Dispute Resolution: Resources for Strategic Interventions

DISPUTE RESOLUTION ASSIGNMENT PRESENTATION: Dianne Allen ... page 1 Resources for Strategic Interventions used by Mediators, Facilitators & Conciliators

RESOURCES FOR STRATEGIC INTERVENTIONS USED BY MEDIATORS, FACILITATORS & CONCILIATORS. Dianne Allen, 1996 RESOURCES FOR STRATEGIC INTERVENTIONS USED BY MEDIATORS, FACILITATORS & CONCILIATORS. .................................................................................... 1

1. ANALYSIS OF INTERVENTIONS WITHIN PROCESS: .............................................. 3 2. ANALYSIS OF INTERVENTION STRATEGIES: ......................................................... 4 3. ANALYSIS OF NEGOTIATION ISSUES INVOLVED INTERVENTION: .................. 6

BIBLIOGRAPHY: ..................................................................................................................... 9 TABLE OF INTERVENTIONS: ......................................................................................... 10 TABLE OF SCRIPTS FOR INTERVENTIONS................................................................. 12 TABLE FOR MEDIATOR REFLECTION ON USE: * ..................................................... 16

ATTACHMENT: TABLE OF ANALYSIS OF PROCESS & RESOURCES FOR INTERVENTIONS .................................................................................................................. 19


The following presentation seeks to work on the framework presented by John Wade in the Australian Dispute Resolution Journal, 1994, Vol 5, p292-304, of "Strategic Interventions Used by Mediators, Facilitators & Conciliators", to explore additional options presented by:

1. Script 2. Anecdote 3. Visual Aid 4. Research/ Literature Support

The sources used to give the integrated result are primarily: 1. Script - Wade's article(1993/4) & The Mediator's Handbook/ Charlton & Dewdney

(1995) 2. Anecdote - Getting to Yes/ Fisher & Ury (2nd ed, 1991); Aesop's Fables; Proverbial

sayings 3. Visual Aid - many & various 4. Research - Dispute Resolution in Australia/ Astor & Chinkin (1992) In his article, Wade indicates 44 strategic interventions (adapted & expanded from 36 identified in PJD Carnevale & R Pegnetter, "The Selection of Mediation Tactics in Public Sector Disputes: a Contingency Analysis" (1985) 41 Journal of Social Issues 65). The scripts Wade gives for the interventions are context related - directed to the context of marital disputes. Wade finishes up his paper recommending that mediators may find the list a useful tool for reflective analysis of their own approach, perhaps including reflection on effectiveness. I would like to re-iterate that recommendation, and add to it two others: 1. for new mediators, the checklist may be a useful tool for preparation - developing

options for "scripts" for likely interventions - here the context (which may well be other than marital dispute) will direct the nature of the script, as well as determine, perhaps, the more relevant/ likely kinds of intervention.

2. for new mediators, the checklist might prompt the development of some "personal"

anecdotal material - say worked up from an individual's own "biases" in background, which, because they are individual, will help to develop an individual intervention style.

One of the issues in mediation arises from intervention: what is its form? and is its form "neutral"? Preparation, and reflection, will help a new mediator clarify this and improve elements of this in their own performance. For guidance in such preparation, Wade notes, from other sources, that the effectiveness of mediator interventions may well depend on the intervention being


1. brief, and clear; 2. balanced (not demonstrating bias in content to one or other of the parties; and

not delivering bias in terms of floor time or language intensity of one or other of the parties)

In the course of preparing this paper, and bringing together the various sources, I found it profitable to analyse this list in a number of ways:

1. how did the list reflect intervention in any/ all of the steps in the mediation process?

2. how did this list reflect the intervention strategies presented in the more

generic terms used by Charlton & Dewdney?

3. how did the list reflect the various aspects of the Fisher & Ury process of principled (or interest-based) negotiation?

The results are tabulated together, with a range of alternatives/ additional options where relevant: with script, anecdote, visual aid and research background.

1. ANALYSIS OF INTERVENTIONS WITHIN PROCESS: Column 1 of the composite table analyses the likely application of the intervention with respect to one or other (or more than one) step in the "process" model indicated in the UTS-Centre for Dispute Resolution Model from "Mediation Course Manual"/ Jennifer David, 1995, page 30 The Steps are:

1. Mediator's opening statement 2. Parties' Statements 3. List of issues Discussion 4. Past Orientation - Private Meetings 5. Problem Solving - Joint Session 6. Problem Solving - Private Meetings 7. Agreement

I would note that the "Stages" nominated in Charlton & Dewdney, page 7, appear to me to be better categorisations for the purposes of this kind of analysis than the UTS-CDR list of steps. The analysis of application of the intervention in one or other or more than one of these stages is given in Column 2. The Stages they identify are:

0. Pre-mediation 1. Mediator's Opening Statement 2. Parties' Opening Statements & Mediator's Summaries


3. Issue Identification & Agenda Setting 4. Clarification & Exploration of Issues & Development of Options 5. Caucus Sessions 6. Final Negotiations 7. Mediation Outcomes 8. Post-mediation

The weight of interventions (which on reflection, is probably not unexpected) are designed to assist the negotiation process: clarifying the issues, developing options and working up the agreement. The interventions would appear to apply equally as well and as frequently to Stages 3-6 of the Charlton & Dewdney process model. The analytical comparison served to clarify for me that:

1. The private meeting is an element of strategic intervention. The slight difference between it, and other intervention strategies, is that the parties have notice of it: of its propriety, function and potential.

