mediator feel they did well?
2. What did they feel they could have done differently?
3. What did the parties feel the mediator did well?
4. According to the parties, what else could the mediator have done that would have been helpful?
5. Coachs overall summation

Community Mediation: Theory and Practice

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Community Mediation: Theory and Practice

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Community Mediation: Theory and Practice

PACS6928 Postgraduate Peace and Conflict Studies Summer School, 2010

The University of Sydney CentreforPeaceandConflictStudies

The University of Sydney

Course Co-ordinators Abe Quadan & Kathleen Dan

31 32 33 34 35 36-37 38 39 40 41 42-43 44 45-46 47 48

49 50 51 52 53 54 55 56 57 58 59-61 62 63-64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79-80 81-85

Page The Job The Flatmates The Renovation 92 93 94

7. COACHING Feedback on mediation simulation

THE COURSE CO-ORDINATORS

THE FOUNDATION BLOCKS OF MEDIATION

Interest based negotiations Negotiations styles MORNING TEA

THE FOUNDATION BLOCKS OF MEDIATION

THE PROCESS IN PRACTICE

Fishbowl mediation demonstration (part 1)

STAGE 2 Theory and practice

The opening statement

9.00 am REVIEW OF DAY 1

STAGES 3, 4 & 5 Theory

Parties opening statements Summarising Agenda setting MORNING TEA

STAGES 3, 4 & 5 Practice

STAGE 6 Theory STAGE 6 Practice

STAGE 8 & 9 Theory STAGE 8 & 9 Practice 5.00 pm 9 Community Mediation

Joint negotiation session & agreement

REVIEW OF DAY 2 9.00 am

Pre-mediation the preliminary conference

REVIEW OF DAY 2 9.00 am

ETHICAL CONSIDERATIONS REVIEWING THE MEDIATION PROCESS

Professional practice for mediators

Scenario 4 small groups Small group debrief with coach LUNCH

Scenario 5 small groups Small group debrief with coach

AFTERNOON TEA DEBRIEF 5.00 pm Debrief Feedback from coaches

COACHES INTRODUCTION 8.30 am

Scenario 7 small groups Small group debrief with coach LUNCH

Scenario 8 small groups Small group debrief with coach

ROLE PLAY GUIDELINES

MEDIATOR APPROVAL STANDARDS

CODES OF PRACTICE & POLICY

Mediation: principles & practice

The Australian Standard and NADRAC describe mediation as follows:

INTEREST BASED MEDIATION

Most obvious, what you are told.

WHAT IS THE ROLE OF THE MEDIATOR?

PROCEDURAL TYPES OF MEDIATION

PROCEDURAL TYPES OF MEDIATION

THE MEDIATION PROCESS

Understanding and exploration

4. Reflection and summary 5. Agenda setting identifying items for discussion

Problem Solving Resolution

STAGES 14 PAST FOCUS Identification and definition of the issues

FUTURE FOCUS Problem resolving, option generating and agreement

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?

What might have been more effectively?

STAGE 2: OPENING STATEMENT

STAGE 3: STORY TELLING

STAGE 5: AGENDA SETTING

LISTING THE ITEMS FOR DISCUSSION

COMMON AGENDA ITEMS

Relationship Communication Reputation Recognition Property Quality Privacy Safety

Wishes Needs Agreement Respect Sound Future Impact

Example 3 Party: That whole bunch is an irresponsible lot.