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Flashcards

Mediation Exam

Bernelee Carlson Inglês 79 flashcards

Flashcards do conjunto (79)

  1. 1What are the aims of ADR according to the NADRAC Guide- Resolve or limit disputes in an effective and efficient way,
    - Provide fairness in the procedure,
    - Achieve outcomes that are broadly consistent with public and party interests.
  2. 2What are the 7 principals for resolving disputes according to the NADRAC Guide1. Self-responsibility
    2. Early resolution is good resolution
    3. Listen and participate
    4. Good information leads to good decisions
    5. Use ADR and then the courts
    6. Ask questions about ADR
    7. Know about ADR.
  3. 3What are the 3 main types of ADR according to the NADRAC Guide1. Facilitative Process (such as mediation) where the ADR practitioner assists the participants to reach an agreement by themselves. The ADR practitioner does not provide advice or make decisions.
    2. Advisory Processes (such as evaluation and some forms of conciliation) where the ADR practitioner gives the participants expert advice to assist them with reaching an agreement themselves.
    3. Determinative Processes (such as arbitration) where the ADR practitioner listens to everyone and then makes a decision much like a judge.
  4. 4What does dispute resolution processes involve- Prevention,
    - Negotiation,
    - Mediation,
    - Ombudsman,
    - Conciliation,
    - Neutral Evaluation,
    - Arbitration,
    - Litigation (Courts/Tribunals).
  5. 5Mediation is a process where the participants involved (with the assistance of a mediator)- Listen to and are heard by each other
    - Identify the disputed issues
    - Identify the needs, goals, wants and desires that underline the disputed issues
    - Develop options to satisfy needs, goals, wants and desires
    - Consider other processes to resolve the dispute
    - Aim to reach an agreement, if an agreement is appropriate
  6. 6What are the different types of mediation- Transformative mediation,
    - Evaluative mediation,
    - Narrative mediation,
    - Settlement mediation,
    - Facilitative mediation
  7. 7Transformative mediationThe key elements of transformative mediation are empowerment and recognition.
    Empowerment meaning capacity for participants to make their own decisions,
    Recognition meaning the capacity to see the other parties perspective and be responsive.
    This mediation is focused on the clients not so much the outcome of the process.
  8. 8Evaluative mediationWhere a mediator with substantive expertise focusses on the rights, entitlements, industry standards and norms
  9. 9Narrative mediationNarrative mediation originates from the therapeutic framework where clients identify their own problems and resolutions through story telling.
    Language is crucial in this process as a 'reality creating device'
    There are 2 crucial processes included:
    Deconstruction: deconstructing the conflict stories by undermining the certainties on which the conflict feeds and invites the participants to view the plot of the dispute from a different vantage point, AND
    Externalisation: parties objectify the issues and treat them as a seperate entity apart from them. Once the problem has been externalised, the mediator and participants can work together and co-write a new narrative in which the parties work together.
  10. 10Settlement MediationWhere a high status mediator makes procedural interventions to steer the parties towards a compromise position.
  11. 11Facilitative mediationWhere a skilled mediator assists the parties to negotiate around their interests to explore the problem and develop options upon which they can agree (basically just facilitating a conversation)
  12. 12Family Law and Family Dispute Resolution- Mediation is mandatory for children's matters under Family Law Act,
    - Mediation is not mandatory for property settlement however a magistrate asks whether ADR has been tried and may send them off to do ADR before attending court,
    - Family Dispute Resolution Practitioners are the only mediators allowed to do FDR
    - FDRP's have to do a diploma in FDR and do supervised work under a senior FDRP,
    - FDRP has to be registered with the A-g Office and work under the Family Dispute Resolution Practitioners Obligations set out in the Family Law Act.
  13. 13Commercial mediationThere is a departure from the use of litigation to resolve disputes,
    There are trends emerging showing that businesses try to preserve the commercial relationships and maintain their focus on the business without the stress and damage that could be done to their reputation through litigation.
  14. 14Workplace mediationCan be used for any workplace dispute and between any members of the workforce for example:
    - Dissolution of Business ventures,
    - Human Resource Issues,
    - Bullying,
    - Sexual Harassment,
    - Unfair Dismissal,
    - Job Dissatisfaction and
    - Co-worker Relationship Issues
  15. 15Cross Cultural Mediation: What includes culture- Countries
    - Suburbs
    - Workplace
    - Families
    - Religion
  16. 16Cross Cultural Issues- A theoretical approach to conflict resolution must also take account of cultural issues, and must address complex and controversial questions of social justice, structural conflict, structural violence, and social inequity.