2. The process of mapping out an agreement is more than likely to be iterative:

between the three key stages 3, 4 & 6, and between private and joint sessions to undertake elements of Stages 2-6 until the effective agreement is settled.

In his article, Wade notes that "the interventions may be reflexive or practised during intake sessions". Other commentators note the need for a mediator to be flexible in approach. So, many of these interventions will be useful at any stage - not necessarily as indicated in this analysis.

2. ANALYSIS OF INTERVENTION STRATEGIES: Charlton & Dewdney deal with intervention strategies in pages 123-179. From this section, the following list has been derived:

1. Active listening 2. Clarifying questions 3. Future projection 4. Hypothesising 5. Identifying 6. Leading statements 7. Mutualising 8. Neutralising 9. Normalising 10. Option generation 11. Option identification (Note: Reframing can convert wants, demands and

positions into options; and negatives into options) 12. Power balancing or equalising


13. Prioritising 14. Questions - clarifying 15. Questions - closed 16. Questions - open 17. Reality Testing - including the "sleep-easy" test 18. Refocussing 19. Rehearsing 20. Reframing 21. Role reversal - or the less threatening Creating an Analogy 22. Summarising 23. Ongoing relationship - including the "Sweetener" 24. Confrontation 25. Appealing to fairness 26. Yerbut 27. The Last Gap

The analysis of the Wade scripts has been undertaken to indicate the nature/ category of the intervention. The results are provided as an annotation (in brackets) in Column 4. I should note that I found that sometimes the text of the (Wade) script did not necessarily reflect what might have been expected from the short description given. Being an analyst be nature, I have responded more positively to the generic categories used by Charlton & Dewdney, rather than the Wade short descriptions. This helped highlight a need to appreciate the "specifics" nature of the Wade list, and the likelihood of that kind of list being more helpful in preparing a new mediator for their role, as well as giving a further indication to the new mediator that creativity and flexibility in utilising general guidelines may well be the difference between effectiveness and ineffectiveness, in a mediation. The analysis also led to the identification of a number of important interventions which occurred in the Charlton & Dewdney presentation but which were missing in the Wade list. (The Charlton & Dewdney handbook was written after the Wade article, and they acknowledge the source/stimulus in the Preface). I have added these to the table. The most notable omission was of "The Last Gap", a step enunciated by Wade in 1995, in a further article in the Australian Dispute Resolution Journal, Vol 6, p.93. This is an interesting reflection of the ongoing development of his analysis of process. Also, I found it interesting to note the nature of the most frequent interventions: one would expect clarifying and summarising to feature here, and they do. What is probably more instructive, is that reality testing, normalising and neutralising also scored highly. This again underlines the fact that a mediator is assisting parties who have difficulty with the "objective" approach to a negotiation - the build up of habits in past interactions has reached the stage where bilateral negotiation has become impossible.


The interactions and perceptions have become personalised, maybe even "toxic", to the extent that they can't see the wood from the trees. The mediator, as an outsider, independent of usual interactions, simply by their presence, and then by their interventions, keep calling the participants back to a more objective viewpoint, while reminding them, on the way, that their dysfunctional behaviour in negotiation is "usual" for people undertaking mediation.

3. ANALYSIS OF NEGOTIATION ISSUES INVOLVED INTERVENTION: Fisher & Ury identify four basic elements of negotiation, and suggests the strategy for dealing with each element. They are:

P. PEOPLE Separate the people from the problem I. INTERESTS Focus on interests, not positions O. OPTIONS Generate a variety of possibilities before deciding what to do C. CRITERIA Insist that the result be based on some objective standard

These elements are further analysed as follows: P. PEOPLE Separate the people from the problem

P1 Negotiators are people first P2 Every negotiator has two kinds of interests: in the substance and in the

relationship P3 The relationship tends to become entangled with the problem P4 Positional bargaining puts relationship and substance in conflict P5 Separate the relationship from the substance; deal directly with the people

problem P6 Perception

P6.1 Put yourself in their shoes P6.2 Don't deduce their intentions from your fears P6.3 Don't blame them for your problem P6.4 Discuss each other's perceptions P6.5 Look for opportunities to act inconsistently with their perceptions P6.6 Give them a stake in the outcome by making sure they participate in the

process P6.7 Face-saving: Make your proposals consistent with their values

P7 Emotion P7.1 First recognise emotions: theirs, and yours P7.2 Make emotions explicit and acknowledge them as legitimate P7.3 Allow the other side to let off steam P7.4 Don't react to emotional outbursts P7.5 Use symbolic gestures

P8 Communication P8.1 Listen actively and acknowledge what is being said P8.2 Speak to be understood


P8.3 Speak about yourself, not about them P8.4 Speak for a purpose

P9 Prevention works best P9.1 Build a working relationship

I. INTERESTS Focus on interests, not positions I1 For a wise solution reconcile interests, not positions

I1.1 Interests define the problem I1.2 Behind opposed positions lie shared and compatible interests, as well as

conflicting ones I2 How do you identify interests?

