Mediation Training Manual

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OBJECTIVES OFTRAINING


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RELEVANCE OF TRAINING

Object to make trainees more efficient.

Structured according to task.

Focused, specialized and resultoriented.

Identify the gaps in expertise and to fillgaps to raise level of expertise.

Indispensable on threshold.

Object to improve skills, commonknowledge and attitude.

Need for quality control in anyTraining Programme.


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ADULT LEARNERS

Adults must want to learn.

Adults learn

only what they feel they need to learn.

by doing and performing

by solving practical problems.

From theirpast experiences.

Adults learn best in an

informal environment.

- through a variety of training

methods.


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It is easier to perceiveerror than to find the truth,

for the former lies on thesurface and is easily seenwhile the latter lies in thedepth, where few are willingto search for it.

Johann Wolfgang VonGoethe

Conflict is natural

Respect people; attack problems


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A. CONFLICT

Conflict is a natural part of life.

Conflict emerges whendisagreements, differences,annoyances, competition orinequities threaten somethingimportant.

If conflict is dealt with in a healthyway, a solution that satisfieseveryone can be generally found.

Conflict has its negative side. It

may hurt feelings and fracturerelationship.


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B. SOURCES OF CONFLICT

SOURCE STRATEGIES

Data

Lack of information

Misinformation

Different interpretations ofinformation

Agree on process to collect data.

Agree on what data are

important.

Interests & Expectations

Goals, needs

Focus on interests, not positions.

Expand Options.

Relationships

Poor communication

Repetitive Negative Behaviour

Misperceptions, sterotypes

Distrust

History of conflicts

Establish ground rules.

Clarify perceptions.

Improve communications.

Agree on processes &procedures.

Keep your words.

Think for future/ learn frompast.

Structural Conflicts

Resources

Power

Time constraints

Reallocate ownership & control.

Establish fair, mutuallyacceptable decision making

process.

Clearly define, change role.

Values

Different criteria for evaluatingideas.

Different ways of life ideology& religion.

Search for super- ordinary goals.

Allow parties to agree & todisagree.

Build common loyality.


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C. DEFENCE MECHANISM

i) Denial

Do not acknowledge existence of any conflict. If notthought, it doesnt exist or will go away.

ii) Avoidance

Conflict is there, but dont want to deal with it, and

make or find excuses to not deal with it.

iii) Projection

To deny our faults by projecting these faults ontoothers.

iv) Reaction Formation

A person might respond by adopting the traits ormannerisms of the person with whom they are

engaged in conflict.

v) Displacement

Take emotional reaction such as anger out onanother person rather than on the person in dissentwith.

vi) Counter phobic It entails denying the anxiety felt about the conflict,by becoming aggressive, confrontational.

vii) Escalation of the importance of the conflict

A person may respond to the conflict by blowing itout of proportion, or expressing own needs, byacting overly melodramatic, and appearing too

needy for attention.


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The vertical axis represents thedegree of concern for selfexhibited by a person trying toresolve a conflict in which he or

she is involved.

The horizontal axis exhibits thedegree of concern for othersin the conflict.


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E. CONFLICT STYLES

i)Avoidance Conflict? What Conflict?

*Strategies : Flee, deny, ignore,

*Appropriate when :

The issue is trivial, time is

*Inappropriate when :

negative feelings may linger,

ii)Accommodation Whatever you want is OK

*Strategies : agree, appease,

*Appropriate when :

Issue is not important, you

*Inappropriate when :

you are likely to resent it, used

iii)Competition My way or the highway.

*Strategies : Compete, control, outwit,coerce, fight.

*Appropriate when :

an emergency looms others*Inappropriate when :

Cooperation from others is important,


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iv)Compromise: Let's split the difference.

*Strategies : bargain, reduce expectations, a littlesomething for everyone.

*Appropriate when :finding some solution is better than

a stalemate, cooperation is importantbut time & resources are limited.

*Inappropriate when :finding the most creative solution isessential.

v)Collaboration: How can we solve this problem.

*Strategies : gather information, look foralternatives, dialogue, welcome

disagreement.

*Appropriate when :the issues & relationship are bothsignificant, cooperation is important,

reasonable hope to address allconcerns.

*Inappropriate when :time is short, issues are unimportant.


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STEPS FOR CONFLICT RESOLUTION

i) Cooperation

The resolution cannot be imposed onsomeone who is in a defensive pose. Theother person must become part of the solutionby being included, through a cooperative effortby both parties to find a mutual resolution.

ii)Two Way Street

For a mutually agreed solution to be found,the other party must be shown, they cannotimpose their own proposal to resolve the

matter. They too must adopt a measure ofmutual cooperation.

iii)Both Parties Must Believe

Parties must believe in resolving conflict.

iv)Trust the Resolut ion

Both parties should abide by the agreement. Ifthere is a lack of trust, the agreement willbecome shaky or not sustainable.


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ALTERNATIVE DISPUTE RESOLUTIONAND

ITS RELEVANCE

In recent times, the communities world overhave become more and more aware about theirhuman and legal rights and seek redressalfrequently through litigation in courts in case of

infringement. The resources at the common ofjudicial system are inadequate to meet thegrowing litigation resulted in backlog of casesand delay in the administration of justice. It wasreported in the Hindustan Times (24th June,2008) that about 3 crore cases are pending invarious courts across the country and India isfacing unprecedented litigation explosion. Itwas further reported that around 10 crore Indiansare awaiting justice with each case involving anaverage of three litigants. As per the latest figurereleased by the Supreme Court of India, over2.92 crore cases are pending in hundred ofsubordinate courts, 21 High Courts and theSupreme Court. This figure does not include thecases pending in various tribunals and quasijudicial bodies. Out of total 2.92 crore cases,

over 2.54 cases are pending in subordinatecourts.

It has become necessary to resort to rapid andeffective methods of dispute settlement betweenlitigants other than traditional judicial methodsi.e. Courts through Alternative Dispute

Resolution (ADR) which is not a substitute forcourts but a complementary mechanism to shed

off the work load of the courts. The need of theADR is real and urgent. It is a mechanism tomitigate the existing deficiency in the judicialsystem. The Chief Justice Tan Hun Hoe in his


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article, Alternative Methods of DisputeSettlement in Malaysia has declared that thejudiciary has to device new methods, new toolsand new stratagem for the purpose of providingsocial justice to the common man which canrespond to the urges of the large masses ofpeople for social justice by adopting creative andactivist approach.

Chief Justice William H Rehnquists hascommented that our Government should beexpected to provide a system of disputeadjudication that is tailored to the needs of mostpotential litigants and who can make use of thesystem.

The alternative mechanism are not intended to

supplant court adjudication but rather tosupplement it. It provides an opportunity toresolve the differences, conflicts or the disputescreatively, efficiently, effectively and amicably.The Supreme Court in Salem Advocate BarAssociation, TN Vs. Union of India (2003) 1SCC 499has observed that in certain countriesof the world over 90 per cent of the cases, have

been settled out of the court.Mediation is one of the accepted mode ofalternative dispute resolution globally. It is arelatively recent arrival on the legal scene andhaving its origin in the United States in the later

half of 20th

century. In United States, there arevarious reasons for resolving disputes withoutrecourse to litigation. It has been enthusiasticallyembraced by a number of States, often making ita mandatory stage of the court process. TheCentre for Effective Dispute Resolution (CEDR)published definition of mediation as A flexible


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process conducted confidentially in which aneutral person assist the parties in workingtowards a negotiating agreement of dispute ordifferences, with the parties in ultimate controlof the decision to settle all the terms of theresolution. In language of a layman, mediationis a process of amicable/ synergistic solution to adispute/ conflict arrived by optimization leading

to a win win situation. It is a boon to the socialframework leading to higher returns and issatisfying.

In India, Section 89 of Code of Civil ProcedureCourts, 1908 provides mediation as one of themethod of alternative dispute resolution. It isnecessary to infuse Indianness in the concept

of mediation particularly when it is originated inwestern countries.