    - people from the same culture have more or less equivalent realities and mindsets. Their values, assumptions, and procedures become part of "common sense" for them.
    - However, when two parties that do not share norms of communication [customary patterns and rules of communication] and expectations about behaviour must interact, they often clash
    - Conflicts can be cross-generational and historically based. A conflict in one area may therefore impact on other aspects of community life. For example, a native title claim may be linked to housing issues and lead to family disputes
    - mediator cannot assume anything in performing cross cultural mediation, and do not underestimate the impact of different cultural contexts
  17. 17What are the elements that impact Cross Cultural mediationSome of the following cultural differences are suggested by to have the potential to impact on the mediation process:
    - Language and verbal communication
    - Body language and non-verbal communication
    - Attitudes towards physical space and personal boundaries
    - Approaches to time
    - Approaches to problem-solving and negotiation
    - Attitudes towards privacy and involvement of third parties
    - Acceptance of compromise and concession
    - Relationship values
    - Roles of lawyers and other professional advisers
  18. 18What is meant by transforming conflict- The goal should not be to eliminate conflict but instead to transform it.
    - To change how we deal with our differences, from adversarial to side by side problem solving.
  19. 19What are some of the positive aspects of conflict- Prevents stagnation
    - Encourages communication
    - Encourages creativity and innovation
    - Stimulates interests and curiosity
    - Provides for problems to be examined
    - Motivates and promotes problem solving
    - Assists in personal growth, identity, development
    - Promotes group identity and cohesion
    - Stabilises and integrates relationships
    - Releases tension
    - Provides the basis for personal/social change
    - Promotes awareness of the needs/wants/preferences
  20. 20What are some of the negative aspects of conflict- Provokes anger/anxiety/stress/fear/aggression
    - Breaks down relationships
    - Creates dysfunctional patterns of interaction
    - Obstructs problem-solving
    - Hinders self-development
    - Breaks down team cohesion
    - Encourages entrenched position taking
    - May provoke self-destructive behaviour
    - May provoke violence: verbal, psychological or physical
  21. 21Explain the Moore spheres of conflict and what are considered as causes of those conflictCauses of relationship conflict:
    1. Miscommunication,
    2. Strong emotions,
    3. Stereotyping,
    4. Repetitive negative behaviour
    Causes of data conflict:
    1. Lack of information,
    2. Misinformation,
    3. Differing views on data's relevance,
    4. Different interpretations of data
    Causes of interest conflict:
    1. Perceived or actual competition over interests,
    2. Procedural interests,
    3. Psychological interests
    Causes of structural conflicts:
    1. Unequal authority,
    2. unequal control of resources,
    3. time constraints
    Causes of value conflicts:
    1. Different ways of life, ideology or worldview,
    2. different criteria for evaluating ideas.
  22. 22Types of responses to conflictDifferent people respond differently to conflict.
    1. Fight:
    - irritability,
    - loss of temper,
    - defensiveness
    2. Flight:
    - avoidance,
    - anxiety,
    - fear
    3. Freeze:
    - numbing,
    - detachment,
    - giving up easily
  23. 23What are the different conflict management styles- Forcing conflict style where the user attempts to resolve conflict by using aggressive behaviour,
    - Avoiding conflict style where the user attempts to passively ignore the conflict rather than resolve it,
    - Accommodating conflict style where the user attempts to resolve the conflict by passively giving in to the other party,
    - Compromising conflict style where the user attempts to resolve the conflict through assertive give and take concessions,
    - Collaborating conflict style where the user assertively attempts to jointly resolve the conflict with the best solution agreeable to all parties.
  24. 24What is Positional Based BargainingThis is a negotiation strategy that involves the holding onto a fixed idea, or position of what you want and arguing for it and it alone regardless of any underlying interests.
    Tactics include:
    - coercion,
    - force,
    - threat of force,
    - prolonging the process
  25. 25What is Interest Based BargainingThis strategy focuses on developing mutually beneficial agreements based on the interests of the disputants.