I2.1 Ask "why?" I2.2 Ask "why not?" Think about their choices I2.3 Realise each side has multiple interests I2.4 The most powerful interests are basic human needs

I2.4.1 Security I2.4.2 Economic well-being I2.4.3 A sense of belonging I2.4.5 Recognition I2.4.6 Control over one's life

I2.5 Make a list I3 Talk about interests

I3.1 Make your interests come alive I3.2 Acknowledge their interests as part of the problem I3.3 Put the problem before your answer I3.4 Look forward, not back I3.5 Be concrete but flexible I3.6 Be hard on the problem, soft on the people

O. OPTIONS Generate a variety of possibilities before deciding what to do O1 Invent options for mutual gain O2 Diagnosis

O2.1 Premature judgement O2.2 Searching for the single answer O2.3 The assumption of the fixed pie O2.4 Thinking that "solving their problem is their problem"

O3 Prescription O3.1 Separate inventing from deciding O3.2 Before brainstorming O3.3 During brainstorming O3.4 After brainstorming O3.5 Consider brainstorming with the other side

O4 Broaden your options O4.1 Multiply options by shuttling between the general and the specific O4.2 Look through the eyes of different experts O4.3 Invent agreements of different strengths O4.4 Change the scope of a proposed agreement

O5 Look for mutual gain


O5.1 Identify shared interests O5.2 Dovetail differing interests O5.3 Ask for their preferences

O6 Make their decision easy O6.1 Whose shoes? O6.2 What decision? O6.3 Making threats is not enough

C. CRITERIA Insist that the result be based on some objective standard

C1 Insist on using objective criteria C2 Deciding on the basis of will is costly C3 The case for using objective criteria

C3.1 Principled negotiation produces wise agreements amicably and efficiently

C4 Developing objective criteria C4.1 Fair standards C4.2 Fair procedures

C5 Negotiating with objective criteria C5.1 Frame each issue as a joint search for objective criteria C5.2 Reason and be open to reason C5.3 Never yield to pressure C5.4 "It's Company Policy"

Column 3 records the result of this analysis. This analysis highlighted for me the preponderance of the "person" element of the process [The aspects occurred in the following frequency: P=55; I=32; O=43; C=23]. Within this category the areas of "Perception" [P6=28] and "Communication" [P8=13] occur most frequently in the analysis. And within the "Perception" element, the issue of empowerment [P6.6] and face-saving [P6.7] had the highest frequency. In view of the fact that empowerment is one of the objectives of the use of the mediation alternative to the adjudicative process of dispute resolution, this weighting of functions of intervention as a practical outworking is of interest. Also, the weighting occurring with "face-saving" would appear to support Charlton & Dewdney in their comments on this issue on p.132-135.


BIBLIOGRAPHY: Wade, J, "Strategic Interventions Used by Mediators, Facilitators & Conciliators", Australian Dispute Resolution Journal, 1994, Vol 5, p292-304 David, J "Mediation Course Manual", UTS-Centre for Dispute Resolution Model, 1995, page 30 Charlton, R & Dewdney, M "The Mediator's Handbook: Skills and Strategies for Practitioners", LBC Information Services, 1995 Fisher, R, Ury W & Patton B "Getting to yes: negotiating an agreement without giving in", Century Business, 1991 Astor, H & Chinkin, CM "Dispute Resolution in Australia", Butterworths, 1992 Carnevale, PJD & Pegnetter, R "The Selection of Mediation Tactics in Public Sector Disputes: a Contingency Analysis" (1985) 41 Journal of Social Issues 65 Wade, J "The Last Gap in Negotiations: Why is it important? How can it be crossed?", Australian Dispute Resolution Journal, 1995, Vol 6, p93-112


TABLE OF INTERVENTIONS: Number

Intervention

1

Mini Lecture on conflict

2

Mini Lecture on the negotiation process

3

Develop rapport

4

Suggest compromise solutions

5

Suggest a particular solution

6

Let parties blow off steam

7

Require parties to face the mediator while speaking

8

Repeat areas of agreement

9

Focus on a particular issue

10

Argue case for each side

11

Clarify needs for each side

12

Frequent private meetings

13

Mini Lecture on dynamics and outcomes of similar disputes

14

Costs of disagreement

15

What do you understand by "going to court"?

