third pacific regional mediation forum june 2012 mediator strategies & interventions michael...
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Third Pacific Regional Mediation ForumJune 2012
Mediator Strategies & Interventions
Michael Wall & Chuan NgFederal Court of Australia
Mediator Strategies & Interventions
Architecture of the SessionKeeping the Flame of Mediation Alive by:• Customising the mediation process to the case (not a
cookie cutter approach)• Flexible use of joint sessions and the caucus:
establishing mediator authority, building rapport and managing communication
• Adopting strategies for overcoming psychological & cognitive Barriers
• Addressing merits barriers
Mediator Strategies & Interventions
Mediator’s Overriding Goals :
• Facilitate effective communication
• Shift thinking/ perceptions
• Narrow gap
• Generate movement
• Resolve differences
• Achieve consensus
Structure the Mediation
• Fit the Forum to the Fuss: Aligning the Mediation structure/ process to the issues/ parties.
• Pre Mediation? • Joint (open) session: A meeting of all
participants in the mediation• private (caucus) session. A private (and usually
confidential) meeting outside the larger group
Joint Session : Opportunity
• For mediators– Gain insight – Demonstrate leadership– Set tone– Be transparent– Impartiality?
• For lawyers– Demonstrate skill– Access decision maker
• For parties– Be heard– Listen– Exist party-to-party– Gain understanding– Evaluate
Caucus : Respite
• For mediators– Reality testing– Coaching– Fixing mistakes– When the issue is not the
issue?– Mutual partiality?
• For lawyers– Real advice– Strategize
• For parties– Respite from joint– Reactive devaluation– Explore
Setting the Tone & ‘Conditioning’ the Parties
§ Use specific skills to temper the potential negative aspects of competitive bargaining – e.g.
§ Educating about how offers may be perceived § Educating about the timing of offers § Assisting with packaging and presenting offers § Helping parties reflect on patterns of concession making § Softening the negative impact of hard-ball tactics
§ Return to a focus on ‘needs and interests’ to deal with impasses in negotiations
§ Creating a ‘seize the day’ approach§ Establish deadlines; create sense of urgency § Persuasion through ‘conversation’ not ‘preaching’
Interventions to Facilitate & Promote Communication and Movement
§ Model interest based communication during the process by:
§ Talking about ‘issues’ rather than attributing blame § Providing positive feedback § Seeking clarification rather than assuming intentions § Exploring reasons for actions § Being future focused§ mediator as a calming influence§ mediator sends signals of flexibility§ mediator discloses interests and floats ideas
Cognitive & Merits Barriers
• Advocacy Bias• Partisan (selective) perception• Overconfidence/ over optimism (exaggerated over
confidence)• Over investment (sunken cost)• Mis wanting / Loss Aversion• Reactive devaluation • Zero sum bias
Cognitive Barriers
Mediator Interventions
Reframing
• “The Map is not the Territory”
• Perceptions & Understanding filtered by
Experience, Values and Expectations
No one sees things from all points of view
Organisational Life Perceived & Experienced Differently by Individual Members
The six blind men
Mediator Strategies to address cognitive barriers
- Third Position Questioning & Role Reversal
– Questions rather than statements
– Unbiased summarising
– Mutualising
– Bringing the other into the room
– Hear & acknowledge before a challenge or request
– The mediator’s dance
– Talking about what is ‘achievable’ rather than what’s ‘reasonable’
– Focus on the issue rather than the behaviour
– Reframing
– Expansion of information exchange
– Broaden the party's perspective
– ‘Expand the pie’: look for additional issues
Cognitive Barriers
• Reframing can shift focus from:
- power/ problems to interests. - positions/outcomes to interests- attacks on people to solving problems- accusations into issues- general to specific and specific to general - negative to positive- destructive to constructive- past to future- differences to common interests- offer to option
Merits Barriers – interventions
• Mediator Strategies for responding to merit barriers
- Case Analysis/ risk assessment
- Decision Tree (Analysis)
- BATNA (test is not ‘fair’ or ‘reasonable’)
- Goal Setting / Risk Analysis
- Reality Testing & Doubt Creation
Psychological Barriers Strong Emotions
SilenceSilence ViolenceViolence
Masking(sarcasm; sugar coating etc)
ControllingCoercing others; dominating conversation; cutting others off; speaking in absolutes; changing subjects;
AvoidingSteering away from sensitive topics
LabellingStereotyping people or their ideas; criticising their style or their demeaning their ideas
WithdrawingExit the conversation or exit the room
AttackingBelittling and threatening; challenge competence or expertise. Threaten to walk: no deal.
Psychological Barriers Strong emotions
Mediator Interventions to balance emotions and reason include:
- “Go to the Balcony”- Interruption- Naming (the behaviour)- Questioning - Clarifying- Summarising- Acknowledging- Mirroring- Correcting- Diverting- Priming (suggest/ hypothetical)- "What If"/ Suppose that- Role Reversal- Perceptual Positioning (move to second person)- Reframing- Make decisions based on risk assessment and not moral judgment