    Interests include the needs, desires, concerns and fears important to each side
    Tactics include:
    - collaborating,
    - active listening,
    - principled negotiations,
    - problem solving focus
  26. 26What is principled negotiations in interest based bargaining1. Separate the people from the problem
    2. Focus on interests, not positions
    3. Invent options for mutual gain
    4. Insist on objective criteria
  27. 27What are the 7 elements of negotiationIdentify Interests
    Identify Relationships
    Identify Alternatives
    Options
    Legitimacy
    Commitments
    Communication
  28. 28Explain what BATNA and WATNA isBATNA- best alternative to a negotiated agreement
    WATNA- worst alternative to a negotiated agreement
    Note: Know what is important and what your options are.
  29. 29Communication is everything 1 of 3- Issues in communication are what CAUSE all conflicts and effective communication RESOLVES conflict
    - Communication is what makes a negotiation or a mediation successful or not
  30. 30Communication is everything 2 of 3- Skills of a Mediator
    - Active Listening
    - Being able to hear the commitment or interest behind what is being said
    - Being able to reduce the emotional intensity of what is being said
    - Capacity to Reframe
    - Masterful in using open questions
  31. 31Communication is everything 3 of 3- Mediators have a responsibility for all facets of communication at every step of the Mediation process.
    - They must discover their own biases, become highly emotionally intelligent and self-aware.
    - They must engage in a never ending discovery of what is impacting how they are listening and practice listening actively in every mediation session.
  32. 32What are factors that shape your communication- Culture
    - Values
    - Education
    - Experience
    - Emotional state
  33. 33What detracts from actively listening- Focusing on facts,
    - Favouring one client over the other
    - Asking too many questions,
    - Being judgmental,
    - Being reassuring,
    - Advising,
    - Diagnosing,
    - Lapsing into clichés,
    - Slipping into sympathy;
    - Interrupting
    - Finishing the parties sentences
  34. 34What are the four broad responsibilities for mediators when assisting with communications dynamics1. Model communication – speaking and listening
    2. Intervene – potentially with silence, or questions
    3. Educate the parties in effective communication techniques.
    4. Foster an environment that encourages effective communication among all participants.
  35. 35Communication techniques in mediation include- Reframing: people communicate with a frame of reference based on how they see the world. The goal of reframing is to change this frame of reference in order to get the parties to see things in a different light. Reframing works by the mediator using different words, terms or emphasis and qualifying what the parties said in order to provide a different frame of reference.
    - Paraphrasing: where the mediator closely controls the dialogues by picking up important issues and reflecting the salient points back to the parties, often through use of clarifying and empathetic questions and reframing done in an even handed way to both parties communication.
    - Summarising: recapping important points of the discussion and identify the dominant feelings of the parties.
    - Transitioning: helping the participants transition from mediation to party communication to party to party communication so that the parties can talk directly about different aspects of the conflict and the identified agenda items.
  36. 36What are the different types of questions- Closed questions: answer is usually yes or no and used to obtain facts.
    - Open questions: encourages disclosure, reflection and negotiation.
    - Loaded questions: "How long have you been harassing the other party?"
    - Hypothetical questions: seeks to elicit feelings about opinions, possibility and hypothetical situations.
    - Problem-solving questions: use the language of a solution rather than a problem.
    - Elaboration questions: to seek more information.
    - Clarifying questions: to clarify incomplete or vague statements.
  37. 37Why does a mediator need mediation techniques and need to ask the right questions- Mediation techniques and questions asked are all important because it allows the mediator to keep a 'favourable climate' in the session, and
    - clients need to feel safe and able to negotiate in mediation.
  38. 38What are the critical aspects of mediation- Mediator is neutral
    - Mediator is impartial
    - Mediator does not give advice or make decisions
    - The mediation process is confidential
    - The mediation process is private and privileged
    - Self-determination
  39. 39Why is the mediation model used for the mediation process- Used as a framework for the mediation process
    - The structure can give order and predictability
    - It can be used the slow down the process
    - Can give clients a sense of security regarding how the mediation will be conducted
    - Defines the role of the mediator
    - Can be flexible
  40. 40What is pre-mediation and what are the 2 stages of pre-mediation preparationPre-mediation is the preparation process that takes place before joint mediation session commences.