16

Mini lecture on loss of control

17

Simple issue first

18

Restate progress

19

Express pleasure at progress

20

Say they are being unrealistic

21

Strongly hold parties to the process

22

Bring in another mediator

23

Suggest trade-offs (what if)

24

Speak parties' language

25

Increase number of issues for discussion

26

Reduce number of issues for discussion

DISPUTE RESOLUTION ASSIGNMENT PRESENTATION: Dianne Allen ... page 11 Resources for Strategic Interventions used by Mediators, Facilitators & Conciliators Number

Intervention

27

Prioritise issues

28

Use late hours

29

Keep parties at the table

30

Coach how to negotiate

31

Change the parties at the table

32

Adjourn to get more facts

33

Private meetings with different groups

34

Affirm mediator neutrality

35

Use silence

36

Threaten termination

37

Work on saving face

38

Control hostility

39

Take blame/ responsibility for concessions/ misunderstandings

40

Reframe/ summarise regularly

41

Confirm trustworthiness/ sincerity of both parties

42

Attempt to provide insights into the dynamics of parties' behaviour

43

Use humour

44

Mini lectures on solving small parts of the complex dispute

45

Role Reversal

46

Keeping parties focussed on the future

47

Mini lecture on Option Generation

48

Mini lecture or rehearsal on making the first move in an offering for an agreement

49

Helping with the Last Gap

50

Using the one-text procedure


* Derived from: J Wade "Strategic Interventions Used by Mediators, Facilitators & Conciliators" (1994) 5 Australian Dispute Resolution Journal 292-304

TABLE OF SCRIPTS FOR INTERVENTIONS: * No

Intervention

SCRIPT:

1


2


3

Develop rapport

4


5


6


7


8


9


10


11


12


13


14


15




No

Intervention

SCRIPT:

16


17

Simple issue first

18

Restate progress

19


20


21


22


23


24


25


26


27

Prioritise issues

28

Use late hours

29


30


31




No

Intervention

SCRIPT:

32


33


34


35

Use silence

36


37

Work on saving face

38

Control hostility

39


40


41


42


43

Use humour

44


45

Role Reversal

46




No

Intervention

SCRIPT:

47


48


49


50




TABLE FOR MEDIATOR REFLECTION ON USE: * 0 Never; 1=Occasionally; 2=Regularly; 3=Frequently; 4=Always=

No Intervention 0

1

2

3

4

1


2


3

Develop rapport

4


5


6


7


8


9


10


11


12


13


14


15


16


17

Simple issue first

18

Restate progress

19


20


21


22


23




No

Intervention

0

1

2

3

4

24


25


26


27

Prioritise issues

28

Use late hours

29


30


31


32


33


34


35

Use silence

36


37

Work on saving face

38

Control hostility

39


40


41


42


43

Use humour

44


45

Role Reversal

46


47




No

Intervention

0

1

2

3

4

48


49


50


DISPUTE RESOLUTION ASSIGNMENT PRESENTATION: Dianne Allen - Resources for Strategic Interventions used by Mediators, Facilitators & Conciliators ... ATTACHMENT page 19


ATTACHMENT: TABLE OF ANALYSIS OF PROCESS & RESOURCES FOR INTERVENTIONS: Intervention

Anecdote: F&U= anecdote from Getting to Yes Visual Aid

SP (UTS)

SG (C&D)

NEG (F&U)

No

(Charlton & Dewdney Intervention Categorisation p.120-160)

Script: WADE: = Script prepared by J H Wade see Bibliography. This script was what was analysed to determine: usefulness at step/ stage in the process; generic nature of intervention, using the Charlton & Dewdney generic terms; aspect of negotiation theory represented (negotiation theory = Getting to Yes/ Fisher & Ury) C&D: represents an "equivalent", more general script, from The Mediator's handbook/Charlton & Dewdney, page reference cited.

Research and/or other Citation A&C = Astor & Chinkin


WADE: You have only been separated for three months and it is quite normal for both of you to be still angry

F&U (p.17) - unionist & supervisor (p.41) - librarian and clients and window (p.42) - Egypt & Israel and the Sinai Peninsula

1; 3; 4

0; 1; 3; 4; 5

P3; P7.1 I2.4

1

(Normalising)

C&D (p.72): You're bound to see things differently and disagree on details, otherwise you wouldn't be here. We have found that it's useful for parties to explain to each other what it is they disagree about.


WADE: In negotiations about several linked issues, it is often helpful to make an "if ... then" offer. For example, "If you are prepared to consider a higher valuation, then I would be prepared to consider a lower percentage."

1; 5; 6

6

P; I; O; C C4; C5.2

2

(Normalising)

C&D (p.139): In my experience, coming in too low/high can sometimes be counterproductive. C&D (p.144): This is not the way to negotiate. In negotiation if someone says "I will do such and such", then the correct response is "Well, if you do that, then I will do this".



