Mediation

A Familiarization Program

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Dr. Chia Ho Beng
bizchb@nus.edu.sg +6591877580
 Which are the keywords

I had learnt the true practice of law. I had learnt

to find the better side of human nature and to
enter men's hearts. I realized the true function of
a lawyer was to unite parties riven asunder. The
lesson was so indelibly burnt into me, that a large
part of my time during the twenty years of my
practice as a lawyer was occupied in bringing
about private compromises of hundreds of cases.
I lost nothing thereby -- not even money,
certainly not my soul.
Mahatma Gandhi, 1927

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
Mediation Which are the keywords

The process by which the participants

together with the assistance of a neutral
person or persons, systematically isolate
disputed issues in order to develop options,
consider alternatives, and reach a
consensual agreement that will
accommodate their needs.
Folberg and Taylor
Dr. Chia Ho Beng
bizchb@nus.edu.sg +6591877580
Mediation
The process by which the participants
together with the assistance of a neutral
person or persons, systematically isolate
disputed issues in order to develop options,
consider alternatives, and reach a
consensual agreement that will
accommodate their needs.
Folberg and Taylor
Dr. Chia Ho Beng
bizchb@nus.edu.sg +6591877580
 Why?
Mediate conflicts between subordinate or between
team mates instead of deciding for them
Mediation is facilitated negotiations
Why?
o Teach them to negotiate
o Refuse to reward upward delegation
of decisions and issues
o Send a clear message that they are responsible to
manage differences and dilemmas via negotiations

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Mediation process

Mediators opening statement

1st Joint Session
1st Private Session
2nd Joint session
Other private sessions

Agreement / Closing

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Pre-mediation
PAST Conference
Understanding
Opening
and Exploring
Parties Statements
Summarizing & Prioritizing
Agenda
Exploration of Issues

Private Sessions

Joint Negotiation Sessions

Private Sessions
Agreement &
Problem Solving Close
& Resolving
FUTURE Enforcement
 Dr. Chia Ho Beng
bizchb@nus.edu.sg +6591877580
 Some Pointers

Start with a strong mediators opening

Frame the mindset towards cordial
problem solving
Frame the mindset for satisfying interest
rather than rights
Frame the role of mediator as neutral
facilitator

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Mediators Opening Statement

Welcome / Introductions
Goal of mediation
Role of mediator
Explain mediation process
Guidelines for conduct during mediation
Authority to settle
Sign mediation agreement
Commitment to begin
Dr. Chia Ho Beng
bizchb@nus.edu.sg +6591877580
 Write a Mediator's Opening Statement

Write a mediators opening statement

o You can modify this to fit a negotiations or for difficult
conversations
The statement should not last more than 10 mins
Use the LEADR mediators report as a guide
In pairs read it out, and critique
o Whats good; What to delete; What to revise

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Dr. Chia Ho Beng
bizchb@nus.edu.sg +6591877580
 The
First
Joint
Session

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 First Joint Session
6 Stages
1. Parties statement
Reframe, summarise & paraphrase
2. Identification common ground
3. Identification of issues
4. Prioritize issues
5. Exploration of issues
6. Identify preliminary options

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 1st Joint Session

Parties statements
Party 1 tells story
then mediator reframes and summarizes
Party 2 tells story
then mediator reframes and summarizes

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 1st Joint Session
Parties tell their stories
Identify common ground
List issues (preferably as
questions)
Prioritize Issues
Get parties to prioritize issues
according to importance

Explore in greater detail and specificity the issues

Identify a few options

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Whiteboard Layout
Common Interest

Issues Options

State issue as a problem to be solved

State issue as a question
Explore the who, what, when, where, why?
Is this correct? What do you mean by? Can you clarify?
Anything else to add?
How can we satisfy both parties needs?

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
Video: SousChef or
Sue Chef
Mediator: Sir Lawrence Street

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
Role Play
Michelle Feh

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
The 1st Private
Session

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Private Session: Why?

Obtain confidential private information

Beyond positions:
Explore underlying needs & issues
Highlight common interest
Explore options and zones of agreement
Reality test
Positions, BATNA, options

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Private Session: How?

Explain purpose
Parties
explain who first and why
other party may take time to prepare
refreshments
give other party something to do

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Private Session
Explain confidentiality
Invite to tell more
Reframe, Summarise
Get party to brainstorm for
options on the issues listed

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Private Sessions

Reality test positions and options

Ask why? why not?
Will other party accept?
What if there is no agreement here?
Tell them that the legal outcome is probabilistic

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Private Sessions

Check authority to disclose

any information that may not be confidential
Persuade / coach parties into putting viable
options on the table
Help craft apologies
limited specific apologies are easier

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Private Sessions: When?
After joint session
As and when need arises
Parties dont abide by ground rules
Parties are obstinate / at impasse

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Private Sessions: Who?

Party alone
Party and all or some of assistants
(including lawyers)
Mediator(s)

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Option Generation

Treat each issue separately

Look for needs/interests
behind positions
Use brainstorming
Introduce options
only after the parties
have given theirs

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 Option Generation

Ask what if..

Ask why options are rejected
Ask how else can needs be satisfied
Ask reality testing questions
Ask for contingent agreement

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
The 2nd Joint Session

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 2nd Joint Session

Encourage direct communication and negotiation

Framed as joint problem solving
Refer to the issues on the whiteboard
Encourage parties put up options:
assist to generate
list of whiteboard

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
 2nd Joint Session

Ask
Why? Why not?
How can we get around this problem?
If problem A can be solved would you agree?
Do not advise!
Check off each issue settled
- let parties feel that there is progress

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580
Closing
Summarise
final outcome
Parties and/or lawyers to
write up points of agreement
sign points of agreement
consider formal documentation
Mediator to
hand back documents
destroy notes

Dr. Chia Ho Beng

bizchb@nus.edu.sg +6591877580