    There are two stages of pre-mediation preparation:
    1. Preliminary organisation & administration also called the ‘intake process’ and
    2. Organisation and set up on the day- prior to commencement
  41. 41What is the aim of pre-mediation1. Documentation:
    - ensuring the confidentiality undertaking and agreement to mediate is signed by all the participants,
    - directing preliminary exchanges (in legal or commercial mediations),
    - ensuring payment of mediator's costs and have been agreed
    2. Assessment:
    - becoming aware of the context of the dispute and potential attendees,
    - assessing the suitability of the dispute and parties for mediation,
    - conflict of interest check (assessing your own suitability),
    - informing participants about mediation process and role of the mediator,
    - where appropriate referring the participants elsewhere for prelim advice,
    - ensuring participants have the authority to settle,
    - build rapport with the clients
    3. Arrangements:
    - arranging for attendance on the day by support people where appropriate,
    - ensuring any additional requirements of participants can be accommodated,
    - ensuring all parties are prepared for participation in the process,
    - arranging for a suitable time and venue.
  42. 42What is the Six Stage Model1. Mediators opening statements
    2. Parties Initial statements
    3. Definition of the problem (Agenda Setting)
    4. Discussion and exploration
    5. Generation of options, negotiation and problem solving
    6. Final decision making, recording and closure
  43. 43What is Stage 1 of the Six Stage Model and explain what it involvesStage 1 Mediators Opening Statements:
    - Start the session; greet and seat all participants,
    - ask how to address the participants,
    - explain the process and everyone's role (including support people),
    - authority to settle,
    - sign agreement to mediate if not signed,
    - explain confidentiality,
    - ground rules/building rapport and creating constructive climate for negotiation,
    - questions and ask if everyone is ready to start.
  44. 44What is Stage 2 of the Six Stage Model and explain what it involvesStage 2 Parties Initial Statements:
    - Mediator asks each party to speak to the mediator uninterrupted,
    - Agreement from participants who will start,
    - Acknowledge and thank each participant after their turn,
    - Ask second participant not to respond at this stage but rather let the mediator know what it is that he or she is here to discuss,
    - After each participant has made their statement the mediator summarises each statement and ask if the summary is correct or if anything has been missed.
  45. 45What is Stage 3 of the Six Stage Model and explain what it involvesStage 3 Definition of the problem (Agenda Setting):
    - Uncovers the participant's concerns, interests, needs and priorities,
    - Brings order and structure to the problems,
    - Provides mediator with an opportunity to assist parties in developing an agenda,
    - Explain that there is no particular order of agenda items and is not limited,
    - equal opportunity to contribute,
    - Allows all issues to be addressed,
    - Has to be neutral, mutual and future focused
  46. 46What is Stage 4 of the Six Stage Model and explain what it involvesStage 4 Discussion and Exploration:
    Provides parties with the opportunity to
    - expand upon their story,
    - exchange views or perception,
    - identify interests,
    - explore issues in light of the interests,
    - establish an informed and solid foundation to ensure the generation of options.
    Note: Reframe what the participants say to each other (open ended questions)
  47. 47What are private sessions and how do you facilitate onePrivate sessions is a private meeting between one participant and the mediator. If you are going to do a private session you must:
    - Spend equal time with each party
    - The mediator can check in with the participant how the mediation is going for them.
    - Remind each party at the beginning of the session that it is
    confidential
    - Give them a chance to have a break.
    - Given them a chance to feedback to you.
    Note: Make sure the participant that is waiting is comfortable and settled. If appropriate do a role reversal or gentle confrontation or reality checking in a safe manner.
    COMPLETE STAGE 4 (Exploration phase) AFTER PRIVATE SESSIONS.
  48. 48What is Stage 5 of the Six Stage Model and explain what it involvesStage 5 Generating Options, Negotiation and Problem Solving:
    Assist parties to:
    - generate creative options for resolution.
    - reality test options and alternatives.
    Mediator asks questions to:
    - Work out the details of the options.
    - Define responsibility.
    - Find out timeframes.
    - Define locations and tasks.
    - Facilitate the discussion between the participants.
    - Mediator’s duty is to let people leave with an agreement that will hold up in reality.
