MEDIATION

MEDIATION DEFINED
A voluntary process for resolving disputes in

which an acceptable, impartial and neutral

third party, who has no authoritative
decision-making power, assists in a face-toface meeting of the disputing parties with
the basic aim of having them reach a
mutually beneficial agreement.

HOW MEDIATION WORKS?

Mediation grants disputants the

opportunity to solve their problems by
themselves and negotiate for a
consensual settlement in an informal
and non-adversarial manner

IMPORTANCE OF THE MEDIATOR

By engaging the service of a third party
facilitator, the disputants are able to:
Communicate with each other
Share information about their interests,
concerns and priorities
Become aware of their alternatives
Generate creative options to best resolve
their problem

CERTAINTY OF OUTCOME IN MEDIATION

Disputants can determine the outcome

of their dispute instead of surrendering
control over to a third party who may
not know what works and what does
not work for the parties in their present
situation.

OPPORTUNITY FOR A MORE SUITABLE SOLUTION

Disputants have the chance to craft the best

possible solution to satisfy their respective
needs, interests and concerns.
Outcome is not restricted as to who should
win and who should lose. It is rather focused
on HOW TO LIVE THEIR LIVES IN THE
PRESENT AND THE FUTURE

PRESERVATION/RESTORATION OF RELATIONSHIPS

Discussions
are
not
focused
on
demonstrating culpability or liability of
either disputants, but rather on finding
acceptable solutions to meet the disputants
present needs. As a result, the continuing
relationship of disputants is preserved and
strained relationships are even fixed.

EDUCATIONAL

In the process, disputants learn how to

face conflict constructively. They learn
how to communicate effectively,
articulate their needs and interests
instead of turning violent, resorting to
blaming and fighting the enemy

FAST, ECONOMICAL AND CONVENIENT

Disputant need not spend time and

money preparing for and going to trial (
and later filing appeals).
Mediation proceedings can move faster
than court hearings. It can be
scheduled to suit the convenience of the
parties.

PRIVATE AND CONDUCTED IN A SAFE ENVIRONMENT

Unlike proceedings in court hearings,

discussions are not made part of public
record. It is kept confidential. The
atmosphere is non-threatening and no
outsiders are allowed to the conference

POTENTIAL TO RESOLVE MORE ISSUES AND CASES

Disputants can bring into the table not

just substantial issues, but also
procedural and psychological issues
which may not be material and
entertained in court. Related cases may
also be discussed and settled at the
same time.

MEDIATION PROCESS

Phases of Mediation
1. Pre-mediation stage
2. Mediation stage
3. Post-mediation stage

What happens during the Pre-Mediation Phase?

Why the case is referred by the court for

Mediation ( If Court-annex Mediation)

Purpose and Advantages of Mediation
Selection of Mediator
Presence of Counsels
Authority to Settle
Mediation Fees
Questions and Answers

MEDIATION STAGE
Opening Statements (Mediator and

Parties)
Joint Discussion
(Private Sessions or Caucuses)
Joint Negotiation
Agreement or Settlement

Purpose of The Mediators Opening Statement

Educate those present as to the roles of

the mediator, what mediation is and

how mediation works
Establish the Mediators Authority in
the process

Purpose of The Parties Opening Statement

Educate the mediator and the opposing

parties on the factual background of the

dispute based on their own point of view.
Parties to vent their emotions and
frustrations, thoughts or positions on how
the dispute should be resolved.

Purpose of The Joint Discussion

Establish communication between parties

- Summarizing of the opening statements

- Clarifying questions so issues can be
identified
- Assisting parties shift from their wants to
needs; from their positions to interests
- Ranking the issues according to level of
importance

Purpose of The Joint Negotiation

Parties meet in joint session for the final

offers and negotiation leading to settlement.

Mediator to:

- list points of agreement

- make sure there is no unsettled issue
- thank and commend everyone

POST-MEDIATION PHASE
Back to Court (If mediation failed or

terminated in Court-Annex Mediation)

Forward to the Judge the Mediators
Report together with the Settlement
Agreement for consideration and
judgment.
Monitor compliance of the agreement if
Mediation is successful.