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MEDIATION ANDITS GOVERNANCE

It is claimed that the mediation is in practice

in India since long time. India has a long

history of resolving disputes without formal

trials. A vast diversity of ancient dispute

resolution processes is used, informally, in

various regions and sub-culture throughoutIndia such as settlement of dispute with the

involvement of Sarparch in petty disputes.

These settlement processes were having

elements of direct participation, prompt

resolution and affordability. However, such

resolution processes lacked standard,

systematic approach to dispute resolution.

MEDIATION AND OTHERFORMS OF ADR


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WHY MEDIATION

Mediation. Mediation is a non-binding

negotiation process, in which a neutral third

person facilitates the disputants in arriving at a

mutually acceptable settlement. To assist the

parties, the Mediator uses specialized

negotiation and communication techniques to

arrive at dispute resolution. The mediation

process is structured and informal. Parties

control the outcome of the dispute which is in

the form of an agreement/ settlement. The

mediator controls the process through which

parties arrive at their settlement. The entire

process is confidential.


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MODELS OF MEDIATION

Mainly three types of mediation

models are being followed in India :-

1. Commercial Mediation(business disputes, legal disputes,insurance disputes);

2. Community Mediation (communitydisputes, neighbor / neighbor disputes,relationship disputes);

3. Family Mediation (familydisputes, divorce, custody, childsupport, visitation);


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TYPES OF MEDIATION

Private Mediation :Private mediation servicesare available from a broad range of private

mediation providers, including :

Professional, private, independent mediators(attorneys and non attorneys)Retired Judges

Non-profit agenciesFor profit organizations

In private mediations, independentmediators may that be advocates, Retd. Judges,

professionals.

Court-Annexed Mediation: By virtue ofSection 89 Code of Civil Procedure, the modelof Court annexed mediation is being followed.

The Courts have mediation centres in whichthe cases are referred by different Courts. Aftera preliminary inquiry, these are marked toexperienced & trained mediators from the

panel of mediation which is available withmediation centres.


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FORMS OF ADR PREVALENT INWESTERN COUNTRIES

Other forms of ADR which are prevalent in WesternCountries are :-

Arbitration:Arbitration is an adjudication process,in which the parties present their disputes to a

neutral arbitrator for a decision. Arbitration can bebinding or non binding. The arbitration process isakin to the litigation process in its procedure.Arbitration is used in commercial disputes.

Med-Arb. Med-Arb is a hybrid ADR process.Initially, the parties begin with mediation and whenthey are unable to reach to a negotiated settlementthen it is converted to arbitration. Med-Arb is usedin disputes where the parties need a guarantee offinality, but they wish to attempt to negotiate anagreement.

Judicial Settlement Conferences: The referral

courts designate one or more judges to preside oversettlement conferences with parties and theiradvocates. Judicial Settlement is generally briefprocess wherein a judge discusses the prospects forsettlement in a meeting with the parties and theiradvocates. Section 89 CPC also provides for judicialsettlements. It can be voluntary or mandatory.


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Settlement Panels.Courts will often use settlementpanels consisting of a judge and two Advocates,One plaintiff advocate and the other defenseadvocate to resolve disputes. It is utilizing thevolunteer services of experienced advocates alongwith judges. It is basically a negotiation process andis used in pending Court cases.

Early Neutral Evaluation:Neutral evaluation is anevaluation process conducted in early stages of acase. In this process, the neutral evaluator providesthe parties with an evaluation and determinationabout a case's value in order to facilitate settlement.The parties exchange information and make oralrepresentations and statements to the evaluator.Neutral evaluation can be binding or non-binding. Itis usually done in cases involving technical andscientific issues.

Special Master: It is an adjudicative process, inwhich usually an advocate or a retired judge

designated by a court acts as a special master. Hepresides over pre-trial and/or trial issues. It is usedin cases of intellectual property, environment,construction defects which require a high degree ofexpertise or where there are numerous parties. Thespecial master in some cases preside as the trialjudge.


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Neutral Fact Finding: Neutral fact finding is aninvestigation process. It can be used to investigateemployment disputes such as harassment,discrimination, or wrongful termination. Theprocess can be advisory. This ADR process is usedby companies, government agencies, and other

organizations when an internal investigation of acomplaint is not feasible.

Litigants have a range of ADR methods toselect an appropriate mode for redressal of theirdisputes. The disputants reserve their right to adhere

to litigation while choosing the ADR method whichis non-binding. People are to be extensivelyeducated about ADR mechanism so that they maybenefit and choose appropriate method forresolution of their disputes.


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MEDIATION


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WHAT IS MEDIATION

A. DEFINITION

Mediation is a process in which animpartial third party- a mediator-facilitates the resolution of adispute by promoting amicableagreement by the parties to thedispute.

A mediator :- facilitatescommunication, promotes understanding,

assists parties to identify interests, usescreative problem solving techniquesenables parties to reach their ownagreement.


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B. MEDIATION IS :-

A structured negotiation

process

Neutral mediator

Facilitate communication and

negotiation

Assist the parties in resolvingtheir dispute.

Flexible and informal process.

Allows creative remedies.

Process is economical andconfidential.


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C. COMPONENTS OF MEDIATION

i)Impartiality

Mediator must act impartially and

even-handed. Neutrality, impartialityand independence are assets of amediator.

A Mediator must avoid:

a. Partiality or prejudice; and

b. Conduct that gives appearance of partiality or prejudice.

ii)Competence

Mediator should have necessarycompetence to do mediation and tosatisfy the reasonable expectationsof the parties.

iii)Confidentiality

Confidentiality is the essence of mediation process. It must be

maintained during the mediation

proceedings.


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iv)Quality of Process

The conduct of mediator should not beinfluenced by a desire to achieve a highsettlement rate.

A mediator must conduct the mediationproceedings diligently and withunderstanding that outcome should be dueto free will of the parties.

v)Settlement

If the mediation results in a settlementbetween the parties, the mediator shouldencourage the parties to record the exactterms of settlement in writing.

vi)Self-determination

Mediation is based on principle of self-determination by the parties.

Parties be allowed to reach a voluntaryand uncoerced agreement.

Any party may withdraw from mediation at

any time.


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CHARACTERISTICS OF NEGOTIATION,MEDIATION AND LITIGATION

Negotiation Mediation Litigation

Voluntary

If agreement,enforceable ascontract

No third party

Informal

Unboundedpresentation ofevidence andinterests focusedon past.

Outcome:mutuallyacceptableagreement sought

Private

Voluntary

If agreement,enforceable ascontract

No third party

Informal

Unboundedpresentation ofevidence andinterests focusedon past.

Outcome:mutuallyacceptableagreement sought

Private

Involuntary

Binding, subjectto appeal

Imposedfacilitator

Formal, rigid rules

Opportunity foreach party proofs,focused on pastevents

Outcome:imposed decision

Public


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CHARACTERISTICS OF MEDIATIONAND ARBITRATION

MEDIATION ARBITRATION

Structure ofProcess

Introduction JointSession, Caucus,Agreement

Claims/ counterclaims,Examination ofwitnesses,Arguments

Nature of Process Negotiatory,Collaborative

Adjudicatory,Directive

Procedure Non-procedural Procedural rulesand rules ofevidence

Neutral thirdparty

Facilitator Adjudicator

Role of Parties/advocates

Active and direct Active only duringevidence

Level offormality

Informal Formal


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CHARACTERISTICS OF LOK ADALAT ANDMEDIATION

MEDIATION LOK ADALAT

Forum Private Conference Court premises

Room

Morphology Structured process Persuasion and

discussion.

Who Controls Mediator controls Presiding Officer.

the process structured process Process is not

Selection of Generally parties Parties do not

neutral third party enjoy any say in

Time Reasonable time Time constraints

Who Controls Parties Presiding Officer

the outcome

Confidentiality Private Public

Depth of Analysis Detailed analysis Casual

discussion on facts and law

Types of disputes All types of disputes Recovery/ claims

settled disputes

Role of parties/ Active and direct Not active and

advocates direct

Role of neutral Work in partnership Persuasion

with parties.

