Lockdown Dispute Resolution 101 #11: Learning from the art of mediation – summarising the key mediator process functions: providing a structured process and generating a positive communication environment.

Summary 1

Today’s post concludes the sequence of posts focussed on considering the ways in which mediators expertly facilitate party negotiations using the special skills and techniques of mediation practice. We summarise the key mediator process functions into two key concepts: providing a structured process and enabling a positive communication environment.

In lockdown, we need to be intentional in our own approaches to preventing, managing and resolving disputes and conflict. We will have a better chance of being successful in this endeavour if we can enact just these two factors of the way mediators practice their art.

Our lockdown communication and negotiation interactions are not usually moderated or facilitated by anyone – not unless there’s someone in the house or online who is trained as a mediator or has advanced negotiation skills – and is prepared to take on this role. This means that generally we are communicating and negotiating directly with each other, and responsibility for how effective our discourse is lies squarely with us.

If we did have a mediator in the house – what would they do to help facilitate our discussions? How would they assist us to negotiate more productively and effectively in diverse ways? How can we transfer those approaches to our lockdown communications when a mediator is absent? We have offered some answers to these questions in earlier posts this week – so now is a good time to distil the message into two key, simple-to-enact concepts: providing a structured process and generating a positive communication environment.

Providing a structured process

In the mediation room, mediators provide structure, procedure and control for the parties’ negotiations. Mediators use the process of mediation to move the parties sequentially through the logical stages of information-exchange, issue identification, agenda setting, exploration and discussion of the issues, option generation, bargaining and final decision-making.

Mediators make decisions, or assist the parties to make decisions, about, for example, how the discussions will be organised, how information will be exchanged and how any relevant documents will be managed. Mediators also play an educative role for the parties, helping them prepare for their participation in the process, coaching them through the process, and acknowledging and supporting their efforts. At the closing stages of negotiation, mediators assist the parties with making final trade-offs and packaging up agreements, with managing the last gap, with recording and documenting settlements and with formally terminating the process.

In lockdown communications we can ensure we intentionally adopt a structured process for our communications and negotiations. It is possible to use the process stages of mediation effectively for ourselves. We can start with exchanging information, then from that shared information we can identify the issues that need discussion or decision-making. We can use an agenda to structure how we explore and discuss each of those issues. We can be intentional about saying to each other – ‘let’s try and generate a range of potential viable options’. We can be careful and considerate in the way we bargain about those issues – supportively and cooperatively moving towards final decision-making.

We can also explicitly acknowledge that we need to make process decisions together. We can ask: How will we organize the discussions? How will we share and exchange information? What do we need to do to prepare ourselves for talking with each other? What cues will effectively remind us to take responsibility for acknowledging and supporting each other’s efforts?

Generating a constructive communication environment

Mediators take a positive attitude to negotiations in mediation and use their diverse skills to generate a constructive communication environment. Mediators are always optimistic that a mutually agreeable outcome can be reached. And if not a total agreement, then perhaps positive steps can be made through the recognition of common ground, and the reaching of partial agreements. In order to do this, mediators focus on mutual interests and problem-solving, they ask helpful questions and reframe negative statements; they manage the parties’ expectations and encourage settlement, as well as negate questionable negotiation tactics.

Mediators manage, reframe and ignore attributions of blame and other negative features of conflict and disputation. They support the making of apologies – which are sometimes deal-breakers in progressing negotiations. They defuse antagonism and assist the parties to engage appropriately. Mediators also promote the reciprocity principle in terms of both parties giving and accepting acknowledgements of their individual concerns, needs, fears and emotional responses. Mediators create an environment in which mutual trust is possible. They assist the parties to identify and discuss their interests and priorities, both short-term and long-term, and help them with assessing options through risk analysis. Mediators support each disputant to make careful and systematic decisions without revenge or vindication. Mediators also assist with creating a positive negotiation environment by challenging the parties’ unrealistic expectations. They organise the discussions to take place in a constructive physical environment, and control the tone and vocabulary of the communications to ensure they are as positive as possible.

We don’t need to be a nationally accredited mediator to achieve these things. It is possible in our own homes, and in online communications, to enact many of these positive strategies ourselves. We need to plan and think intentionally about our approaches – and then we just need to do it!

Tomorrow’s Blog: Learning from the art of mediation – developing a deeper understanding of conflict and disputes in lockdown.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 180-183. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.

Summary image: Shutterstock

 

 

 

This entry was posted in Dispute resolution by Dr Rachael Field. Bookmark the permalink.

About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

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