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




Develop rapport

WADE:

1; 2; 3; 4

0-8

P6; P8

3

(Active listening)

C&D


WADE: You both want the children for all of Christmas Day. Is there some way of dividing Christmas Day and Christmas Eve so that you both have a special time with the children?

F&U (p.59) - the sisters and the orange (p.76) Jack Sprat

5; 6

4; 5; 6

O1; O5

4

(Power balancing Mutualising Option Generation)

C&D :


WADE: Of the possibilities you have suggested, the only realistic one appears to be alternate weeks in each holiday, with the children phoning the absent parent regularly - perhaps every second night.

5; 6

4; 5; 6

O1 O5.1 O4.3 C4.1

5

(Reality Testing Option

C&D (p.111): What changes do you need to make to option X so that it's acceptable to you both?

F&U (p.89) children and cake - one cuts, other chooses



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




Generation)

A&C p.104 questions whether this kind of intervention jeopardises neutrality


WADE: ...!!!... So you are both saying that what started as a good and loving relationship deteriorated into patterns of sniping. You each are bringing out the worst in each other?

2; 4

2; 3; 4; 5

P6.1 P7.1 P7.3 I2.4

6

(... Summarising)


WADE: Now Jane it's your turn. I'd like you to tell me, not Bill, but me, what possibilities you think might be suitable in relation to the occupation of the house.

3; 5

1; 2; 3; 4

P7.4 I1 O1

7

(Power Balancing)

2; 3; 4;

2; 3; 4;

P8.1 I C

8


WADE: Having listened to you both, it seems to me that you have already agreed on three things. First, you are both good parents; secondly, the children enjoy spending time with both of you; and thirdly, the house must be sold at some time - is that correct? Joe? Michelle?



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




5; 6; 7

6; 7 (Summarising)

C&D (p.177): I would like to summarise what we have discussed so far. I noted how you listened to each other about the way the contract came unstuck and I would like to just briefly revisit what you both said on that point.


WADE: You lost me. I thought we were talking about question number 2 on the board. How are you going to organise the children's week?

5

3; 4

P8 I2 O

9

(Prioritising; Refocussing)

C&D (p.77): We have clarified your understanding of ... We can now move on to explore the next item on the agenda.


WADE: There are predictable arguments both for and against the sale of the business. The arguments for are ... The arguments against are... I'm sure your lawyers can verify those standard arguments each way. So, what would a wise umpire do? Bill? Barb?

5; 6

3; 4; 5; 6

P8 I1.2 C4.1

10

(Mutualising; Neutralising; Reality Testing)


WADE: So let me see if I understand you correctly David - you need six months to finish this building job; and you also need cheap and peaceful accommodation for that six month period?

3; 4; 5; 6

4

P6.4 I2.4.5

11

(Clarifying)



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No





WADE: The reason we are having these regular private meetings is that I find that privacy gives us all an opportunity to think clearly and to discuss concrete proposals.

6

5

P6 O3 O4 C5

12

(Clarifying; Option Generation; Reality Testing)

A&C p.101


WADE: It is normal for you each to go through a grieving process for any loss - including the loss of your marriage. The difficulty for all negotiations is that you may well be at different stages of grieving - one is still very angry, the other further down the track. WADE: Don't worry. Over 90 percent of these disputes settle by agreement. It is a question of whether you are ready to settle tonight, or in a few months time, closer to the door of the court.

4; 5

3; 4; 6; 7

P7.1 P7.2 I3.4 O5 C4.2

13

(Normalising)

C&D (p.167): Although mediation has worked well for many people, at least 20% of matters do not settle. Someone has to make up that 20%. (p.80): Certainly mediation usually can't give parties 100% of what they want, but you might get much closer than if you left it up to an independent person to make decisions affecting your future.



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




A&C support p.29; closer analysis p50-53


WADE: Obviously there are costs to disagreeing - costs in time, stress, loss of concentration, income foregone and money paid out. Do you each have a clear written estimate of the lowest and highest that your legal costs would be if you settled at the door of the court?

5; 6

3; 4

P6 I1.1 I2.4.2 O4.2 C1

14

(Clarifying; Reality Testing)

C&D (p.100): If you don't settle today, have you thought of what you would need to do? If you went to court, has your lawyer told you how much time and money you would have to spend? How certain can you be about the outcome if you left it to the judge to decide? (p.100): What is the worst that could happen if you don't settle today? Would that be better than settling at mediation? In what way would it be better than settling today?

A&C support p.30-35; further analysis p.43-47

5; 6

3; 4; 5; 6

P6 I1.1 I2.4.2 O4.2 C1

15


WADE: One option, as you mentioned, David, is "going to court". I'd like to explore with each of you later what you understand by that phrase. WADE: Can you tell me now what the option of "going to court" involves - for example time span, documentation, time lost, meetings, expense, chances of getting the umpire's decision? WADE: It seems clear to me that before either of you choose that option of "going to court" you both need clear answers to these more particular questions. Do you think you can get these answers?