MEDIATION AND CONCILIATION


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Mediation and Conciliation

Mediation as seen in the western worldand conciliation recognized in India arethe same. In order to understand thatmediation and conciliation are synonyms,the following meanings attached thereto

in Black's Law Dictionary are reproducedbelow:-

Mediation

A method of non-binding disputeresolution involving a neutral third partywho tries to help the disputing parties

reach a mutually agreeable solutionAlso termed conciliation.

(Black's Law Dictionary SeventhEdit ion Page 96).

Conciliation

a. A settlement of a dispute in an

agreeable manner.b. A process in which a neutral personmeets with the parties to a dispute (oftenlabor) and explores how, the disputemight be resolved.

( Black's Law Dictionary SeventhEdit ion P.284).

The distinction between MEDIATIONAND CONCILIATION is widely debatedamong those interested in ADR,arbitration and international diplomacy,


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some suggest that conciliation is a 'nonbinding arbitration', whereas mediationis merely 'assisted negotiation'. Othersput is this way : conciliation involves athird party's trying to bring togetherdisputing parties to help them reconciletheir difference, whereas mediation

goes further by allowing the third partyto suggest terms on which disputemight be resolved. Still other rejectthese attempts at differentiation andcontend that there is no consensusabout what the two words mean that

they are generally inter changeable.Though a distinction would beconvenient, those who argue thatusage indicates a broad synonymity aremost accurate.

Bryan A. Garner. A dictionary of

Modern Legal Usage. P.5554 (2ndEdn.1995)


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DIMENSIONS OF A DISPUTE

i. Factsii. Positions

iii. Claims/Defenses

iv. Arguments

v. Law(Traditional rights

and remedies).


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STAGES AT WHICH THE CASESMAY BE REFERRED FOR

MEDIATION

Every stage of the trial is fit formediation.

Cases which are fixed at framing of

issues, miscellaneous proceedings,evidence, arguments are beingsettled through mediation.

Cases which are pending before theappellate court, writ petitions,

transfer petitions can also be settledthrough Mediation.


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DISPUTES WHERE MEDIATION ISNOT APPROPRIATE

Mediation may not be appropriate infollowing conditions :-

i) Parties refuses to negotiate or not ready fo

ii) Parties want a judicialdetermination.

Iii) Public airing of a dispute or dispute deserve

iv) Power imbalance which makes fair agreem

v) Parties want a legal precedent.

vi) Delay in resolution benefits party.

vii) Parties do not have sufficient informa

viii)Complicated and complex cases involvin

ix) One party suspect that other party intends


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QUALITIES OF AGOOD MEDIATOR

Speed Flexible Non-Judgmental

Active, Alert Options Optimistic

Generator

Analyst Communicator Patience

AccommodativeFacilitator Positive

Catalyst Listener Polite

Communicator Guide Persuasive

Convincing Honest Reality Tester

Co-operative Humble Reasonable

CompassionateHumorous Time Manager

Experienced Impartial Unbiased

Fair Integrity Vigilant

Faithful Neutral

Fearless Non-Egoistic


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WHY MEDIATE

Relationships are strained butmust continue.

Miscommunication is apparentand a skilled neutral wouldfacilitate communications.

The presence of a third partywould change dynamics.

The parties may be willing tosettle or re-evaluate theirpositions.

Confidentiality is important.

Parties are interested inretaining control of outcome.

Time factors may be aconsideration.


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BENEFITS OF MEDIATION

Private, prompt and affordable.

Provides an opportunity to the partiesclaims.

A forum for parties to develop creativ


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i) FreeNo cost.

Less expensive than litigation.

ii) Fair and Neutral

Parties decide settlement terms.No determination of guilt orinnocence.

ii i) Saves Time

May complete in one meeting.

Legal or other representationoptional.

Fast resolution of disputes.

iv) Confidential

Information disclosed notrevealed to anyone.

v) Avoids Litigation

Lengthy litigation avoided.

Resolution of disputes.


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vi) Improves CommunicationParties openly discuss underlyingdispute.

Enhanced communication lead tomutually satisfactory resolutions.

Parties share information leading to

a better understanding of issues.

vii) Win-Win position

Win-win situation in contrast tojudicial decision.

viii ) Parties control outcomeOutcome always within control of theparties.Parties avoid the uncertainty anddissatisfaction experienced in court.

ix) VoluntaryAny party may withdraw at anytime.

x) No Appeal /Revision.

xi) Refund of Court Fee


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xii) ConvenientArranged at a convenience of parties.

May be held at any place at any time.

Not limited to ordinary working

days or hours.

xiii ) Preserves relationship.

Preserves relationship whichmay be destroyed by courtlitigation.


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ROLE OF PARTIES/ATTORNEYS

Active

Direct


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MEDIATION IS NOT......a)Mediation is not a bar to litigation orarbitration

i)Do not preclude use of other methods ofdispute resolution.

ii)Right to litigate or arbitrate not lost merely by

participating in mediation.

b)Mediation is not toothless

i)Parties control settlement.

ii)Settlement can be enforced.

c) Mediation is not mere Compromise

i)Not splitting the difference

down the middle.

ii)Creative options developed.

d) Mediation is not what lawyers, managersor judges do all the time.

i) A party or lawyer cannot playthe role of a neutral even they arereasonable or friendly.

ii) A neutral is detached from the

problem, emotion and the commercialpressures.

iii) Unlike a judge, a mediatorderives authority only from the parties.


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e)Mediation is not a waste of time andmoney if it fails

i) Helps to narrow down the gap, tempersaspirations with realism.

f) Mediation is not yet another cost to theunfortunate parties.

i) Mediation is always with no cost orminimum cost.

ii) Less expensive than the fee of the lawyers,experts.

g) Mediation is not a sign of weaknessi) A route to client satisfaction.

ii) No soft option.

iii) Tough, demanding and rewarding process.

iv) Involves intense negotiation that requiresquickness of mind, flexibility and

imagination.

h) Mediation need not be risky

i) Greatest risk perceived is that the otherparty would learn more about their case.

ii) Release of information and terms of

settlement within the control of parties.


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j) Mediation is not Counselling.

MEDIATION

Neutral Relationshippreserved with parties.

Facilitate negotiation for aspecific disputes.

Problems solvingtechniques used

COUNSELLING

Intense relationshipdevelops with individualclients.

Free ranging discussion onany topic.

Psychological analysis.


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STATGES OF MEDIATION


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INTRODUCTION

JOINT SESSION

SINGLE SESSION(CAUCUS)

AGREEMENT


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INTRODUCTIONIt sets a positive tone, develop confidence foragreement and create relaxed atmosphere. It shouldbe completed within 2-3 minutes.

A. MEDIATOR'S TASKS

i). Welcome the parties.

Escorts the parties into the room and to their seats.

Make proper seating arrangement.

Assign specific seats to the parties.

ii). Introduce himself; parties/ counsels and other participants.

Give brief introduction of self e.g. Your expertise, experience etc.

Ask parties/counsels/ other participants to introduce themselves.

Make parties to agree to use their first names.

iii). Describe Mediation Process.

Explain purpose of Mediation to the parties.

Explain & describe the different stages of the process i.e. roadmap.

Non-adjudicatory process.

Mediation is voluntary & based on the consent of the parties.

Use plain language.

iv). Describe Role of Mediator

Neutral intervener & does not represent either party.

Non-judgmental; helps the parties to find their own resolution ofdispute.

Do not propose solution.

Merely assists parties in evolving options for settlement.

Carries proposals back and forth.

Do not offer legal advice but ensures legality of the agreement.

A manager of process.

A sponge to absorb parties feelings and frustration.

A catalyst for problem solving.

Information gatherer.


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Types of Role Of Mediator

a) Facilitator

Manage interaction.

Facilitate communication.

Identify barriers to agreement.

Develop terms of settlement based uponinterest of parties.

Techniques

Gathering of information about dispute.

Control Direction of communication.

Identify underlying interests of disputes.

b) Evaluator

Real Testing both on law and facts

Evaluation should be done at appropriatetime and in appropriate manner.

Techniques

Analyse or evaluate positions adopted byparties.