  49. 49What is Stage 6 of the Six Stage Model and explain what it involvesStage 6 Final Decisions Making, Recording and Closure:
    - Determine the extent to which the mediator will participate in post mediation services
    - Write the terms of the agreement? Or send it out later? Who will write up the agreement, the participants, lawyer, mediator?
    - Will the parties sign the agreement in the mediation session or later?
    - The terms can include a timeframe for finalising the agreement.
    - Mediator to ask questions about what will happen with the agreement after the mediation?
    - Then Complete the process:
    Before closing the mediation session ask clients what they would like to do:
    - No agreement reached participants do not want to come back.
    - Agreement reached, what will they do with the agreement?
    - Part agreement reached participants will come back for more mediation.
    - No agreement reached participants will come back for more mediation.
    - Acknowledge and thank the parties,
    - Remind clients of confidentiality,
    - Refer clients to other professionals if appropriate,
    - If they want to come back make arrangements,
    - Close the session.
  50. 50What is the role of the mediator- To assist the parties to have a respectful, even handed discussion and decision making process.
    - To be a neutral third party.
    - To maintain a ‘favourable climate” for this kind of discussion and process
    - To enable the discussion to progress through use of the process
  51. 51What are the aims of interviewing in mediation- Obtaining information
    - Understanding perceptions
    - Understanding feeling
    - Assessing the potential for ‘movement’
    - Understanding the goal of the individual
    - Assessing the individuals capacity
    - Assessing the individuals suitability for a particular process
    - Establishing an appropriate relationship
    - Assisting the party to re-evaluate and possibly reframe the dispute
    - Assisting the party to prepare for the resolution process
  52. 52What is the difference between legal and pre-mediation interviewing- When you interview clients for pre-mediation you are less concerned with asking questions of fact or opinion than with creating an environment conductive to disclosure and reflection, and facilitating disclosure and reflection.
    - The interview can be a tool for clients to get clear on their needs and interest or to start thinking about it. A lot of people are not clear on their needs and interests.
  53. 53What are the steps involved in the Interviewing ProcessStep 1:
    Is all about preparing for an interview, consider
    - awareness of the power you hold and the rights of the client,
    - talking with clients and seeking permission for interviewing and recording,
    - set up a room that is appropriate for the interview,
    - have a checklist of things you want to ask,
    - be clear about confidentiality,
    - define the purpose of the interview and how it will be conducted
    Step 2:
    - Make the client feel comfortable, key is your attitude, openness and honesty,
    - Make them aware if it will be recorded and how to access the recorded information.
    Step 3:
    This is the time to collect the information you need and explore the substance of that information.
    - ask open questions,
    - actively listen and
    - reflect
    Step 4:
    All about closure.
    - re-explain confidentiality,
    - make sure the client knows you understand their point of view,
    - make sure they understand what your role is and what they are to expect from the process.
  54. 54Responding to emotions- Emotions often arise in pre-mediation interviews. People are not necessarily able to be calm, cool and rational when dealing with matters that cause them distress or anger.
    - It is more effective to accept the clients feelings (regardless if you believe them to be justified) and allow them to be expressed (within reason), than attempt to place controls on them.
    - When people get emotional in the interview it is an opening to have a conversation with the client on how these emotions can be managed in the joint mediation session and what the mediator can do to assist the client.
  55. 55Interviewer bias- Interviewers bias is inevitable and it needs to be addressed rather than denied. You can minimise it by clarifying matters instead of assuming, apply empathy rather then judgement, be professionally detached instead of reacting emotionally.
  56. 56What are some of the disputes dealt with in mediation in the supreme court of WA- Commercial disputes
    - Inheritance disputes
    - Asbestos-related litigation
    - Catastrophic personal injury cases
    - Two parties or multiple parties
    - Unrepresented parties
    - Matters where a declaration is sought – e.g. adverse possession
  57. 57How should litigation work1. Writ
    2. Statement of Claim
    3. Defence
    4. Discovery
    5. Expert Evidence
    6. Pre-trial Directions
    7. Trial
    BUT in reality it moves up and down these steps before trial and costs A LOT of money.