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




(Clarifying; Reality Testing)

C&D (p.77): I'd like to summarise what I've just heard you say. You both agree that you want to avoid going to court, and that, although you have different ideas about the outcome you would like to explore ways of settling your differences out of court. You've suggested at least two ways of doing that. I'd like to make a note of these suggestions and we'll get back to them later.


WADE: Don't worry, only 10% of these disputes get to an umpire's decision. The question for each of you tonight is basically whether to settle tonight or to settle later. WADE: One of the benefits of mediation now is that you have control. As a dispute is processed towards the door of the court, you each progressively lose control as costs, attrition and time deadlines take over. At the door of the court, you will each be under intense pressure to agree in cramped quarters in a 45-minute shuttle negotiation between lawyers. So the question is again, basically, whether to settle now with control or later with less control.

3; 4; 5; 6

3; 4; 5; 6

P6.7 I2.4.5 O5.1

16

A&C p.14 challenges concept of control; p.36 notes support of control; p47-49 details of research

3; 4; 5

3; 4 O1

O4

17

Simple issue first

WADE: I'd like you to start by suggesting possible methods for Marg getting to and from work each day, now that the Ford Falcon is unregistered.



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




O5 (Option Generation)

C&D (p.56): Would it be easier for you to talk about X first.

Restate progress

WADE: John, you are concerned that we are going over old territory. Well, correct me if I'm mistaken, but it seems to me that tonight you have already identified three areas of agreement (up on the board) and four possible ways of valuing the business. Is that correct? If you've been disagreeing now for ... 18 years - you will almost certainly take more than two hours to build some agreements.

3;5;6;7

4; 5; 6

I1 O1

18

(Summarising)

C&D (p.57):Just to summarise your progress, let's have a look at the agenda to see what you've achieved so far.


WADE: May I say that you're to be congratulated on your negotiation skills. You have both shown restraint, despite the hurts of the past; and, you have both come up with several very constructive suggestions on how the children will move back and forth from Mum's house to Dad's house.

3; 4; 5; 6

4; 5; 6

P7 I3 O1

19

(Summarising)



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No





WADE: How realistic is it to expect a teenage boy to want to leave his neighbourhood friends every weekend? WADE: In my experience you can agree that teenagers will move from house to house every weekend, but the reality is they will buck the system, sleep in, want to go to local parties. How will you respond to that real likelihood?

5; 6

6

P6.1 I2 O; C

20

(Reality Testing)


WADE: In mediation, the mediator is in control of the process; the parties are in control of the outcome. So it is essential that you discuss issues one at a time; not all jumbled up together. Now, Bill, we already have two possibilities in relation to issue 1 on the board. Any others ...?

3; 5

3; 4

P1 P5 I1 I2 O1

21

(Normalising; Prioritising)

5

7

P; I; O; C4.2

22


WADE: As our next meeting will involve three grandparents, two teenagers and an aunt, it would be helpful to have another mediator present. I have worked with .. before and would like her to be included. Do you have any objections to another facilitator?



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No





WADE: (In private meeting.) Would you be prepared to make an offer in the following terms? "What if the sale of the house is delayed for .. months and I pay the outgoings during that time, would you be prepared to divide proceeds closer to my preferred percentages, etc?

5: 6

5; 6

P6.1 I; O; O4.4 C4.1

23

(Option Generation; Appealing to fairness; Rehearsing)

C&D (p.96): (In private meeting): You said that you wanted at least $60,000 compensation. How did you get that figure? How important is it to you to get that money now? (p.97): (In private meeting): What do you think would assist the other party to accept your offer? (p.98): (In private meeting): What sort of settlement would really satisfy you today? What do you really want out of the mediation? ... followed by: What do you think would really satisfy him/her? What do you think he/she really wants out of mediation? ... followed by: How can you help him/her give you what you want? (p.99): (In private meeting): Practise on me. Let's say I'm him/her. How would you approach that new issue in a positive and constructive way.

2; 3; 4; 5; 6; 7

2-8

P6.1 I3

24


WADE: I suppose you have many friends who are being forced to sell up because of the recession. You seem to be in the same difficult situation.



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No





WADE: OK, we seem to be stuck discussing the payment of the Bankcard debt in isolation. Let's look at questions 2 and 3 on the board and see what possibilities you can suggest in relation to each of these.

3; 4; 5; 6

3; 4

P6.6 I; O

25

(Option Generation; Refocussing)

C&D (p.110): There are other options which you haven't mentioned. You can, if you wish, add them to the list, but you don't have to. For example: What if each of you did X, Y or Z in order to avoid A, B or C which created a problem in the past? Is that an option? (p.110): Have you thought of D, E or F so that you can both benefit from the arrangement?