Role reversal

Questioning

Identify risks and costs of legal proceedings.


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v)ConfidentialityMediator should address the confidentiality to the parties.

Essence of mediation.

Parties feel more comfortable to disclose ideas and positions ifinformation will not be used against them subsequently.

Anything disclosed during mediation shall remain confidential.

Explain whether confidentiality is requirement of law or agreementof the parties.

vi)Explain Ground Rules

A mediation should explain following potential ground rules to theparties.

Parties/counsel shall address to the Mediator.

No interruption; direct confrontation.

Observe courtesy.

No use of foul/ unparliamentary/ abusive/ vulgar language.

Complainant may speak first, then respondent.Parties may call for breaks when needed.

Note-taking by mediator.

No use of mobile phone/ be switched off.

Only parties or their authorised representatives to attendmediation.

If settlement is not reached then case be sent back to referralcourt.

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B. MEDIATORS OBJECTIVES

i) Establish Neutrality

Neutrality provides stable platform for resolution of conflict.

Convey impartiality and lack of bias.

To be accomplished by careful selection of words, use ofneutral language, appropriate body language and eyecontact.

Neutral location and environment.

Use of words of mutuality to all participants. eg:everyoneshall have an opportunity to talk.

No option or suggestions about possible solutions.

No deference to any individual.

Mediator should sit squarely without exhibiting any preferenceto anyone.

ii) Establish control over the process

It is achieved by calm, clear, neutral introduction.

No conversation between parties and lawyers across table.

Manage interruptions or outbursts.

No side tracking of Mediation process.

iii) Establish conducive environment

Display of calm but business like approach.

Relaxed but focused.

Adopt business like approach.

No anxiety, frustration and anger.

Generate momentum towards agreement.


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JOINT SESSION

The basic object of the joint session is togather information and to knowbackgrounds of a dispute. The parties ortheir respective counsels be allowed tospeak. Ordinarily the party who files thecase should be offered to speak first butwith brevity. The events should be asked to

present in chronological order. The maingoals of a joint session can be enlisted asunder :-

Gathering of information.

Organization of information.

Assumes control over the process

To listen dispute in the words of disputants.

Disputants hear what other party has to say.


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i) DOS FOR A MEDIATOR INJOINT SESSION

Begin with broad open-endedquestions.

Encourage the participation of theparties.

Listen. Ask very Few questions.

Do not alienate the other party.

Manage outbursts and interruptions.

Jot down various issues.Take mental notes on what mediator ishearing, seeing and sensing.

Identify underlying interests of theparties.

Maintain neutrality.

Maintain environment conducive toagreement.

Allow some exchange ofcommunication between the parties.

Parties who talk non-stop should beasked to summarize.


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ii) Techniques

Active/ Effective Listening.

Body language.

Questions.

Empathy with neutrality.


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SINGLE SESSION (CAUCUS)A mediator spend much time during mediationtalking with the parties together. It can behelpful to speak with each party separately.The conversation of a mediator with singleparty is known as single session or caucus. Itis optional and is arranged after conclusion ofjoint session. In single session, mediator

meets with each of the parties with Counselsseparately. During single session, the partiesinteract with Mediator in confidence. Theparties speak more freely in absence of otherparty. The broad goals of individual sessionare as under :-

Purpose

Allow parties to ventilate to minimize hostility.People feel relieved after private expression of grief,anger, frustration, sadness or fear.

Reduces tension.

It is useful when impasse is reached. It allows theparties explore alternatives for resolution

Build trust. Avoid deadlock.

Explore possible solutions which parties areunwilling to discuss in joint sessions.

To explore hidden agenda.To allow the disputants to save face.

To probe areas of flexibility.

Mediator continues to gather information.

Parties discuss confidential information.

Offers and counter offers are conveyed.

Promotes negotiating equality.


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Strategies

Assure confidentiality both at the beginning and atthe end of individual session.

Reinforce rapport with each party.

Explore possible solutions.

Help parties explore consequences of not arriving atan agreed upon solution (real testing).

PrecautionsKeep individual session short or fix time limit.

Do not appear to favour one side.

Decide when caucus is necessary.

Decide what you want to accomplish.

Formulate agenda.

One party is asked/ requested to leave the mediationroom with assurance of grant of sufficient time.

SUB-CAUCUS

Mediator may meet either with partiesor attorneys separately to facilitatenegotiations. It is helpful in matrimonial

disputes.


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AGREEMENT

Agreement is last phase ofMediation.

Agreement should be reducedin writing.

Statement about parties future

relationship.

Parties are responsible forsubstance of agreement.

Describe responsibility of eachparty in resolution of disputes.


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i)PURPOSES

a)Specify solutions ofeach identified issues.

b)Specify future relationship ofdisputants.

c)Test whether agreement isworking.


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ii) Guidelines for a Mediatora)Specific

Avoid ambiguous words such asreasonable, soon, frequent,Co-operative, practicable etc.

State clearly WHO will do WHAT,WHEN, WHERE, HOW, HOWMUCH and HOW LONG.

Avoid legal jargon. Use plain andsimple language preferably

disputants language.b)Realistic

Deal with all issues in dispute. Minimiz

Workable and satisfies parties.

Parties should have control over agreemc).Positive

No blame assessment.

Use non-judgmental words.

Use positive language.

d)Balanced

Agreement should reflect each partygaining something.


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One party should not do all ofcompromising.

e) Procedural

Oral recital of terms of agreement.

Clarify terms of settlement.

Confirm settlement.Decide who should write agreement.

Refer the parties by names as well as statu

Use active voice.

Make a copy of agreement for eachparty.

Make closing remarks.Agreement should be signed by eachparty.

If no settlement is reached, keep the door

f)Characteristics

Clear

Concise

CompleteConcrete


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COMMUNICATION


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COMMUNICATIONEffective Mediation requires the mediator tobuild trust & understanding. Communicationis the core of Mediation. A Mediator needsto communicate with concerned partieseffectively. A good mediator needs to

encourage the parties to communicate witheach other other and with mediator himself.Good communication skills require a highlevel of self-awareness. Communication isbest achieved through simple planing andcontrol. To ensure efficient & effectivecommunication, a mediator must i) make hismessage understood; ii) must receive/understand the intended message sent tomediator; and iii) mediator should exertcontrol over the flow of the communication.

Being a good communicator, a mediatormust learn to listen as well as to speak. A

mediator plays a final role in communicationprocess as he acts both as a receiver and asender.


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1. BASIC ATTRIBUTES OF COMMUNICATION

The following are basic attributes of acommunication :-

A mediator needs to encourage and foster co

Essential for effective mediation.

Communication covers a multitudeof skills and processes.

Mediation involves demonstration ofcommunication skills.

A mediator should develop soundskills in communications i.e.thegiving and receiving the message.

A mediator should be clear, caring,empathetic and impartial incommunication.

Effective communication creates anopen, unthreatening and constructiveenvironment leading the parties togreater understanding and flexibilityfor satisfactory resolution ofdisputes.


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2. How to ensure meaningfulcommunication.

a). Use Simple, plain, clearlanguage.

b). Avoid unnecessary or difficultwords.

c). Avoid repetition.

d). Be precise, cogent and logical in

use of words.e). Formulate message.

f). Respond with empathy.

g). Ensure proper eye contact.

h). Be attentive & courteous duringlistening.

i) No interruptions.


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3. Characteristics of amediator as communicator

a)Activity Initiator

Start discussions; define problems; explore newways to organize information.

b) Information seeker

Gather factual information data, ideas.

c) Opinion seeker

Seek opinions, beliefs and personal evaluations fromdisputants.

d) Encourager

Develop and maintain a warm, friendly, and relaxedatmosphere; facilitate easy communication; praiseothers and their ideas; encourage the expression offeelings. (without necessarily agreeing orDisagreeing with the specific idea)

e)Gate Keeper

Keep communication channels open; helps eachparty to contribute, participate, and getin the discussion.

f) Harmonizer

Reduce tensions and relieve negative feelings; put situations int

g) Clarifier-

Give examples and illustrations;


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h) Elaborator

paraphrase; develop meanings by trying to envision ho

i) Echo and Mirror

Sense and feed back what mediator is seeing,hearing and feeling.

j) Standard Setter

Express, clarify and apply the ground rules for mediation.

k) Evaluator

Submit group decisions and make sure they areconsidered in light of goals and objectives.

l) SummarizerRestate information, opinions or suggestions inconcise form after they have been discussed.

m) Reality TesterClarify perceptions, assumptions and feelings byhelping each party to express them and test themout with the other; reflect the potential consequencesof suggested solutions; be an agent of reality.


