BASIC MEDIATION AS A METHOD BASIC MEDIATION AS A METHOD OF ALTERNATIVE DISPUTE OF ALTERNATIVE DISPUTE

RESOLUTIONRESOLUTION

Department of Labor Department of Labor National Professional Development ForumNational Professional Development Forum

September 13, 2007September 13, 2007

Presenters: Vern Best – (Presenters: Vern Best – (vern.best@eeoc.govvern.best@eeoc.gov))Veta Hurst – (Veta Hurst – (veta.hurst@eeoc.govveta.hurst@eeoc.gov))

Alternative Dispute Alternative Dispute ResolutionResolution

(ADR) (ADR)

Alternative Dispute ResolutionAlternative Dispute Resolution (ADR) (ADR)

ADR uses a variety of voluntary techniques to resolve disputes rather than traditional adversarial methods, like litigation.

ADR TechniquesADR Techniques

• Mediation• Facilitation• Fact Finding• Early Neutral Evaluation• Ombudsmen• Settlement Conferences• Mini Trials• Peer Review• Combination of Techniques

Alternative Dispute ResolutionAlternative Dispute Resolution(ADR)(ADR)

• EEOC’s regulations require agencies to establish or make available an ADR program for both:– The pre-complaint process; and– The formal complaint process.

Core Principles of ADRCore Principles of ADR

• Voluntary

• Neutral

• Confidential

• Enforceable

Core Principles of ADRCore Principles of ADR

• Voluntary

– Both parties must agree to participate in ADR.

– A settlement agreement must be acceptable to both parties.

– The parties may end ADR at any time.

Core Principles of ADRCore Principles of ADR

• Neutral

– An objective, impartial third party who has been trained in ADR techniques and EEO law.

– The neutral has no power to decide the dispute.

Core Principles of ADRCore Principles of ADR

• Confidential

– Confidentiality in any ADR proceeding must be maintained by the parties and the neutral.

– The terms of the settlement agreement will not be confidential unless the agreement contains a confidentiality provision.

Core Principles of ADRCore Principles of ADR

• Enforceable

– The settlement agreement must be in writing and signed by both parties.

– Settlement agreements are enforceable by the EEOC.

Mediation DefinedMediation Defined

Mediation is a process in which an impartial third party assists disputants in finding a mutually acceptable solution to their dispute.

Mediation is both voluntary and confidential.

Third Party AssistanceThird Party Assistance

• Mediator as a Facilitator of Process

• Mediator as Neutral

• No stake in outcome

• No position on issues

Mutually Acceptable SolutionMutually Acceptable Solution

What would satisfy the parties?

How can their needs be met?

The Process is VoluntaryThe Process is Voluntary

No obligation to mediate.

No obligation to reach an agreement.

ConfidentialityConfidentiality

Parties sign confidentiality agreements.

Why is confidentiality so important?

Mediator bound by confidentiality.

Factors Favoring MediationFactors Favoring Mediation

Desire to avoid adverse precedent.No need to establish precedent.Need to avoid publicity or need for confidentiality or privacy.Desire for speedy resolution; need to avoid delay.

Need to preserve continuing relationship.

Recognition that emotions or hostilities may bar a settlement.

Desire to minimize risk of imposed outcome.

Need to reduce high cost of litigation.

Existence of collateral issues that may enhance resolution in a mediation forum.

Position BasedPosition Based vs. vs.

Interests BasedInterests Based

Position vs. InterestsPosition vs. InterestsA DefinitionA Definition

• POSITIONS are what a party feels, believes or wants. They are proposed solutions for the party's issues.

• INTERESTS are why a party feels, believes or wants a certain thing. They describe what is important about the issue. They may or may not have solutions yet, but they are open to possibilities.

Questions to Determine a Questions to Determine a Party’s InterestsParty’s Interests

• What is important to you about this issue/ this action/ this party?

• What bothers you about this situation?

• How does the other party/ the action affect you?

• Could you explain why this issue/action means so much to you?

Stages of MediationStages of Mediation

Stages of MediationStages of Mediation

• Stage I– Pre-Mediation & Opening the Session

• Stage II– Identification of Issues

• Stage III– Generating Options and Problem-Solving

• Stage IV– Agreement Writing and Post-Mediation

Stage IStage I

“Setting the Tone”

This is the most important phase in the mediation process. It provides you with the opportunity to make a good “first impression.” How the mediator(s) performs during this phase will impact either positively or negatively on the remaining mediation process.