A&C p.104 questions whether this kind of intervention jeopardises neutrality


WADE: You have identified 14 issues for discussion. Obviously in the time available tonight we can only discuss say four. I am going to ask each of you which two you would like to discuss tonight.

3; 4; 5; 6

3; 4

P6.6 I2 C4

26

(Prioritising)

3; 4; 5; 6

3; 4

P6.6 I2 C4

27

Prioritise issues

WADE: You have identified 14 issues for discussion. Obviously in the time available tonight we can only discuss say four. I am going to ask each of you which two you would like to discuss first.



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




(Prioritising)

C&D (p.152): What can you offer A in order to get the thing that is most important to you? (p.57): You both felt this was important, so you are probably looking forward to discussing this. (p.65): Well, where do you think we should start? In your opening statements you both spoke quite strongly about X. Perhaps we could start with that issue. Would that suit you both?

5; 6; 7

4; 6

P6.6

28

Use late hours

WADE: You have invested a lot of time and effort to get this far tonight. It is going to be difficult to get everyone together again. Do you want to keep going after a break for coffee?

5; 6; 7

6

P6.7 O

29


WADE: Mark, you do have the option of leaving now. But my advice to you would be to consider all the other options before you choose the walk out option. There a certainly a number of other possibilities yet to be unearthed. WADE: Mark, if you take the walk out option now, what do you think Joanne's lawyers and relatives will say? - "There I told you so, Mark isn't willing to negotiate."? In my experience, it is wise to avoid that inevitable label. Everyone has made considerable effort to get here tonight. It is going to be very difficult to assemble everyone again once the litigation engine starts. In my opinion you should both exhaust every negotiation possibility tonight before calling it quits. Let me summarise where we are ..



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




(Confronting; Reality Testing)

C&D (p.80): You may decide that mediation is not for you and you are free to leave at any stage if you feel it's a waste of time. Why don't you go on for a while before you finally make up your mind?


WADE: In negotiations, you can pluck a number out of the air. But it is often more helpful if the method for calculating the number is explicable. WADE: In negotiations, it is important that neither party feels like he or she is giving everything, and getting little in exchange. Bill has made a concession in relation to the frequency of visits - can you suggest any methods of increasing frequency of phone calls in return?

F&U (p.87) Law of the Sea Negotiations - use of MIT model to determine tax (p.89-90) Law of Sea Conference - developers to research two - UN to pick UN Enterprise site

4; 5; 6

5; 6

P; I; O; C C4.1 C4.2

30

(Reality Testing; Appealing to fairness)


WADE: I'd like to meet now with Joe, Jane, Mark and Mary in the next room. ... If you reach any agreements here, I need your commitment to sell that agreement hard back in the other room.

4; 6

4/5 6/5

P6 P7 P8 I3 O4 C

31

(Power



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




Balancing; Reality Testing)

A&C p.101


WADE: You both have three pieces of homework. Please write these down. Firstly, the range of legal costs from highest to lowest if you proceed to a three-day trial. Secondly, your lawyer's advice on property percentages from highest to lowest with at least a 15% margin between. Thirdly, you both read this article on teenagers' response to parental separation.

3/4; 4/5; 5/6; 6/5

3; 4/5 5/6 6/5

P6.6 I2 C4

32

(Clarifying; Refocussing)

C&D (p.81): Have you thought of seeking expert advice?

A&C p104 questions whether this kind of intervention jeopardises neutrality (article on teenagers)

4; 6

4/5 6/5

P6 P7 P8 I3 O4 C

33


WADE: I'd like to meet now with Joe, Jane, Mark and Mary in the next room. ... If you reach any agreements here, I need your commitment to sell that agreement hard back in the other room.



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




(Power Balancing; Reality Testing)


WADE: My job is to be absolutely impartial. If either of you think in any way that I am favouring one of you over the other, please tell me - either openly or in private whichever you feel more comfortable about. It is essential to help your negotiations that I am and am perceived to be impartial.

C&D (p.227): Thank you for drawing that to my attention. It does sometimes happen in mediation that the mediator sees a need to balance things up and I may have been trying to do that at that point.

1; 2; 3; 4; 5; 6; 7

1-8

P6 P8

34

A&C p.60-61; 102-105;

3; 4; 5; 6

3-6

P6 P8 I2.4

35

Use silence

WADE: .... (Someone will eventually fill the silence.)


WADE: We have been here for a considerable time. Issues three and four are still to be resolved. I need to be out of here by 10.30pm. Can we make another time to reconvene.

5

6

P6 P8 C1

36

C&D (p.158) Perhaps you may feel you are better off going to court. There is no doubt that



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




some people do feel more comfortable with an imposed solution, even if it turns out to be one which goes against their interests. C&D (p.158) Some people find the responsibility of decision-making uncomfortable and want someone to make the decision for them. Perhaps this is not the right forum for you.