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4. TYPES OFCOMMUNICATION

Non-Verbal Communication

Verbal Communication


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NON-VERBAL COMMUNICATIONMany times non verbal behaviour ofparties conveys a different messages.Words can conceal as well as reveal.Non-verbal communication is morespontaneous and under less consciouscontrol and therefore can provide a more

accurate portrayal of disputants thanverbal communication alone. It isimportant to recognize that verbal andnon-verbal communication interact eitherin congruent or incongruent ways. Someof the important aspects of non-verbalcommunication are as under :-

Half of the humancommunication is non verbal.

People communicate stronglywithout words.

Feelings, thoughts and attitudes can be comm

Reveals emotions, feelings without giving informatio

Relevant for gathering essentialinformation beyond the content of what is being s

Awareness of non verbalcommunication helps to understand others be


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Types of Non VerbalCommunication

A. Active Listening.

B. Body Language.

C. Questioning.

D. Silence.

E. Empathy with


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A ACTIVE/EFFECTIVE LISTENING

The basic purpose of a mediator is to act

like a facilitator of communicator

between disputants. A mediator can

guide the process in appropriate

direction by careful & accurate listening.A mediator needs to be highly effective

listener. The basic attributes of active

listening are as under :-

Involves long discussions fromspeaker but brief, calm responsesfrom the listener.

No interference with speakersthought.

Quality to be a good listener isfundamental.

Listening to hear, not to answer.

To understand meaning behindwords.


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i) PURPOSE

It creates a safe environment.

It facilitates rapport with theparties.

It facilitates focus on relevantissues.

Its demonstrates unconditionalacceptance regardless of thebeliefs, ideas and conduct of

the parties.It identifies and summarizeseach persons ideas,perceptions and issues.

It clarifies the basic problems

and issues.


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ii) GUIDELINES FOR A MEDIATOR

Look at the speaker. Keep the other persons in view to observe their reactions. But maintain eye

contact with the speaker.

Exhibit interest in whatspeaker is saying. Draw thespeaker out.

Lean slightly toward thespeaker.

Physical movement to aminimum.

Listen for what is NOTbeing said.

Observe HOW things aresaid.

Dont jump to the conclusion.

Dont rush to find a solution.

No mind chattering.


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iii) BARRIERS TO ACTIVE LISTENING

a). DistractionsNoise, discomfort, interruptions, tiredness,boredom, preoccupation with own problems,impatience.

b). Pre-judging

Someone as foolish, unqualified orunhelpful.

c).Blaming

d).Dreaming

e).Advising

f).Disagreeing/Arguing

g).Being Directive


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B. BODY LANGUAGE

Appropriate body languageindicates that the listener isattentive.

It conveys to the speaker that

I am listening

I am interested

You are important

I care


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SOLER

SOLER is key element of non-verbal communication indicating tothe speaker that listener is giving fullattention.

S Face party with shoulders square - Show full concentrate to the speaker.

O Adopt an Open posture - Show you are open to hear and accept whatthe party wants t o say.

L Sometimes Lean gently towards A sign of being involved. th

E Maintain Eye contact - Shows continu ing attention and

R Be relatively Relaxed - Because your attention is genuine.


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POSITIVE AND INHIBITINGBEHAVIOURS

POSITIVE NEGATIVE

Posture and

Body movements relaxed; Stiff; Tense; Upright; Well-balancedTurning away from

speaker

Eye Contact Comfortable, being Evasive; staring at

Gestures Open; relaxed and Waving arms;nervous; c

Facial expressions Pleasant; Jaw loose; Tense

Voice Low and medium Loud; High Pitch;

Special Relationship Proper distance hesitant too close; toofar.


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C. QUESTIONS

Used to elicit the crucialfacts and to uncoveremotional currents.

Appropriate use ofquestions is essential inmediation.

To be used sensitively.

Timing and context areimportant.


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i) Basic purpose

Show Mediator is listening;

Gather and organize

information;

Encourage parties to talk;

Show empathy and

support.

ii) Questions should not be :-

Indicate partiality, judgment,

criticism

Irrelevant

Interrogative


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ii i) Types of Questions

a). Open questions

Encourage the speaker to talk and to open up.

Allow the parties to control direction ofdiscussion.

Allow the parties to present views and ideas

from their own perspective.Facilitate options generation.

examples: Tell me more about subject

What happen next

What suggestion do you have

b). Closed questions

Seek specific and preciousinformation.

Encourage the speaker to stop talking.

Response will be either yes or no or avery short response.

Useful for checking or clarifying.

Examples: What date did youagree for the delivery

Where did you meet last

How much was the


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c).Hypothetical Questions

Allow parties to explore ideas and options.

Example:What would happen if .

What could it look like if you

could.

d). Leading questions

Less appropriate as indicative ofmediators prospective.

Lead the party towards mediators own

answer.

Mediator must be cautious about injectinghis opinion.

Example:A right solution here is to do x, isnt it?

Dont you think it might be better to

e) Multiple QuestionsPose more than one question at a time.

Lead to confusion.

Example:What did you think when she first


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D. SILENCE

A mediator is required tounderstand the relevance of pausesand silences of the parties duringmediation. Sometimes an importantpiece of information is revealed aftera period of silence.

Silence can be helpful to thespeaker because it:

Allows the speaker to dictate the pace of

Gives time for thinkingbefore speaking

Enables the speaker tochoose whether or not to go on.

Silence can be helpful to the listenerbecause it : -

Demonstrates interest, respect andpatience

Gives an opportunity to observe thespeaker and pick up non-verbalclues


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E. EMPATHY WITH NEUTRALITY

A capacity to

understand a situation fromanother person's point ofview and conveying that

understanding without expressing agreement or

disagreement with that

person.

No sympathy.

Be consistent in gesturesto both parties.

Do not draw into emotions

of the story.


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Non-judgmental acknowledgement

I understand your position I see what you are saying I hear your point

Words and phrases not to beused

Yes

Oh-Oh

Okay

Nodding head up anddown


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VERBAL COMMUNICATION

Consolidate,draw together and demonstrate understanding of what has been said.

*Establish a foundation for

moving forward.


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Types of Verbal Communicationa) Acknowledgment

Reflect back a persons statement or position.

Convey that the mediator has accurately heard andunderstood statement/ position

b) Restatement

It is restatement of facts what a party has said by amediator. It allows a mediator to check his ownunderstanding. It let the parties to know that amediator has heard them.

Frequently used to ensure that mediator hasaccurately heard statements of parties.

Mediators may use same or similar words.

c) Summarizing

It is a summary which brings the crux of what aperson has said. It is always required for a mediatorto summarize at the end of each session i.e. privateand joint session. The summary is not mediator'sinterpretation of what a party has said. The basicattributes of summarizing are as under:-

Restate essence of statement of a party regardingissues, positions, or proposed terms of settlement.Briefly, clearly and accurately.

A mediator must be accurate, brief, neutral,complete.

It links and brings some order to confused andfragmented thoughts and feelings.

Not interpretation of mediator about what had beensaid by the parties.

Express active listening of mediator.


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d). Neutral Re-framing

It is an important and specialized communicationskill. It is changing the words used by a speakerin a different complexion so as to allow thesituation to be viewed differently and more

positively. It is a technique that opens uppossibilities for progress. It enables the parties tosee thing differently. It encourages a shift inposition with flexibility leading to breakthrough forsettlement.

Restatement of comments expressed by a party inneutral words leaving out inflammatory or highlycharged words.

Steer disputants away from blaming others, oreach other.

Removes negative overtones and move theprocess forward.