Stage IIStage IIIdentification of IssuesIdentification of Issues

With mediator’s assistance, parties will:

Identify issues in their disputes Express their views and perspectives Identify areas of agreement and disagreement

on the issues Identify common ground

Note: this stage does not include reaching agreement or selecting options to resolve disputes.

Elements of Stage IIElements of Stage IIJoint SessionJoint Session

In opening, mediator will:

Explain what will happen at Stage II

Remind parties they will have time to present their

perspectives

Establish ground rules

Mediation Ground RulesMediation Ground Rules

• Established by mediator– Whoever is speaking has floor, no interruptions– Take notes and bring point up later– Any party can stop process for break at any time

or request a caucus– Negotiate in good faith; our common goal is to

resolve dispute– Listen– Follow ground rules and direction of mediator

• Other ground rules requested by parties• Ask parties to commit to ground rules

Elements of Stage IIElements of Stage IIJoint Session (continued)Joint Session (continued)

• Complainant presents views• Mediator paraphrases what s/he heard complainant

say• Respondent/Agency presents views• Mediator paraphrases what s/he heard

Respondent/Agency say• Mediator asks parties to “add or clarify, not respond”• Continue back and forth until parties feel they have

expressed their views• Mediator summarizes common ground

Elements of Stage IIElements of Stage IIIndividual SessionsIndividual Sessions

• Individual Caucuses with each party

• Agenda setting for new Joint Session; What can be shared with other party?

Elements of Stage IIElements of Stage IIJoint SessionJoint Session

• Return to Joint Session

• Repeat Elements of Stage II as needed

CaucusesCaucuses

• Used by mediator to:– Gain control of mediation– Allow party to vent or share information– Ensure party heard/understood what was

said– Move beyond impasse– Provide an opportunity for each party to

explore strengths/weaknesses of case

CaucusesCaucuses(continued)(continued)

• Used by mediator to:– Provide an opportunity for party to explore

strengths/weaknesses of other party’s case– Find out more on party’s interests– Reinforce confidentiality– Encourage information sharing– Set agenda for next joint session– Identify information that can be shared in joint

sessions

ValidationValidation

• Mediator acknowledges party’s views and feelings on the issue, while remaining neutral.– “I understand you feel hurt and upset

about…”– “I understand your feelings in this matter.”– “I can empathize with your concerns about

what happened.”

Open-Ended QuestionsOpen-Ended Questions

• To facilitate discussion, the mediator asks open-ended questions.– “Help me understand what you meant

by…”– “Can you be more specific?”– “What do you mean by that?”– “What’s important to you?”– “Why is that important to you?”

ParaphrasingParaphrasing

• Paraphrasing is critical to the mediation process.– Mediator re-states what was said in his/her own

words– Not verbatim, instead provide a shorthand

summary which includes all-points made– Ensures everyone heard what party intended to

convey– Parties may correct mediator’s paraphrasing

ParaphrasingParaphrasing(continued)(continued)

– Builds trust, demonstrates mediator was listening and understood what was said

– Coming from neutral mediator, facilitates understanding by other party

– Provides “breather” as parties go back and forth expressing views

Stage IIIStage IIIGenerating Options Generating Options

&&Problem-SolvingProblem-Solving

Generating OptionsGenerating Options

• In individual sessions clarify what are the parties’ bottom line.

• Mediator may offer a solution not as an answer, but as an idea to think about.

• Ask parties “what if” questions.

Generating OptionsGenerating Options

• Brain Storming Techniques– May be used by the parties to develop

options.– The parties throw out ideas.– After the ideas are on the table, the parties

discuss.– Hopefully this discussion of ideas will lead

to an agreement.

Generating OptionsGenerating Options

• Reality Testing– Technique used by the Mediator to assist the

individual party in evaluating the practicality and feasibility of their goals.

– Mediator enters evaluative mode. Discuss strength and weakness of individual Party’s case.

• Feedback– Validate what party expressed through use of

verbal or non-verbal response. – Paraphrase re-state what party said in your own

words.

Stage IVStage IVAgreement Writing Agreement Writing

&&Post-MediationPost-Mediation

Basic Mediation Skills for Basic Mediation Skills for Federal AgenciesFederal Agencies

www.eeoc.govwww.eeoc.govwww.eeotraining.eeoc.govwww.eeotraining.eeoc.gov