Mediation Process

Introduce yourself

Welcome statements

Ground Rules During the process

Authority to settle

Voluntary

-Opening statement of mediator

-Opening statement of parties
-Joint discussion
-Joint negotiation
-Compromise Agreement

Qualifications / Clarifications

END

Disclosure

Confidentiality

IMPASSE
a situation in which no progress seems possible
a predicament affording no obvious escape
DEADLOCK

Techniques for Breaking an Impasse

According to Kenneth Cloke in his book Mediation:

Revenge and the Magic of Forgiveness , the following
are a few of the possible techniques which may
create a breakthrough:
Break the issue down into smaller parts, isolating the
most difficult issues and reserving these for later.
Go to other issues, to take a break and ask the parties
to think about the various alternatives presented.

Review the parties' priorities and common interests.

Suggest consulting and expert to supply needed facts

or advice.
Caucus with each party separately to explore hidden
agendas and willingness to compromise.
Split the difference.

Look for possible tradeoffs or change services.

Tell the parties you are stuck and ask for their help.
Ask the parties to indicate what would change or

happen if they reached a solution.

Make certain the parties prefer mediation, as
opposed to letting the conflict continue, or litigation.
If they don't find out why.
Look at the impact of various solutions on an
involved third party

Test for emotional investment in a given item by

asking what it would take to get the parties to

surrender it.
Compliment the parties on reaching earlier points of
agreement and being willing to compromise,
encourage them to reach a complete agreement and
put this dispute behind them.
Remind the parties what will happen if they do not
settle. State what each stands to lose.
Create a minute of silence for the parties to think.

Ask more questions about the problem, about

feelings, priorities, alternative solutions, flexibility,

hidden agendas, reluctance to compromise, anger at
one another, etc., or return to agenda setting.
Serve food or nonalcoholic drinks to get them to
relax.
Generate options by asking the parties to brainstorm

without considering the practicality of the

suggestion.

Tell the parties which alternative you believe is fair

and why. This should only be done if all other

options fail.
Suggest binding arbitration by a third unbiased party
as a last-ditch alternative.
Suggest that the parties increase their fighting, as a
paradox to show the uselessness of the conflict.

Other Techniques

Ask the Parties to explain their perspectives on why

they appear to be at an impasse. Sometimes, the

Parties need to feel and focus consciously on their
deadlock.
Ask the Parties, "what would you like to do next?"
and pause expectantly. Or, say "frankly, it looks like
we're really stuck on this issue. What do you think
we should do?" These questions help the Parties
actively share the burden of the impasse.

 Ask each Party to describe his/her fears (but don't appear

condescending and don't make them defensive).

Try a global summary of both Parties' sides and what they've said so far,
"telescoping" the case so that the Parties can see the part they're stuck
on in overall context. Sometimes, the impasse issue will then seem less
important.
Restate all the areas they have agreed to so far, praise them for their
work and accomplishments, and validate that they've come a long way.
Then, ask something like: "do you want to let all that get away from
you?"
Ask the Parties to focus on the ideal future; for example, ask each:
"where would you like to be [concerning the matter in impasse] a year
from now?" Follow the answers with questions about how they might
get there.

Suggest a trial period or plan; e.g., "sometimes, folks

will agree to try an approach for six months and then

meet again to discuss how it's working."
Help the Parties define what they need by developing
criteria for an acceptable outcome. Say: "before we
focus on the outcome itself, would you like to try to
define the qualities that any good outcome should
have? "
Be a catalyst. Offer a "what if" that is only marginally
realistic or even a little wild, just to see if the Parties'
reactions gets them unstuck.

 Offer a model. Say: "sometimes, we see Parties to this

kind of dispute agree to something like the

following . . . ."
Try role-reversal. Say: "if you were [the other Party],
why do you think your proposal wouldn't be workable?"
or "if you were [the other Party], why would you accept
your proposal?"
Another role-reversal technique is to ask each Party to
briefly assume the other's role and then react to the
impasse issue. You also can ask each Party to be a
"devils advocate" and argue against their own position.

Ask: "what would you be willing to offer if [the other Party]

agreed to accept your proposal?"

Use reality-checking. For example, "what do you think will
happen if this goes to court?" Draw out the emotional,
financial, and other costs of litigation and delay.
If all else fails, suggest (or threaten) ending the mediation.
Parties who have invested in the mediation often won't want
it to fail, and may suddenly come unstuck. This approach is
useful where one Party may be hanging on because he/she
enjoys the attention the process provides, or enjoys the other
Party's discomfort.

Always remember:
The goal isn't to overcome impasse per se,

but to help the Parties analyze and negotiate

constructively. The Parties are free to stick
with a position -- there may be a legitimate
reason for impasse, and it's not your job to
pressure the Parties into a settlement!

THANK YOU VERY MUCH!