A&C p.103

Work on saving face

WADE: I also have difficulty understanding the three different methods of valuing businesses, David - could you help me to understand? WADE: If you negotiate by making extreme claims and creeping towards some middle position, there is a real risk that one or both parties will lose face. We need to increase the issues on the table so that there is more to give and take. WADE: If you feel like the negotiations will trigger your response of tears or yelling, at any time give me the signal and I will declare a break.

3; 4; 5; 6

3; 4; 5; 6

P6.7 P7 O4 C4.1

37

(Clarifying; Normalising; Neutralising)

3; 4; 5; 6

3; 4; 5; 6

P7 I3.4 O

38

Control hostility

WADE: Jack, I'd like to interrupt there. The last interchange represented a series of accusations about past behaviour. Mediation is about you making decisions about the future. I'd like you both to concentrate on possible solutions for the future on issue number two. (Plus other strategies)



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




(Neutralising)


WADE: Jane, could you please repeat that for my sake; I didn't pick up the essence of your comment. WADE: I'll have to change my question. The way I expressed it has obviously been misleading. WADE: Can you help me, I still don't understand why it is so important to you - as it clearly is - to have the children stay with you every holiday period.

5; 6

3; 4; 5; 6

P6 P6.7 P8

39

(Clarifying; Neutralising)


WADE: I'd just like to pause again and summarise where we have progressed so far tonight. First, you each listened to one another express his and her concerns; I attempted to summarise these as follows ...

3; 4; 5; 6

3; 4; 5; 6

P6 P8 I

40

(Summarising; Neutralising; Mutualising)



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No





WADE: You have raised a question whether Peter is really interested in settling tonight. I cannot breach confidentiality in relation to the substance of any private conversations I have had with each of you. But I can assure you, that in my judgement, there is no evidence of lack of sincerity or lack of interest in settlement. From my observation both of you want to explore every possibility of settlement now.

3; 4; 5; 6

6

P6 P8 I2

41

(Neutralising; Clarifying)

1; 3; 4; 5; 6

3; 4; 5

P6 P6.7 P8.4 I1.2 O; O5.1

42


WADE: You have both indicated that you have certain unhelpful and entrenched patterns of communication which you have been practising for 19 years. You are both concerned that that pattern will prevent a constructive discussion.. Part of my job is to pull you out of that unhelpful pattern which you feel trapped in. I will interrupt if it recurs too often. WADE: (In private session.) It is clear to me that Jan feels very threatened when you open the topic of her job retraining. How can you avoid backing her into a corner? How can you avoid her closing down on all negotiation, because of her feeling so insecure about retraining. WADE: (In private session.) I want you to practise making that offer to me Margaret. Yes, right now. We can write it out if necessary. In negotiations, the form of words is very important. Some loose words can cause unintentional offence and the substance of the offer is lost. All right, can you make that offer to me.



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




(Summarising; Clarifying; Confronting; Option Generation; Rehearsing)

C&D (p.98): (In private session) Do you remember when you said X? How did he/she react? Why do you think he/she reacted that way? How do you think you can avoid that reaction when you get together again? Practise on me. What exactly could you say to avoid that negative reaction?

43

Use humour

WADE: You get no lunch until we settle.


WADE: Most negotiations want to "get to the bottom line" quickly. But mediation is not like that - we have a saying that "slow is fast". We will address possible solutions to small parts of your dispute - and then fit together pieces in the jigsaw. Please be patient even when we seem to be moving slowly.

F&U p.118 - the one-text procedure - architect with husband and wife; (p.121): Carter at Camp David in 1978with Egypt and Israel.

1; 3; 4; 5; 6

4; 5; 6

P6 P8; I; O; C

44

(Normalising)

45

Role Reversal

C&D (p.145): I'm now going to ask you to step into each other's place for a minute.

46

Keeping parties focussed on future

C&D (p107): I wonder if at this stage you could think of the decisions you have to make for the future. Perhaps knowing what went wrong in the past, can you think of what you would do differently now?



Intervention


SP (UTS)

SG (C&D)

NEG (F&U)

No




47

Mini Lecture on Option Generation

C&D (p.109): I wonder if we could just defer any comments on the options for a little later. At this stage, let's just add to the list without looking at the merits of any particular option. (p.159) I have been observing that every time an option comes up or a suggestion is made one of you will focus on the downside. No option will be perfect or suit both of you 100%. It's unrealistic to seek this. Every option will generally have a drawback. Let's look at the positive aspects of each option and see which is the least difficult or most mutually satisfying.

48


C&D (p.113): You had an interesting proposal which you told me about. Would you like to tel Peter how you're willing to help him in relation to access visits? (p.161): Well my options at this point are (a) to proceed to court; (b) to put an offer if you will guarantee that it won't be encroached upon; (c) to meet you half way (or 35% of the way) on the amount of your claim.

49

Helping with the last gap

C&D (p.161-166)

50


F&U (p.118)

Documents

Dispute Resolution: Resources for Strategic Interventions