  58. 58What are some of the benefits of mediations- Cost
    - Flexibility
    - Control
    - Outcomes not possible after trial
    - Private
    - Confidential
  59. 59What makes a good lawyer at a mediation- being well prepared, a lawyer should be as prepared for mediation as they are for trial
    - prepare your client, client's who feel their lawyers have prepared them for what will happen at mediation are happy with their lawyers. More than 60% of poorly prepared clients said they were pressured to settle and the rest said they did not feel comfortable during the mediation
    - being co-operative and on board
    - working hard on how an offer should be presented
    - being sensitive to your client's interests and focusing more on what is really important to them in the dispute instead of focusing on a dollar amount
    - willing to see both sides of the dispute
    - make reasonable offers
  60. 60ADR have laws and regulations for example- The National Mediation Standards
    - Family Law Act
  61. 61Why have standards- Protection
    - Quality Assurance
    - Clarity regarding rights and responsibilities
    - Complaints and Appeals
  62. 62What are some specific legal issues mediators might face- Role & Responsibilities
    - Neutrality
    - Confidentiality
    - Self-determination
    - Privilege
    - Duty of Care
    - Liability
    - Enforceability
    - Conflict of Interest
  63. 63In regards to legal issues: Confidentiality and the mediator- Confidentiality generally refers to the protection of information from access by other persons.
    - Confidentiality becomes more important as an issue when it concerns sensitive or potentially damaging of distressing information.
    Compulsion to give evidence – protection:
    - as a general principle, courts are often reluctant to allow evidence to be given from processes that were attempts at resolution of the matters brought before the courts, and
    - FDRP’s are protected under the Family Law Act from giving evidence
  64. 64In regards to legal issues: Privilege and the mediator- Under common law, information or documents disclosed by one party to the other party in a genuine effort to settle a dispute are not admissible in subsequent court proceedings unless otherwise admissible. This is called the 'without prejudice' privilege.
    - This prevents written and verbal communications made during the course of genuine negotiations conducted with a view to settling an existing dispute from being put into evidence without the consent of both parties to the communication.
  65. 65What are some of the ethical dilemma's in mediationIn regards to competency:
    - diagnosing a history of violence,
    - diagnosing mental incapacity,
    - lacking substantive or skills.
    In regards to preserving impartiality:
    - in view of relationships with participants or lawyers,
    - when relationships arise after mediation,
    - in view of a personal reaction to a party in ADR
    In regards to informed consent:
    - in cases of possible coercion of one party by the other party, by the party's lawyer or by the ADR practitioners "persuasive" measures
    When tempted to oppose a solution formulated by the parties:
    - because it is illegal,
    - because it is unfair to the weaker party,
    - because it is unfair to an outside party
    Separating mediation from counselling and legal advice.
    Avoiding party exposure to harm as a result of mediation.
    Preventing participant abuse of the mediation process by intimidation or lying.
  66. 66How can you help ensure your practice of mediation is ethical- Discover, explore and implement your values
    - Understand the ethical challenges
    - Develop confidence and strength
    - Be prepared to defend and justify
  67. 67What is the role of a lawyer in mediation and ethical issues according to the guidelines from the Law Council- to assist clients,
    - provide practical and legal advice on the process, issues raised and offers made,
    - to assist in drafting terms and conditions of settlement as agreed,
    - role may range from merely advising the client before mediation to representing the client during mediation and undertaking all communications on behalf of the client.
    Ethical issues:
    - Confidentiality, as with everything said and done in mediation is strictly confidential subject to the requirements of the law
    - Good faith, lawyers should act in good faith to attempt to achieve settlement
  68. 68Advocacy encompasses at least 7 tasks for lawyers in mediation what are these tasks1. Understanding the mediation process and ensuring the client understands the process.
    2. Understanding the role that a lawyer can play at mediation and obtaining instructions on which roles is to be played.
    3. Understanding the dispute, client interest and needs and what is necessary to at least partially satisfy those interest and needs.
    4. Assisting the client to seek out lateral resolution of the dispute that may differ from or supplement the parties legal entitlements.
    5. By reference to the clients entitlements, advising the client of the likely best and worst outcomes if the disputes determined by a court or arbitration.
    6. Preparing the client for the ‘end game’ of mediation, at which a choice has to be made between accepting the certainty of the other party’s last offer and the mass of uncertainties inherent in pursuing determination of the dispute by litigation.