Use positive language rather than negativelanguage.

Used when a party makes adversarial statement;uses inflammatory words; or engages in apersonal attack.

Use statements which help the parties focus onthe future.

Ease communication.Identify issues objectively. Describe the problemas mutual rather than the fault of one party or theother.


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e) Setting An Agenda

It is necessary for a mediator aftersummarizing the prospective of each party to helpthe parties to create a list of problems and issueswhich need resolution.

Use to establish the order in which issues,positions, claims, defences or proposed term will beaddressed.

Determine which issue need to beaddressed first so to provide ground work for laterdecision making.

When tensions are high, select the easyissue to work on first.

Separate short- term from long- term issues.

*use to organize information; to determine priorityof issues of a party.

f) Deferring

It is used to postpone a response to a question orstatement by a party. It may be used in thefollowing situations:-

Where a party or advocate requests a prematureevaluation. (it is too early, yet to get full facts).

To follow an agenda established by Mediator.

To gather additional information.

To de-fuse hostile, inflammatory, or highlyadversarial statements.


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g) Re-Directing

It is a communication technique used by amediator to shift the focus of party from onesubject to another. Re-directing may be used to:-

Re-focus on general issues,party expecta-tions or

goals.Respond to a hostile, inflammatory or highlyadversarial statement by a party or attorney.

h) Changing the Messenger

In conflictual relationships suggestions by one

party are usually discounted by other party.

If same suggestion is comes from a third partythan it is more readily accepted.

A mediator can solicit ideas from one side andcommunicate ideas/ suggestions to the other.

It should be done in caucus.


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5. MANAGING FLOW OFCOMMUNICATION

Stick to the speakers subject.Give the speaker time to finisheven if mediator wants to saysomething else.

A mediator should not be tooquick to move even when thespeaker repeats things.Subject may be/is veryimportant to the speaker andfeel that mediator really heardhim on subject.

Be comfortable with silence.


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Barriers of Communications

Ordering, directing, commanding

Warning, Threatening, Promising

Moralising Preaching, Shoulds and Oughts

Advising, Giving Solutions or Suggestions

Teaching, Lecturing, Giving Logical Arguments

Judging, Criticizing, Disagreeing, Blaming

Praising, Agreeing

Shaming, Ridiculing, Chastising

Interpreting, Analyzing,Diagnosing

Reassuring, Sympathizing, Consoling, Supporting

Probing, Questioning,Interrogating

Withdrawing, Distracting, Humoring, Diverting


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BARGAININGS

In mediation, the parties worktowards a negotiated agreementassisted by the mediator. It isimportant for a Mediator tounderstand different types ofBargainings involved in negotiation.In every negotiation different types of

bargainings are involved eitherindividually or in combination withother types of bargaining. It is atechnique to handle conflicts. Itstarts when the parties are ready todiscuss settlement terms. Due toappropriate bargaining, broad ideasand structures turn into potentialsolutions.


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DIFFERENT TYPES OF BARGAININGS


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i. Rights Based Bargaining

Customary and traditional.

Focus on right and wrong. Parties refer their

legal rights as basis for resolving theirdisputes. (eg. who breached thecontract, who was negligent)

Blame oriented analysis.

Factual and legal analyses based uponassessment of fault.

ii)Positional Bargaining

It is characterized by primary focus of theparties on their positions. It is the basicpattern of negotiation and is often the firstmethod people adopt.

Customary and traditional.

Focus on legal position and offer to settle.


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iii)Distributive Bargaining

It is a customary, traditional method ofbargaining. In distributive bargaining, theparties are dividing a fixed resource. Itmay lead to an impasse becausesometimes parties do not explore

creative solutions for agreement. It takestime and parties may take extremeposition.

Focus on allocation of fixed limitedresources between parties.

Distribution of pie

iv)Integrative Bargaining

It is a bargaining in which the parties'expand the pie' by exploring additionaloptions and possible terms of settlement.It involves creative problem solvingtechniques. It helps the parties toovercome an impasse by exploring theadditional resources of settlement.

Exploration of resources outside those atstake in the controversy.

Resources are expanded.

Trading of additional resources outside

the framework of initial negotiation.


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v)Interest-based Bargaining

It is developed as mutually beneficialagreement based on the facts, law and

interests of the parties. It is acollaborative negotiation strategy leadingto mutual gain for all parties. It preservesor enhances relationships.

Focus on underlying interests of theparties.

Parties consider various interests suchas timing, finality, control over theoutcome of negotiation, relationships,costs, privacy etc. for mutual gains.


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a) Benefits

Parties are more satisfied about

fairness of process.

Parties tend to become morecommitted for agreement.

Parties develop greaterunderstanding and respect for eachother.

Agreement set as a precedent forfuture conflict.


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b) Mediator Tasks

i) Raise issue

Issues are problems. Positions areunilateral solutions of the problems.

To solve problem raise issue.

ii) Discover underlying interests of parties.

Ask questions to find out underlying

interests.Listening.

Identify from experience and context.

Iii) Priorit ize interests of parties

Identify important and urgent interests of

parties.

Ask parties to rank their interests.

Ask about reasons of underlyinginterests.

It helps to shift balance from win-loseposition to win-win interest based

problem solving.


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iv) Invent options for mutual gains

Develop options as many as possible

Build on each option

Generate possible solutions which couldsatisfy underlying interests of parties.

v) Develop agreements based on underlying

interests of partiesEvaluate options as potential solutionsbeing workable, equitable for bothparties.

Focus the parties on their highest priorityinterests.


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NEGOTIATION


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i)NORMS OF HUMAN BEHAVIOUR

People rarely make a decision if there is any

way to avoid it.People usually act out of self-interest.

When two people have a dispute, it cant beresolved until both parties decide to resolve it.

When two people have a dispute, they cantresolve it until some of the mistrust has beeneliminated.

People tend to carry out decisions which theyformulate.

People do not like to be told what to do.

Disputes are not resolved by dwelling on thenegative. They are resolved by discoveringpreliminary areas of agreement, accentuatingthe positive, and expanding small agreements

into larger ones.No settlement is entered into without somedoubt or reservation.


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ii) DEFINITION

Process of bargaining between two (ormore) interests.

Defined as the process of reciprocalcommunications between the participantsfor the purpose of achieving or satisfying aparticipants claims, need or interests in theface of competing, claims, needs orinterests.

It helps the parties to arrive at anagreement which is as satisfactory aspossible to both parties.

It involves a complex set of humanbehavior requiring an understanding ofcommunications, persuasions,

marketing, decision making andbehavioral theories, psychology,economics, assertiveness, conflictresolution methods and above all flexibility

and creativity.


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Any negotiation based onmerits & interests of the parties areprinciples of negotiation. Thenecessary elements of principles ofnegotiation are as under :-

a).Separate people from theproblem.

b). Be hard on the issues and soft onthe people.

c). Focus on interests.

d). Create variety of options.

e). Rely on objective criteria.


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iii) APPROACHES TO NEGOTIATIONS

There are two types of approachesto negotiations.

1. Competitive

2. Co-operative

Co-operative negotiator isaccommodating, straight forward,

courteous and civil

Competitive negotiator is aggressive,hostile and uncompromising.

A good negotiator mixes bothapproaches according to thecircumstances of the negotiation.

Both are not mutually exclusivealternatives.

Neither approach is inherently moreeffective than the other.


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iv) CHARACTERSTICS OF ANEGOTIATOR

CO-OPERATIVE COMPETITIVE

1. Maximizing settlement for client 1. Maximizing settlement for client

2. Getting a fair settlement 2. Tough

3. Avoid litigation 3. Dominant, forceful, aggressive

4. Maintain good relationship 4. Ambitious, egotist,arrogant, clever

with opponent

5. Assess the case accurately 5. Made a high opening demand.

6. Adopt realistic position 6. Took unreasonable opening7. Listen and evaluate opponent 7. Not interested in the needs of

position opposite parties.

8. Understand interests of opponent 8. Willing to stretch the facts.

9. Forth right 9. Reveal information gradually.

10. Share information 10. Rigid

11. Reasonable, logical 11. Careful about the

12. Tactful and sincere

13. Courteous and friendly

14. Constructi ve, well organized,

wise careful, facilitative

15. Offered creative opt ion


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v) Comparison between effective andineffective Negotiator.

EFFECTIVE INEFFECTIVENEGOTIATOR NEGOTIATOR

1. Experienced 1. Inexperienced

2. Realistic 2. Lacking in analyticalskills

3. Ethical 3. Unrealistic

4. Rational 4. Non convincing

5. Perceptive 5. Non cooperative

6. Analytical 6. Out of control

7. Skillful 7. Discourteous andunfair

8. Prepared on law and facts 8. Non perceptive

9. Creative 9. Irrational


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vi) ESSENTIALS FOR ANEGOTIATOR

A negotiator must know the strengths and weakness

A negotiator should examine the interests, needs and

A negotiator should know the underlying interests a A negotiator enters into the negotiations with confidence

A negotiator should demonstrate thereasonableness and acceptability of theproposals.

A negotiator demonstrate why last proposal is in t

A negotiator tries to achieve better result for the parties

A negotiator maintains the future relations with the opposit

A negotiator reduces the risks and liabilities.

A negotiator know how to close the gapbetween proposal and counter proposal.


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A negotiator know how and when to present

A negotiator should understand the negotiati

Listening is the most powerfulnegotiation skill.

Prepare options for mutual gains.


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vii) BARRIERS TONEGOTIATIONS

Despite best efforts sometimesnegotiations reach at impasseresulting into substantial andavoidable costs of the parties.

The parties realise that theresolution of disputes can servethem better but still they do notreach to the settlement.

A negotiator should examine whythe negotiations failed and then heshould try to overcome barriers to

resolve disputes.


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Different Types of Barriers

a). Strategic barriers

b). Principal-agent barriers

c). Cognitive barriers

d). Psychological barriers


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a). Strategic Barriers

When one party takes calculated steps tomaximize one sided gains.

It arises from the tension between the selfinterests and the joint gains- how will theparties divide a fixed pie.

Many times intentional use of secrecy anddeception to gain advantage may have theopposite effect.

2.Principal and Agent BarriersAn agent negotiating for the principle mayinduce behavior that fails to serveinterests of the principal.

It is due to conflict of interests betweenthe agents goal and objectives and thoseof his principles.

A mediator helps the parties inovercoming strategic barriers by inducingthe parties to reveal information abouttheir underlying interests, needs, prioritiesand expectations.

A mediator helps the parties inovercoming Principal-Agent barrier bybringing real decision maker (Principal) to

the table and help him understand his owninterests.


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3.Cognitive Barriers

Some times parties create a barrierto dispute resolution because theirrisk assessment do not factor in thereasoning court decision. The

parties tend to be averse to riskregarding gain and would ratherhave a certain gain then anuncertain larger gain. The peopleare ready to bear risk with regard toloss. They would avoid a certainloss and take a risk of greater loss ifthere is some chance of avoidingthat greater loss. Some partieswould rather postpone a certainloss (Settlement) for an uncertainresult in the future (Trial). A goodnegotiator will assist the parties and

opponents in addressing theserealities. A mediator helps inovercoming cognitive barrier byemphasizing potential gains and de-emphasizing or dampening thelosses.

4. Psychological Barriers


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Many times unwarrantedassumptions about themotives and intentions of theother parties can create a

barrier.

Due to this reason decisionabout accepting an offer ismade with uncertainty and

risk.

A mediator helps inovercoming psychological

barriers by owning thesource of the proposal.


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viii) Mediator as Negotiator

Mediator is a neutral person.However mediator can utilizenegotiation experience and skillfor benefit of parties in followingmanner:-

a)Understand negotiation tactics

being used by parties.

b)Manage parties expectations.

c)Use creative problem solvingtechniques.

d)Exchange information tactically,to maximum effect.

e)Helps the parties past hurdles tomake first offer.


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ix) Overcoming common problem

in negotiation

Reason For Negotiation Mediator - techniques &

Failure or Breakdown approaches

i)Poor negotiation skills Help parties with framing

ii)Unrealistic Expectations Reality testing

iii)Issues of Principles Focus parties on practical

considerationsiv)Emotions, ego, pride Acknowledge and allow

v)Failure of communications Act as a conduit for clear

vi)Poor decision making Shape the agreement

vii)Settlement panic help parties to visualizesa future beyond dispute


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x) Questions Not Conducive

To Constructive Negotiation

Whats your side of story?

I want to know your

version of it?

What is your explanation?

What are you claiming?

You are alleging what.?

What do you want?

What you are thinking?


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Words Not Conducive ToConstructive Negotiation

Fault

Blame

Delay

Take it or leave it

Expressions of frustration

Dead end statements

(e.g., That wont do it)

Reactive statements.


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IMPASSE


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IMPASSEImpasse means and include stalemate,stand off, deadlock, bottleneck, barrieror hindrance.

Sometimes parties fail to reach an

agreement resulting in deadlock.Impasse may not be due to overt conflictbut rather due to resistance to workablesolutions or exhaustion of creativity.

Parties are free to stick with a position.

There may be legitimate reason forimpasse.

Mediator not to pressure the parties for asettlement.

There may be a tactical deadlock. It

may be used to create pressure onopposite party.

Parties may think that dispute isirresolvable in mediation but mediatorbelieves that a workable agreement isstill possible.

Goal is to help the parties analyse andnegotiate constructively.


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1). TYPES OF IMPASSE

a). Emotional

- Personal animosity

- Mistrust

- Pride- Ego

- Fear of losing face

- Vengeance

b). Substantive

- Lack of knowledge of facts and law

- Limited resources

- Lack of bargaining powers

- Incompetence

- Third Parties

- Standing on principles

- Adamant attitude

c). Procedural

- Lack of authority

- Power imbalance- Mistrust of Mediator


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ii)Stages when an impasse could be created :-

a).At the time of opening statement

It may be due to refusal of party toparticipate in mediation or by causinginterruptions or due to other reasons.

b).In a Joint Session.

It may be due to accusations madeby parties against each other.

It may be due to use of abusivelanguage or by making inflammatory

or provocative statements.

c).In a private session or caucus

It may be due to proposal offered by aparty which is entirely in his favour andinterests.

d).At the time of arriving at or drawing up of thesettlement.

It may be due to either or both partiesbeing adamant about the wording, formate andcontent of the settlement.


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iii)TECHNIQUES TO BREAK IMPASSE

A) Substantive

a) Lateral Thinking

Creative, innovative, intuitive, non-linear and non-traditional.

Shifting of thinking pattern away from predictablethinking which is logical, linear, traditional, rationalto new or unexpected ideas.

Used when parties want to move from one knownidea to creating new ideas.

b) Brainstorming

Invent/generate new options giving moresatisfactory response to the interests ofparties/mutual satisfaction or gain.

Evaluate options for agreement.

Methods to Create Options

Separate problems into smaller segments. Found

simpler solutions for each segment.Encourage a tentative approach to proposedsolutions.

Separate inventing from deciding. Invent first,decide later.

Expand most promising ideas.

Look for mutual gain by expanding pie.


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c) Real Testing/ Reality Check

Many often parties believe that litigation is the only and best option to secure their interests

Mediator compares settlement offersboth monetary and non-

monetary to possible outcome at trial. It is examination of the specific consequences that will

result for each party in the evenof the non-settlement.

To be done in private caucus.

Introduce real testing when parties are in difficulties while negotiating and mediator anticipates hard bargaining or adamant stand.

It helps a party to reassess theirposition and emotion and seen in

a cool and dispassionate light.

It involves a party to make fullassessment of future risks time,money, other if the dispute isnot settled.

It helps parties to take a realistic

approach to the negotiations.


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Methods

BATNA (Best alternative to a negotiatedagreement)

Whether settlement offer is close to, equals,or exceeds the best outcome at trial, after

adjusting for litigation expenses of trial, therisk of losing and the delay in resolving adispute.

BATNA permits far greater flexibility andallows much more room for innovation than apredetermined line.