    7. Engaging in appropriate advocacy at mediation.
  69. 69What are some of the challenges in mediation- Confidentially
    - Expectations
    Of the mediator
    Of the clients
    - Timeframes/process
    - Staying impartial
    - Dealing with power imbalance between clients
    - When there is an ‘impasse’
    - What to do when you don’t know what to do.
  70. 70What are some strategies for dealing with power imbalance- When you detect power imbalance in the preliminary conference you can eliminate the power imbalance as much as you can. For example:
    Discuss strategy with the client. How will the client let you know they feel pressured or bullied?
    - Lawyer/expert present at joint session?
    - Support people
    - Slowing the process down e.g. refer clients to appropriate professionals before coming to the joint session.
    - Shuttle conference (when you go between rooms because the parties are not in the same room)
    - The matter might be unsuitable you keep assessing for suitability all the way through the process.
  71. 71What is a strategy to use when dealing with cynicismHave a one on one conversation with the participant and ask:
    - Why are you here?
    - What are you committed to?
    - What is the impact of the conflict on you and your business/family etc?
    - Do you think that this process can assist you? Why or why not? If not why are you here?
  72. 72What are some strategies to use if you find you are working too hard as an ADR practitioner- Let the clients know at the beginning of the session what the expectation is and that this is their process.
    - Encourage the clients to speak to each other instead of to you e.g. why don’t you tell (x)how you feel about that?
    - Use silence
  73. 73What are some things challenging clients do and what strategies can you use- Question you, challenge if you know what you are doing
    - Try to control the process e.g. when the session take place, who they will bring
    - Do not follow the ground rules, interrupt etc
    - Use body language to intimidate
    - Try to coerce you to be ‘on their side’
    Strategies:
    - Remind the clients of your role
    - Use your authority without being aggressive or disrespectful.
    - Explain to the client why you make certain decisions when appropriate.
  74. 74What are some of the indicators that show there is an impasse and what are some strategies you can use to help over come itWhen there is an impasse:
    - The participants are stuck in their positions.
    - Nothing seems possible.
    - The atmosphere in the room is not getting better and might be getting worse at this stage.
    Strategy:
    - Call for a break
    - Have a private session in which you can speak to the client about: How are they going, why are they here?, what is at stake and what happens if they will not come to an agreement?
    - Use silence
    - Work as a translator: what is the other party telling you?
    - Reality check options that have been generated
    - Drill down and get to the clients interests and needs instead of staying stuck in their positions. Make sure you do not only deal with the content of the dispute e.g. things and also deal with the process and the emotional factors.
    - Let the clients know you will not continue as this does not seem to be working for them.
  75. 75What to do when you as a mediator don't know what to do next- Call for a break
    - Speak to a peer
    - Wind up the session and reschedule so you have time to work out what to do
    - Share with clients possibly that you don’t know what to do with them next?
  76. 76What impact does the facilitator/mediator have on the process- Values
    - Assumptions
    - Body language
    - Communication – speaking and listening
    - State of mind
    - Experience/knowledge
  77. 77What impact does the facilitator/mediator have on the process: values- Values are a belief a person or group holds about what is right or wrong, good or bad, attractive or undesirable.
    - Values also include beliefs about raising children, marriage and many other aspects of human existence.
  78. 78What impact does the facilitator/mediator have on the process: assumptions- Most assumptions are unexamined or even invisible to us.
    - The problem is assumptions create limitations
    - The frames our mind create define – and confine – what we perceive to be possible. Every problem, every dilemma, every dead end we find ourselves facing in life, only appears unsolvable from a particular frame or point of view. Create another frame around the data, and problems vanish, while new opportunities appear.
    - In reality whatever assumptions the facilitator has seen or unseen, impact the process and is far more impactful than at first glance
  79. 79What are the critical skills for facilitating a processEmotional intelligence.
    Aspects of emotional intelligence include:
    - Self awareness
    - Social awareness
    - Self management (important to take care of yourself as people offload their emotional baggage onto you)
    - Relationship management
    Note: It has been proved that emotions are contagious. Therefore by employing self awareness you increase the likelihood that you can:
    - avoid catching negative emotions,
    - are prepared to deal with conflict,
    - are considering how to positively impact the situation,
    - can identify and put aside what you are dealing with while you are facilitating.

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FlashCards sobre Mediation Exam , criado por Bernelee Carlson em 16-11-2018.
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