WATNA (Worst alternative to anegotiated settlement)

Comparison of pending settlement offerto the worst projected outcome at trial.

Important to determine whether asettlement offer exceeds a partys worstpossible outcome at trial.

MLATNA (Most likely alternative to anegotiated agreement)

It reflects most probable outcome at trial.


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Benefits of Real Testing

It assists the parties in making a

balanced and systematicevaluation of their alternatives tosettlement.

It acts as a measurement scalefor parties to evaluate settlementoffers.


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d) Reactive devaluation

A psychological factor that occurs when aperson reacts negatively to offers or counteroffers suggested by the opposite party.

Technique to handle

Take ownership with consent of the party

Suggest a possible offer or counter offerwithout attributing it to any particular person.

e) Integrative Bargaining

Investment of resources outside those atstake in the controversy explore.

Resources are expanded.

Possibility of trading additional resourcesoutside the framework of initial negotiation.

f) Deferring

Use to postpone a response to a question or

statement by a party. It may be used in thefollowing situations:-

Where a party or advocate requests a prematureevaluation. (it is too early, yet to get full facts).

To follow an agenda established by Mediator.

To gather additional information.

To de-fuse hostile, inflammatory, or highlyadversarial statements.


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g) Re-Directing

It is a communication technique used by amediator to shift the focus of party from onesubject to another. Re-directing may be usedto:-

Re-focus on general issues, partyexpectations orgoals.

Respond to a hostile, inflammatory, or highlyadversarial statement by a party or attorney.

h) Changing the Messenger

In conflictual relationships suggestions by oneparty are usually discounted by other party.

If same suggestion is comes from a third partythan it is more readily accepted.

A mediator can solicit ideas from one side andcommunicate ideas/ suggestions to the other.

It should be done in caucus.


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B) Procedural

A mediator can also take recourse to any or all of thefollowing procedural techniques to break an impasse.

Joint Session

Warn the participants/ bring the parties together toacknowledge the situation

Solicit any `last ditch efforts

Changed atmosphere/use humour to relaxatmosphere

Revisit issues, or areas of agreement.

Proceed with preferably an easier issue

Ask parties about cause of an impasse.

Ask parties to suggest options to overcome thedeadlock.

Praise work and accomplishments of parties.Ask parties to have a conference by themselveswithout intervention of any person including mediator.

Be a catalyst

Change the subject and move to other topics.

Try role-reversal

Propose hypothetical offers.

Suggest (or threaten) ending the mediation.

Suggest third party/ expert intervention.

Allow emotions to emerge.

Use humour.

Take a break.

Assure the parties that if no settlement is reachedthen case would be referred back to the court for trial.


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BARRIERS TO DISPUTE RESOLUTION

There are barriers to dispute resolution, therecognition of which helps to move themediation process forward in a positive way. It

also helps a negotiator to break the impasse.

Inadequate Planning and Preparation.

False First Impressions and Perceptions.

Grief.

Systemic Distrust.Failure to Communicate and Listen.

Insufficient Focus on Underlying Interests.

Partisan Perception, Judgmental Overconfidence,

and Wrong Baselines.

Reactive Devaluation.

Misunderstanding the Loss/Risk Analysis.

Failure to give Opponents Face, Respect, and

Dignity.


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EFFECTIVE MEDIATOR

Listens and responds courteouslywith understanding

Acknowledge parties issues andpositions

Encourage parties to make theirown decisions

Analyse parties presentation

Ask relevant and insightfulquestions

Probes for clarification

Keep track of new information and

changing positionsRelaxed, Alert

Demonstrate skill and confidence


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Effective Mediator

During the Mediation

Area of Competence Overall approach Detailed work

Relationship Creates an environment Develop Communication

conductive to mediation & interaction with parties

Process Establishes & maintains Manages the process

an effective working structure & phases of mediation

Content Facilities the parties in Facilitates momentum &

creating solutions and progress through active

moving towards settlement engagement with the


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INEFFECTIVE MEDIATOR

Allow interruptions

Fail to handle interruptions

Allow parties to cross talk

Failed to hold caucus at

appropriate time

Rushing through process

Fail to follow stages of mediation

Joint session at wrong time.

Fail to communicate with parties.


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SOME DO'S FOR EFFECTIVEMEDIATION

Believe in the process and believe in the people.

Be familiar with the facts and the issues.

Develop a suitable opening that covers the role ofthe mediator, the principles of mediation.

Be brief, confident, positive and flexible

Show empathy, build rapport, reinforce neutrality,and do so equally with the parties

Encourage parties to make an effective openingstatement

Spend time clarifying the issues in disputeAcknowledge emotions and allow feelings to bevented

Encourage all to contribute to the proceedings

Check if there have been previous settlement offers

Have patience, let the parties own the problem andthe solution

Listen a lot

Build momentum

Encourage the parties to communicate with eachother

Devote time and patience to the drafting stage

Keep the door open if the mediation does not settle

Maintain your energy; take breaks; look afteryourself, physically and emotionally


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SOME DON'TS FOR EFFECTIVEMEDIATION

Don't be fazed, and if you are don't let it show

Don't get swamped by detail

Don't appear to be a judge or arbitratorDon't suggest

Don't impose your solution

Don't take lots of notes

Don't make assumptions aboutparties, causes, merits or fairness

Don't criticize poor preparation,presentation or negotiation by parties

Don't interrupt

Don't play devil's advocate

Don't put a party into a corner with no exit

Don't give up

Don't press for settlement at any cost

Don't be too hard on yourself if the mediation does not s


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QUESTIONS MOST COMMONLYASKED ABOUT MEDIATION BY

ADVOCATES.Question 1. If both the lawyers are settlement minded then whythe case should be sent to another professional i.e.mediator forsettlement?

If the parties or lawyers can work together andsettle the case quickly, amicably and inexpensively in that case, t

arrive at their own agreement.

Question 2. With all the economic pressure on my practice, will thegrowth of mediation cut into my income?

The quick settlement of dispute in a mediation can add newclients and help the lawyer to accept new brief. It is noticed that advocatesare not paid for approximately 30% of their litigated work. Eventhe advocates can get fee while working as a negotiator.

Question 3.I know mediator should not give legal advice. How can the p

It is correct that a neutral mediator should not give advicei.e.to tell the client what to do or what decisions to make.Even if a mediator does give legal information, mostclients benefit from individual legal information.

Question 4.I just got myself first mediation case. What should I do?

If you had sufficient training and feel comfortable as a mediator th


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ROLE OF LAWYERS INMEDIATION

The role of lawyers in mediation hasbecome increasingly important as societyviews mediation as an effective alternativedispute resolution mechanism to litigation.The lawyer is a well informed champion ofthe client, advising on the law andprocedure, articulating the clients' views to

others, and above all, pursuing the clients'best interests at all times. It is a commonbelief that in mediation, the participation ofadvocates is optional and/or that they haveno role to play. The advocates play anactive role during the entire mediationprocess. Mediation cannot be successful

without active participation of the advocates.The parties going into the mediationprocess both need and expect, their lawyersto understand the dynamics of conflict andthe process itself. The lawyers have acentral role in making mediation work fortheir client in a constructive, creative andproductive way.


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The participation of a lawyer is required inmediation in following ways :-

1) Client preparation and participation.

A lawyer should prepare his client for participationin mediation. A well prepared client can

participate in mediation effectively.

2) Interests and posit ions.

A mediation session is not a trial based on legaland factual positions. It is facilitated negotiation. Alawyer should use active listening skills; payattention to body language; use information

divulged by other party to assist his client. Alawyer should act as a problem solver. A lawyershould move the parties from positions tointerests.

3) Reality Test

A lawyer should know the BATNA and WATNA of

the client. It will help the client to decide about theproposed parameters of a negotiated settlement.

4) Prepare the Case

A lawyer should explain the mediation processincluding stages of mediation to the client. Alawyer should prepare client for participation in

the mediation process. He should talk aboutpossible settlement options before the mediation.


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USE OF APOLOGY INMEDIATION

Use of apology plays an importan

Documents

Mediation Training Manual